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The system of adversarial trials and the principle of orality in the giving of testimony by witnesses does little to encourage the giving of evidence by the most robust witness yet in its unaltered form provides the basis upon which many of the decisions in the English courts have traditionally been made. There has been a growing recognition that the orthodox trial system must be reviewed and a system allowing for the giving of evidence by other means constructed within it. The continuing review of how evidence should be received to determine a fair outcome does not link the underlying purpose of the principle of orality with the numerous circumstances in which oral evidence may be modified for a variety of reasons. The impact across both civil and criminal proceedings is considered, and the effect of incremental change demonstrated. A model for future dispute resolution and fact finding is developed.

Pre-recorded cross-examination offers unprecedented opportunities to focus on and regulate the treatment and questioning of intimidated complainants in sex offence cases. In this thesis, I investigate the application of s. 28 and related measures to adult complainants defined as "intimidated witnesses" under YJCEA 1999, s. 17(4). Methods comprised eight months court observation in s. 28 and non-s. 28 sex offence cases, including six months observing the extension of the s. 28 pilot to intimidated complainants and interviewing barristers working on those cases. Key findings include that the s. 28 pilot for intimidated complainants was hampered by a lack of planning, guidance and a clear rationale: intimidated complainants were perceived as less deserving of s. 28 and related measures compared to 'vulnerable' witnesses. Though cross examination of intimidated complainants tended to be slower and calmer at s. 28 hearings, compared to trial, adherence to best practice varied because barristers considered that training, guidance and toolkits on cross-examining 'vulnerable' witnesses did not apply to intimidated complainants. Importantly, procedural safeguards associated with the success of s. 28 for 'vulnerable' witnesses, such as Ground Rules Hearings and written questions, were hollowed out or deemed unnecessary by judges and barristers in intimidated s. 28 cases. Lastly, observations of sex offence trials reveal that pre-recorded testimony disrupted traditional understandings of adversarial trial and assumptions about how evidence should be presented in s. 28 cases. My research suggests an urgent need to review intimidated complainants' procedural status under the Youth Justice and Criminal Evidence Act 1999, and that detailed guidance is also required to develop the application of s. 28 and related measures in sex offence cases. More consistency in standards of defence advocacy, the exercise of case management powers, and the audio-visual quality of pre-recorded evidence is called for in sex offence cases.

This study examines the presentation and examination of DNA evidence in the English Criminal Courts, from the perspective of forensic experts. The methodology involved qualitative analysis of expert perception and opinion, through interview. Much activity has concerned the contribution of faulty expert evidence to miscarriages of justice, however forensic experts have been largely ignored as sources of valuable data. This study is original in specifically examining their experience. Criticisms of expert evidence in the English courts are commonly described as having their origins in detrimental effects of the adversarial trial system, however, the position supported by this study is that many claimed detrimental effects are based on misunderstanding of the workings of adversarial procedure. The study examined experts’ perceptions of challenges they faced in the presentation and examination of DNA evidence, including their duty to offer objective and unbiased opinion. The study determined that whilst experts may give ‘unbiased’ opinion, ‘impartiality’ was practically difficult to achieve because of the different roles played by prosecution and defence experts. Furthermore, a lack of clarity regarding the responsibilities implied by the requirement of remaining ‘unbiased’ meant that experts put different interpretations on their duties in this regard. This study concludes that the policy objectives underlying the concept of ‘unbiased’ should be examined, with a view to better defining appropriate expert responsibilities. The study investigated experience within court. Interviewees reported similar experiences to those faced by forensic experts reported in previous studies. However, evidence in this study supports the proposition that DNA evidence is qualitatively different from older forensic identification techniques. First, the complexity of DNA evidence magnifies many known trial ‘pathologies’ in terms of presentation and examination. Second, it is fundamentally different in that its probabilistic nature means that experts are forced to present it in a rigorously scientific manner. In this way, not only does DNA represent a new paradigm in forensic identification, but it must inevitably force existing tensions between the law and scientific evidence into the open. This study found experts to be generally passive in supplying the demands of the judicial process. This has included passivity in the face of legal rulings on how complex DNA evidence should be presented. From an evidential perspective, this is indubitably a judicial responsibility. This study supports the proposal, however, that steps must be taken to engage scientific experts in the scientific aspects of these determinations, if the ‘new paradigm’ of DNA evidence is not to be diluted. The Government must take a lead in co-ordinating expert bodies towards an integrated approach to complex evidence such as DNA, in the inevitable anticipation that future forensic technologies can only be more complex still. It may do this without infringing the over-riding interests of the adversarial system of justice.

In 1982 Lindy Chamberlain was found guilty of murdering her nine-week-old daughter, Azaria. In pleading her innocence, Lindy claimed a dingo had taken the baby from the tent in which she and her family were camping, near Uluru in the Northern Territory. Shortly after the baby had disappeared Lindy’s seven-year-old son Aiden told a woman who was helping search for Azaria that ‘the dog had got his baby in its tummy.’ Later that night another woman asked him if a dingo had taken the baby. He said that it had. 1 Lindy spent four years in prison for a murder she did not commit. In 2012, thirty years after Azaria died, the fourth coronial inquest into the matter found that a dingo had killed the baby girl. Aiden was never called to give evidence at his mother’s trial. We will never know what the outcome might have been if he had. But over the course of the twentieth-century countless other children did give evidence in various criminal courts throughout Australia. This thesis draws on cases involving two hundred and fifty-one child witnesses to examine the laws, policies and procedures that applied to those children. Child witnesses have been subjects of continuing research and law reform since the turn of the twenty-first-century. Despite contemporary concerns about child witnesses, the historical antecedents to current law, policy and practice have not been the focus of detailed study. Drawing on multiple data from reported and unreported cases, newspaper reports, depositions and other archival material, psychological studies, legal treatises and texts, this thesis traces the journey child witnesses took through the criminal justice system. In the process it examines issues such as how a child’s capacity for truthfulness was assessed; what the procedure was when they appeared in court; how lawyers, barristers and defendants examined and cross-examined them; and how judges received the testimony of children and advised juries as to how such evidence should be assessed. Contemporary research confirms the experience of giving evidence in an adversarial trial can be difficult and may cause secondary trauma to potentially vulnerable children. Since the end of the twentieth-century a substantial portion of the law reforms introduced have been directed towards supporting child witnesses. There is a widespread assumption that historical legal processes did not support children in giving evidence. This thesis, however, finds strong evidence throughout the century of considerable concern and sympathy being shown towards child witnesses. Within their historical confines judges, lawyers and jurors often sought to improve the circumstances in which children appeared in court. Beyond demonstrations of support the research also finds that the legal principles and procedures relevant to receiving child witness testimony made it very difficult for them to be thought of as credible witnesses. For most of the twentieth-century the law viewed children as an inherently unreliable class of witness. As each chapter in this thesis demonstrates, however, from the start of the century there is evidence of opposition to the applicable legal principles and procedures that were prejudicial to child witnesses. Among the most vocal here were judges and notably, women’s groups like the Federation of Women Voters and the Country Women’s Association who, as early as the 1920s and 1930s were calling for reforms to existing practices. For most in the legal profession and outside it, ‘changes in law’ as Roscoe Pound had observed in 1910, ‘were full of danger.’ There was widespread agreement until the last quarter of the twentieth-century that the risks of reforming these procedures were too great. Starting in the 1970s attitudes towards law reform shifted and considerable reforms were implemented. The process of giving evidence at the start of the century was virtually unrecognisable to that at the end of it. This thesis finds that there were numerous factors driving these reforms including the second wave of feminism, technological changes, the victims’ rights movement, the changing political climate and an expanding body of psychological research. The caution the law displayed for the preceding seventy-five years, however, had a considerable impact on the well being of generations of child victims of crime and on the legitimacy of common law criminal justice systems.