Cross-Examination of Vulnerable Witnesses—Towards a Blueprint for Re-Professionalisation

Abstract

There is now an abundance of research, across a range of jurisdictions, to establish that cross-examination techniques traditionally deployed in adversarial systems can confuse vulnerable witnesses, reduce their ability to comprehend the issues and diminish the cogency and accuracy of their testimony. The nature of the problem and its scale will be illustrated in this article primarily by reference to children and people with mental disabilities or learning difficulties. The core of the problem is the limited understanding on the part of some advocates of the special needs of vulnerable witnesses and their reluctance or inability to abandon or modify traditional cross-examination techniques. The scale of the problem is considerable, having regard to the growth in the number of vulnerable witnesses and evidence of their negative perceptions of the experience of testifying. Except in jurisdictions in which the cross-examination has effectively been removed entirely from the hands of the advocate, legal developments have focused on the use of pre-trial recordings, intermediaries, improved judicial training and enhanced powers to curtail improper cross-examination. These reflect an ‘accommodation approach’ that has had a limited educative effect on practitioners. The professional duty of the advocate is not to ignore or take advantage of the difficulties faced by vulnerable witnesses, but to develop new methods to test their evidence. There is an urgent need for re-professionalisation, i.e. the development and introduction of new systems for the training and accreditation of advocates, involving a fundamental culture change and the acquisition of new specialist knowledge and skills. This article explores what such re-professionalisation should involve. It analyses critically two recent sets of proposals : proposals for the implementation of a quality assurance scheme put forward by the English legal regulatory authorities, and proposals for training and accreditation schemes put forward by the Advocacy Training Council, the joint body of the four Inns of Court with responsibility for overseeing standards of advocacy training for the Bar of England and Wales. Regard is also had to relevant pedagogical precepts and recent relevant case law.