Pre-recorded video evidence in sexual assault and rape trials

Introduction:

i. Background towards conflicting difficulties of this research

 

In the title of this paper, it's conjectured that victims of sexual assault are commonly the prime witnesses in prosecution proceedings for these forms of crime. The reason for that is that most sexual assaults are perpetrated in individual by an individual already known on the victim. What is more, often there's no forensic evidence accessible and so victims of sexual assault aren't only the prime witnesses in prosecution proceedings for these varieties of crime but, often, the only evidence that a crime has taken place at all . This can location actual burden on sexual assault victims during the trial stage from the prosecution. For a single thing, the victim have to relive the traumatic events in question, by explaining them on the court, jury and defence barrister. Secondly, a popular defence strategy is to undermine the credibility in the victim and to convince the Court either that no sexual contact occurred or that it was consensual. Within the absence of forensic evidence, always it boils down towards victim’s term over that on the defendant and it is really tough to resolve 2 conflicting accounts on the satisfaction of the criminal normal of proof needed for a successful conviction. As the Office for Criminal Justice Reform writes, “Those victims whose cases do make it to court are faced of the intimidating prospect of acquiring to recount traumatic and always intimate details, endure cross-examination and in some cases have facts about their past sexual behaviour presented to the court as evidence against them. ”

 

In light of this, it is not surprising that (i) the rates of conviction for rape and sexual assault are so low (approx. 6% of all cases brought bring about a successful prosecution ); and, (ii) a significant number of victims of sexual assault or rape do not report their crimes towards police, either inside a timely manner* or at all**, or choose to drop their claims when it transpires that they will must testify as being a prime witness inside the prosecution against their attacker . Research suggests how the drop-out rate is currently 33%. As the Office for Criminal Justice Reform writes, “Research has observed that victims who declined to perform the initial investigative procedure and victim withdrawals accounted for more than one-third of cases lost at the police stage. Key contributory factors have been not becoming believed and fear of heading from your criminal justice process. ”

 

*The chances of securing a successful prosecution against a rapist or sexual attacker decrease substantially as time passes and consequently anything that leads victims to delay reporting their crime towards the Police has the consequential effect of reducing the rate of successful conviction.

 

**This author doesn't purport to suggest that they're the only factors why victims of sexual assault select not to report their crimes towards Police; it is well documented that victims of sexual assault always believe shame and guilt for what has happened to them, as if they're somehow to blame, and that is another major reason why this kind of victims always prefer to retain their ordeals secret . Other factors include fear of retaliation and the distrust in the reactions of family and close friends .

 

While these barriers to timely reporting and successful prosecution can't all be redressed by criminal justice reform, nevertheless, in light of the simple fact that some of these barriers emanate from fear of or lack of confidence from the court system itself, the law of criminal evidence can play an critical role in mitigating some of these barriers; for example, by protecting these vulnerable witnesses and making the ordeal of trial less traumatic, the law of criminal evidence could, eventually, adjust victims’ perceptions in the trial process and make them less probably to permit their fears of that process to interfere with their decisions to report their sexual assaults.

 

One reform proposal that may be usually discussed in this context may be the use of pre-recorded video testimony for victims of sexual assaults. The idea behind this proposal is that victims of this kind of crimes are much less most likely to be afraid of the trial program if they know that they can record their testimony in advance and that they can't be cross-examined by their attacker’s barristers (even if they're asked to respond to specific questions inside their testimony). These kinds of reforms have been implemented during the field of youth justice for some time—for example, there are several provisions under the Youth Justice and Criminal Evidence Act 1999 which enable for ones use of video links to shield infant victims of sexual or physical abuse from their attackers—but are fairly new from the context of adult rape and sexual assault cases.

While the use of video testimony is clearly beneficial to victims, prima facie it poses a true risk for the integrity on the due technique rights of defendants charged with these crimes. Under the criminal justice system of England and Wales there's a presumption that all individuals charged having a criminal offence are innocent of that offence until proven guilty . This really is provided, inter alia, by Write-up 6(2) with the Human Rights Act 1998 which states that, “Everyone charged using a criminal offence shall be presumed innocent until proved guilty based on law. ” What is more, it's a human right of all persons charged using a criminal offence to be able to challenge successfully the accuracy of any evidence which is admitted against them. That is provided inter alia by Post 6(3) on the 1998 Act which states that, “Everyone charged with a criminal offence has the following minimum rights: (…) (b) for getting ample time and facilities for your preparation of his defence; (…) (d)to examine or have examined witnesses against him and to have the attendance and examination of witnesses on his behalf under the exact same problems as witnesses against him… ”

In this produce research paper, we are concerned in particular with the question of whether the use of video testimony in sexual assault cases (involving each adult and infant victims) unduly prejudices the right of criminal defendants to properly challenge the accuracy and reliability of evidence adduced against them.

ii. The aims and objectives of this research:

 

The primary aim of this search is to evaluate the extent to which the law of criminal evidence has managed to strike an proper balance between protecting the victims of sexual assault, who are normally the prime witnesses in prosecution proceedings, on a a single hand, and protecting the due procedure rights of defendants charged with these crimes, specifically the right to correctly test the evidence which has been admitted against them, on a other?

 

The secondary aim of this look for is to derive recommendations for reform towards the law of criminal evidence to effect a a lot more right balance between protecting the victims of sexual assault over a a single hand, and protecting the due process rights of defendants charged with these crimes over a other.

 

The objectives of this look for paper are as follows: To identify the legal provisions which purport to enable the use of video evidence in sexual assault and rape trials; to identify the procedures which needs to be adhered to once utilizing this kind of evidence; to evaluate the possibly impact of the use of video testimony on rates of reporting and successful prosecution; to verify the appropriate of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service and to identify the extent to which it might be argued that this proper is often a qualified appropriate under the law of England and Wales; to evaluate the extent to which the use of video evidence may possibly prejudice the right of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service; to identify and critically evaluate the safeguards which exist currently to make sure that the use of video evidence is not permitted where its use would prejudice the ability from the defendant(s) in question to receive a fair trial; to evaluate regardless of whether an right balance has been struck in practice between protecting the interests of victims in the use of video testimony on the a single hand and preserving the interests of justice and the correct of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, over a other; to derive high level recommendations for reform towards the way that the law currently permits the use of video evidence in sexual assault and rape trials.

iii. The structure of this research paper.

 

The structure of this paper takes here form: In chapter one, this author traces the development with the use of video evidence in sexual assault and rape trials, identifies the legal provisions which regulate the use of these kinds of evidence and the procedures which should be followed once this sort of evidence is relied upon by the Crown Prosecution Support and critically evaluates whether the use of video evidence is very possibly to have any impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders.

 

In chapter two, this author traces the development from the proper of criminal defendants to a fair trial, generally, and, specifically, their appropriate to test the evidence adduced against them, identifies the legal provisions which give rise to these rights and evaluates the nature of individuals rights (i.e. whether they are absolute rights or qualified rights) and evaluates the extent to which the use of video evidence may possibly prejudice the appropriate of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, and also the circumstances under which that prejudice is most likely to be the greatest.

 

In chapter three, this author identifies and critically evaluates the safeguards which exist currently to ensure that the use of video evidence just isn't permitted where its use would prejudice the ability with the defendants to receive a fair trial and evaluates regardless of whether or not, in practice, the law has managed to strike an right balance among protecting the interests of victims through the use of video testimony on a a single hand and preserving the interests of justice and the proper of criminal defendants to test the evidence relied upon against them by the Crown Prosecution Service, on the other. Also, in this chapter, this author derives high level recommendations for reform on the way how the law currently permits the use of video evidence in sexual assault and rape trials.

Finally, this author presents his conclusions to this research.

1. Using video evidence in sexual assault and rape trials; is it almost certainly to get a positive impact on rates of reporting and rates of successful prosecution of rapists and sexual offenders?

 

As noted within the introduction of this paper, it has been argued during the academic literature that a significant barrier on the timely reporting of sexual offences (and also a single from the factors why the drop-out rate—i.e. the range of victims picking to withdraw their claims before the conclusion from the trial—is so high ) are well-known victim perceptions that if they report their assault they will be subjected to a traumatic trial procedure wherever their account of events will probably be cross-examined by their perpetrator’s legal representatives and their character are going to be known as into question .

 

The use of pre-recorded video testimony is produced to mitigate these barriers (ultimately) to prosecution by protecting these vulnerable witnesses and making the ordeal of trial much less traumatic for them. More than time, it has been conjectured, victims’ perceptions on the trial method will improve and they will likely be much less afraid with the trial process and far more willing to report their sexual assaults when they occur.

 

Currently, you'll find two video-based special measures for vulnerable victims . They're provided by the Youth Justice and Criminal Evidence Act 1999. The first is in which the victim is permitted to provide his or her evidence-in-chief in the type of the video statement instead of in person. This can be provided by section 27(1) from the Youth Justice and Criminal Evidence Act 1999 which states that, “A specific measures direction might offer to your video recording of an interview from the witness to be admitted as evidence in chief on the witness. ”

 

Section 27(4) with the 1999 Act nevertheless creates it clear that dispensation to use this specific measure will only be granted wherever the court is satisfied how the witness in question is going to be created obtainable for cross-examination (whether that be cross-examination in person or via a ‘special measure’ choice equivalent): “Where a special measures direction provides in your recording to be admitted under this section, the court may well nevertheless subsequently direct that it is not to become so admitted if— (a) it looks for the court that— (i) the witness just isn't out there for cross-examination (whether conducted in the ordinary way or in accordance with any this sort of direction), and (ii) the parties towards the proceedings have not agreed that there's no need to your witness being so available; or (b) any rules of court requiring disclosure in the circumstances in which the recording was produced have not been complied with towards satisfaction with the court. ” The intention behind this provision was to ensure that criminal defendants accused of crimes against vulnerable victims were not unduly prejudiced by the existence of this special measure; if the court and jury watched a video statement from a victim explaining how they witnessed the defendant commit a criminal offence, that defendant would be grossly prejudiced if he did not have an opportunity to challenge any aspects on the video statement in question.

The second sort of video-based special measure provided under the Youth Justice and Criminal Evidence Act 1999 is in which the cross-examination and re-examination of the witness’s testimony by the defence’s legal team is pre-recorded rather than conducted live during the courtroom, in front from the defendant. This really is provided by section 28(1)(b) in the Youth Justice and Criminal Evidence Act 1999: “Where a particular measures direction provides in your video recording to be admitted… as evidence in chief of the witness, the direction may well also provide— (a) for any cross-examination from the witness, and any re-examination, to become recorded by means of a video recording; and (b) for this sort of a recording being admitted, so far since it relates to any these kinds of cross-examination or re-examination, as evidence with the witness under cross-examination or on re-examination, as the case may possibly be. ”

 

To make sure that this special measure does not dilute the defence’s ability to cross-examine or re-examine a witness, the 1999 Act provides that the court and the defence’s legal representatives must be able to see and hear the live recording session and be in a position to communicate directly of the folks within the room. The Act also provides that the defendant ought to be able to see and hear the examination and that he or she should be able to communicate with his or her legal representatives throughout the process: “Such a recording ought to be produced from the presence of these kinds of persons as rules of court or the direction might supply and inside absence of the accused, but in circumstances in which— (a) the judge or justices (or both) and legal representatives acting within the proceedings are in a position to see and hear the examination from the witness and to communicate in the men and women in whose presence the recording is getting made, and (b) the accused is able to see and hear any these kinds of examination and to communicate with any legal representative acting for him. ”

 

If a court has granted the use of this unique measure then it is imperative how the defence’s legal representatives ask the baby witness all of the questions, the answers of which they plan to later rely on in court as they seriously isn't entitled to put any new questions to the witness on completion of this recording session unless any new matters occur to light which the defendant or his legal team could not have been expected for getting discovered previously with reasonable diligence .

 

These specific measures are available to adult victims of sexual assault or rape by default. However, it's up to each witness to decide regardless of whether they would like to take in advantage of one or each of these measures. This presumption of vulnerability is provided by section 17(4) with the 1999 Act which states that, “Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for service in relation to those people proceedings by virtue of this subsection unless the witness has informed the court with the witness’ wish not being so eligible by virtue of this subsection. ”

 

By virtue of section 16(1) of the 1999 Act, these measures are also out there to baby witnesses aged sixteen or less: “For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section (…) if under the age of 17 at the time of the hearing… ” For child witnesses, not merely is there a presumption that their testimony will likely be given through video but this really is almost mandatory. As Burton, Evans and Sanders explain, “For baby witnesses in require of specific protection (defined by section 21 of the YJCE Act) the provision of video evidence-in-chief or live television links is near mandatory, and it is not needed to demonstrate that they would increase the quality of the witness’s evidence. ”

 

Leaving aside any discussion on the potential prejudicial impact that these special measures can have on defendants’ ability to defence a claim of sexual assault or rape of the minor or adult—a discussion that will be reserved for ones right after chapter of this paper—the first question which, during the opinion of this author, needs to be asked, is regardless of whether these unique measures actually mitigate the barriers to effective testimony known previously in this paper.

 

It are going to be recalled that one these kinds of barrier was the victim’s fear of cross-examination and getting made to feel like the a single to blame for the ordeal . And yet, while the second on the two unique measures discussed above does enable the cross-examination to take in place inside a venue other than a court of law, in all other respects a video cross-examination is equivalent to a live court-based cross-examination. As the Crown Prosecution Program explains, in its ‘CPS Policy for Prosecuting Cases of Rape’, “Giving evidence in court is often a particularly traumatic experience for victims of rape. In particular, some victims might discover it difficult to give evidence within the sight of the defendant. If this can be so, we can apply towards the court for ones victim to give evidence in one more way so that he or she can give their best evidence. These selection methods of giving evidence are known as ‘special measures’… [While] the victim or witness do not have to give ‘live’ evidence about what happened to them… they will still must answer questions put to them by the defendant’s lawyer in crossexamination. ” (emphasis added)

 

Therefore, while this special measure may perhaps make it additional comfortable for a vulnerable or intimidated witness, it is not entirely clear, at least in theory, how it purports to mitigate the victim’s fear of cross-examination itself. That is a point raised by Childs and Ellison, who argue how the efficacy of these special measures are undermined by the reality that the procedure remains an adversarial one, though it's pre-recorded and conducted in a venue other than a court of law: “There is also a risk… that a commitment to traditional adversarial values and methods might yet limit the impact of reforms. ”

Another barrier that was recognized previously was the victim’s fear of becoming in contact of the defendant. Even though pre-recorded video evidence definitely allows a vulnerable witness to give their testimony and responses (to cross- or re-examination) without to be from the same room as the defendant, as noted previously the defendant is allowed to listen into the recording session and as a result it's not totally clear how the victim receives any benefits from these unique measures whatsoever, other than individuals which they would be able to enjoy anyway from the use of screens or live links pursuant to sections 23, 24 or 25 of the Youth Justice and Criminal Evidence Act 1999 .

 

Another criticism which has been raised, especially in respect with the use of pre-recorded video cross-examination, is that, historically, these measures have not often been made out there to victims of sexual offences, the Courts preferring to rely upon live testimony, regardless of whether given orally in court or via a live video link (via the particular measures provided by sections 23 and 24 of the Youth Justice and Criminal Evidence Act 1999. As Childs and Ellison argue, writing in 2000, “While the specific measures contained within the YJCEA 1999 are being welcomed, the protection they afford rape complainants has, disappointingly, been constrained by a continuing attachment towards the primacy of oral evidence… Adult rape complainants are to benefit in the availability of screens and CCTV but they are to become denied the protection inherent in the use of video-recorded evidence. Generally, adult rape complainants will even now be needed to give live oral evidence in criminal proceedings, albeit through a TV link. ”

 

Another criticism which has been levied against the use of these video-based special measures is that somehow a victim’s testimony is diluted by the fact how the jury is unable to see the witness in a live environment. As Burton et al note, “Some practitioners had reservations about televised evidence mainly because they notion it was a smaller amount convincing than ‘live’ evidence. ”

 

While this argument has actual intuitive appeal, actually there's extremely modest evidence to assist this view. As Burton et al conclude, “There is no look for evidence to indicate that acquittals are a lot more likely using these methods, however. ” This can be one thing that will be discussed in more detail inside the after section of this paper.

 

In conclusion to this chapter, while this author can't comment upon the general advantages or disadvantages of video-based special measures in cases of rape or sexual assault*, he isn't wholly convinced that they manage to discharge the barriers that are faced by rape and sexual assault victims and therefore isn't convinced that their use is obtaining the effect of increasing rates or reporting and conviction for these kinds of offence. Victims still must undergo a adversarial kind cross-examination, which has been reported to become probably the most daunting prospect of the rape trial for rape victims, and although this could be conducted in a venue outside from the courtroom, the rape victim on the other hand has to respond directly to questions inside the defendant’s legal representatives whilst knowing that the defendant is listening into the recording session and in a position to communicate with their lawyers throughout.

 

In light of this, the pre-recorded video measures provided by the Youth Justice and Criminal Evidence Act 1999 is unlikely to alleviate victim perceptions that if they report their assault they will probably be subjected to a traumatic trial system where their account of events will likely be cross-examined by their perpetrator’s legal representatives and their character will likely be called into question.

 

In any event, it looks that these measures, particularly pre-recorded video cross-examinations, are rarely employed with adult victims, the Courts preferring to grant other special measures to these vulnerable witnesses including diagnostic tests or live CCTV links.

 

* In this chapter this author has been concerned only with the extent to which video-based special measures are able to support vulnerable victims overcome the barriers that are reported to be responsible for under-reporting and low overall conviction rates. These measures may well have benefits other than overcoming these barriers, but they're not of relevance to this provide research paper. Therefore, 1 should be cautious not to use the conclusions of this paper to assist an argument that video-based special measures ought to not be used; all that can be mentioned is that they're not apparently extremely powerful at meeting their direct intended objectives.

2. The correct of criminal defendants to a fair trial and to test the evidence adduced against them; are these rights prejudiced by the use of video evidence and under what circumstances, in particular?

 

As noted in the introduction to this paper, Article 6(3) with the 1998 Act provides that anybody charged with a criminal defence has the appropriate to verify or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him . The question which falls for determination in this chapter is regardless of whether this proper is unduly prejudiced by the use on the 2 video-based unique measures known and analysed in the previous section of this paper.

 

While it is the case that these unique measures aren't used in each case of adult rape or sexual assault, in this chapter we are concerned on the ability for prejudice after either or each of these measures are employed. In other words, the fact that these unique measures, in particular pre-recorded video cross-examination, are rarely applied in adult cases tend not to (and must not ever) be  cited being a defence to any claims of prejudice which are levied for the them.

 

The first factor to try and do is to evaluate what sort of appropriate is created by Article 6(3)(d) from the Human Rights Act 1998; if this appropriate is an absolute proper then it would by no means be proper to derogate from it from the interests of protecting vulnerable witnesses . However, if the appropriate is a qualified right, then it might be legitimate, exactly where the circumstances dictate, to derogate wholly or partially from that right to serve a competing but legitimate interest .

 

If 1 relied upon the wording of Post 6 on the Human Rights Act 1998 then a single would be forced to conclude that Post 6(3)(d) is an absolute proper as it states unequivocally that all men and women charged with a criminal offence are entitled to enjoy this right, which grants upon them an ‘equality of arms’ and also the tool required in order to clear themselves in the charges brought; namely, the appropriate to cross-examination . This interpretation looks to become in line of the Strasbourg jurisprudence .

 

However, there is excellent common law authority for your proposition that this proper is often a qualified proper and also for your proposition that, under certain circumstances, it is correct to derogate from this right inside the interests of protecting vulnerable witnesses. For example, from the recent case of Bonhoeffer, R (on the software program of) v General Medical Council [2011] EWHC 1585 the Court allowed a key witness to admit his evidence in written type only, which precluded cross-examination, over a basis how the witness would face persecution back in Kenya, exactly where he lived, if he appeared like a witness and admitted to as a homosexual. In this case, the Court accepted that the defendant’s right to cross-examination under Post 6(3) in the Human Rights Act 1998 were derogated from; however, the Court justified this derogation having a utilitarian (least damaging path) justification. A similar justification was employed from the situation of R v Xhabri [2005] *.

 

*Some authors have argued that this interpretation of Write-up 6 is at odds from the wording of the 1998 Act and whilst this present author agreed with that thesis, this is not the time or the place to engage with this subsidiary debate. For our present purposes, all that matters is that it is settled law that Write-up 6(3)(d) is really a qualified appropriate and not an absolute standard.

 

Therefore, we must conclude how the appropriate to cross-examine is a qualified correct and, consequently, that the capacity for video-based special measures to bring about an infringement of the defendant’s right to cross-examine is limited; after all, it can't be mentioned being an infringement of the proper if that derogation can also be legitimized through legal authority.

 

In any event, it is not totally clear that the use of video-based evidence is often likely to be prejudicial to defendants. For a single thing, as argued from the previous chapter of this paper, these special measures do not substantially affect the cross-examination process, and consequently it's not simple to contend that a defendant’s correct to cross-examine is affected, permit alone limited, by the employment of pre-recorded video cross examination.

 

What is more, there is no evidence to suggest that a conviction is far more most likely to result inside use of video-based specific measures. In their experimental find out entitled, ‘The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making’, Taylor and Joudo observed that juries had been not additional probably to convict defendants charged with rape or sexual assault after the victim’s testimony was presented like a pre-recorded video, than they were after it was presented face-to-face or via a live link CCTV . This learn had a strong methodology: the researchers conducted 18 mock trials with a total of 210 jurors. In a single third on the trials, the jurors heard the victim’s evidence live, face-to face; in one third in the trials, the jurors heard the victim’s evidence live, via a live link CCTV system; and, within the remaining third of the trials, the jurors heard the victim’s evidence from a pre-recorded video. Following the trials, the researchers undertook perception and attitude surveys through a questionnaire. This sought to measure a variety of attitudes and perceptions just like the degree to which the jurors felt they had been in a position to empathize in the victim and regardless of whether they idea the accused was guilty on the crime. The conclusion of this discover was how the mode of transmission of victim testimony had no statistically critical impact upon juror perceptions: “The understand finds, overall, that right away after the trial but prior to jury deliberation, mode of presentation of testimony (face-to-face, CCTV or pre-recorded videotape) did not impact differentially on juror perceptions in the complainant or the accused, or guilt of the accused. ”

 

Another barrier that was known previously was the victim’s fear of getting in contact with the defendant. While pre-recorded video evidence surely allows a vulnerable witness to give their testimony and responses (to cross- or re-examination) with out to be from the same room as the defendant, as noted previously the defendant is allowed to listen into the recording session and consequently it's not totally clear that the victim receives any benefits from these specific measures whatsoever, other than individuals which they would be in a position to appreciate anyway from your use of screens or live links pursuant to sections 23, 24 or 25 from the Youth Justice and Criminal Evidence Act 1999 .

 

Another criticism which has been raised, especially in respect with the use of pre-recorded video cross-examination, is that, historically, these measures have not always been created available to victims of sexual offences, the Courts preferring to rely upon live testimony, regardless of whether given orally in court or via a live video link (via the particular measures provided by sections 23 and 24 in the Youth Justice and Criminal Evidence Act 1999. As Childs and Ellison argue, writing in 2000, “While the specific measures contained inside the YJCEA 1999 are to be welcomed, the protection they afford rape complainants has, disappointingly, been constrained by a continuing attachment towards primacy of oral evidence… Adult rape complainants are to benefit from the availability of screens and CCTV but they are being denied the protection inherent within the use of video-recorded evidence. Generally, adult rape complainants will nonetheless be needed to give live oral evidence in criminal proceedings, albeit through a TV link. ”

 

Another criticism which has been levied against the use of these video-based unique measures is that somehow a victim’s testimony is diluted by the fact that the jury is unable to see the witness inside a live environment. As Burton et al note, “Some practitioners had reservations about televised evidence mainly because they concept it was less convincing than ‘live’ evidence. ”

 

While this argument has genuine intuitive appeal, actually there is quite tiny evidence to aid this view. As Burton et al conclude, “There is no search evidence to indicate that acquittals are more almost certainly utilizing these methods, however. ” This can be something that will be discussed in far more detail within the right after section of this paper.

 

In conclusion to this chapter, though this author cannot comment upon the general advantages or disadvantages of video-based specific measures in cases of rape or sexual assault*, he is not wholly convinced that they control to discharge the barriers which are faced by rape and sexual assault victims and consequently is not convinced that their use is getting the effect of increasing rates or reporting and conviction for these types of offence. Victims still must undergo a adversarial variety cross-examination, which has been reported to be the most daunting prospect of the rape trial for rape victims, and although this might be conducted in a venue outside of the courtroom, the rape victim even so has to respond directly to queries inside defendant’s legal representatives whilst knowing how the defendant is listening into the recording session and in a position to communicate with their lawyers throughout.

 

In light of this, the pre-recorded video measures provided by the Youth Justice and Criminal Evidence Act 1999 is unlikely to alleviate victim perceptions that if they report their assault they will probably be subjected to a traumatic trial program in which their account of events is going to be cross-examined by their perpetrator’s legal representatives and their character will be known as into question.

 

In any event, it looks that these measures, specially pre-recorded video cross-examinations, are rarely used with adult victims, the Courts preferring to grant other specific measures to these vulnerable witnesses for instance screening or live CCTV links.

In this chapter this author has been concerned only with the extent to which video-based specific measures are able to support vulnerable victims overcome the barriers that are reported to be responsible for under-reporting and low overall conviction rates. These measures might have rewards other than overcoming these barriers, but these are not of relevance to this produce search paper. Therefore, a single need to be cautious not to use the conclusions of this paper to assist an argument that video-based special measures ought to not be used; all that may be mentioned is that they are not apparently extremely potent at meeting their direct intended objectives.

2. The proper of criminal defendants to a fair trial and to test the evidence adduced against them; are these rights prejudiced by the use of video evidence and under what circumstances, in particular?

 

As noted inside the introduction to this paper, Post 6(3) on the 1998 Act provides that any person charged having a criminal defence has the proper to examine or have examined witnesses against him and for getting the attendance and examination of witnesses on his behalf under the exact same conditions as witnesses against him . The question which falls for determination in this chapter is whether this proper is unduly prejudiced by the use in the a couple of video-based special measures recognized and analysed during the previous section of this paper.

 

While it is the situation that these particular measures aren't utilized in each case of adult rape or sexual assault, in this chapter we are concerned of the ability for prejudice when either or both of these measures are employed. In other words, the fact that these unique measures, in particular pre-recorded video cross-examination, are rarely used in adult cases usually do not (and need to not ever) be cited as a defence to any claims of prejudice that are levied for the them.

 

The first factor to try and do is to evaluate what kind of proper is created by Post 6(3)(d) on the Human Rights Act 1998; if this proper is an absolute correct then it would in no way be appropriate to derogate from it during the interests of protecting vulnerable witnesses . However, if the right is a qualified right, then it could possibly be legitimate, where the circumstances dictate, to derogate wholly or partially from that proper to serve a competing but legitimate interest .

 

If 1 relied upon the wording of Article 6 of the Human Rights Act 1998 then a single would be forced to conclude that Post 6(3)(d) is an absolute right since it states unequivocally that all people charged using a criminal offence are entitled to enjoy this right, which grants upon them an ‘equality of arms’ and also the tool required in order to clear themselves with the charges brought; namely, the correct to cross-examination . This interpretation looks to be in line of the Strasbourg jurisprudence .

 

However, there's beneficial common law authority for your proposition that this right is a qualified appropriate and also for ones proposition that, under specific circumstances, it's proper to derogate from this right inside interests of protecting vulnerable witnesses. For example, from the recent case of Bonhoeffer, R (on the application of) v General Medical Council [2011] EWHC 1585 the Court allowed a key witness to admit his evidence in written form only, which precluded cross-examination, on the basis that the witness would face persecution back in Kenya, where he lived, if he appeared as being a witness and admitted to as being a homosexual. In this case, the Court accepted how the defendant’s correct to cross-examination under Article 6(3) with the Human Rights Act 1998 had been derogated from; however, the Court justified this derogation having a utilitarian (least damaging path) justification. A similar justification was utilized in the situation of R v Xhabri [2005] *.

 

*Some authors have argued that this interpretation of Write-up 6 is at odds on the wording with the 1998 Act and though this produce author agreed with that thesis, this is not the time or the location to engage with this subsidiary debate. For our provide purposes, all that matters is that it's settled law that Write-up 6(3)(d) is really a qualified right and not an absolute standard.

 

Therefore, we have to conclude that the proper to cross-examine is a qualified proper and, consequently, how the ability for video-based specific measures to cause an infringement of a defendant’s correct to cross-examine is limited; following all, it can not be stated to be an infringement of a right if that derogation can be legitimized through legal authority.

 

In any event, it's not totally clear that the use of video-based evidence is usually probably being prejudicial to defendants. For one thing, as argued inside previous chapter of this paper, these particular measures do not substantially affect the cross-examination process, and for that reason it is not uncomplicated to contend that a defendant’s proper to cross-examine is affected, allow alone limited, by the task of pre-recorded video cross examination.

What is more, there's no evidence to suggest that a conviction is a lot more almost certainly to result in the use of video-based particular measures. In their experimental understand entitled, ‘The impact of pre-recorded video and closed circuit television testimony by adult sexual assault complainants on jury decision-making’, Taylor and Joudo observed that juries have been not a lot more possibly to convict defendants charged with rape or sexual assault once the victim’s testimony was presented like a pre-recorded video, than they were after it was presented face-to-face or via a live link CCTV . This study had a strong methodology: the researchers conducted 18 mock trials using a total of 210 jurors. In a single third from the trials, the jurors heard the victim’s evidence live, face-to face; in a single third of the trials, the jurors heard the victim’s evidence live, via a live link CCTV system; and, during the remaining third with the trials, the jurors heard the victim’s evidence from a pre-recorded video. Following the trials, the researchers undertook perception and attitude surveys via a questionnaire. This sought to measure a range of attitudes and perceptions for instance the degree to which the jurors felt they have been in a position to empathize with the victim and whether or not they idea the accused was guilty in the crime. The conclusion of this study was how the mode of transmission of victim testimony had no statistically critical impact upon juror perceptions: “The learn finds, overall, that instantly following the trial but ahead of jury deliberation, mode of presentation of testimony (face-to-face, CCTV or pre-recorded videotape) did not impact differentially on juror perceptions with the complainant or the accused, or guilt of the accused. ”

 

While the methodology of this research learn was typically sound, there's anecdotal evidence to assist the view that actual victims locate better on pre-recorded video than they do live. As the Office of Criminal Justice Reform reports, “In a single situation the video was not used because it needed substantial editing to eliminate inadmissible evidence. However, prosecution counsel later commented that they wished in hindsight that the video had been used, as the victim was not as beneficial live as on a recording. ” Even though 1 may perhaps argue that these kinds of evidence is of limited use, inside the opinion of this author if Taylor and Joudo’s understand was repeated using genuine rape victims in real rape trials then it's highly possibly that the mode of presentation of testimony would impact differentially on juror perceptions with the complainant; after all, they are probably to believe much more comfortable giving testimony about their horrific ordeal inside a video recording studio than they would be giving that exact same testimony live, inside a court of law, with twelve jurors, a judge and several lawyers all looking at them. Additional research need to be conducted to test these claims empirically.

 

If nothing else, the pre-recorded testimony would most likely were recorded closer on the true events with which the defendant has been charged and consequently the witness’s memory of events should be fresher and additional compelling. As the Office for Criminal Justice Reform concedes, “Enabling the jury to see and hear a rape victim becoming interviewed at the time in the complaint through a video recorded statement employed as evidence in chief will typically offer more compelling and coherent evidence than evidence given in court many months later. ”

 

If the over conclusions are correct, then one may argue that instead of prejudicing defendants, all these measures are doing is ensuring that jurors a lot more details on which to base their decisions. In light with the reality how the jurors are asked to presume innocence and derive guilt from lack of reasonable doubt, it follows that the provision of additional facts will lead to a greater variety of successful convictions more than time. However, it need to also lead to an increase inside the accuracy of juror’s verdicts and as a result it is a lot more most likely to adversely affect defendants who are guilty with the crimes with which they've been charged than it is defendant’s who are, in fact, innocent.

 

In conclusion, it ought to be argued that, in the vast majority of cases, the use of video-based special measures do not significantly affect defendant’s rights to cross-examine under Write-up 6(3)(d) with the Human Rights Act 1998. However, every situation should be approached on an ad hoc basis and where there is a conflict inside a given case, the interests on the defendant should be weighed up against the interests with the victim and a choice reached as towards the appropriateness of employing video-based particular measures in that case.

 

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