Witness intimidation is now recognised as a serious factor in all stages of the trial process.
Victims can be intimidated by the threats of their assailant or by the nerve-wracking business of giving evidence. Outside court the police are responsible for witness-protection, but inside help is given by witness support services.
Their presence is strong at Manchester Crown Court, where a new witness suite has opened. It has its own access to protect victims from encountering defendants or their friends.
Frank Palmer, co-ordinator of the service, describes it as the way forward. “Eyeballing” of witnesses (fixing them with a threatening stare) used to be common and was a major factor in witness intimidation.
Cross-examination was often a source of severe apprehension for witnesses. But, Palmer explains: “Now they are more composed and better informed before they give evidence. Procedures can be explained and the fear reduced.”
He adds: “The witness service in Manchester has dealt with around 4,500 witnesses and 800 trials in the past year. This is a considerable increase on six years ago, when the service started. There has been a rise in the number of witnesses using screens and CCTV.
“We get many letters from witnesses and victims who say that without our support they would not have been able to give evidence.”
Sarah Brimelow, a witness service officer at Victim Support, sees the protection of witnesses as a “right”. Witness support offers information, support and counselling while the police handle protection.
Brimelow acknowledges that progress has been made, but argues that violent offences still go unreported because victims are afraid to face cross-examination in court.
Their fear is exacerbated by the publicity given to cases where victims are cross-examined by their unrepresented assailants. In the case of R v Edwards a rape victim was questioned by her attacker for six days. Brimelow thinks “greater use should be made of screens and CCTV in these cases”.
Peter Davies, chief inspector of Thames Valley Police, echoes the call by Ray White, the new president of the Association of Police Officers (Acpo), for rules to curb the more aggressive barristers. White believes “attention should be focused on this problem, rather than on unrepresented defendants cross-examining their victims”.
“Too often,” he maintains, “the aim of the questioning is to undermine the confidence of the witness, rather than to elicit the truth. Judges often do not perceive that there is anything wrong with this because they have been brought up in the same system and are wary of a possible appeal.”
Davies explains: “There is no evidence to show that this is a good way of eliciting the truth. Further, the tactics used by defence barristers are often designed to make the witness appear a liar, rather than to get at the truth.
“Rules are needed to ensure questions are understandable, non-repetitive, and are not designed to undermine the witness's confidence. They should always be based on evidence the defendant will give and they should not be mini-speeches.
“The same rules that apply to a suspect's interview in the police station – that the questioning should not be oppressive – should apply to barristers cross-examining prosecution witnesses in court.”
David Spens QC, a criminal barrister at 6 King's Bench Walk, admits “problems may arise in cases where a judge lacks the experience or necessary firmness to control the barrister”. He believes there is a small number of barristers who, in front of a weak judge, get away with the sort of cross-examination Davies opposes.
But Spens argues that rules are inappropriate in “our adversarial system, which is presently regarded as the best way of establishing guilt or innocence”.
He adds: “It is the defence advocate's duty to present his client's case fearlessly and in so doing to test the prosecution case. If a barrister is being unduly aggressive towards a witness, an experienced and firm judge should have no difficulty in putting a stop to it.”
Brimelow argues that the witness protection system has failed when a witness is too intimidated to give evidence. She sees the increase in special witness units set up by the police as evidence that “the needs of witnesses are being taken seriously”.
But the publicity given to imprisonment of witnesses for failing to give evidence can deter victims from reporting violent offences and overshadow the good work done by the witness support services.