Review Justice for Vulnerable and Intimidated Witnesses in Adversarial Proceedings?

Justice depends on the public having trust in the legal organization which relies upon victims and witnesses of crime coming forward to report an incident, to provide a statement and, equally a case progresses, to give evidence in court. Keeping in mind the defendant'due south right to a fair trial which is enshrined in Article 6 of the European Convention on Man Rights, this essay is ready to discover the special measures adopted by the UK courts to safeguard the protection of vulnerable witnesses, witnesses testifying in a criminal trial, witnesses with mental or physical disabilities and witnesses who are in fear of the ramifications that follow their testimony. This essay volition become on to reverberate on the procedures that have been adopted in supporting victims and witnesses through the criminal justice procedure in the United Kingdom and what various techniques are used to balance the rights of the witness, victim and defendant. Farther analysis will so be washed to see whether the special measures and directions contravene guarantees of a fair trial.

Section 53(1) of the Youth Justice and Criminal Evidence Human activity 1999 states that "At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence". In R. five MacPherson (Ian)[1] the test proposed for who was competent to give testimony was addressed and it was decided that the test was "i of agreement, that is to say: can the witness sympathise what is being asked and can the jury understand that witness's answers?"[two] Witnesses are compellable if they may lawfully be required to provide evidence and most witnesses who are competent tin be compelled to give bear witness.[3] in low-cal of these authorities information technology is evident that a large group of witnesses are left vulnerable to compulsion to requite bear witness. These include children, and people with mental disabilities.

Vulnerable Witnesses

Vulnerable witnesses are described under Section 16 of the Youth Justice and Criminal Evidence Human action 1999 every bit one of the following: children aged under xviii; witnesses suffering from a mental disorder as per Mental Health Act 1983; witnesses significantly dumb in relation to intelligence and social functioning and witnesses having physical disability or a concrete disorder which, according to the court, may reduce the quality of their evidence.[iv]

Besides, intimidated witnesses are divers past department 17 of the Youth Justice and Criminal Bear witness Human activity 1999 as those suffering from fear or distress in while testifying earlier an open court. A court of law while deciding whether a witness is intimidated considers and asses a number of factors. These factors include the nature and circumstances of the crime, age of witness and their cultural, social and ethnic background; domestic and employment circumstances; religious beliefs or political opinions etcetera.[5] Victims of sexual offences automatically fall into this category unless they request to opt out. Similarly, witnesses to certain offences involving guns and knives are also automatically placed in this category unless they desire to opt out. Others that can be regarded as intimidated witnesses include the families of homicide victims, witnesses who self-harm or elderly or frail witnesses or victims of domestic violence or racially motivated crime.[half-dozen]

Testifying in a courtroom can evidence to be a hard or even terrifying experience as the environment of the courtroom room is adversarial, formal and unfamiliar. Cantankerous-exam by the lawyers can be unnecessarily aggressive and most witnesses lack a total understanding of the procedures. This can prove to be even more of an ordeal for vulnerable and intimidated witnesses. They may as well be frightened to testify in the presence of the accused. These difficulties can prove to be more astringent for children, people with disabilities, and victims of sexual offences or domestic violence.

The European Court of Human being Rights not only recognizes the defendant'due south right to a off-white trial just also recognizes the witnesses' rights besides. In Doorson five. Netherlands[7] the Court held that witnesses are protected by the ECHR and genuine concern in developing off-white trial procedures.[viii] Article 6 does not expressly provide for the interests of witnesses, however if their life, security and liberty are at risk and so they will fall within the telescopic of Commodity 8 of the ECHR. States should organize their criminal proceedings in such a manner that the interests of witnesses are not unjustifiably infringed. Keeping these rights in mind, the principles of fair trial as well require the interests of the defence to be counterbalanced against those of witnesses called upon to testify.

Doorson 5. Netherlands involved bearding witnesses, where the courtroom accustomed that while Commodity 6(3)(d) imposes the "minimum" right for the defence to be able to "examine or have examined witnesses confronting him and to obtain the attendance and exam of witnesses on his behalf under the same conditions every bit witnesses against him"[nine], the conditions nether which the exam takes place and the admissibility of evidence are matters of national law and the Strasbourg Court's chief concern is to consider whether as a whole the trial was fair. This ways that they appraise whether the procedures adopted in a case by a national courtroom to balance the interests of the defence force and the witnesses prevented a fair trial or not.

Special Measures for Vulnerable and Intimidated witnesses

The courtroom is an intimidating and disruptive identify for even a normal adult. To brand the experience endurable and easier for distressed, vulnerable and intimidated witnesses, special measures have been introduced by the Great britain.^[10] Even so, they are not automatically available. They have to be applied for and a vulnerable or intimidated witness volition only qualify for such special measures if the court finds that the quality and quantity of their evidence would otherwise be deteriorated if they were non given access to them. The quality of bear witness means its completeness, coherence and accuracy.^[eleven]

Section nineteen of the Youth Justice and Criminal Evidence Act 1999 provides for special measures available to vulnerable and intimidated witnesses if they qualify. These measures^[12] include:

1. Judges' and lawyers' removal of wigs and gowns
2. Aiding in communication by providing a computer or other devices to communicate
3. Using video-recorded interviews
4. Giving bear witness through a live TV link from outside the courtroom
5. Giving evidence in private in the court, without members of public present
6. Giving evidence from behind a screen placed effectually the witness box
7. Test and cross-examination of the witness via  Registered Intermediary
8. Removing the defendant from the courtroom

Some of these measures such equally removal of the wigs and gowns or providing aids of communication to physically disabled witnesses practice not raise questions of the defendant'southward right to a off-white trial. However, some of the other measures do which contravene with the defendant's right to question the evidence confronting him.

A video recording of the witness'due south interview can be submitted every bit the witness's evidence in chief. Later on the recording has been played, the witness may be cross-examined and re-examined, often by live-link. Article vi, in provides that all show be produced in the presence of the accused at a public hearing with a view to adversarial argument.^[13] Even so, this does not entail that testimony of witnesses should always exist fabricated at a public hearing in court.  In the case of Redbridge Youth Court[xiv] the courtroom unanimously held that the admission of the video interview under the Criminal Justice Human action 1988 does not infringe Article 6. The right under Commodity half dozen ensures that the accused is given a sufficient and appropriate opportunity to challenge the evidence against him, either at the time the witness was making the statement or in afterwards stages of the proceedings. When the witness does provide show through live link, or a pre-recorded interview, the defendant, through his legal representative, has this opportunity.[15]

However, the employ of special measures does put the defence on a disadvantage every bit it provides difficulty in effectively cantankerous-examining the witness. For instance, pre-recorded interviews can be edited and the use of alive links decreases the opportunity to evaluate the witness's demeanour and reduces the chances of casting doubt on the accurateness of the witness's argument.

Some other issue is the denial of cantankerous-test once a child's video interview is submitted. Department 27(iv) the Youth Justice and Criminal Prove Act 1999 provides that once the video interview is admitted and "if it appears that the child will not exist bachelor for cross-examination and the parties have not agreed that in that location is no need for the witness to be bachelor, the trial judge apparently is vested with a discretion to exclude it."[16] So the question arises that if an English court were to admit a child's video interview who was was no longer available for cross-test, would the ruling infringe Article 6(three) (d)?

In Unterpertinger v. Austria[17] the Strasbourg court held that Article half dozen(3)(d) is contravened when the defence has no opportunity to challenge the show presented against them at any stage.  All the same, in exceptional cases even the Strasbourg Court has allowed for video-interviews fifty-fifty if the child becomes unavailable for cross exam. In the case of M.Yard. v. Republic of austria[18] , the commission refused an application to summon two children to an Austrian courtroom as they were hospitalised for psychiatric handling due to suspected sexual abuse. This was decided based on psychiatric evidence that if the children were required to testify they would be caused irreparable psychological harm. The commission held that the psychiatrist'due south hearsay evidence of narrating the child's account of the abuse caused swell difficulty considering the child was non available to be questioned, but the opportunity to cantankerous-examine the psychiatrist and the other show verifying the abuse settled that the denial to telephone call the victims did not disproportionately hamper the rights of the defence. It has as well been repeatedly held by the Strasbourg jurisprudence that Article 6 does not give the defendant unlimited , unchecked correct to summon the witness into court , and it is up to national constabulary of the member land to decide whether the witness should exist called up to provide farther evidence.

Boosted questions that ascend are in context of whether the special measures such as use of videolinks or removing the defendant from the court room are compatible with the principle of equality of arms.[19] At that place should be equality of arms between the parties, so, this means that the defence has the same right to examine witnesses against them equally the prosecution has and likewise in the same circumstances. This means equality in the demonstration of each party's own show, in a style that one party must non be placed at a substantial disadvantage.[20]

The special measures indicate to the courtroom that the witness must be protected from the accused which might infringe this principle. However, the Strasbourg court has taken a highly practical arroyo to the question of the defendant's right to confront the witness and declared that the Convention doesn't provide for concrete, face up to confront interaction between the parties and witness and the utilise of video links in such circumstances has been deemed most appropriate. [21]

Through video links the accused is deprived of seeing and hearing the witness in the courtroom room live. Yet, the accused and the court can run across and hear the witness, and at the aforementioned time assess his or her demeanour and behaviour. It does not necessarily put the defendant on a disadvantage. There would be a greater risk of a trial being unfair if the witness to their best capability cannot provide bear witness if forced to give show in person. However, this implicit equality of arms rationale, has left the impression on English barrister'due south perception that evidence on videolink is less convincing for jurors. The view of Strasbourg is articulate in the case of Van Mechelen v. Netherlands[22] , where the European Court of Human being Rights condemned a prearrangement which maintained the anonymity of police officers who feared retaliations. They maintained this past being questioned past an investigating approximate, with the accused and their legal representatives in a separate room with advice just via a sound link. This prevented the defence from observing the witnesses' demeanour under directly questioning, and also from testing their reliability. It was held that this infringes Article half-dozen rights. Simply every bit long every bit the defendant can encounter and hear the witness fifty-fifty if information technology is non in person and then the off-white trial principles stand up sound.

Overall this brief essay has demonstrated the fact that how in theory special measures can infringe the rights of the defendants while maintaining the rights of the witnesses. Still, information technology has likewise shown that vulnerable witnesses who are at risk of psychological harm or who are too immature to understand and embrace the procedures of a court, may not be able to give reliable evidence if not provided with the special measures. To conclude, the agreement can sum upward that special measures provided by the English Courts does non necessarily breach the Commodity half-dozen rights but in fact helps further facilitate a more than competent fair trial where proper evidence is presented. English and Strasbourg jurisprudence both concur to that.A defendant has a right under any criminal justice system to a fair and simply trial, English and They also unanimously hold that a fair trial is one where the offered admissible evidence tin can be adequately, thoroughly and efficiently tested in the courtroom'due south quest to determine the truth about past events.

[ane] R. v MacPherson (Ian) [2005] EWCA Crim 3605; [2006] ane Cr. App. R. 30

[2] ibid

[three] The but exception relates to spouses and civil partners who are only compellable to give evidence confronting their partner in express circumstances.

[4] Section 16 of the Youth Justice and Criminal Evidence Act 1999

[v] Department 17 of the Youth Justice and Criminal Bear witness Human action 1999

[six] Corrine Charles, Special measures for vulnerable and intimidated witnesses: inquiry exploring the decisions and actions taken by prosecutors in a sample of CPS instance files, Crown Prosecution Service, April 2012.

[7] Doorson v. Netherlands (1996) 22 EHRR 330, [1996] ECHR 14

[eight] ibid

[9] ibid

[10] Section 19 of the Youth Justice and Criminal Evidence Act 1999

[11] Section xvi (4) of the Youth Justice and Criminal Bear witness Human activity 1999

[12] Supra n6

[xiii] Kostovski five Netherlands (A/166) (1990) 12 E.H.R.R. 434

[14] R. v. Redbridge Youth Court, ex p. DPP [2001] four All E.R. 411

[xv] R. (on the application of D) v Camberwell Green Youth Court [2005] UKHL iv; [2005] one W.L.R. 393

[xvi] Laura C. H. Hoyano, Hit a balance between the rights of defendants and vulnerable witnesses: will special measures directions contravene guarantees of a fair trial? Criminal Police Review. 2001.

[17] MK v. Republic of austria (1987) 24 E.H.R.R. CD 59

[xviii] MK v. Republic of austria (1987) 24 East.H.R.R. CD 59

[19] Supra 15

[xx] Dombo Beheer BV v Netherlands (A/274-A) (1994) eighteen E.H.R.R. 213

[21] Supra 15

[22]

The writer is a quondam human rights journalist and holds a law degree from the University of London.

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