Resilience-building in Adversarial Trials: Witnesses, Special Measures and the Principle of Orality
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/09646639231201913 |
| Author | Samantha Fairclough |
| Date | 01 August 2024 |
| Subject Matter | Articles |
Resilience-building
in Adversarial Trials:
Witnesses, Special
Measures and the
Principle of Orality
Samantha Fairclough
University of Birmingham, Birmingham, UK
Abstract
Using Fineman’s vulnerability theory, this paper argues that the traditional adversarial
approach to examining witnesses in criminal trials –premised on the principle of
orality –reduces the resilience of those giving evidence. This is because the adversarial setting
often leaves those testifying in a heightened state of stress, reducing the quality and reliability
of their evidence as a result. In turn, this traditional approach to securing oral witness testi-
mony in criminal trials loses resilience, in that it becomes more difficult to justify as the gen-
eral approach. The use of special measures –to adjust the way testimony is given and
ameliorate some of the associated stressors –provides resilience to the individual testifying,
the robustness of their evidence, and the safety of consequent criminal verdicts. The positive
effects special measures yield therefore lend additional resilience to our commitment to the
principle of orality and the principles upon which it rests. This article concludes that the State
should maximise such resilience-building through more generous special measures provision.
Keywords
special measures, adversarialism, principle of orality, vulnerable witness, resilience
Introduction
Criminal trials in England and Wales are characterised as adversarial in nature. A key feature
of adversarialism is the commitment to the principle of orality, which marks an official
Corresponding author:
Samantha Fairclough, Birmingham Law School, University of Birmingham, Birmingham B15 2TT, UK.
Email: s.fairclough@bham.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(4) 642–667
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639231201913
journals.sagepub.com/home/sls
preference for witness evidence in criminal trials to be oral and live before the court. As this
article shows, the appropriateness of this traditional way of receiving and testing witness evi-
dence has been called into question in light of a plethora of findings that suggest it is not the
most conducive method to securing accurate evidence. Indeed, it was largely against this
backdrop that special measures were introduced for ‘vulnerable and intimidated witnesses’
(see Home Office, 1998); to counteract some of the issues arising out of the requirement
that witnesses testify in court. These special measures include provisions to allow certain
witnesses–such as children, those with mental health conditions, learning/physical disabil-
ities or complainants in sexual and modern slavery offence cases –to give evidence from
behind a screen, via live link, with the assistance of an intermediary, or via a pre-recorded
video (Youth Justice and Criminal Evidence Act (YJCEA) 1999, s.23–s.30).
The available evidence suggests that the use of special measures improves the treatment
of vulnerable and intimidated witnesses in court and the resulting quality of their evidence
(see Fairclough, 2020). If we view this through the lens of Fineman’s (2008) vulnerability
theory, we can see that special measures are an asset that builds the resilience of these wit-
nesses (and defendants)
1
testifying in criminal trials. This means that they help such indivi-
duals to do the best job of giving their evidence possible, while causing minimal harm to
their wellbeing in the process. This article addresses the perceived tension that exists
between special measures and the principle of orality, where the (unfettered) use of
special measures would be seen as a potential threat to our adversarial tradition (Roberts,
2022: 525). It argues that by building the resilience of those testifying, through improved
treatment and the production of more reliable evidence, the use of special measures also
builds the resilience of the principle of orality itself. This means that the State’s commitment
to oral evidence (and thus adversarial justice) is in fact much more defensible when special
measures are (more frequently) used than when they are not.
This argument about the compatibility of special measures and the principle of orality
is not confined to their current legal provision. What Fineman’s vulnerability theory
further sensitises us to is the existence of individuals who may lack resilience in the
face of testifying in open court absent additional support, but who do not legally
qualify for any such support. And further still, the detrimental effect that this then has
on the resilience of our commitment to oral evidence in a more general sense.
Fineman (2008: 1) advocates for a starting position that recognises, as applied in this
context, that all lay people in contact with the criminal trial system are vulnerable,
because vulnerability is ‘universal’. Vulnerability theory then holds that it is the
State’s responsibility to provide sufficient resources to citizens to build their resilience
(Fineman, 2008), which translates here to their resilience in the witness box. In adopting
this approach, this article concludes that special measures provisions should be more
readily available from the State to build the resilience of all witnesses, including defen-
dants, in criminal trials who need such support to build their resilience in this setting.
Furthermore, this article argues that such an increased provision (and use) of special
measures will, in turn, bolster the resilience of our commitment to the adversarial prin-
ciple of orality. This conclusion is reached following an examination of the principle
of orality and its substance that acknowledges it is about more than just evidence that
is ‘oral’. Instead, we see that the principle of orality is tied up with other foundational
principles that link to the public’s acceptability of the process and its outcome (and
Fairclough 643
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