Home AffairsWritten evidence from The Law Society [LCG 21]

I am writing to offer the perspective of the Law Society in respect of certain proposals made in the course of your Committee’s inquiry into localised child grooming, some aspects of which were the subject of probing amendments to the Crime and Courts Bill debated on 18 March.

Having discussed these matters with the Society’s Criminal Law Committee, we would comment as follows:

The Increased use of Special Measures

We are broadly supportive of the increased availability of special measures. However, their use should not be made mandatory because, in our experience, some complainants/witnesses want to appear and give their evidence “live” in court. It can also have beneficial effects on the impact on juries to see the witness live in the courtroom. Where, therefore, a witness expresses a clear desire to give live evidence they should not be prevented from doing so by a mandatory requirement to use special measures.

Increased use of Expert Witnesses

We do not believe that the use of experts to explain the psychological impact of child sexual exploitation, and the potential resulting behavioural change, will aid the trial process. There is a real risk that the focus of the trial could turn to the credibility of the expert, rather than the witnesses to the facts of the alleged offence. The use of experts would also extend the duration and increase the cost of trials.

Limitation of Cross-examination by Multiple Defence Barristers

We do not believe that there is a need to have a statutory power to limit cross examination. The conduct of the trial must remain within the power of the trial judge. In our view, the Criminal Procedure Rules 2011 give the judge sufficient power to regulate the conduct of cross-examination. Different defendants may have different cases to be put to witnesses, and limiting the number of advocates who may cross examine a witness could lead to unfairness.

The Introduction of Specialist Courts

We are not convinced that a specialist court for child sexual abuse cases is necessary. Making improvements to existing Crown Courts through the provision of better special measures equipment (eg video links) , as well as more training for judges, police officers and court staff is, in our view, a better alternative to specialised courts. Recent initiatives for the training of solicitor advocates and barristers who are involved in cases with vulnerable witnesses are underway (for example, the Advocates Gateway Project) with the support of the Law Society.

We note from the new clause 14(3) that there is a list of those that the Secretary of State must involve in establishing the specialist court. We note that this list includes “court officials” in addition to the police, the prosecution and victims groups but makes no reference to defence practitioners. We would very much like to see defence representatives included in the list of those to be involved if the court is to be introduced.

The use of Intermediaries

We support the greater use of intermediaries, where their use is appropriate.

However, we would point out that the comments made in debate in the House of Commons on 18 March by Ann Coffey with respect to child witnesses apply equally to child defendants, and according to the provision of intermediaries should apply equally to them:

“children are very vulnerable witnesses because they do not communicate in the same way as adults. Recent NSPCC research showed that ... more than half of young witnesses experience stress symptoms ranging from sleeping and eating problems to self-harming. Children under stress become confused in the witness box.” (HC Hansard column 743)

We are concerned that the Coroners and Justice Act 2009 provisions for intermediaries to be made available for vulnerable defendants, including children, have yet to come into force several years after they were enacted.

Thank you for the opportunity to comment on the proposals. At the Committee’s request I would be happy to expand on any of the above.

Richard Atkinson
Chairman of the Law Society’s Criminal Law Committee

April 2013