Justice for Vulnerable and Intimidated Witnesses in Adversarial Proceedings?
| DOI | http://doi.org/10.1111/1468-2230.6601008 |
| Author | Katie Quinn |
| Date | 01 January 2003 |
| Published date | 01 January 2003 |
REVIEW ARTICLE
Justice for Vulnerable and Intimidated Witnesses in
Adversarial Proceedings?
Katie Quinn
n
Louise Ellison,The Adversarial Process and the Vulnerable Witness, Oxford:
Oxford University Press, 2001, xii þ182 pp, hb d45.00.
In the recent White Paper, Justice for All, the Government announced its intention
to implement many of the measures recommended by the Criminal Courts Review
completed by Lord Justice Auld in 2001
1
and declared its commitment to shifting
the balance in the criminal justice system ‘in favour of the victim and the
community so as to reduce crime and bring more offenders to justice.’
2
The
Auld Review and the White Paper propose a range of reforms to nearly every
stage of the criminal process. Many of these proposals have been included in the
Criminal Justice Bill 2002 which was introduced in the House of Commons on 21
st
November 2002. These reforms, if implemented in full, would dramatically change
criminal justice as we currently know it. These changes would impact upon every
person that comes in contact with this process, not least those called upon to
provide one of the most vital commodities in the process: evidence. Witnesses,
who according to some are treated merely as ‘information fodder’
3
, are vital to the
criminal process and their treatment within the system has important implications,
not only for prosecutions and convictions but also for the increasingly significant
factor of public confidence in the criminal justice system.
In her recent monograph, The Adversarial Process and the Vulnerable Witness,
Louise Ellison claims that the current approach of both the courts and legislature
to the treatment of the most vulnerable witnesses in our adversarial system leaves
a lot to be desired. Ellison brings together an impressive body of research findings
from a variety of academic, government and voluntary bodies across the world,
and analyses the approach of the English criminal justice system to vulnerable and
intimidated witnesses, paying particular attention to the most recent measures
introduced under the Youth Justice and Criminal Evidence Act 1999. The limited
approach in this jurisdiction of merely ‘accommodating’ vulnerable and
intimidated witnesses within the traditional adversarial model is inadequate, she
argues, both in securing the best evidence from these witnesses and in reducing the
n
School of Law, Queen’s University Belfast.
1 Lord Justice Auld, A Review of the Criminal Courts of England and Wales, (London: The
Stationery Office, 2001). The report will hereafter be referred to as the Auld Review.
2 Home Office, Lord Chancellor and Attorney General, Justice for All (London: The Stationery
Office, 2002) Cm 5563.
3 See J. Shapland, ‘Victims and the Criminal Process: A Public Service Ethos for Criminal Justice?’
in S. Doran and J. Jackson (eds), The Judicial Role in Criminal Proceedings (Oxford: Hart, 2000),
151.
rThe Modern Law Review Limited 2003. (MLR 66:1, January). Published by Blackwell Publishing Ltd., 139
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
stress on them. The failure of the recent Home Office working group
4
to consider
such broader concerns is criticised and the traditional attachment in this
jurisdiction to principles such as orality, public scrutiny and cross-examination
as the best ways of testing evidence is questioned. ‘[T]he paradigmatic adversarial
trial offers limited scope for the improved treatment of vulnerable and intimidated
witnesses’ (p 160)
5
, she argues, and a more fundamental rethinking of the essential
elements of adversarial trial process is required.
In the light of Ellison’s call for a root and branch overhaul of the traditional
adversarial trial, it is apt to examine whether the recent far reaching proposals
put forward in the White Paper, Justice for All, might generate better evidence
from vulnerable and intimidated witnesses, and indeed all witnesses. In this
article, Ellison’s perspective on the treatment of vulnerable and intimidated
witnesses is examined and the question of whether the recent reform proposals
strike an appropriate balance between the rights of defendants and the rights
and needs of vulnerable and intimidated witnesses is considered. Although
the focus of the White Paper and other recent reform documents was not
primarily on vulnerable or intimidated witnesses, or indeed witnesses at all,
many of the proposals will impact either directly or indirectly on this group and
the question of whether these proposals can deliver justice for witnesses,
defendants and the community will be addressed. With a view to examining
these issues, three closely related themes of Ellison’s work will be considered,
namely the principle of orality, the nature of cross-examination and the
compatibility of adversarial proceedings with the needs and rights of witnesses.
The principle of orality
In the second, third and fourth chapters of her book, Ellison examines the
principle of orality and the measures which have been introduced to aid or
‘accommodate’ vulnerable and intimidated witnesses within traditional adversar-
ial proceedings. She questions the assumption that oral evidence is always the best
evidence and claims that the focus on orality in English criminal trials is ‘in part
explained by the structure of adversarial proceeding where evidence is presented
before an unprepared fact-finder at a single continuous hearing’ (p 11). Oral
evidence is assumed to be the best type of evidence because of traditional
assumptions regarding cross-examination as the optimum method for testing
witnesses, the reliability ensured by the oath, the importance of the fact-finder
observing the demeanour of the witness, the exposure of the witness to public
scrutiny and the formality and solemnity of the courtroom setting. All of these
factors mean that, with very few exceptions, witnesses in English criminal trials
must deliver their evidence in oral form, live in the courtroom.
Although it has long been recognised that oral testimony can place all witnesses
under a considerable degree of stress, Ellison draws together an extensive body of
research literature which illustrates persuasively the particular stresses experienced
by children, witnesses with learning disabilities, sexual complainants and
intimidated witnesses. Common sources of stress experienced by such witnesses
include being in the presence of the defendant and his or her supporters, having to
4 See Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of
Vulnerable or Intimidated Witnesses in the Criminal Justice System (London: Home Office, 1998).
5 All page references in the main text are to the book under review.
The Modern Law Review [Vol. 66
140 rThe Modern Law Review Limited 2003
To continue reading
Request your trial