§ The Minister of State, Home Office (Baroness Scotland of Asthal)The Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) contained, among other provisions, eight special measures for vulnerable or intimidated witnesses. They are essentially different ways of giving evidence in criminal trials which were designed either to improve the quality of evidence given by witnesses through reducing their levels of stress or to make it possible for witnesses who find difficulty in giving their evidence to have access to justice.
This Government have already implemented, or are piloting, seven of the eight measures. The eighth measure—visually recorded pre-trial cross-examination— was always going to be the most complicated of the measures to implement. It was also always likely to be applied to the smallest number of cases.
A number of stakeholders have expressed their concerns to us about the detail of its implementation. We therefore commissioned Professor Diane Birch, a leading academic in the field, to review and provide advice on the workability of visually recorded pre-trial cross-examination. A copy of Professor Birch's report has been laid in the Library today.
The report concludes that one of the two main reasons for undertaking visually recorded pre-trial cross-examination—that of capturing all the witness's evidence early in the pre-trial process—is no longer valid. That is because of new rules on disclosure which effectively mean that by the time both counsel are in a position to undertake visually recorded pre-trial cross-examination, they will be ready to go ahead with the trial itself.
The second reason—keeping the witness out of court altogether—is still valid. However the report concludes that rather than introduce the cumbersome mechanism of visually recorded pre-trial cross-examination many months after having visually recorded evidence in chief, it would be far more sensible to return to the original recommendation in the report of the advisory group on video evidence (1989) chaired by his Honour Judge Thomas Pigot QC. This was that the child should appear at an informal hearing, at which both the child's evidence in chief (supplemented, where there was one, by an earlier video recorded interview) and the cross-examination would be recorded on video for subsequent transmission to the court.
48WSThe report recommends that Section 28 of the 1999 Act, which provides for visually recorded pre-trial cross-examination, should be revisited. It recommends also that the operation of Section 21 of the same Act should be reviewed. Section 21 provides that under-17 year-olds who are witnesses in cases of sex or violence are given no choice in having certain special measures—such as visually recorded evidence in chief or live TV links—applied to them, whether they wish for them or not. So a 16½ year-old who has witnessed any sort of violent crime, even where he was not himself involved, would be forced to give evidence in this way.
The Government are disappointed not to be implementing one of the eight special measures for vulnerable or intimidated witnesses which we provided for in good faith five years ago. But we believe it is better to take the advice of one of the leading experts in the field and many senior practitioners, and revisit this complex issue. Our aim is to achieve genuine improvements to the way in which vulnerable and intimidated witnesses give their evidence, and this will not be achieved by ploughing on doggedly with implementation of provisions which informed advice suggests will not be practicable or yield the benefits originally envisaged.
We have therefore decided that in the autumn we shall embark upon a wider review of how child evidence is taken and presented in the criminal courts, particularly in cases involving sex or violence, with the aim of delivering the greater flexibility recommended in Professor Birch's report. This will assist in our aim of enabling measures to be more tailored to the individual witness's needs.
We are also ensuring that everything which can be done to improve the experience of those witnesses who might have benefited from the implementation of Section 28 is being done. The No Witness No Justice project will ensure that children's needs are assessed and met, so that, for example, pre-trial court visits are arranged; access to a range of emotional support and guidance through appropriate groups is offered; where possible home visits take place; and parents are provided with a single point of contact to access information and advice throughout the case. We will continue to improve court buildings so that encounters between the defendant and the child witness are minimised, for example though providing more TV live links. We will also continue to work with the judiciary and the Bar to ensure that children's needs and wishes are recognised by the courts.