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VULNERABLE AND INTIMIDATED WITNESSES: REVIEW OF PROVISIONS IN OTHER JURISDICTIONS

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VULNERABLE AND INTIMIDATED WITNESSES: REVIEW OF PROVISIONS IN OTHER JURISDICTIONS

THE NEED TO ADDRESS ISSUES FOR "VULNERABLE" WITNESSES

The identification of witnesses as "vulnerable" has led to a recognition of the need to address this. It is evident from the discussion of the nature of vulnerability that this issue is central to the current focus upon social inclusion and the promotion of equality. There are groups of witnesses who do not have equal access to a criminal justice system which does not address their circumstances and requirements and thus does not allow them to participate on a full and equal basis in the process. This surely affects their access to justice.

The increasing recognition of the need for action, coupled with a growing emphasis on "victims"' rights, has led to a growing focus on ways to protect "vulnerable" witnesses, and to allow them to exercise their rights alongside those of defendants, without compromising the justice process.

In addition to these clear links to the social justice agenda, there are also sound reasons in the purpose of the criminal justice process itself for consideration of these issues. There has also been a growing recognition that the willingness or ability of these witnesses to participate in the criminal justice process affects the level of reporting of crime and the level of prosecution of some crimes, as well as the likelihood of securing a conviction.

There is considerable research to indicate that some cases involving witnesses who have been identified as "vulnerable" have been unreported or under-reported (e.g. women experiencing domestic abuse or rape). There is also evidence of cases where witnesses have been unable to attend court, and others where cases have been abandoned before or during the court hearing. There have been examples of trials collapsing because of the impact of the adversarial nature of proceedings on witnesses who have been identified as "vulnerable" and examples of other difficulties in securing convictions.

There is also considerable literature examining "case attrition" in sexual assault cases (e.g. Spears and Spohn, 1997; Kingsnorth, MacIntosh and Wentworth, 1999) and in relation to domestic abuse (Ursel, 1995), where the authors identify the impact of witnesses' participation on prosecutions and identify that this has an impact upon the prosecutor's decision itself. Davies (1991) noted that, by the early 1990s, it had become "virtually impossible" to secure a child abuse conviction in England and Wales.

In relation to the abuse of children, the Crown Prosecution Service (CPS) in England and Wales examined 53 discontinued cases in relation to child abuse (Home Office, 1998) and found that the most prevalent reason for discontinuance was the wish of the "victim" not to continue to give evidence. The same issues have emerged with witnesses facing other forms of intimidation, and "Law and Order" suggested in June 1994 that more than 300 cases had been abandoned in the previous two years as a result of suspected intimidation. As Boone (1996) suggests (in relation to rape, but applicable to other crimes) the difficulties have the effect of:

"allowing their assailants to go free while the victims live with the pain and effects of the incident".

The collapse of cases clearly does not provide justice for either the defendant or the "victim". It is in the interests of ensuring that those responsible for such crimes are prosecuted that those witnesses identified as "vulnerable" are enabled to provide their evidence and there has been growing debate of these issues in the last two decades. Attempts to address these concerns are evident in legislation and case law in many jurisdictions, and will be discussed in more detail throughout the report.

OVERVIEW OF THE NATURE OF PROVISION

In terms of attempts to address these needs, the detailed examination of provisions will form the basis of Sections 2-4. It was noted earlier that there is considerable variation within as well as between countries in terms of the witnesses who are included in their provision, the ways in which they are included and the types of provision to which they have access. Although this report will provide examples of how measures are used, it is impossible to reflect all of the individual variations identified due to the sheer complexity of both the number of different jurisdictions involved and the variety of provisions contained within individual pieces of legislation. Similarly, there are some areas in which there is a general lack of information available in relation to the provisions which are made.

Children

In general terms, children are the witnesses who are recognised most widely in legislation as requiring particular forms of provision and are identified across jurisdictions as a group for whom "special measures" can be provided. Recent years have seen an increase in the provisions for children (relating, in many cases, to the increased awareness of child sexual abuse and to the increased reporting of this). Examples of measures for children have been found in Canada, the UK, the USA, Australia, Scotland, New Zealand, Hong Kong and South Africa, as well as in a number of non-common law jurisdictions.

In terms of some of the changes which have been made, in Canada, in 1984, the identification of the scale of child sexual abuse in the Badgely Committee Report led to a number of changes to legislation, with significant reforms in 1988, followed by later reforms in 1993 and 1997. Judges have changed aspects of the rules of common law in relation to child witnesses and there has been an extension of provisions to include any child witness for any sexual offence/assault (although some provisions refer specifically to under 14s).

A further example of reform is found in the recent Youth Justice and Criminal Evidence Act (1999) in England and Wales which has repealed a range of offence-related age qualifications, with the focus moving to the age of the child per se, rather than the nature of the offence, as the main qualifying factor (Birch, 2000). Since 1933, courts in England and Wales have had to have regard to the welfare of children giving evidence, but the recent legislation (which is being progressively implemented) brings together a wide range of measures and removes previous anomalies and clarifies issues in relation to the admissibility of various forms of evidence. Children aged under 17 now qualify automatically for a range of special measures in specific types of case. These measures can include the use of CCTV ("live link") and screens, and the admission of pre-trial videotaped evidence.

In the USA, Congress enacted the "Child Victims and Child Witnesses' Rights Act" in 1990, giving protection to all of those under the age of 18 who have experienced physical abuse, sexual abuse or exploitation or who are witness to such a crime against someone else, although the status of child witnesses in relation to protection is not as clear cut as this may imply. The decision in relation to protection must be made on a case by case basis taking into account a range of factors, and allows for the use of measures, such as, for example, CCTV, anonymity and closed courts. Individual states have also enacted their own statutes by which children can be allowed to use a range of measures, and provisions vary. CCTV, for example, is permitted in some states while not by others. Richards (2000) states that, by 2000, 37 US states had statutes in place allowing particular measures in child sexual abuse cases. Some statutes require courts to make special provisions for children. In others, this is reliant on their having a general awareness and using their discretion. Richards, for example, notes that Wisconsin identifies a list of provisions which must be made for children (such as breaks, arrangements for questions and practical/physical arrangements) and California has a stated obligation to prevent harm and provide support to children. Some states do not, however, specify these issues. There is also variation between states in the types of offences which are covered by the provisions (ranging from only sexual abuse to other forms of abuse and to no limitations). The age to which the provisions apply also varies (with some applying to all "minors" and some to specific age groups). There are also a range of constitutional issues in relation to the presumed right of confrontation afforded the accused, and the rights of the witness. Examples of these variations are discussed further later in the report and the specific issue of confrontation is discussed in Section 5.

Provisions exist in both Commonwealth and State and Territorial jurisdictions across Australia to provide protection to children in court. This can include the use of CCTV and screens, and the use of pre-trial video taped evidence. In addition, children may also have access to a range of pre-trial and other services. Children can also attend court with a companion if they choose. These protections and support mechanisms appear not to be consistent across jurisdictions, nor are they implemented in identical ways, and, in an attempt to address this, the Australian Law Reform Commission made a wide ranging series of recommendations on many aspects of the interface between children and the legal process (ALRC, 1997), but it is understood that many of the recommendations remain to be implemented.

In New Zealand, the Evidence Amendment Act (1989) and the Summary Proceedings Amendment Act (1989) introduced measures to make it easier for children to communicate in court and to reduce the trauma for them. The Evidence Amendment Act of 1989 specifies provisions for children up to the age of 17 where the offence is sexual, and allows different forms of evidence. In addition, the courts have made it clear that these means can be extended to include other crimes and child witnesses. More recently, the New Zealand Law Commission has proposed a series of changes which extend the scope of who can give evidence and the types of support which may be made available to them (NZLC, 1999).

In South Africa, the Report on the Protection of Child Witnesses by the South African Law Commission also made a number of recommendations in relation to special measures, and in Israel, a neutral examiner is used to question children. Similar provisions have also been introduced in Ireland (Elliot, 1998).

Disabled people

There has, to date, been less focus on other groups in the development of legislative reform, and this is reflected in the more limited information in the literature in relation to other groups of witnesses. As noted previously, there are some basic problems in relation to the definition of people with physical and intellectual impairments and mental health problems (unlike children, where they are generally identified by age, although, paradoxically, children with physical and intellectual impairments are often included specifically in legislation even where adults are not). Palmer (1996), for example, in discussing the difficulties in identifying people who require safeguards (in this case suspects when detained, but the same issues apply), noted that:

"recognising vulnerable suspects is crucial if the safeguards are to be implemented … (while staff have) little difficulty in recognising juveniles, identifying those with learning difficulties or those who suffer from mental illness is more difficult".

Palmer (1996) also notes that some disabled people will not disclose their impairment, making provision of support difficult. There are, as Elliot (1998) points out, considerable judgment issues in relation to any definition used, and particularly in terms of defining, or implementing, a cut-off point in terms of eligibility for measures.

The inclusion of physical "impairment" or "disability" varies between jurisdictions, but many jurisdictions will make accommodations for people with physical disabilities, particularly in relation to taking steps to overcome inability to hear, understand or reply to a question and to accommodate their requirements relating to their physical impairment. In some cases, these rights are also contained within wider rights, such as the right to access to public buildings contained within the Americans With Disabilities Act. Examples of specific provisions will be provided in the text, but these tend to be the main provisions for this group.

There are examples of provisions for witnesses with intellectual and physical impairments and for people with mental health problems, although this may involve access to a more limited range of measures than is the case for children and these are not always enshrined in legislation. In reviewing this issue in 1996, the New South Wales Law Reform Commission suggested that, although there were no specific provisions within state legislation to protect witnesses in these groups, the de facto right for the court already existed in common law together with the precedents set by protection for other categories of "vulnerable" witness. Nonetheless, the Commission's recommendation was that specific provision be made in legislation in order to remove any inconsistency in operation.

For people with intellectual disabilities, there remain issues across jurisdictions as to whether, or how, witnesses have to demonstrate competency. This is an issue on two levels. There is ample evidence that law professionals assume that people with an intellectual disability will not be competent and may not, therefore, consider them as potential witnesses (Milne et al, 1999). The second issue is, as noted earlier, that there is relatively little specific provision made in legislation. There are, however, some examples within legislation. In England and Wales, the Youth Justice and Criminal Evidence Act 1999 introduced a "presumption" of competency, with the exclusions being where a witness demonstrably cannot understand the questions or gives incomprehensible answers (Birch, 2000). There is still, however, a distinction between sworn and unsworn testimony. A similar approach of presumption now exists in other jurisdictions, for example in Australia. In New South Wales (for example, the Evidence Act also sets out the assumption that all viable means of communicating with a witness (whether in relation to physical impairment or intellectual disability) will be tried before a witness is declared incompetent.

Generally, there appears to be an increasing recognition of the needs of people with intellectual disabilities, although the ways in which they are addressed continue to vary. In Australia, for example, there is variation between jurisdictions, but virtually all allow special arrangements for evidence-giving to some adult witnesses with an intellectual disability, including the use of screens and CCTV, and in some cases, the use of videotaped evidence. These are predicated on the assumption (in most cases) that support measures should be available to all categories of witnesses and, therefore, those available for adults with an intellectual disability parallel those for children. There are also provisions available to allow for, for example, the judge controlling the nature of the questioning by the defence. In most states in Australia, a witness has the right to have a support person with them when giving evidence, although the actual role that person can play varies across jurisdictions. There is, however, as noted by Kebbell and Hatton (1999) a lack of published evidence on the experiences of people with an intellectual disability and court practices.

Similarly, there is not a common approach which is identifiable from the literature in relation to the nature of provision of particular support for people with mental health problems and few examples of this. Much of the discussion of these issues is in relation to "competence" to testify, rather than the provision of support to enable them to do so. In relation to mental health specifically, much of the (albeit limited) discussion relates to accused persons and the decision in relation to fitness to stand trial.

Perhaps the clearest example of attempts to clarify access to measures for witnesses in these groups is in England and Wales, where legislative provision covers people with a "mental disorder" within the meaning of the Mental Health Act (1983) or significant impairment of intelligence and social functioning (intellectual disability) or physical disability or disorder which the court considers likely to affect the quality of their evidence. All of these groups are included under the Youth Justice and Criminal Evidence Act 1999. There are differences, however, from the provision to children (who qualify automatically for special measures), as witnesses in these categories must demonstrate that the quality of their evidence is likely to be affected in the absence of special measures (Birch, 2000). The quality relates to the "completeness, coherence and accuracy" (Bates, 1999) of their testimony, and a witness who satisfies the test then qualifies for support.

Witnesses experiencing fear or distress

Finally, for witnesses who experience fear, distress or intimidation, there are some measures in a number or jurisdictions, but also differences in both eligibility and the recognition of particular groups.

Again, the legislation in England and Wales has attempted to address these issues and now includes witnesses who are likely to suffer "fear or distress", including all of those who are complainants in sexual cases. As with disabled people, the effect of the fear or distress for these witnesses must be considered to diminish the quality of their evidence. They are then eligible for the majority of provisions (with the exception of the use of intermediaries and communication aids) and the court will take a range of factors into account in determining whether this is the case.

There are also examples of provisions for witnesses in fear/distress in other jurisdictions. For women, specifically, in Western Australia, the ALRC points out that the Acts Amendment (Sexual Offences) Act of 1992 states that special measures such as screens, CCTV and supports can be used where the witness may:

"suffer emotional trauma or be intimidated and distressed and unable to give evidence by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other reason".

In Canada, the issues facing women have also been recognised, with the development of a Ministry of the Attorney General Equality Initiative, with the aim of improving gender equality in the criminal justice system. Hughes (1993), however, notes a case in Canada where an abused women who attempted suicide in order not to have to give evidence against her abuser was ordered to be detained by the judge and spent 5 days imprisoned (Pigeau v Crowell). The author notes that the legal system took no account of the reasons why the woman was fearful of testifying, simply that she did not do so.

Changes have also been made to the nature of evidence in rape cases in terms of the extent to which the defence can use information on "victims"' sexual and other histories. There is now a general approach throughout most common law jurisdictions to disallow questioning of this kind in principle, although, as will become clear later, there have been substantial issues with the effectiveness of measures in practice (Elliot, 1998). Legislation which is known as "rape shield" has been introduced in many US states to attempt to protect the admission of evidence relating specifically to women's sexual histories. Boone (1996) notes that the Federal Rape Shield Statute was enacted in 1978, after which 46 states had enacted similar rape shield legislation. Similar provisions were introduced in England and Wales in 1976 in the Sexual Offences (Amendment) Act (although these were found to be far from fully effective).

Other jurisdictions have also taken the approach of including witnesses in fear or distress (intimidated witnesses) in their definition of witnesses in need of special provision (for example, Hong Kong and Tasmania). Examples of provisions to protect the identity of witnesses in fear were found in the USA, Australia, New Zealand, Poland, South Africa and the former Yugoslavia. In many jurisdictions, these take the form of witness protection and support schemes, and these often encompass the provision of measures in and out of court to facilitate evidence-giving. In the USA, for example, the Federal Victim and Witness Protection Act of 1982, the Federal Victims of Crime Act and Witness Security Reform Acts of 1984 offer some support to "victims", and a number of states have a victims' "Bill of Rights" which ensures the provision of services to them. Witnesses in the USA who can be provided with protection are those in federal cases relating to organised crime, racketeering, drug trafficking and "serious felonies".

In relation specifically to war crimes, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991 was established by the UN Security Council as "an organ of the whole international community" and the tribunal considered a number of issues relating to the protection of witnesses (particularly in relation to the issues of anonymity). The Tribunal allowed measures for protection of "victims" and witnesses in the Statute and Rules, including a range of provisions such as "in camera proceedings", protection of names, CCTV, voice alteration and other measures which are also seen to be consistent with the laws of the individual countries in the international community.

Clearly, the detailed provisions made, and the ways in which these have been used, are considered in the following sections, but this section provides a broad overview of the way in which provision to "vulnerable" witnesses has been developing. Although the focus to date has been primarily upon children, it is clear that there is some recognition of the issues facing other groups. Before moving to consider the specific use of measures in different jurisdictions, a brief overview of the nature of provision which can be available will also be provided.

THE NATURE OF PROVISION

In adversarial jurisdictions, the range of measures which can be used include support at different stages in the process. The measures relate to:

  • evidence giving (with issues relating to the competency of the witness, the admissibility of written statements, the use of screens, CCTV, video or audio recorded evidence, the provision of evidence by deposition, the use of hearsay evidence and the allowing of communication support for a witness);
  • court process and practice (with issues relating to constraints to the types of questions which can be asked and the ways in which the professional staff carry out their roles, the use of language and methods of questioning, the opportunity for anonymity, and issues relating to the court layout, waiting areas and court experiences);
  • other support (with issues relating to a range of preparatory measures, counselling following trial and the provision of witness protection schemes).

Although many of these measures focus directly upon enabling the provision of evidence at trial, all can be seen to relate to the ability of a witness to participate in the process. As such, all impact more or less directly upon their evidence giving and will be discussed in the following sections.

There is not always an automatic presumption of the use of all of the specific measures for any of the groups of witnesses identified. It remains the case in most jurisdictions that "in all but exceptional circumstances", witnesses should be identified and should be called upon to give their evidence orally in open court, and that the defence should have a right to cross-examine (even where special measures are used). This underpins adversarial justice systems and affects the provision made.

There are also issues relating to how the application for protection is made and, in England and Wales, the Youth Justice and Criminal Evidence Act 1999 introduced a set of criteria for applications for "special measures directions" (which is the catch-all term for protection in this legislation). In the case of children and young people, provision is automatic for children aged under 17 on the day of the hearing, and can be mandatory for some measures (for example, in relation to the use of a live link for interviews, for the admission of video tape, and for video recording in relation to cross- and re-examination for some forms of offence), although in some cases, measures can be declined, should the young person wish. For adult witnesses, the situation is less clear cut. Although, for some categories of offence (sexual offences) eligibility is automatic unless declined, beyond this, specific application has to be made.

One interesting feature of the Youth Justice and Criminal Evidence Act 1999 is that anyone connected with the case, or the court itself, can request a special measures direction (for example in relation to a witness with an intellectual disability) (Birch, 2000). If a request has been refused at a pre-trial hearing or during the trial, this request can only be repeated as evidence-giving progresses if there is a "material change in circumstances" Hoyano (2000). Hoyano also notes that the court can call upon expert evidence in reaching its decision as to which measures are appropriate.

There is a general presumption in many jurisdictions that procedural issues such as whether or not a witness should be afforded special protection, as well as which evidence to admit (e.g. videotape, hearsay), should be decided at pre-trial hearings (e.g. England and Wales, Tasmania, Canada).

One further point in relation to procedural issues is that, although a right to some form of protection may exist in statute, specific measures may not be available in all courts. For example, the effective right to use CCTV existed in England and Wales well before most courts were actually equipped with the appropriate technology to facilitate this. The Youth Justice and Criminal Evidence Act 1999 recognised this in permitting the relocation of proceedings to other courts (on a temporary basis as required) where specific assistance is not available in the allocated court.

OVERVIEW

All of these issues set the discussion of measures to support "vulnerable" witnesses in context. It is clear that there are many witnesses for whom specific measures may be required to enable them to give evidence. The actual ways in which their requirements are met in practice and the evidence in relation to the effectiveness of the measures adopted forms the basis of the remainder of the report.