UK Justice secretary says alleged victims in England and Wales will be given option of prerecording evidence for a trial

Earlier today I read an interesting article about a law change in the UK aiming at protection of victims of sexual abuse.

WHAT ARE THE DIFFERENCES?

Let’s compare the newly created law in the UK with the situation in the Netherlands. Although the law seems to apply to all kinds of (sexual) abuse, a predominant reason apparently is the protection of young children. In the Netherlands hearing of children happens within the national judicial system as well as within the jurisdiction of the International Crime Court (ICC) in The Hague that has extensive experience with hearing of children that have been forced to serve as child soldiers in several regional conflicts like the civil war in Sierra Leone and the DRC.

JUDICIARY OFFERS A BROADER SET

It is hard to underestimate the importance of guidelines for hearing of children in the criminal justice system . The simple fact that most child witness statements are related to cases of some form of (sexual) abuse makes it evident that these statements should be collected and handled with extreme care, both in interest of the child as well as the defendant.

For this reason the judiciary offers a broader set of instruments for child interviews than there is for ‘regular’ interviews with adult witnesses. Children’s’ brains aren’t fully developed yet and children are in a more vulnerable and dependent position. And, very important, they often are both witness as well as victim at the same time.
To avoid ‘second traumatization’, the law offers the possibility of hearing of children in specifically designed interview rooms by specially trained police officers. These interviews are recorded and made available to prosecution, court and defense.

In line with the fear as expressed by Mr. Conte in this article, it is generally acknowledged that a video recorded interview negatively affects the right for a fair trial for the defendant. If alone that a defendant will not have the option of cross examination of the witness in court, but also because there is less room for verification of a statement by defense.

This situation, although not ideal, is considered to be acceptable as the protection of a child prevails over the limitation of a defendants’ ability to conduct his defense. However it imposes very strict conditions on how a child statement is collected, analyzed and brought to court.
These conditions may be even more rigid in an adversarial law system like the one in the UK compared to the inquisitorial system in the Netherlands, as cross examination plays a far more important role in adversarial law.

AN IMPORTANT STEP FORWARD

We have worked for more than 6 years in close collaboration with Dutch Police to create the right set of tools and applications to ensure the entire interview process is captured on video taking into account the special requirements for these interviews. These requirements cover the physical room and furniture itself, multiple camera positions, a mechanism to ensure the authenticity of a recording and non-destructive redaction of video material to protect a persons’ identity.

A law change like the one discussed in the article is an important step forward towards the protection of vulnerable people. However it also raises the obligation for judiciaries to implement it in a careful manner taking into account a defendants’ right. It is only then that society will benefit from technology innovations over the long run.