Speaking to witnesses at court - DPP, Counsel magazine, March 2015
Last month I announced new proposals to better assist victims and witnesses called to court to give evidence in criminal trials.
Much of what is in the guidelines is just common sense - introducing ourselves to victims and witnesses, explaining how the process works, encouraging them to re-read their witness statement and ensuring they feel able to ask for questions to be repeated or to ask for a break - and I'm pleased that this has been welcomed by the Criminal Bar Association. However, I readily acknowledge that sections of my draft guidance are controversial for some, which is why I decided to publicly consult on the guidance. I welcome the debate that has taken place across the legal community and am grateful to Counsel magazine for this opportunity to address concerns. I have been privileged to meet a number of victims and witnesses during my first year as the Director of Public Prosecutions. They often tell me that the fear of not knowing what is going to happen in court is often worse than the actual experience of giving evidence and these personal accounts have really stayed with me.
Barristers live and breathe the court room, it is a home from home. But we should never forget how alien it is for the majority of victims and witnesses who do not choose to be there. Some argue that the element of surprise is an important part of the adversarial process. But cross-examination is not about ambush and I am not alone in saying this; The Court of Appeal has made it clear that treating the criminal justice system as a game is not acceptable. No one - prosecution, defence or the public more generally - benefits from a situation which is unfairly stacked against a victim. The court process is about giving everyone the opportunity to give their best evidence and this is what my guidelines aim to do. It has also been said that we are now in danger of coaching victims and witnesses and training them how to answer likely or specific questions. Those concerns show right and proper regard for the principles of our system - regard that prosecutors not only share but proudly protect. What I am proposing is limited and within the boundaries of our current system. We know where the line is drawn and prosecution advocates have been conducting pre-trial witness interviews with victims of alleged sexual offences for some years. Has this resulted in a rise in abuse arguments, rehearsed evidence or unfair trials? No. What we have seen is better evidence which is in the interests of all concerned.
My guidance extends this existing service to victims and witnesses of all crimes and is clear about how far prosecutors can go. Reactions in court will remain unrehearsed, but should be less distorted by shock and distress. With the prosecution and defence disclosing much more to each other than ever before, it is only right that victims and witnesses are now included, to an appropriate level, in this approach. This might be a logistical challenge in the larger and more complex cases but by working efficiently together and with sensible timetabling of witnesses, this is achievable. Thus there is unlikely to be a large number of witnesses of fact at court at the same time. I have always found judges accommodating with court time where necessary to speak to witnesses.
In a rape case, a victim would be told if the likely defence was to be, for example, on the issue of consent - but would not be told of the evidence itself, or any further detail. They may also be told that the court has allowed that their sexual history be examined - but not why or what. In an assault case, I would want to tell the victim if the likely defence case was to be self-defence, or perhaps an identity dispute - but not why or how. And if a witness to any case was going to be accused of being inherently dishonest, perhaps due to a past fraud conviction, I would want to tell them that previous convictions had been disclosed to the defence - but not how it may relate to the case.
Finally, I want to take this opportunity to address my use of the word "victim" when referring to those who make allegations of criminal offences. Of course, whether someone is legally a victim of a specific crime by a specific person is for a court to decide. But I think it is really important that everyone in the criminal justice system acknowledges that when someone goes to the police they feel they are a victim of crime and we should respect that.
I hope most people will find the guidance compassionate and reasonable. I strongly encourage Counsel magazine readers to respond to our consultation - those of you who prosecute will be required to follow the guidelines once in force so please make sure you help to shape them. You can respond via our website www.cps.gov.uk/consultations - and join the discussion on Twitter, using #victimsatcourt.
Notes to Editors
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