Cross-Examination: In search of a New Normal

 

Since the announcement of a national lockdown on the 23rd March 2020 , all sectors have had to adapt to the ‘new normal’. The criminal courts have been no exception. Following the abrupt adjournment of jury trials after the lockdown, Crown Courts slowly began to reopen in mid-May with many redesigned to enable ‘priority trials’ to resume. Many hearings have taken place using Cloud Video Technology and socially-distanced juries and public galleries sitting in adjacent rooms. The Coronavirus Act 2020 that was rushed through Parliament provides for widespread use of video technology in criminal proceedings, by enabling witnesses, lawyers, the accused and even the judges (but not jurors) to participate by a live audio or video link. Such measures are likely to last well into 2021, but even as the pandemic and Nightingale Courts fall into distant memory, there will be no return to ‘business as usual’. While futurists continue to speculate on the longer-term implications of the ‘new normal’, our approach to criminal hearings is likely to have changed for good.

While a new digital revolution seems to be transforming the way the courts operate, those who practise in the criminal courts know only too well that long before the pandemic struck the criminal justice system was already undergoing unprecedented change. Cuts to legal aid and to HMCTS budgets have led to dire warnings that the system is unable to cope with a rising backlog of cases and that serious criminal cases are collapsing on a daily basis to the detriment of access to justice, the rule of law, fairness to defendant and justice for victims. These delays have been exacerbated by Covid-19, with some trials being listed now for 2022 as the backlog of cases in the Crown Court approaches 50,000.

Less dramatically, a quiet revolution has been taking place which has seen our adversarial system being transformed by a recalibration of the judicial role in case management and by demands that the system becomes more acutely attuned to the needs of its ‘customers’: victims, defendants, witnesses and indeed society as a whole.

In particular, there is evidence of growing public concern around the impact of cross-examination upon vulnerable witnesses, particularly children, complainants in sex cases, and those with learning disabilities. Once described by Wigmore as ‘the greatest legal engine ever invented for the discovery of the truth’, behavioural psychologists and linguists have long questioned its effectiveness as an investigative tool. But there is also concern about the trauma that can be caused to vulnerable witnesses forced to narrate events under the relentless spotlight of counsel’s questions. This has been highlighted by the media in their coverage of cases such as Ched Evans and the Belfast Rugby Trial, which exemplify longstanding concerns about the impact of cross-examination on witnesses and high attrition rates in sex cases. Although media coverage is not always accurate or well-informed, few dispute the pressing need to improve the quality of evidence – and thus the quality of justice.

Over the years successive governments have introduced various procedural and evidential reforms to enable vulnerable witnesses such as children, persons with learning disabilities or cognitive impairments and complainants in sexual offences to achieve ‘best evidence’.  The most radical of these, the introduction of pre-recorded cross-examination, is to be rolled out across Crown Courts nationally by the end of the year following piloting at six Crown Court centres. Such special measures help alleviate some of the stress and anxiety associated with testifying. But it has also been acknowledged among the judiciary and advocates themselves that there is a need for more fundamental changes to the nature of cross-examination itself. Spearheaded by the senior judiciary and the Court of Appeal, cross-examination is fast shifting away from the traditional ‘advocacy’ model geared towards winning cases towards a ‘best evidence’ model, wherein cross-examination is used as an investigative opportunity for testing the veracity and completeness of witnesses’ evidence.

Following a spate of cases in the Court of Appeal (see eg R v Barker [2010] EWCA Crim 4; R v Wills [2012] 1 Cr App R 2), it has become clear that the criminal process itself must adapt to meet the needs of witnesses – not the other way around. Criminal Practice Directions now require judges to take control of cross-examination in cases of vulnerable witnesses not only in the trial itself, but also by setting out boundaries in ‘Ground Rules Hearings’ (GRHs) which are compulsory in all cases involving intermediaries and recommended for trials involving other vulnerable witnesses.

At present one can only speculate whether these changes are having an effect on the practice of cross-examination on the ground. There is no existing research which has explored the impact of such changes. We do not know, for instance, how the duty of the advocate to ‘put the case’ by testing and challenging opposing evidence is being reconciled with this newly emergent duty to adopt a questioning style that caters for the needs of individual witnesses in order to obtain best evidence. It is likely that different advocates – and indeed judges – take differing views as to how this tension can be unpicked in practice.

Nor do we know whether the more general shift towards witnesses giving their evidence remotely as a result of the pandemic is having an effect on the practice of cross-examination. Although there has been some research on the impact of pre-recorded evidence and live link testimony upon juror  decision-making, we do not know how, if at all, lawyers adapt their questioning of ordinary witnesses to make allowances for  a more remote setting. More generally, we do not know whether the pressure on courts to clear the backlog of cases is leading to parties agreeing evidence more readily and curtailing their cross-examination of witnesses.

A recently launched research project, Mapping the Changing Face of Cross-Examination, is exploring how practice is changing on the ground.  Funded by the Nuffield Foundation, the research team (led by Professor John Jackson in the School of Law, University of Nottingham) has adopted a mixed methodology to map the precise nature and extent to which new approaches towards cross-examination are producing change on the ground in the four legal jurisdictions of England and Wales, Scotland, Northern Ireland and the Republic of Ireland. While there is some legal and procedural overlap between these jurisdictions due to their shared history, each jurisdiction is also unique with differing procedural rules, special measures, and approaches towards judicial case management. The research aims to identify what effect changes such as GRHs, the use of intermediaries and pre-recorded cross-examination have had in each of the jurisdictions where these have been introduced and what cross-examination practices are assisting witnesses to achieve their best evidence. The research will also monitor the extent to which, if any, the current pressure to expedite cases is causing a shift in the fundamental nature of cross-examination, for better or for worse.

Cross-examination is often a turning point in determining the outcome of a contested trial because as Marcus Stone has stated, it is the point at which the conflict between the two sides becomes explicit.  In the opening chapter of the Secret Barrister  a portrayal of traditional cross-examination in the English and Welsh criminal justice system is depicted which is modelled on the adversarial battle played out by lawyers advancing their case before an impartial body of assessors. We need to know whether this traditional model is still operating in the majority of trials or whether the sweeping changes taking place in the criminal justice system are affecting the very heart of adversarial justice.

The research team are keen to hear from criminal practitioners about their day-to-day experiences in the rapidly changing world of criminal advocacy. For further details, see: https://www.ntu.ac.uk/research/groups-and-centres/projects/mapping-the-changing-face-of-cross-examination

 Professor Jonathan Doak, Nottingham Law School, Nottingham Trent University and Professor John Jackson, School of Law, University of Nottingham

 

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