LETTER OF THE LAW
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Strong case for more video recording of evidence in Hong Kong courts to protect the vulnerable

Pre-trial recording of witness testimony has been a great success – now it could be widened to include cross-examination

PUBLISHED : Monday, 24 October, 2016, 4:35pm
UPDATED : Monday, 24 October, 2016, 9:56pm

In the mid-1990s, following public concerns, the attorney general, Jeremy Mathews, asked me to chair a committee he had established, with Patrick W.S. Cheung as secretary, to examine the way in which children were treated in criminal cases.

Mathews, sensibly, bypassed the Law Reform Commission, which he chaired, perhaps realising that, once the commission was seized of the matter, it would disappear down a black hole. Having reviewed the situation, we made a series of, for the time, radical recommendations, which Chris Patten’s government, to its credit, promptly enacted.

In consequence, children, in three categories of cases, involving sexual abuse, cruelty and assault, are now able to give their primary evidence by means of a video recording, as also are mentally incapacitated persons. Their testimony is recorded by the police in a special suite, as soon after the offence as possible.

These reforms have helped vulnerable witnesses to overcome their fear of testifying, and reduced much of the trauma

It can, of course, be profoundly distressing for a child or vulnerable witness to be in open court, in close proximity to the defendant, and surrounded by strangers. They may, therefore, as we recommended, now be cross-examined on their video-recorded testimony through a live television link from a nearby room, with a supporting adult present.

These reforms have helped vulnerable witnesses to overcome their fear of testifying, and reduced much of the trauma. Some offenders, who would otherwise have evaded justice, have, in consequence, been held to account. Given the success of pre-trial video recording, the scheme could benefit from widening, to include cross-examination. It can, after all, be difficult for a vulnerable witness, particularly a young child, to have to attend court, many months after the offence, by which time memories have faded.

In England, in three recent pilots, all the evidence of the crimes given by children and young people under 16, and by witnesses under disability, was video-recorded before the trial, with questions being decided at a special hearing before a judge. Thereafter, in trials at crown courts in Kingston upon Thames, Leeds and Liverpool, their video-recorded evidence-in-chief, cross-examination and re-examination were played to the juries, without the need for the witnesses to attend. The director of public prosecutions, Alison Saunders, has hailed the pilots as being “particularly beneficial for children and young people because the anxiety of having to wait to give evidence is reduced and the quality of evidence is improved because witnesses are not being asked to recall events that happened a long time ago”.

The pilots, moreover, also revealed that pre-trial cross-examination took place in about half the time it took in other cases, and more defendants pleaded guilty once they had seen the pre-recorded evidence. British Justice Secretary Liz Truss, backed by the lord chief justice, Lord Thomas, has now confirmed plans to enable vulnerable witnesses to have their “pre-trial evidence sessions” filmed throughout the country by next year.

When our committee first recommended that primary evidence be video-recorded, some people feared this might imperil justice, but they could not have been more wrong. Child victims and vulnerable witnesses now receive a far better deal, without any corresponding prejudice to the defendant, and a strong case exists for also allowing cross-examinations to be video-recorded.

This could help to avoid injustice, such as in the case of the 21-year-old mentally incapacitated woman who was allegedly sexually assaulted by the superintendent of a care home in Kwai Chung, but who, this month, was not able to testify at trial, resulting in his acquittal.

If Secretary for Justice Rimsky Yuen Kwok-keung were now, following Mathews’ lead, urgently to review the scope of existing protections, vulnerable witnesses would, perhaps, owe him as much gratitude as they undoubtedly owe to Mathews.

Grenville Cross SC is a criminal justice analyst