The idea that justice must be seen to be served is the foundation of the adversarial criminal justice system. Witness testimony is essential to this process because it frequently establishes the vital connection between an accused person and an alleged crime. However, for those who are considered “vulnerable,” the courtroom which is meant to be a battlefield with intense cross-examination can be a terrifying place. Giving their best testimony is extremely difficult for vulnerable witnesses, such as children, victims of sexual offences, and people with mental illnesses. The delicate balance between the need to protect vulnerable witnesses and the defendant’s right to a fair trial persists despite legislative reforms. This article examines the systemic, procedural, and psychological obstacles to these people’s protection within the criminal justice system.
DEFINING THE VULNERABLE WITNESS
Before addressing the challenges, it is essential to understand who qualifies for protection. In England and Wales, the legislative framework is primarily found in the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). Section 16 defines a witness as eligible for assistance if they are under 18 or if the quality of their evidence is likely to be diminished due to a mental disorder or significant impairment of intelligence and social functioning.[1] Furthermore, Section 17 extends eligibility to ‘intimidated’ witnesses, whose evidence may be affected by fear or distress about testifying.[2]
Although the statutory definitions are unambiguous, their practical application highlights the first significant obstacle: identification. Prosecutors and police officers are not medical professionals. Inconsistent screening procedures are frequently used to identify a witness with a hidden disability, such as mild autism or a learning disability. The special measures intended to support that witness cannot be applied for if vulnerability is overlooked during the investigation phase, exposing them to the full rigour of the typical courtroom process.
THE DIFFICULTY OF CROSS-EXAMINATION
The cross-examination procedure is arguably the biggest obstacle. The adversarial system depends on the defence attorney’s capacity to evaluate the validity of the evidence. However, traditional cross-examination strategies such as aggressive posturing, complex syntax, and rapid questioning can be confusing and retraumatizing for a vulnerable witness.
The landmark case of R v Lubemba highlighted the tension between protecting the witness and the rights of the defence. The Court of Appeal emphasised that while vulnerable witnesses must be treated with care, the defendant’s right to a fair trial, guaranteed under Article 6 of the European Convention on Human Rights, includes the right to challenge evidence effectively.[3] This creates a judicial tightrope. Judges must intervene to stop bullying, yet they must allow the defence to expose inconsistencies.
Despite the introduction of Ground Rules Hearings (GRHs) where judges and advocates agree on the boundaries of questioning before the trial, research suggests that advocates often struggle to adapt their style. A study by the Inns of Court College of Advocacy noted that advocates frequently revert to complex tagging questions (e.g., “You went to the shop, didn’t you?”), which are known to confuse children and those with learning disabilities.[4] The challenge here is cultural; the ‘art’ of cross-examination is deeply ingrained in legal training, and dismantling aggressive habits requires a fundamental shift in advocacy culture that is still ongoing.
SPECIAL MEASURES: A PARTIAL SOLUTIONS?
The YJCEA 1999 introduced ‘special measures’ to assist vulnerable witnesses, including the use of screens, live video links, and the removal of wigs and gowns.[5]
More recently, Section 28 of the YJCEA 1999 has been rolled out, allowing for pre-recorded cross-examination. This allows the witness to give their evidence and undergo cross-examination shortly after the incident, sparing them the ordeal of a live trial months or years later.
However, implementing these measures is fraught with logistical and procedural difficulties. Technology failures are notoriously common in court centres, with video links breaking down or audio quality being poor, disrupting the flow of evidence and increasing the witness’s anxiety. Moreover, the scheduling of Section 28 hearings often conflicts with the availability of specialised counsel, leading to delays that undermine the purpose of the provision.
Furthermore, there is the issue of jury perception. While juries are directed not to hold the use of special measures against the defendant or the witness, research indicates that they exhibit subconscious bias. Does a witness hiding behind a screen appear less credible? Or does their need for protection make the defendant seem more dangerous? Department of Justice research suggests that while special measures generally do not prejudice the defendant, they do not always make the witness feel safe.[6] The challenge is ensuring that these measures actually reduce trauma rather than simply acting as a procedural box-ticking exercise.
THE PSYCHOLOGICAL TOLL AND DELAYS
The criminal justice system operates on a timeline that is often incompatible with the psychological needs of vulnerable witnesses. The backlog of cases in Crown Courts has reached record levels, meaning trials may take years to take place after the alleged offence. For a child or a victim of trauma, this waiting period is agonising. They are unable to move on with their lives, keeping the trauma fresh in their minds for the sake of testimony.
Memory decay is a critical issue here. A child witness may provide a vivid account immediately after an event, but two years later, under the pressure of the courtroom, their memory may fade or become fragmented. When defence counsel highlights these inconsistencies, it is often framed as dishonesty rather than a natural consequence of delay and trauma. The system’s inability to deliver speedy justice is, in itself, a failure to protect the integrity of the vulnerable witness’s evidence.
Moreover, the emotional toll of the trial process can lead to attrition. Many complainants withdraw their support for the prosecution simply because they cannot cope with the repeated adjournments and the looming spectre of the courtroom. As noted by Ellison and Munro, the process of ‘secondary victimisation’ where the legal system inflicts further harm on the victim remains a pervasive issue despite reforms.[7]
THE ADEQUACY OF INTERMRDIARIES
Intermediaries play a vital role in facilitating communication between the witness and the court. They assess the witness’s communication needs and advise the judge and counsel on how to phrase questions. However, the availability of Registered Intermediaries (RIs) is a significant resource challenge. There is currently a shortage of RIs, leading to trial delays or, worse, trials proceeding without one where one is needed.
Additionally, the scope of the intermediary’s role is strictly limited to communication. They are not there to provide emotional support, a distinction that is often blurred in the eyes of the witness who desperately seeks an ally in a hostile environment. The case of R v Rashid demonstrated that while intermediaries are crucial, their advice is not binding on the judge, and there are instances where judicial discretion overrides the expert advice of the intermediary regarding the witness’s fatigue or inability to understand.[8]
BALANCING RIGHTS: THE DEFENDANTS PERSPECTIVE
It is crucial to acknowledge that protecting witnesses cannot come at the total expense of the defendant’s rights. The right to confront one’s accuser is a historic protection against false imprisonment. As outlined in R v Horncastle, the use of hearsay evidence (where the witness does not appear at all) must be carefully regulated to ensure the trial remains fair.[9]
The challenge for the legal system is to modernise the concept of a ‘fair trial.’ Does fairness require the accused to be physically present in the same room, staring down the accuser? Or can fairness be achieved through technology that separates the parties while preserving the evidence? The legal community continues to grapple with these questions, particularly as sexual offence conviction rates remain scrutinised.
CONCLUSION
Great strides have been made in the last two decades to recognise and accommodate vulnerable witnesses in criminal proceedings. The legislative framework of the YJCEA 1999 and the cultural shifts driven by the proliferation of Ground Rules Hearings demonstrate a commitment to change. However, legislation alone cannot solve the deep-seated challenges of an adversarial system designed for confrontation.
The challenges remain multifaceted: the cultural resistance of advocates to abandon aggressive cross-examination, the chronic underfunding of court infrastructure causing delays, the shortage of intermediaries, and the psychological impact of the process itself. To truly protect vulnerable witnesses, the system requires not just new laws, but a sustained investment in resources and a continued cultural evolution that prioritises the search for truth over the theatrics of the courtroom. Until the shadow of trauma is lifted from the witness box, justice will remain, for many, an elusive ideal.
Author(s) Name: Vidhi Kasliwal (MMM Shankarrao Chavan Law College , Pune)
References:
[1] Youth Justice and Criminal Evidence Act 1999, s 16.
[2] Youth Justice and Criminal Evidence Act 1999, s 17.
[3] R v Lubemba [2014] EWCA Crim 2064, [2015] 1 WLR 1579.
[4] Joyce Plotnikoff and Richard Woolfson, ‘The “75% problem”: tagged questions and child witnesses’ (2015) 179 Criminal Law & Justice Weekly 266.
[5] Youth Justice and Criminal Evidence Act 1999, ss 23-28.
[6] Frank Hamlyn et al, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses (Home Office Research Study 283, 2004).
[7] Louise Ellison and Vanessa Munro, ‘Turning Mirrors into Windows? Privacy and the Examination of Complainants’ Sexual History’ (2009) 49 Brit J Criminol 363.
[8] R v Rashid (Yahya) [2017] EWCA Crim 2, [2017] 1 WLR 2449.
[9] R v Horncastle [2009] UKSC 14, [2010] 2 AC 373.
