Our legislation on taking recorded evidence from vulnerable witnesses is out of date, writes Miriam Delahunt
THE RECENT decision of Mr Justice White to admit the recording of a Garda interview of a complainant with a mental disability in relation to an alleged sexual offence was the first application of its nature to succeed.
This follows the commencement in October 2008 of section 16 (1) (b) of the Criminal Evidence Act 1992, which provided for pre-trial recording of examination in chief testimony.
The admission of the recorded evidence highlighted issues as diverse as the training of gardaí and legal practitioners in the taking of evidence of vulnerable witnesses, the risks to the accused in admitting such evidence, undefined terms and
lacunae
in the legislation, and technical difficulties in the editing and playing of the recording.
While Mr Justice White directed the jury to return a not guilty verdict in the case, the ruling to admit the recording of the complainants’ interview is of considerable significance.
Pre-trial recording of the evidence of children and those with mental disabilities is an old idea.
The Report of the Advisory Group on Video Evidence published in 1989 in the UK recommended full pre-trial video depositions. It influenced the Irish Law Reform Commission’s Reports on Child Sexual Abuse and Sexual Offences Against the Mentally Handicapped, published in 1990, which recommended pre-trial recording of examination in chief testimony, and many of the recommendations were contained in the Criminal Evidence Act 1992. Section 16 (1) (b) of that Act was an attempt to provide protection to the most vulnerable witnesses who have been the victims of sexual and violent offences.
The legislation states the complainant must be under 14 or suffer from a mental handicap, and the interview may be taken by gardaí or “a person who is competent for the purpose”. Neither this phrase nor “mental handicap”, the actual term used, is defined.
This section is drafted specifically for the most vulnerable witnesses with a presumption that complainants who allege certain sexual or violent offences were committed against them will be able to give examination in chief evidence pre-trial. Vague legislative safeguards for the accused state the recording will not be admitted if it is not in the interests of justice to do so, and if there is a risk that its admission will result in unfairness to the accused.
The aim of pre-trial video depositions is to allow evidence to be taken close in time to the alleged incident, which will allow greater detail to be recorded. It may also minimise the trauma for the witness in the trial process, but it is doubtful whether it achieves this, as s16 (1) (b) states that the witness must be available in court (probably via video-link) for cross-examination.
While it is the right of the defence not to call the complainant, he or she should watch the recording as it is played and remain available should cross-examination be required.
This legislative compromise achieves little for either the complainant or the accused. The complainant must undergo the trauma of possible or actual cross-examination, and the defence counsel cannot judge how the complainant will react as he or she is faced with questioning in such a stressful environment.
As the courts move towards pre-trial deposition, legislation is required which will take the vulnerable witness out of the trial process entirely by giving all of his or her evidence pre-trial.
For the complainant, having his or her testimony deposed soon after the alleged incident will mean not having to endure the considerable delay waiting for the case to come to court.
For both prosecution and defence, the knowledge that the evidence has been fully adduced will allow them to prepare their cases, and this will increase the choices open to the accused.
We now use the term “mental disability” rather than “mental handicap”. Not only has our language changed since 1992, but research into the capacity of vulnerable witnesses has expanded considerably. In England and Wales, video-recorded examination in chief evidence has been used under the Youth Justice and Criminal Evidence Act since 1999, but the section which provides for video-recorded cross-examination has never been commenced. It seems unlikely to be in its present form.
The UK’s 1999 Act was revised by the Coroners and Justice Act 2009 which took into consideration research carried out by organisations such as the NSPCC and the Nuffield Foundation. In Australia, while similar legislative revisions occurred in the early 1990s, almost all six states have opted for full pre-trial deposition with continual legislative research and review. No equivalent research exists in this jurisdiction.
We have legislation here which is 20 years out of date, which is limited in respect of the offences to which it applies, which contains archaic, undefined terms, which does not provide statutory guidelines for gardaí or courts to work within, and which does little to safeguard the interests of either the complainant or defendant. We continue to endure a situation where our adversarial system risks imposing a secondary trauma on the complainant.
The Rape Crisis Report Network Report recently stated that only 26 per cent of survivors of sex attacks have gone to the authorities.
Our current court procedures do little to improve reporting figures, and our legislation requires full research and overhaul.
Unfortunately, vulnerable witnesses are already a low priority for a Government preoccupied with the economic crisis. The implementation of full pre-trial depositions will be expensive and it is likely that complainants, the courts and all those involved will have to put up with piecemeal measures for some time.
Miriam Delahunt is a practising barrister and is working on a PhD on the subject of support measures for child witnesses in criminal proceedings in the Law School in Trinity College Dublin