Search

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.