Abstract
Witnesses and defendants are able to give evidence by live link provided that they meet the vulnerability criteria set out in the Youth Justice and Criminal Evidence Act (1999). The vulnerability criteria include, in brief, the defendant or witness being young and/or suffering from a physical, mental or learning disability. Findings from interviews undertaken with 18 criminal practitioners indicate that, even when a defendant is sufficiently vulnerable to qualify for the use of live link, the provision is rarely invoked. Drawing on this data, this article identifies a series of barriers which contribute heavily to the inaccessibility of the live link provision to vulnerable defendants giving evidence in their trials.
Introduction
The availability of special measures under the Youth Justice and Criminal Evidence Act 1999 (YJCEA), designed to assist the vulnerable to give evidence, remains far more advanced for non-defendants than for defendants. Vulnerable non-defendant witnesses can have their evidence prerecorded; give it from behind a screen, via live link or with the court cleared of the public; they can benefit from the removal of wigs and gowns; and can seek the assistance of an intermediary and/or communication aids (YJCEA, ss 23–30). The provision for live link is the only special measure which is available to defendants by statute (YJCEA, s. 33A) that is in force. 1 Its existence is viewed as a progressive step towards improving the support available to vulnerable defendants (Jacobson and Talbot, 2009: 15, 50; Wigzell et al., 2015: 6). In this article I argue that the step taken is actually rather a faltering one. I present an insight into the operation of the law, derived from 18 interviews with members of the legal profession. This data reveals that even defendants who are sufficiently vulnerable to qualify for the live link may face various other barriers to its use in practice. It is argued that these barriers serve to inhibit applications being made for, and ultimately limit the use of, the live link by vulnerable defendants giving evidence in their trials.
Legal background and context
The live link provision enables live evidence to be obtained from a witness from outside of the courtroom while still being seen and heard by the judge, jury and legal representatives in court (YJCEA, s. 24(8)). The provision was initially introduced for children giving evidence for the prosecution 2 in response to difficulties encountered eliciting their evidence at trial (see Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, 1998; Pigot, 1989). Such difficulties may result from a combination of the child’s inherent vulnerability, the oral nature of criminal proceedings (Ellison, 2001), the various rules of criminal evidence 3 and the presence of the accused. Permitting evidence to be given remotely sought to minimise these difficulties by removing the witness from court and so making them feel more at ease. The 1999 Act extended the availability of this provision, and other special measures (see YJCEA, ss 23–30), to all non-defendant witnesses. Thus, as well as being available to children, the live link provision is now available to adult witnesses, including those for the defence, whose quality of evidence is likely to be diminished as a result of their vulnerability or fear/distress relating to testifying (YJCEA, ss 16 and 17). The defendant was explicitly excluded from the Act’s scope until the insertion of s. 33A in 2006. 4 This permitted the use of the live link for vulnerable defendant witnesses when giving evidence.
Prior to the enactment of the defendant provision for live link, there had been both academic (for example, see Birch, 2000; Doak, 2005a; Hoyano, 2001) and judicial 5 criticism regarding the limited support to vulnerable defendant witnesses relative to that available to vulnerable non-defendant witnesses. For example, Curen, the now Deputy CEO of the charity Respond, which aims to support individuals with learning disabilities, 6 argued that ‘a person’s vulnerability should not be ignored when they become a defendant’ (Curen, 2005: 4). He drew an analogy to their exclusion from special measures being akin to a denying a disabled defendant access to court via a wheelchair ramp, merely for being the defendant (Curen, 2005: 4). Interestingly, Burton et al. highlighted evidence that practitioners were approaching the question of special measures on the basis of a ‘parity principle’. This meant that they were disinclined to invoke measures for vulnerable non-defendants when comparable support was not also available to vulnerable defendants, due to a perceived fairness issue relating to the equality of arms (see Burton et al., 2006: 397–406).
Furthermore, the absence of assistance for vulnerable defendants, especially child defendants, 7 raised a concern regarding their ability to effectively participate in their trials (Doak, 2005b; Ellison, 2005), as required by Article 6 of the European Convention on Human Rights (ECHR). The European Court of Human Rights ruled in SC v UK 8 that an 11-year-old defendant with limited intellectual ability, learning difficulties and a poor attention span could not effectively participate in the trial process. 9 It was following this decision that the live link provision for defendants was inserted into the YJCEA.
The current law makes the live link provision available to both child and adult defendants who meet the criteria set out under s. 33A when it is considered to be ‘in the interests of justice’ (YJCEA, s. 33A(2)(b)). For child defendants, their ability to participate effectively as a witness must be compromised by their level of intellectual ability or social functioning (YJCEA, s. 33A(4)(a)), and the use of the live link must consequently improve their effective participation (YJCEA, s. 33A(4)(b)). Adult defendants must suffer from a mental disorder (as per the Mental Health Act 1983), or a significant impairment of intelligence and social function (YJCEA, s. 33A(5)(a)). This must result in their inability to participate effectively as a witness (YJCEA, s. 33A(5)(b)), and, again, the use of the live link needs to be considered to enable more effective participation (YJCEA, s. 33A(5)(c)).
The provision for defendants differs to the provision for non-defendant witnesses. Child defendants are left on a particularly unequal footing with child witnesses. Non-defendant witnesses under 18 are considered to be inherently vulnerable by way of age, and automatically qualify for the use of special measures, including the live link. For child defendants, they must also show that their inability to participate effectively is a result of their level of intellectual ability/social functioning. Furthermore, all vulnerable defendants, including children, are required to satisfy the additional ‘interests of justice’ test (YJCEA, s. 33A(2)(b)) to secure the use of the live link. This means that child defendants in particular have more statutory hurdles to overcome than child witnesses to invoke the use of this measure. This is viewed by the Royal College of Psychiatrists as ‘anomalous and unacceptable’ (Royal College of Psychiatrists, 2006: 55).
The defendant live link provision is also more restrictive in relation to the categories of defendants to whom it is available. For example, non-defendant witnesses suffering from physical disabilities or disorders are considered as vulnerable for the purposes of obtaining use of the live link (YJCEA, s. 16(2)(b)), whereas such defendant witnesses are not. Furthermore, the live link provision is additionally available to non-defendant witnesses who are suffering from intimidation or are in fear or distress in connection with testifying in the proceedings (YJCEA, s. 17). There is no comparable provision for defendants wishing to give evidence in their trial. The only criterion on which they can apply for the live link is vulnerability.
The more restrictive defendant vulnerability threshold continues to arouse concern (for example, see Burton M et al., 2007; Hoyano, 2007, 2010; McEwan, 2013). It limits by definition the number of defendants who are deemed to be sufficiently vulnerable to qualify for the use of the live link. It follows that defendant witnesses are unable to invoke the provision as frequently as non-defendant witnesses. The assumption underlying the legislation seems to be that defendants are inherently less vulnerable than non-defendants, but there is no empirical basis for such a belief. Jacobson and Talbot’s extensive review of the literature surrounding defendant vulnerability evidences the high prevalence of mental health problems and learning difficulties among both adult and child defendants (Jacobson and Talbot, 2009). Child defendants, they argue, can be deemed ‘doubly vulnerable’ (Jacobson and Talbot, 2009: 37), due to a combination of their young age and other mental, intellectual and emotional problems from which they may suffer. 10 This is further evidenced in the recent Children’s Commissioner Report, which highlights that the prevalence of neurodisability in young people who offend is often significantly higher than it is among young people in the general population. 11
The potential difficulties faced by child defendants have also been acknowledged by the judiciary. Baroness Hale recognised that ‘child defendants…are often the most disadvantaged and least able to give a good account of themselves.’ 12 Further judicial recognition of defendant vulnerability is evident through the common law development of the intermediary provision. 13 The courts’ extension of eligibility to all vulnerable defendant witnesses, for the entirety of the trial if required and not only for the purposes of their testimony, seeks to safeguard the fairness of criminal trials. 14 Furthermore, the non-provision of a registered intermediary to a vulnerable defendant was the topic of a recent, successful challenge. 15 This demonstrates the appellate courts’ commitment to furthering the quality of the support available to vulnerable defendants giving evidence. 16
Given these findings regarding defendant vulnerability, and for the range of reasons which follow (plus see also Hallet, 2013; Hoyano, 2015b: 127), it is important that the live link provision is both available and accessible to vulnerable defendants. The Equalities Act 2010 requires that ‘reasonable adjustments’ are made to existing processes to accommodate those with disabilities who would otherwise be ‘put at a substantial disadvantage … in comparison with persons who are not disabled’ (s. 20(5)). For the purposes of this Act, a disability is defined as a ‘physical or mental impairment’ (s. 6(1)(a)). This directly overlaps with the vulnerability criteria in the YJCEA for the use of the live link (save for the omission of physical disabilities where defendants are concerned). It follows that, absent the ability to testify by live link, a vulnerable defendant wishing to give evidence could be at a substantial disadvantage to their able counterparts. Thus this measure can and should be viewed as a ‘reasonable adjustment’ which ought to be readily available to anyone suffering from a disability who is giving evidence in criminal proceedings, including defendants.
The failure to adequately legislate for the giving of evidence by live link by vulnerable defendants may have several potentially severe consequences. First, it may mean that a defendant proceeds to give evidence in court, but does so poorly due to the existence of their vulnerability and a lack of support. This may result in them making a bad impression on the jury, thus unfairly affecting their chances of acquittal. It may also result in them making a bad impression on the judge; resulting in a harsher sentence if convicted. Secondly, vulnerable defendants who cannot use the live link may, as a consequence, choose not to testify at all. 17 Absent a judicial direction to the effect that hearing from the defendant directly would have been undesirable (Criminal Justice and Public Order Act 1994, s. 35(1)(b)), the jury is at liberty to draw adverse inferences from the defendant’s failure to testify. 18 Again, this may unfairly affect their chances of acquittal.
Thirdly, and finally, the limited accessibility of the live link provision may cause some vulnerable defendants to plead guilty. At a time when the live link was not available to defendants, McConville et al.’s research on criminal defence work highlighted that barristers may use fear to put pressure on clients to plead (McConville et al, 1994: 258). This was demonstrated through an exchange as observed between a barrister and 13-year-old (and thus potentially vulnerable) client, Wayne. The barrister told Wayne that the criminal trial is ‘pretty scary’, in a ‘vast court’ and that he would be asked questions and called ‘a liar’ (McConville et al, 1994: 258). An absence of support to such defendants may mean that some defendants want to plead guilty, and may leave others susceptible to pressure from their lawyer to do so. By pleading guilty, the vulnerable defendant is able to avoid the ordeal of testifying (or avoid adverse inferences being drawn by the jury when they do not testify), while also securing a sentence discount (Criminal Justice Act 2003, s. 144). A plea of guilty tendered in such circumstances is most obviously problematic if the defendant is factually innocent. Even if the defendant is factually guilty, however, the lack of support available to vulnerable defendants should not result in them feeling situationally compelled to enter a guilty plea. A defendant, vulnerable or not, guilty or not, has a right to have the state prove their guilt beyond reasonable doubt.
There are, then, substantial reasons for concern about the current legislative framework surrounding the giving of evidence by live link. There has been much less discussion in the literature, however, about how that framework is operating in practice. Statistics on the use of the live link facility by vulnerable individuals testifying in Crown Court trials are not centrally collected by the Ministry of Justice, or recorded locally by individual court centres. Studies have been undertaken which examine the use of special measures, including the live link, by vulnerable non-defendant witnesses (for example, see Burton et al., 2006; Charles, 2012; Davies and Noon, 1991; Hall, 2009; Hamlyn et al, 2004; Plotnikoff and Woolfson, 2009: 85–106; Roberts et al., 2005), but to date there has been no attempt to uncover defendant use. The present contribution makes a start on filling that lacuna. The research was carried out as part of a more broad-ranging doctoral inquiry which was funded by the Economic and Social Research Council (ESRC). 19 Ethical clearance was obtained from the University of Birmingham.
Methods
I conducted 18 semi-structured, qualitative interviews with members of the legal profession from two large cities in England. These cities were selected on a practical basis, as they were the two in which I had contacts from networking at events previously. On average, the interviews lasted around 1 hour. The longest interview lasted 1 hour 55 minutes and the shortest 42 minutes. Similarly to Jennifer Temkin’s research on prosecuting and defending rape, this research does not ‘aim or claim’ to be quantitatively representative (Temkin, 2000: 221). Despite this, it remains ‘sufficient to reveal a number of important issues’ (Temkin, 2000: 221) about the use of the live link by vulnerable defendants in Crown Court trials. In much the same way as Garland and McEwan’s research on the operation of the overriding objective in criminal trials, the interviews that have been conducted for this research provide a mere ‘snapshot of…practitioners’ experiences’ (Garland and McEwan, 2012: 239) of defendant use of live link, which highlight areas of potential significance. The findings from this research, therefore, are not generalisable to all court centres and those working within them. Nevertheless, this ‘exploratory study’ 20 does provide valuable insights into some of the factors which may be affecting the use of the live link provision by vulnerable defendants in practice.
The sample consisted of five trial judges, eight barristers (four of whom also sit part time as judges, known as recorders) and five solicitors. 21 The respondents had a mixture of defence and prosecutorial experience. Collectively they had over 400 years of post-qualified experience (PQE). This ranged from six to 39 years’ PQE, with all but two respondents’ experience exceeding 10 years. Access to the respondents was facilitated by two gatekeepers; a barrister/recorder from a local city chambers [R-1] and a colleague from Birmingham Law School with links to those working in the profession. I was able to ask these gatekeepers to select respondents with a sufficient amount of experience of preparation and advocacy in Crown Court trials so as to make the interviews worthwhile. The gatekeepers approached and introduced my research to the colleagues or contacts they considered suitable, and then passed on the details of these prospective respondents to me. I then contacted them directly by email, officially confirmed their willingness to participate, and arranged a mutually convenient time and place to conduct the interview.
When designing the interview guide I worked closely with R-1. 22 This helped to ensure that I asked questions relevant to criminal practitioners’ experiences and used appropriate language throughout the interview so that I could elicit valuable responses. I was keen to ask as many questions on the interview guide as possible, but was also careful to allow the respondents the time to raise issues which they felt were relevant. Where appropriate, I adapted the interview guide between interviews so that I could incorporate and develop new insights and ideas obtained from previous respondents. Within the interviews, I encouraged the respondents to draw on their own practices, as well as their direct and anecdotal experiences throughout their professional lives. Given the vastness of the respondents’ collective PQE, this approach has enabled me to obtain an insight which goes beyond the personal working practices of the 18 criminal practitioners interviewed.
The interviews were recorded, and I transcribed them myself within two working days of each being conducted. I was careful to remove any references to specific court centres, colleagues, and names of clients or witnesses in order to keep the identities of the respondents, and those involved in their cases, confidential. It was agreed that identifiers such as ‘B-1’ would be used to quote from or refer to specific interviews. Since the respondents discussed, often in some depth, their experiences in court, it is possible that they remain identifiable by their colleagues. This was discussed with the respondents prior to them taking part, and they consented to give an interview on this basis. I organised and coded the data using computer-assisted qualitative data analysis software, NVivo. I used thematic analysis in order to identify issues and practices of interest (see Braun and Clarke, 2006).
Findings
While my findings cannot be generalised across the country, it does appear that in the two cities where my interviewees worked it was almost unheard of for defendants to give evidence by live link. This was unequivocally expressed by one respondent with 38 years of PQE: It doesn’t happen. I’ve never had a case where it has happened and I’ve never thought it was necessary for it to happen… [J-1]
The more restrictive statutory criteria pertaining to defendant witnesses were expected to be, and were cited in interview as, one reason for the lower uptake of the provision for defendants. As well as this, other practical differences between the defendant and non-defendant witnesses are relevant. First, unlike non-defendants, defendants are not compellable as witnesses. This is of potential significance since, as noted above, it may be the case that vulnerable defendants choose not to testify. 24 This would result in a reduction in the size of the cohort of defendants giving evidence who are vulnerable and thus eligible to apply for the assistance of the live link. Additionally, it is likely, generally, that there are a greater number of non-defendant witnesses than defendants in many trials. As a consequence, it is probable that more non-defendant witnesses will qualify for and use the live link provision.
Despite the above variables, one might have expected, given the prevalence of vulnerability among defendants, that all of the respondents would have had at least some experience of vulnerable defendants giving their evidence by live link. All bar one 25 of the respondents had been in practice since the provision for defendants to give evidence by live link came into force some eight years prior to the interviews taking place. Additionally, all Crown Court centres have the facilities available to accommodate its use (see Law Commission, 2016a: 63) and thus this provision is one which can be invoked at no extra financial cost. 26 The substantial disparity experienced by the respondents in the use of the live link provision by vulnerable participants giving evidence would seem, therefore, to require an explanation extending beyond the relatively narrow legal provision that has been made for vulnerable defendants. My interviews provide the basis for such an explanation. They reveal three main barriers which inhibit a consideration of and application for the live link for vulnerable defendant witnesses. The first is what appears to be a widespread lack of awareness of the very existence of the provision enabling vulnerable defendants to give evidence by live link. The second is the poor identification of defendant vulnerability within the criminal justice system, and particularly by criminal defence lawyers. The third barrier identified is a perception among the legal profession that to permit evidence to be given via live link is of neither a practical nor tactical benefit to vulnerable defendants on trial.
Barrier 1: Lack of awareness of the defendant provision
It became evident throughout the interviews that some criminal practitioners are not aware of the legal authority permitting the live link provision to be invoked for vulnerable defendant witnesses. This occasionally resulted in slightly awkward interview exchanges, as it became necessary to explain the existence of this authority in order to elicit views about it. The following extract from an interview with a barrister with 21 years’ PQE exemplifies this:
I think the live link should be available [to defendants]…
There is a provision that’s already been inserted into the YJCEA for defendants to use the live link…
Oh, is there?
Yes, s. 33A. It’s more restrictive than the provision for non-defendants though still.
And when was that brought in?
The Police and Justice Act 2006 legislated for it.
Oh, ok.
I wonder…well, it doesn’t seem to be well known about or used?
No, it’s not. [B-4]
This exchange is revealing in two ways. First, and most apparently, this respondent was unaware of the existence of the statutory provision for defendants to give their evidence by live link. She was not alone in this regard. Other respondents also revealed their lack of awareness of the provision throughout the course of the interview: It’s certainly a provision which I was really unaware of to be honest. [PS-2] I didn’t think [special measures] were available [to defendants]? [DS-2]
B-1, the other barrister who secured the use of the live link for a vulnerable defendant, also recalled that ‘it took [him] a long time to convince the judge that the power existed.’ Quite what was meant by this is uncertain. It was in this case the live link was used for the duration of the trial, and not just for the defendant giving evidence. Perhaps, therefore, it was the decision in R v Ukpabio 27 that the judge was unfamiliar with, rather than s. 33A itself. Either way, it appears that the judge’s awareness of the support available to a vulnerable defendant was limited.
When asked why the live link provision was so seldom used other respondents also attributed blame to a lack of awareness of its existence: It’s not on their [defence counsel’s] radar in my experience. [DS-2] I don’t think that they [defence counsel] would have even considered it. They may not even know that the law permits it, sadly to say. [J-1] I think it would appear that most defence advocates are [unaware] too. I think if there was more of an awareness then it would be used more. [PS-2] Solicitors and defence counsel are quite hot on things like intermediaries now…[but] in terms of basics [live link] it always seems to pass people by. [B-3]
Barrier 2: Identification of defendant vulnerability
Many research projects have revealed that the identification of vulnerable participants in the criminal justice system by those working within it is deficient, partly owing to a lack of systematic screening and training (see Jacobson, 2008: 27–28; Jacobson and Talbot, 2009: 5–6, 13–14; Lord Bradley, 2009: 20; Sanders et al., 1997; Wigzell et al., 2015: 46). For some categories of witness this is not as problematic, since their vulnerability is easily recognised without screening. For example, witnesses aged under 18 are automatically classed as vulnerable under the YJCEA and thus their initial identification is simply one of age. The recognition of undiagnosed mental health issues or ‘a significant impairment of intelligence or social function’ for the purposes of the Act remains much more difficult. This is particularly so given that some such problems can be absent visual or behavioural cues and so remain somewhat hidden (Wigzell et al., 2015: 34). Furthermore, some individuals seek to conceal their vulnerability for fear of ridicule or embarrassment (Talbot, 2012: 17; Wigzell et al., 2015: 34). The combined result of these issues is that vulnerable participants often lack the support to which they are entitled. Much valuable work has been done over recent years in an attempt to combat this, by, for example, raising awareness of issues of vulnerability, (re)educating criminal practitioners, and highlighting examples of good practice. 28
As part of the interviews conducted for this research project, the respondents were asked whether, in theory, they thought that a cohort of defendants exists who, while they are fit for trial, are unable to effectively participate in the proceedings. All of the respondents answered in the affirmative; conveying that, in their view, such a cohort of vulnerable defendants does, or is at least likely to, exist. They also agreed that special measures could help ensure that such vulnerable defendants can participate effectively. Despite these assertions, when asked to reflect on defendant vulnerability encountered in their own practice, some respondents seemed less able to recognise it: People tend to prey on the vulnerable, so victims are more vulnerable than defendants generally. [R-4] …I think we just have a preconception about defendants as being in a certain way and they won’t need them, do you know what I mean? But I suppose that might not necessarily be the case. You could have a vulnerable defendant… [PS-2] Obviously, I suppose, if it’s a very vulnerable defendant the chances are he won’t be tried. So I think the system weeds those out a little bit. [J-3] The position is different if the defendant has an obvious vulnerability—if they’re very young or obviously not very smart. [J-2]
Having said this, some of the respondents commented on the generally poor identification of defendant vulnerability. It was attributed to a lack of consideration of vulnerability within the profession, and specifically by defence lawyers. In the following examples, the respondents discussed defendants who ought to have been identified as vulnerable: …there’s a problem generally about defence lawyers properly assessing the capability of their clients to engage with the trial process. I think there’s a real issue there; particularly with youths, but not just youths. [DS-2] I don’t think the defendant is given sufficient consideration; because frequently they are young, vulnerable or whatever. [J-5]
The routine screening of defendants is thus a much desired and needed intervention.
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It cannot be said, however, that the use of the live link provision will necessarily increase as a result. Some respondents did identify that vulnerable defendants exist, revealing that they had direct experience with them: There are people vulnerable and you question whether they should even be there (sic). [B-2] I represent a very great number of very dim, disadvantaged, damaged defendants. [B-1]
Barrier 3: The perception that live link is not beneficial to (vulnerable) defendant witnesses
If advocates do not consider the live link for the defendant to be helpful, they are unlikely to be proactive in seeking its use. 32 Within this subsection I consider the perceptions highlighted by respondents regarding the usefulness of the live link provision for vulnerable defendants. This is split into practical benefits, or rather non-benefits, and tactical non-benefits.
Practical (non)benefit
The practical benefits of live link for vulnerable defendants might seem obvious in the abstract. Vulnerable defendants could, for example, be suffering from attention deficit hyperactivity disorder (ADHD) and thus be easily distracted by the multiple stimuli within a crowded court. Alternatively, they might have an anxiety disorder which is intensified by the requirement to give evidence in a courtroom filled largely with strangers. Aside from the two respondents who used the live link provision with vulnerable defendants, very few
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of the respondents seemed able to identify the potential benefits of the live link provision for a defendant. As one put it: If the defendant is going to be sitting there through the trial in the dock…just trying to think of a situation where, despite sitting there, he would feel more comfortable giving evidence by live link—I don’t know. [J-3] [They] never [give evidence] over live link because they’re in court for the entirety of the proceedings anyway… [R-2] If they are there anyway then something like live link would be irrelevant. [B-3] …when the defendant won’t be giving his evidence until at least half way through a trial…he’s had to sit and have the family…making sure they get the best seats to stare at him, and so when he gets to the witness box…it’s almost a given that by then he will be used to all the staring, etc. The tomatoes have been thrown for three weeks; one more isn’t going to matter. [R-3] …it is different because they are there throughout. By the time it is their time to give evidence they are familiar with how it all works… [J-5]
Tactical (non)benefit
In addition to overlooking the potential benefits of live link for vulnerable defendants, the respondents tended to regard this evidential device as, if anything, tactically detrimental. They felt that jurors would not understand why a defendant would leave court to give evidence in this way and that this would arouse their suspicions: It’s going to look odd if at trial you have a defendant sitting in the dock who then goes out of court to give evidence to the jury. [R-1] …the jury would be thinking ‘why on Earth has he done that?’ [B-2] If they’re watching you over a TV screen and they’ve seen you in court all week, I think the attitude would be ‘well what’s he playing at, what’s going on?’ [J-3] They’re in court the whole time anyway so it would be strange to want live link. [R-3]
The respondents seemed similarly concerned with the jury’s perception of prosecution witnesses who had given their evidence remotely by live link and then sat in the public gallery to watch the remainder of the case. This was described as a something of a ‘head in hands moment’ for the prosecution as it risked the jury deeming the witness’ use of the measure as insincere, and subsequently undermining their credibility: I think there would be a perception that it’s an odd thing to do. If one of the grounds for using live link is that you don’t want to be in court and then you go and sit in court and watch, it creates a question of how appropriate the use of the special measure was in the first place. [R-1] The [prosecution witnesses] want this special measure, they want that special measure. And then they turn up in the bloody public gallery to watch [the defendant] give evidence. Some public galleries are upstairs and out the way so OK fine, but where the jury can see—urgh. And I swear to god [the jury] thinks ‘well what was all that about then? She can’t be that scared.’ [R-3]
Another tactical objection that the respondents in this research voiced in terms of the live link provision related to their desire to achieve the defendant’s ‘best evidence.’ A tension exists between the way that best evidence is conceptualised in the 1999 Act and the belief as to what this is in practice. In the Act, references to the quality of the evidence are to its ‘completeness, coherence and accuracy’ (YJCEA, s. 16(5)). It is well documented in the literature, however, that the prevalent belief among the legal profession is that ‘best evidence’ constitutes that which is extracted live, in court, in front of the jury (see Davies, 1999: 251; Hoyano, 2000: 268). It is this latter position that was well supported by the respondents in this research, for instance: I think that trial lawyers tend to think that the best evidence is live evidence in court… [J-4] If [the defendant is] giving evidence, he will want to do so in the way…most persuasive—face to face with the jury. [R-1] I think there may be a reluctance, however, to make an application because the defendant, however vulnerable he may be, or his lawyers, would perceive there would be a [loss of] impact on the jury because they haven’t given their evidence in court. [J-1] [P]eople go to the cinema and look at their mobile phones and eat popcorn, [while] people don’t tend to do that so much at the theatre. [R-3]
One way in which the differences in the use of the live link might be explained is through a consideration of the process through which special measures are obtained by vulnerable parties to criminal proceedings. For non-defendant witnesses, it is the police who first assess the potential needs of victims and witnesses with regard to special measures.
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If they decide that there is a potential case for the application of special measures, an MG2 form
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must be completed, with section three requiring the officer to consider which special measures are likely to be of assistance. This initial assessment by the police, involving a discussion with the witness to obtain and record their views, sets the process in motion for the non-defendant witnesses obtaining special measures.
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Non-defendant witnesses are also likely to come into contact with Victim Support or Witness Services, who will provide them with further advice regarding the available special measures provisions. Some of the respondents interviewed made reference to this, stating that this process can tie prosecutors’ hands in terms of which special measure they must ultimately apply for: As far as the police and CPS go there is an assumption that a particular special measure, usually giving evidence by way of live link, will be applied for… [J-1] Well it’s very easy isn’t it? If you’re sitting at the end of the phone and you’re employed in a witness care capacity, and you’ve got a domestic violence victim saying I don’t want to come to court and give evidence—what is the biggest thing in their armour? The best thing for them to do is to turn round and go ‘well actually we can offer you special measures.’ [PS-2]
The avoidance of the live link provision by defence advocates who are aware of its existence and their client’s eligibility for its use might, then, be best described as tactical. If their aim is to ensure that the defendant’s evidence has maximum impact on the jury, and they are of the view that this is done best live in court, then they will not invoke its use. Much more emphasis will be placed on the defendant making a good impression on the jury when testifying. This is evident from the following quotes: I don’t think defence barristers would ever consider giving evidence via live link because you lose that personal connection. What you want your client to do is to have that connection with the jury and have them feel some form of empathy. [R-2] I used to say to clients when I was defending that if the jury liked them that would be half the battle, and that is true, sentiment plays a huge part in your prospect of being acquitted…But if [the idea of live link] does arise [the defence] probably think well I want this person to present themselves sympathetically and it’s going to be much harder for them to do that if they do it on a live link. [J-2] Trials are often won or lost on whether they like the defendant and whether they seem truthful or not. I think that comes across much better in open court. [DS-1] You want to create an impression that excites sympathy…I’ve seen defendants do really badly, be in tears, virtually admit the offence, and the jury feel sorry for them and acquit them. [J-2] If you’ve got a defendant there who is vulnerable and has one difficulty or another—emphasising that to the jury by having them there in front of them for them to see, in open court, may give you another chance at the jury saying ‘well he may be technically guilty but we won’t convict him because we feel bad for him.’ [DS-2] I’m forever saying to clients ‘look, you can’t pretend to be something you’re not, the jury just want to hear from you.’ …and you say to the jury ‘he’s just dim! Don’t convict him because he’s stupid.’ [B-1]
Discussion
One of the key findings shown above is the lack of awareness among some interviewees of the existence of the live link provision for vulnerable defendant witnesses. Further indication that there is an awareness deficit within the profession comes from an article written by Felicity Gerry (QC), a high-profile, practising barrister. The piece, titled ‘Vulnerable defendants and the courts’ (see Gerry, 2012), contains a section devoted to considering the measures that are available to assist vulnerable defendants. Within this section, the availability of the live link to vulnerable defendants is entirely omitted from discussion. As a result, a lack of awareness of the provision is at risk of being further embedded and proliferated among those of the profession who peruse this article.
In a similar vein, the recent Youth Proceedings Advocacy Review (Wigzell et al., 2015) brings together a series of interviews and surveys undertaken with barristers, solicitor advocates and other professionals working within the criminal courts. Section 4.2.3 discusses the ‘limited courtroom provision for young witnesses and defendants’ (Wigzell et al., 2015: 50–51). Yet there is no mention anywhere in the report of the defendant live link provision. Moreover, a barrister quoted earlier in the report asserts that ‘it’s only very recently that a lot of advocates even appreciated that you could get special measures for defendants, so I think people don’t ask for them’ (Wigzell et al., 2015: 31). While this statement refers to special measures generally, it is by implication inclusive of the defendant live link provision under the YJCEA. All of this may further suggest that there is a lack of awareness of the provision among criminal practitioners. Alternatively (and perhaps additionally), the absence of references to the availability of the live link in both the Youth Proceedings Advocacy Review and Felicity Gerry’s article may signify its perceived unsuitability for defendant witnesses. If the usefulness of the measure is viewed by many as redundant in the context of defendant witnesses, it becomes an unlikely candidate for discussion by advocates considering how best to protect vulnerable defendants within the system.
Another finding warranting further discussion relates to the identification of the potential or actual vulnerability of defendant witnesses by the legal profession. R-4 suggested that, generally, victims are inherently more vulnerable than defendants. This portrays a very simplistic set of stereotypes about offenders and victims with echoes of Nils Christie’s work on ideal victims and suitable offenders. He describes how, at a social level, an important attribute for the construction of the ‘ideal victim’ is weakness (Christie, 1986: 19). This weakness could stem from the victim being sick, old or very young; attributes which today are often associated with vulnerability. Christie also describes an ideal offender as someone who ‘differs from the victim…[and] is, morally speaking, black against the white victim’ (Christie, 1986: 26). Such a depiction of ideal victims as being vulnerable, and ideal offenders as the opposite of victims (and thus not vulnerable), may result in some defendants struggling to have their vulnerability recognised within the criminal justice system. To dichotomise victims and defendants in this way is false, since victims are not always vulnerable, and defendants often are; as vast amounts of practitioner and academic research has highlighted. 41 Furthermore, the reality is that victim and offender populations often interchange, 42 and thus any vulnerability should be recognised and responded to notwithstanding the position of the individual in the criminal case.
The initial part of PS-2’s reflection on her experience of vulnerable defendants also seems consistent with this set of false stereotypes which depicts (all) defendants as not vulnerable and thus not in need of special measures. The idea of a vulnerable defendant in practice seems to be somewhat of a peculiarity to her prior to the interview, but her response is demonstrably reflective. She considers how this perception of defendants might not actually reflect the reality, and thus acknowledges the possibility of a vulnerable defendant in practice. The fact that this CPS solicitor seems to reflect for the first time on this issue in interview suggests that she had not been required to do so in the course of her work previously by, for example, a defence advocate arguing for special measures for their client or a trial judge permitting them. This observation comes with the caveat that this respondent had been in practice for only six years. However, given that the treatment of the vulnerable in criminal trials has become ever more topical in recent years, 43 and yet she had still not been forced to reconsider her view, it is argued that this finding remains one of significance.
The final areas in need of discussion relate to the respondents’ perceptions of a lack of practical advantage to be gained from employing the live link for vulnerable defendants, and instead the apparent tactical disadvantages. The absence of leadership offered by the appellate courts with regard to the utility of the live link provision is perhaps relevant to the attitudes of the criminal practitioners interviewed in this research. 44 Where intermediaries are concerned, the appellate courts have, as previously discussed, clearly advocated and paved the way for their use by vulnerable defendants. Furthermore, effort has been made to bridge the shortfall in their supply when a suitably matched intermediary cannot be found for a vulnerable defendant. 45 The distinct lack of judicial support for the defendant live link provision, and the consequent lack of guidance regarding its use, 46 seems to be reflected in the legal profession’s uncertainty as to its benefits.
R-3 suggests that the jury would pay more attention to a witness giving evidence in court as opposed to by live link. This applies, she suggests, in much the same way that a theatre audience pays more attention to a play than a cinema audience does to a film, where they are distracted by popcorn and mobile phones. It is perhaps true that greater attention may be paid by theatre-goers to a play than by viewers at a cinematic screening, as a direct result of the presence of the actors themselves. However, applying this analogy to the jury’s receipt of evidence is problematic. Whether the evidence is delivered live in person or via the live link, the jury remain in the courtroom. The barristers still conduct their examination and cross-examination from the courtroom; the judge still demands order; popcorn and mobile phones remain prohibited; and the jury is still required to evaluate the evidence as part of their deliberations on the defendant’s guilt. Thus the atmosphere and conditions in which the jury receives evidence remain constant, and it is merely the medium through which that evidence is delivered that is altered.
It appears, therefore, that the accuracy of the profession’s perception of ‘best evidence’ and evidence’s impact is perhaps of questionable validity (see also Davies, 1999). The ‘sanctity of the jury room’ 47 acts as a very real barrier to assessing the effect, if any, of the impact of the medium through which evidence is delivered on the jury. In an attempt to gauge its significance Ellison and Munro conducted mock jury research (Ellison and Munro, 2014), setting up various conditions through which testimony was received, including via prerecorded video evidence, live link, from behind screens, and without the use of any special measures. In the jurors’ deliberations, it was found that references to the way in which the witnesses testified were rarely made (Ellison and Munro, 2014: 21). This suggests that, for these participants, significance was not explicitly placed on the method by which evidence was given. However, the potential for loss of impact arguably remains as it may operate subconsciously and therefore becomes essentially unmeasurable. This makes the legal profession’s belief that testimony is more impactful when delivered in court difficult to counter in its entirety, since its accuracy can be neither proved nor disproved.
The ideals of ‘best evidence’ from within the profession are not held exclusively in relation to defendants giving evidence. Temkin, in her research with barristers involved in rape trials, found a ‘unanimous and strong opposition’ to making live link routinely available to witnesses in rape trials, saying it would make prosecution more difficult and ‘diminish the effect of the evidence’ (Temkin, 2000: 237). Similarly, Roberts et al.’s research into the outcome of CPS applications for special measures found that the judge refused requests for live link for a group of vulnerable adults and instead substituted it with screens. A potential interpretation of this suggested by the authors is that the judge may have wished to keep the witnesses in court so as to increase the impact of their evidence (Roberts et al., 2005: 285–286). Many respondents in my own research project also discussed the value of all witnesses giving evidence live in court so as to achieve maximum impact on the jury. For example, the barristers interviewed disclosed an almost unanimous preference, when prosecuting, for the cross-examination of their vulnerable witnesses to take place from behind a screen in court rather than remotely by live link. Their explanation for this was that evidence given from behind a screen carried with it more impact than live linked testimony.
Whether there remains a proper place for ‘tactics’ in criminal trials is debatable. The respondents in this study suggest that the approach adopted in criminal trials is often contingent on the views of the advocates regarding ‘best evidence’ and its perceived tactical advantages. Given the recent push towards the criminal trial being a well-managed forensic examination of the defendant’s guilt (see Darbyshire, 2014; Garland and McEwan, 2012; McEwan, 2011); perhaps defence advocates should avoid engaging with such tactics in an attempt to secure an acquittal where it ought not to be due. 48 It certainly seems that this approach, whether rightly or wrongly, runs counter to Lord Justice Auld’s view that ‘the criminal trial is not a game under which a guilty defendant should be provided with a sporting chance’ (Auld, 2001: 459). A full review of this debate is outside of the scope of this paper (but see McConville and Marsh, 2015), but it is sufficient to note that, in some cases, much more emphasis seems to be placed on tactical advantage than on the well-being of individual vulnerable defendants.
Conclusion
Despite the statutory inequality between vulnerable defendant and non-defendant witnesses wishing to invoke the live link, my initial expectation that most of the practitioners interviewed would have had some experience of defendants utilising the provision seems reasonable. This is particularly so given the substantial evidence which exists regarding the prevalence of defendant vulnerability, as well as the fact that almost all of the respondents had been in practice since before the insertion of the provision for defendants. The findings from the interviews conducted in this research reveal what appears to be a very low use of the live link by defence advocates for vulnerable defendants. Only two of the criminal practitioners interviewed had been involved in a trial where the defendant testified in this way, and only one other occurrence of such could be recalled. This paper has thus argued that there are substantial barriers which impede the use of the live link by vulnerable defendants giving evidence in Crown Court trials.
These barriers include, first, an apparent lack of awareness of the availability of the live link to vulnerable defendants. Some respondents, including those who successfully invoked the live link, were unaware of the statutory provision prior to the interview. Other respondents, who were themselves aware, speculated that there was a general lack of awareness within the profession which inhibited its use. This was further supported by its lack of consideration by participants in the Youth Proceedings Advocacy Review and by Felicity Gerry (QC) in her article on vulnerable defendants for The Justice Gap.
The second barrier attributed to the low uptake of the live link provision is the poor identification of vulnerability by those working within the profession. The respondents indicated that, despite the profession’s increased awareness of the existence of vulnerable defendants in theory, even defendants with the most obvious vulnerabilities are still not always identified as such in practice.
The third and final barrier to the use of the live link by vulnerable defendants relates to the profession’s perceptions of its usefulness. This concerns both its practical and tactical benefits. Practically speaking, most respondents were unable to identify scenarios in which the live link provision might improve a vulnerable defendant’s evidence. The purpose of the provision was viewed by the profession as to keep a witness out of court, and this was not seen as applicable to defendants who were already present in the courtroom throughout the trial. Tactically, respondents worried that the use of the live link by a defendant would be viewed suspiciously by the jury. In addition, the findings from the interviews support existing research which denotes that there is a belief within the profession that ‘best evidence’ is that which is obtained live in court before the jury. The use of the live link by vulnerable defendants was viewed as reducing the impact of their testimony on the jury, and thus their chances of acquittal.
In its recent report on unfitness to plead, the Law Commission has supported a move towards the mandatory screening of defendants under the age of 14 for participation difficulties (Law Commission, 2016b: 256). It has also recommended that the defendant live link provision be amended so as to reflect the comparable provision available to non-defendant witnesses. 49 If implemented, this would mean that the live link becomes statutorily available in equal measure to all vulnerable witnesses and defendants. Increased screening of defendants and legislative reform would serve to raise awareness of the existence of the live link provision for those identified as vulnerable. While these would be laudable developments, I have demonstrated that in isolation they will not result in greater use of the live link by defendant witnesses. The legal profession are the gatekeepers to vulnerable court users accessing special measures in the Crown Court. In order for vulnerable defendants to have any real chance of giving their evidence remotely, the perception among the profession, that the ability to give evidence in this way is not beneficial to them, and may even be positively detrimental to their case, will also need to be addressed.
Footnotes
Acknowledgements
I am very grateful to Professor Rob Cryer, Dr Rosa Freedman, Dr Imogen Jones, Professor Hilary Sommerlad, Dr Steven Vaughan and Professor Richard Young for generous help with previous drafts of this paper. I also thank the anonymous referee for their comments. All mistakes and errors are my own.
Funding
This research was part of a more broad-ranging doctoral inquiry which was funded by the Economic and Social Research Council.