Many cases have been withdrawn or even they did not reach a court because the victim could not face the defendant or appear in a courtroom. Intimidated witnesses issue becomes a subject of media attention.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA1999) contains a series of reforms and measures in order to help reduce the stress and intimidation of those witnesses. Victim Support and recently Witness Support Service are part of the procedures to reduce the stress of those witnesses. In the Criminal Procedure & Investigations Act 1996 it is mentioned that acquittals can be quashed where there is intimidation. However the YJCEA1999 has provided special measures and carried out vital reforms in the system, but the rights of the defendant for a fair trial should not be neglected also.
The YJCEA 1999 have combined together all the measures that have been suggested before such as live television link, which was implemented in Criminal Justice Act 1988.
Child witnesses may feel afraid to face the accused or they cannot say what they want in front of him. This issue may cause miscarriages of justice in many situations relating to child abuse, as Dennis said:
Children may be the only witnesses to offences against themselves, particularly sexual offences.
This matter was aroused in R. v Wallwork (1958) when a five-year old girl was hysterical to give evidence in front of her father.
According to section 23 of YJCEA 1999 the witness can be screened and in this case the witness cannot see the accused, however the judge, jury and the legal representatives can see him/her. Witnesses will feel less intimidated and it reassures them, however the defendant's right for a fair trial should not be neglected. Generally a defendant has a legal right to examine the witness against him in person:
Article 6(3) (d) of the ECHR guarantees an accused the right to examine or have examined the witness against him.
However, as the issue relates to vulnerable witnesses the YJCEA 1999 has prevented the defendant from this examination and gives that right to his legal representative, as Dennis said:
Section 38 of the YJCEA deals with the issue by giving the court power to appoint a legal representative to conduct any necessary cross-examination on behalf of the accused. Any such representative is centrally funded, and is not responsible to the accused.
Section 24 of the Act gives a right to a vulnerable witness to give his/her evidence via a live link. In this case the witness does not need to enter the courtroom, so it reduces fear and intimidation of children and other vulnerable witnesses and may strength their ability to give evidence. As in the screening, the witness here also can be seen by the judge, jury and legal representatives. The defendant's right for cross-examination is also abolished and is replaced by the legal representative. However the accused may need to see the defendant and observe his body language and credibility, because in these complex cases false accusations may occur, as Dennis said:
False complaints of rape and other sexual misconduct do occasionally occur. When they do occur they may be difficult to repel, precisely because of the lack of independent evidence contradicting the complainant. A great deal is at stake for the accused: rape is a very serious offence carrying severe penalties, a conviction for it is highly stigmatic, and it may result in the loss of a man's livelihood and status, the break- up of his marriage and denial of access to his children.
These procedures are all for improving the quality of testimony of the witness, so if the court believes that any one of them is not serving that purpose, it will not be introduced.
Although special measures should be generally available for child witnesses, they should not be used automatically whenever a child gives evidence in a criminal trial.
The court according to section 25 of the Act may exclude public as well as the press from the court. This procedure is useful for vulnerable witnesses as it reduces stress and fear of being humiliated. However the defendant has a right for a fair trial as stated in the Article 6 of the European Convention on Human Rights (ECHR). Dennis also mentioned this article as he said:
Article 6 requires all evidence to be produced in the presence of the accused at a public hearing with a view to adversarial argument.
The court follows special procedures in order to protect vulnerable witnesses and giving the right of a fair trial to the accused through the court appointed legal representatives.
In order to reassure children and to reduce their fear from the traditions of the court, section 26 of the Act allows the removal of wigs and gowns in dealing with child witnesses. This is effective in helping children to feel they are in a friendly environment, however the court traditions have their formal meanings and their removal may reduce the child's respect for the court and the importance of telling the truth.
