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VITAL VOICES - Helping Vulnerable Witnesses Give Evidence
Chapter 2: Objectives
2.1 The underlying objective of any changes to the law must be to improve the administration of justice. Improving the quality of a witness's evidence by minimising the stress he or she suffers, or by aiding the witness to communicate, will increase the likelihood of a trial or proof coming to the correct conclusion. Ending unjustified discriminatory treatment, ensuring that the views of individuals are heard before decisions are taken which directly affect them, encouraging the reporting of crime, and increasing the confidence of individuals in the justice system are also objectives to which the Executive is committed. It must, however, be recognised that achieving all these objectives will often involve a difficult balancing act.
2.2 A measure which reduces stress on a witness might also have other effects which would tend to reduce the overall quality of the evidence. Over-protection of a witness who is able to give evidence in the normal way could reduce the quality of the evidence by creating unjustified doubt about the witness's true capacities. A measure which improved the quality of a witness's testimony, or would make such witnesses feel more comfortable about coming forward, might be incompatible with the human rights of a party to the case. There is also room for debate about how some of these principles should be applied in practice. On the face of it, avoiding discrimination might mean treating all witnesses in the same way. Where individual witnesses have different characteristics and needs, however, discrimination may be best avoided by respecting these in each case.
2.3 Respect for the human rights of the accused in a criminal case, of the opposing parties in a civil case, and of witnesses in both criminal and civil cases, is fundamental to consideration of any changes. Under Article 6 of the European Convention on Human Rights, a person is entitled to a fair criminal trial, or a fair hearing in relation to his civil rights and obligations. The hearing must also take place within a reasonable time. An accused in a criminal prosecution is always entitled to the presumption of innocence and a party in any sort of case must be able to test the evidence against him effectively.
2.4 Victims and witnesses also have rights. Article 3 of the European Convention confers a right to be protected from inhuman and degrading treatment. Failure of the court system to adequately protect victims of such treatment might therefore amount to a violation of their human rights. Article 8 confers a right to respect for the individual's private life. This may be relevant to questioning in court. Again it is a question of finding the right balance between ensuring that the accused or the parties to a case receive a fair hearing, and giving the witness the right level of protection from stress, intimidation or disrespect.
2.5 It must also be remembered that any changes are likely to have costs. These may be financial costs, in terms of providing the physical and human resources required to implement new procedures; or they may be costs in terms of procedural complications and potential delays. Identifying and assessing levels of vulnerability and making special arrangements for particular witnesses will take time and may mean cases take longer to come to court. For some witnesses, this may be helpful if it involves pre-trial familiarisation visits and time to assimilate information about what will happen in court. For others, it may simply be another stress factor. It is therefore important, before changes are made, to assess whether the potential benefits are likely to outweigh the potential costs.
2.6 We would therefore ask consultees, in preparing responses to this paper, to test their views about possible changes against the following questions. They are intended both to reflect the objectives outlined above and to recognise the balancing exercises that will be involved in deciding what changes are finally proposed.
Would the change make it easier for a witness to come forward, or to testify? Would the quality of their evidence be likely to be improved or reduced? Would it give the witness some degree of choice, and protect his or her rights? Would it unduly prejudice the rights of the accused, or a party to the case? Do its costs in financial terms, or in terms of increased bureaucracy and delay, outweigh its likely benefits? |
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