​

Recorded testimony was and still is available through the use of the deposition process under s.4F Criminal Procedure Act 1967 . Section 255 Children Act 2001 provides that a child whose safety, health or wellbeing may be at risk can avail of the section for offences under the Children Act 2001. However, as the procedure involves taking evidence in a court with all the usual procedures of a trial, the commencement of a dedicated legislative provision for the recorded testimony ahead of the trial was a significant step for certain vulnerable witnesses. 

​

SECTION 16(1)(b) OF THE CRIMINAL EVIDENCE ACT 1992

​

The first use of s 16(1)(b) Criminal Evidence Act 1992[1] in a criminal prosecution in Ireland was in 2010.[2] Since then it has been widely used to assist vulnerable witnesses give recorded examination-in-chief testimony at trial. The provision has been extended through legislation such as t the Criminal Law (Human Trafficking) (Amendment) Act 2013 he Criminal Law (Sexual Offences) Act 2017, and, most significantly, the Criminal Justice (Victims of Crime) Act 2017.

 

The section now provides that a recorded statement, by certain children or persons with mental disorders who are victims or witnesses, may be admissible as the examination-in-chief testimony of that person. The victim or witness must be available for cross-examination at trial. Cross-examination may be given via video link or from behind a screen under other provisions set out in the 1992 Act and which are available to the witness depending on his or her eligibility.

 

Undoubtedly, the significant advantage of recorded testimony, even in the limited circumstances of s 16(1)(b) of the 1992 Act, is that it allows for the ingredients of the offence to be established ahead of the trial. This means that there will be less risk that a vulnerable witness might not be able to ‘swear up’. If the witness has to give evidence at trial and is unable to give a full account of the alleged offence due to stress, trauma or other reasons, this may lead to a nolle prosequi being entered by the prosecution or a successful application for a direction to dismiss on the grounds of no case to answer. With recorded testimony, it is also hoped that, since the taking of evidence is done in a more relaxed environment away from and before the trial, the stress and trauma in recounting the details of the offences alleged are minimised.

 

Over the more than 10 years that the support measure has been in place in our courts, s 16(1)(b) has not changed fundamentally, although it has been amended. There appear to be no proposals at present to extend the measure to facilitate recording of cross-examination for vulnerable witnesses, a development that has occurred in the UK.[3] Recent Irish Court of Appeal judgments[4] have given an indication of the Court’s engagement with issues surrounding recorded evidence.

 

Competency, Memory Recall and Recorded Testimony

 

The question of the competency of the witness may be raised in proceedings involving particularly vulnerable witnesses such as very young children and persons with a mental disorder. Where the witness gives his or her evidence-in-chief by way of a recorded statement pursuant to s 16(1)(b), the issue of competency may be complicated by the potentially significant interval between the date of recording and the date of trial.

 

The test for the competency of child witnesses and witnesses with mental disorders, which is derived from s 27 of the 1992 Act, is that the witness is able to give an intelligible account of events which are relevant to the proceedings.[5] The issue of competency remains live throughout the trial.[6] With the admission of recorded testimony, the significant portion of the ‘intelligible account’ has been recorded pre-trial and may be admitted at trial as examination-in-chief testimony, subject to the determination of the trial court.

 

The matter of competency in relation to this issue was considered in the English cases of R v Powell[7] and R v Malicki[8] where the competency of very young children was in doubt and the appeal courts ruled that it could not be certain whether the witnesses were remembering the incident itself or the video of them giving evidence which they had watched shortly before the trial. These arguments did not find much favour with the Court of Appeal in DPP v TV[9] or DPP v SA[10]where the recorded testimony was admitted, the defendants convicted and the convictions upheld, but it must be noted that the complainants in the latter cases were older. Nevertheless, in DPP v FN,[11] where the complainant was younger (six years of age at the time of recording, and the matter came on for trial 20 months later), the Court of Appeal also upheld the conviction in an appeal grounded in the delay issue as well as other points.

 

 

In the cases of DPP v TV[12] and DPP v SA[13] the inability of a witness to remember relevant matters on cross-examination did not render convictions unsafe where recorded evidence, taken several years previously, had been admitted as examination-in-chief evidence. While the giving of evidence is not a memory test, the imbalance of memory recall in respect of the recording of evidence and the ability of the witness to recall events years later under cross-examination is a potential injustice in the trial process. Nonetheless, the witness’ inability to recall certain matters may support an application for a corroboration warning from the trial judge.[14]

 

 Witness Must Be Available for Cross-Examination

 

A condition of s 16(1)(b) is that the witness must be ‘available for cross-examination’ at trial.[15] The legislation does not require that the complainant be cross-examined but that he or she must be available for cross-examination. There is no definition of the phrase ‘available for cross-examination’ within the section itself.

 

With the admission of recorded testimony there are other issues that may impact on the competency of the witness. For example, in the normal course of events, witnesses giving evidence at trial are allowed to refresh their memory by looking at their statements prior to giving evidence.[16] In respect of s 16(1)(b), this would mean that the witness would view his or her recorded testimony at a time and place appropriate to the scheduling of the trial.[17] In some cases, this may raise a concern as to what the witness is remembering when being cross-examined, and whether he or she is able to remember the incident itself or only the events as described on the video, as per R v Powell and R v Malicki described above.

 

The term ‘available for cross-examination’ also appears in other legislation providing for the admission of statements in circumstances where the witness resiles from their statement. Section 16 of the Criminal Justice Act 2006 was intended primarily for use in gangland crime where witnesses may be intimidated or persuaded to retract statements made to the Gardaí or others. Prior to the commencement of s 16(1)(b) of the 1992 Act, the 2006 provision was unusually applied in the child sexual abuse case of DPP v O’Brien.[18] One of the child witnesses gave evidence at trial which was materially inconsistent with her previous statement: she stated she did not remember the events alleged whereas in the recording she had recounted the details of the alleged offences. The recording was admitted as it met the criteria of s 16 of the 2006 Act. The defendant was ultimately convicted, and the appeal subsequently failed. In that context, the Court of Appeal held that the witness was available for cross-examination and the recorded evidence could be admitted, even though the witness said she did not remember the alleged incidents and it appeared that she did not wish to give evidence.

 

The use of s 16 of the 2006 Act was challenged in the case of Rattigan v DPP [19]on the basis of retrospectivity of the section and its application to the appellant’s case. [20] The offence had taken place in 2001 and the trial took place in 2009 after delays which had been the subject of judicial review proceedings. In examining that particular section, the Court of Criminal Appeal noted:

 

A provision such as s 16 therefore provides a partial remedy for a real problem and in doing so removes, or at least reduces, the incentive for anyone to seek to encourage a witness not to testify. While counsel for the applicant argued that the court should approach the section on the basis that it was a very powerful provision since a statement so admitted could not be cross-examined, this is a necessary consequence of the admission of any out of court statement under an exception to the hearsay rule. Indeed, under s 16 the opposing party is in a somewhat better position since the witness must be available for cross-examination, and the opposing party can seek to exploit the witness’s uncertainty, or professed lack of memory, if he or she thinks it desirable. That possibility is not available in other exceptions to the hearsay rule. The fact that evidence admitted under the rule may be effective, and even powerful in some cases, is not itself a reason to approach the section with any scepticism.[21]

 

The phrase ‘available for cross-examination’ in relation to s 16 of the 2006 Act was defined by the Court of Criminal Appeal in a subsequent application for leave to appeal to the Supreme Court. O’Donnell J stated:

 

The concept of making someone available for cross-examination is well understood in the law: it means that a witness is present, and can be called and cross-examined if desired. Whether any such cross-examination takes place, or is useful, is normally a matter for the cross-examining party. It is in truth difficult to see what other interpretation can be given to the words ‘available for cross-examination’ than that the witness is present and in Court, and can be called, and is therefore available.[22]

 

How the phrase ‘available for cross-examination’ is construed under s 16 (1)(b) of the 1992 Act may present distinct difficulties for the trial process in circumstances where a complainant or witness may be physically present but perhaps unable to remember due to a possibly significant delay between the recording of the statement and the subsequent trial. However, it appears that the general standard that the courts have accepted in relation to its definition is quite low. Where a witness who has had his or her recorded statement admitted under s 16(1)(b) testifies that he or she does not remember, as occurred in DPP v SA,[23] the courts are likely to accept this, even though meaningful cross-examination is, to all intents and purposes, impossible.

 

In DPP v SA[24] the interval between the recording of the statement and the commencement of the trial was approximately seven years. As mentioned previously, one of the appeal points was that a significant proportion of the responses of the complainants was that they did not remember or could not recall the time surrounding the offences in question. This is not surprising as they were approximately 10 and 12 years of age when the recordings were taken and 17 and 19 years old respectively when the matter came on for trial.[25] The appeal points failed. Kennedy J stated:

 

Moreover, this was a case where the appellant denied the allegations in broad terms. It was not one, as put by the respondent, which was date or event specific. Furthermore, it was common case that he resided with the children and their mother at the relevant locations. It is clear from the transcript of the proceedings before the Central Criminal Court that the cross-examination of each complainant was skilful and fulsome. We are not satisfied that the passage of time rendered the process unfair or impacted negatively on the ability of the appellant to cross-examine the witnesses. [26]

 

The case of DPP v FN[27] came on for trial as expediently as possible involving as it did complainants who were approximately four and six years old and a defendant who was 14 years of age at the time of the alleged incidents. The matter came on for trial approximately 20 months after the alleged sexual offences and recorded statements were admitted. The jury disagreed in respect of the charge against the younger complainant but returned a guilty verdict in respect of the offence of sexual assault against the older complainant (Y) who was eight years old at the time of trial. The conviction was appealed and in addition to whether the behaviour alleged could be said to be defined as a sexual assault (the offence involved the defendant smacking the bare bottom of the complainant with his hand) the appeal points included the following: first, that the conventional manner of refreshing the memory of such a young child through the playing of the recorded statement would risk him remembering the video and not the incident itself thus rendering cross-examination impossible; and, second, that the trial judge should not have permitted the playing of a DVD of an interview as the direct evidence of the complainant where there had been a significant delay of some 20 months between the making of the recording and the playing of the recording at trial.

 

The Court of Appeal dismissed the appeal. Among the considerations which influenced the Court’s conclusion that the delay had not been prejudicial was the fact that no cross-examination had been conducted:

 

It also seems relevant to us that the only account that the jury heard was the account to specialist interviewers. There was no cross-examination so the question of the ability to conduct a meaningful cross-examination being compromised by the lapse of time has not been established, though it is the case where the decision not to cross-examine was taken against the background of a particular timescale. The evidence in chief of the complainant from the meeting with the specialist interviewers was unchallenged, save for an assertion by defence counsel to the jury to the effect that the accused denied outright all allegations made against him in respect of complainant Y. Insofar as an alternative explanation for the incident was canvassed, that what occurred was in the context of chastisement, a theory for which there was no evidential basis, the appellant was not prevented from pursuing that theory by the passage of time. Overall, we have not been convinced that the judge fell into error in declining to halt the trial by reason of the lapse of time and we dismiss this ground of appeal. [28]

 

In this case, the specialist interviewer had requested a second interview, but this had been refused by the complainant’s mother. In a situation where a second interview was requested, one might speculate that clarity was being sought in relation to the evidence. This was particularly relevant where greater detail of the event might inform any motivation and intent in respect of the nature of the offence. In a situation where the witness is very young, where the nature of the evidence might be problematic, and where a significant amount of time has elapsed, a defence counsel may not wish to cross-examine the witness. Where a witness is not cross-examined, it is for the jury to consider the weight of the evidence which is not challenged. This raises the possibility that the untested evidence will be given more weight simply because it has not been challenged. [29]

 

There may be several reasons why a defence counsel chooses not to cross-examine. It may not be helpful for the defence case if defence counsel is seen by the jury to be cross-examining a young child and it may risk causing distress to the witness, particularly where there are other means of putting the case or where the evidential issues are not relevant for the particular witness (eg where there are multiple co-accused). Where there is a blanket denial that an event occurred, this may be inferred from the fact that the witness has pleaded not guilty. In certain circumstances, a defence counsel may not wish to risk a situation where challenging the witness will be interpreted by the judge or the jury as the defence suggesting that the witness is malevolent or a liar.[30] Furthermore, defence counsel may not wish to strengthen the prosecution case by opening up opportunities in cross-examination that the prosecution may exploit in re-examination.

 

It is not wise to extrapolate too much from any one case. Nonetheless, it is disappointing that the Court of Appeal appeared to indicate in DPP v FN[31] that in order to argue that delay has undermined effective cross-examination, a defence counsel may be obliged to conduct a cross-examination. Yet it seems this may be the case, even in circumstances where cross-examination may be desirable neither from the point of view of the defence nor that of the witness. It is also regrettable that the Court of Appeal has not seen fit to urge greater alacrity in such cases, particularly for cases involving young complainants. In the UK, an interval of 28 months between the recorded statement and the trial occurred in a recent case involving the alleged rape and sexual assault of a four-year-old by her father.[32] Despite an application by the defendant to exclude the complainant’s recorded testimony on the basis of delay, the statement was admitted and the complainant cross-examined. The delay in charging the defendant, which comprised the majority of the time between the recording of the statement and the trial, was criticised by the trial judge as ‘lamentable’ and ‘inexcusable’.[33] On appeal, the conviction was upheld but it is noteworthy that the Court commented:

 

Nevertheless, having reached that conclusion in this particular case, we would reiterate the importance, where the evidence of a child is involved, of an ABE (Achieving Best Evidence) interview (recorded statement) being conducted as soon as possible after a complaint has first emerged and then of any subsequent trial taking place at the soonest practicable moment.[34]

 

 It is unfortunate that in the case of DPP v FN,[35] and other cases where delay was a factor such as DPP v SA[36] and DPP v TV,[37] the Court of Appeal has not laid down a marker that unless cases of this kind are tried as soon as possible, fair prosecution may be almost impossible. It must be acknowledged that in DPP v FN,[38] Birmingham P said that such cases should be prioritised.[39] However, given the customary timeframes of similar cases that come before the courts, this seems merely aspirational and certainly does not demand that cases involving vulnerable witnesses proceed without delay given the implications for the quality of the evidence coming before the court.

 

The Court of Appeal judgments not only address the substantive legal implications of delay but, in describing the details of the cases, highlight the extent of the problem in practice. However, further evaluation of the timelines is required. In the case of DPP v VE,[40] the first case in which a court availed of the expertise of a trained Registered Intermediary on Irish soil, the date of recording was 26 November 2016,[41] the date of arrest was 6 January 2017, and the trial began on 19 February 2019. The offences were alleged to have occurred between 13 April 2015 and 30 September 2016 when the complainant was between the ages of 11 and 12 years. The interval between the recording of the statement and the trial was then over two years in respect of a complainant who was approximately 14 years of age.

 

In DPP v PB,[42] the interval between the recording of examination in chief testimony and the trial was four years. In that case, the trial judge gave a corroboration warning on the basis that the complainant had given several answers stating she could not remember or recall events. As the trial judge stated, this was not surprising as the witness was being cross-examined on issues that had occurred when she was between seven and 11 years of age approximately. The trial began on 19 February 2014 and the appellant was convicted on 5 March 2014. At time of trial the complainant was almost 18 years of age, having been born in the autumn of 1996. The indictment covered the period from June 2005 to May 2008, which is the period when the complainant was between seven and 11 years of age approximately . The interview conducted by specialist garda interviewers took place on 7 July 2010, just before the complainant was 14 years of age.

 

In the Circuit Court trial of DPP v JD[43] the date of complaint to the Garda Síochána was 3 October 2014; the recording with a specialist interviewer took place on 13 November 2014. In January 2015, the defendant was arrested. The trial took place in March 2017 and the defendant was convicted on 15 March 2017. The complainant was 12 years old at time of trial and the incidents took place when she was aged seven to nine years of age. The interval between recording and trial was approximately two-and-a-half years.

 

The timelines in these cases are not unusual in the criminal courts.[44] Looking at any given trial there may be legitimate reasons why there is a delay between the recording, the charge and the trial. However, any delay in proceedings involving a vulnerable witness may cause significant emotional and psychological harm. It may also call into question the ability of the witness to be a competent witness and/or the quality of the evidence. A review of the timeframe for cases involving vulnerable witnesses is required, particularly in cases involving sexual offences, so that the extent of the problem is identified, and appropriate solutions implemented.

 

Given the difficulties surrounding the issue of memory recall and the low threshold for the statutory requirement that the witness be ‘available for cross-examination’, it is disappointing that the Court of Appeal is not engaging as fully as it might with the implications of delay occurring between the pre-trial statement and the trial testimony.

 

 

Miscellaneous Aspects of Section 16(1)(b)

 

1. Relationship with s 27 Criminal Evidence Act 1992

 

Section16(1)(b) of the 1992 Act was originally drafted for complainants under the age of 14 years or persons with an intellectual disability[45] in relation to sexual or violent offences. The facility for the admission of unsworn testimony for children under s 27 as originally commenced greatly assisted the child witness in respect of the admission of recorded testimony as it removed a procedural hurdle for the child witness.[46] It meant that the person who conducted the interview, the specialist interviewer, did not need to administer an oath before conducting the interview. However, following the extension of eligibility for the special measure brought about by the Criminal Law (Human Trafficking) (Amendment) Act 2013, the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017), s 16(1)(b) no longer ties in with s 27 as neatly as it did previously. The scope of the provision now extends to a statement recorded by a victim under 18 years or by a witness other than the accused in relation to a sexual offence, certain human trafficking offences or pornography offences. A person with a mental disorder who has reached that age is eligible to give his or her evidence under the same conditions by virtue of s 19 of the 1992 Act. A child who is over 14 years but under 18 years should have his or her testimony sworn or affirmed before it is admitted at court. However, this is not done by the specialist interviewers so the issue that the courts now face is how to deal with the unsworn testimony of a witness, who is eligible to swear or affirm, when the application is made to have it admitted as examination-in-chief evidence.

 

The Northern Ireland case of R v N may be relevant. [47] In a case that involved the prosecution of sexual offences which involved legislation similar to that of the 1992 Act, a recorded interview was admitted as evidence-in-chief of a complainant who was 16 years old at time of the recording and 17 years when she was cross-examined at trial. There was no oath or affirmation taken either at the interview stage or at trial before cross-examination took place, despite the fact that threshold for the admission of unsworn evidence was 14 years of age. The defendant was convicted but the Court of Appeal upheld the appeal and ordered a retrial. The Court held that the complainant should have been sworn before she gave her evidence in court. It may be that the Irish courts are applying this principle at present but there is no published guidance or case law to confirm whether this is the case.

 

 

1. Admission of Recordings to Jury Room

 

The case of DPP v PP[48] raised a point of appeal regarding the admission of the DVD recordings under s16(1)(b) of the 1992 Act as exhibits to the jury room. The trial judge had allowed the evidence to be viewed in the jury room and the Court of Appeal judgment indicates that both the prosecution and the defence had consented to this practice (although the defence counsel had pointed out to the trial judge that the normal procedure was to play the DVD to the jury in the courtroom). On appeal, it was contended that this could have caused a prejudicial imbalance in how the jury weighed the evidence because when the recording was replayed to them the jury would have heard a repetition of the account by the complainant without the benefit of the additional cross-examination evidence. The Court of Appeal noted the submissions made by the appellant and respondent but ultimately did not find that the treatment of the recorded examination-in-chief testimony as exhibits viewable in the jury room caused the trial to be unfair:

In regard to the s 16 DVD going to the jury in their room, the defence objection during the course of the trial was cursory in nature. There was no need in the circumstances for the jury to be reminded of the cross-examination in the event that they decided to watch the s 16 DVD interview. As this Court has already noted the defendant’s cross examination of the complainant was short focused and limited to general questions about herself and her family, her memory, did she know what pretending meant, had she discussed the case with her mother and then asking her if she had told the truth in the three HSE interviews. There is no question of any injustice resulting from the jury viewing the s 16 DVD in their room along with other exhibits and accordingly the court dismisses this ground of appeal.[49]

 

The case does not offer a definitive ruling on the matter as it appears to turn on its own facts given the nature of the cross-examination in the case.

 

In the Court of Appeal case of DPP v SA,[50] a similar point was raised on appeal in relation to a potential imbalance in the weighing of evidence where the jury had asked for the recorded testimony to be replayed. In that case the jury had been brought back to the courtroom to view the recorded testimony. The defence had argued that without the trial judge also outlining the cross-examination testimony, an imbalance would ensue. The Court of Appeal stated:

 

Where the DVDs are re-played, certain safeguards are in our opinion required to be

followed which include the re-playing of the DVD in the courtroom in the presence of the judge and the parties, which should take place without any intervention or interruption. We do not agree with the contention on behalf of the appellant that it was then necessary for the trial judge to summarise again all or part of the cross-examination of the complainants. It is a matter to be determined on the facts and circumstances of each individual case. In the present case the trial judge had carefully summarised the evidence in a fair and balanced manner at the end of a very lengthy trial. Where certain portions of evidence are requested to be repeated by the jury, it is only necessary to give those portions to the jury. Should the jury request further material, it is a matter within the province of the jury to so request. [51]

 

It is worth noting that in subsequent cases the recordings of examination-in-chief testimony have, with the consent of the defence, gone into the jury room as exhibits.[52] Nevertheless, the courts and practitioners should be cognisant of any potential evidential imbalances that may arise in the replaying of testimony.

 

(c) Technical Problems

 

Technical difficulties are a continuing problem with recorded evidence, for example, where recorded interviews do not play correctly, where there are difficulties linking courtroom proceedings to the video link suite or where the sound quality is inadequate.[53] Problems related to editing may also give rise to evidential issues at trial. For example, in case of DPP v PB, [54] it is perhaps surprising to read that there was a ‘pause, fast forward, press play’ form of editing rather than the jury seeing an edited copy of the recorded statement. After conviction, this then formed the basis of an unsuccessful point of appeal. [55]

 

Many technical issues do not reach the Court of Appeal because they are resolved among practitioners or addressed by trial judges. Cases in which recorded testimony is used typically involve in camera hearings and consequently many of these issues are unseen and go unremarked. The fact that such technical issues are still ongoing, even though s 16(1)(b) has been implemented for some considerable time, is of concern as these problems cause unnecessary stress, uncertainty and delay in the trial process.

 

Conclusion

 

The Criminal Evidence Act 1992 has been amended by several statutes such as the Criminal Law (Sexual Offences) Act 2017 and perhaps most significantly the Criminal Justice (Victims of Crime) Act 2017. Understanding eligibility for support measures in s 16(1)(b) and the Act overall has become increasingly complicated; it depends upon the offence and various characteristics pertaining to the witness such as age, an intellectual disability and the possibility that he or she is a victim of the offence. This may cause confusion which is unhelpful in the trial process where clarity and certainty is vital.

 

The procedural guidance supporting the s 16(1)(b) ‘Good Practice Guidelines’[56] was drafted in 2003. These guidelines assist specialist interviewers and courts in determining how interviews should be conducted under the section but they have no statutory authority. Chiefly, however, the concern is that they are now extremely outdated in light of the legislative amendments and are in need of revision.

 

One of the more difficult aspects of recorded testimony is the uncertainty surrounding whether the statement will be admitted at trial. At present, the application takes place before a trial judge. Section 6 of the Criminal Procedure Act 2021 places preliminary hearings on a statutory basis and, when commenced, will facilitate the resolution of pre-trial issues including the admission of recorded evidence. The 2021 Act recognises the authority of a trial judge to admit as evidence statements recorded under s 16(1)(b) under a ‘relevant order’. However, if the evidence is not admitted, it is possible that the DPP may appeal this ruling under s 7 of the Act and this appeal process may also cause further delay. In addition, there is a question mark over whether the section in the 2021 Act on ‘Provision of information to juries’[57] will allow evidence admitted under s 16(1)(b) of the 1992 Act to be given to jury members given the risk, outlined above, that the practice may cause an imbalance in the weighing of evidence and an unfairness to the defendant.

 

Preliminary hearings under the 2021 Act will be valuable but they will be potentially available only where the offence attracts a sentence of at least 10 years or a life sentence. It should be noted that there is provision for the Minister to extend the scope of eligibility for preliminary hearings.[58]

 

More generally, there appear to be no plans at present to amend the 1992 Act by providing for full recording of the evidence of vulnerable witnesses, including cross-examination. This is surprising given recent progress in the neighbouring jurisdiction[59] and the significant developments to facilitate and assist vulnerable witnesses in the criminal courts in Ireland.[60] While there may be implications for the constitutional rights of the accused, it is an option which may be of great assistance. With the introduction of recorded cross-examination of vulnerable witnesses in the UK, the courts there have seen a curtailment of cross-examination in respect of content, form and duration which would be inconceivable in the Irish courts.[61] The UK courts have said that these limitations should be explained to the jury by the trial judge.[62] The use of recorded cross-examination does not necessarily involve such evidential modifications. Moreover, it may provide an opportunity to resolve further issues regarding faster timelines for trials as well as difficulties regarding earlier disclosure.

 

Fundamentally, however, the future development of law and practice on recorded testimony is hampered by the absence of empirical data. If there is no information as to how the special measure is working in practice or how effective it is from the point of view of victims and witnesses, then it is difficult to know how to improve its implementation or, indeed, how best to implement further support measures. Many of the issues discussed above need review and resolution to ensure that s 16(1)(b) is achieving the objectives for which it was established.

 

[1]           Criminal Evidence Act 1992  (CEA 1992), s 16 ‘Videorecording as evidence at trial’:

(1) Subject to subsection (2)

(a) a videorecording of any evidence given, in relation to a relevant offence, by a person under 18 years of age through a live television link in proceedings under Part IA of the Criminal Procedure Act, 1967, and

(b) a video recording of any statement made during an interview with a member of the Garda Síochána or any other person who is competent for the purpose—

(i) by a person who is under 18 years of age in relation to an offence of which he or she is a victim, or

(ii) by a person under 18 years of age (being a person other than the accused) in relation to—

(I) a sexual offence, or

(II) an offence under section 3(1), (2) or (3) of the Child Trafficking and Pornography Act 1998, or

(III) an offence under section 2, 4 or 7 of the Criminal Law (Human Trafficking) Act 2008,

shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:

Provided that, in the case of a video recording mentioned in paragraph (b), the person whose statement was video recorded is available at the trial for cross-examination.

(The original provision was commenced on 15 October 2008.)

[2]           See Miriam Delahunt, ‘Video Evidence and s16(1)(b) of the Criminal Evidence Act 1992’ (2011) 16(1) Bar Rev 2.

[3]           Youth Justice and Criminal Evidence Act 1999, s 28 (England and Wales). See JR Spencer, ‘Section 28 YJCEA 1999 and Pre-Trial Cross-Examination: Where We’ve Got to Now and How We Got There’ (May 2019) 4 Arch Rev 4; Laura Hoyano and John Riley, ‘Making s 28 More Flexible and Effective’ (June 2021) Counsel Magazine of the Bar of England and Wales 46, <www.counselmagazine.co.uk> accessed 18 January 2022. See also <https://www.cps.gov.uk/legal-guidance/special-measures> accessed 18 January 2022.

[4]           DPP v TV [2017] IECA 200; DPP v SA [2020] IECA 60; DPP v FN [2021] IECA 238; DPP v VE [2021] IECA 122.

[5]           CEA 1992, s 27:

(1) Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that he is capable of giving an intelligible account of events which are relevant to those proceedings.

(2) If any person whose evidence is received as aforesaid makes a statement material in the proceedings concerned which he knows to be false or does not believe to be true, he shall be guilty of an offence and on conviction shall be liable to be dealt with as if he had been guilty of perjury.

(3) Subsection (1) shall apply to a person with mental handicap who has reached the age of 14 years as it applies to a person under that age.

See also O’Sullivan v Hamill [1999] 2 IR 9.

[6]           R v Powell [2006] 1 CAR 31; R v Malicki [2009] EWCA Crim 365.

[7]           [2006] 1 CAR 31.

[8]           [2009] EWCA Crim 365.

[9]           [2017] IECA 200.

[10]         [2020] IECA 60.

[11]         [2021] IECA 238.

[12]         [2017] IECA 200.

[13]         [2020] IECA 60.

[14]         See DPP v PB [2021] IECA 152. The trial judge did give a corroboration warning in that case based on inconsistencies in testimony and issues of memory recall by the witness. The appellant argued that the warning delivered by the trial judge was not adequate in the circumstances but failed on this and the other appeal points.

[15]         ‘… Provided that, in the case of a video recording mentioned in paragraph (b), the person whose statement was video recorded is available at the trial for cross-examination …’ (emphasis added).

[16]         See Declan McGrath, Evidence (3rd edn, Thomson Round Hall 2020) para 3–188.

[17]         See: Good Practice Guidelines for Persons involved in Video Recording Interviews with Complainants under 14 Years of Age (or with Intellectual Disability) for Evidential Purposes in Accordance with Section 16(1)(b) of the Criminal Evidence Act, 1992, in Cases Involving Sexual and/or Violent Offences (An Garda Síochána, July 2003) 9; DPP v VE [2021] IECA 122 [27]; Caroline Biggs and Miriam Delahunt, ‘Prosecutorial Challenges – Vulnerable Witnesses’ (2017) 22(1) Bar Rev 23, 25.

 

[18]          [2011] IR 273.

[19]          [2013] 2 IR 221.

[20]         See also Liz Heffernan, Evidence in Criminal Trials (2nd edn, Bloomsbury Professional 2020) ch 9.

[21]         [2013] 2 IR 221 [229]. The Court’s judgment was delivered by O’Donnell J.

[22]         People (DPP) v Rattigan [2015] IECCA 7 [8].

[23]         [2020] IECA 60 [122–25].

[24]         ibid.

[25]         The delay in the matter coming on for trial had occurred for various reasons, including the late charging of the defendant partly due to his being outside the jurisdiction as well as two trial dates not proceeding for procedural reasons. ibid [17]–[18].

[26]         ibid.

[27]         [2021] IECA 238.

[28] ibid.

[29] DPP (Kelly) v Burke [2015] 2 IR 651, 663–64 and 666–67.

[30]         DPP v PS [2021] IECA 311. In this case, the appeal was largely based on the mischaracterization by the trial judge of the defendant’s case in his charge. The defence had been that the events had not occurred but the trial judge had stated that as it had never been put to the witness that she was lying, the defence case must be that she was mistaken.  Counsel had requisitioned the trial judge but the subsequent recharges exacerbated the situation as he then he stated that the defence counsel suggested that the complainant was mistaken or lying. This formed the appeal point after conviction. The appellant had argued that defence counsel had done everything to put the case in a respectful way and ‘to ensure not to attack anyone else’s character.’ In upholding the appeal and ordering a retrial, the Court of Appeal stated at paras 26, 27:

 

Counsel must make it clear to the witness in any given case that the witness’s veracity is under challenge, however, in certain circumstances it is not strictly necessary that the challenge be expressly stated in minute detail. We are persuaded in the circumstances that the judge’s comment during the summing-up went beyond the legitimate comment by a judge and undermined the defence case significantly.

In DPP v LD [2018] IECA 54, the appeal points included a submission that the trial judge had, in her tone and comments used during her charge, displayed a commendation and endorsement of the child complainant’s evidence. While the appeal failed, the Court of Appeal did note at [44]: ‘Cases involving child witnesses represent one area in which judges need to be sure-footed and to step warily if deciding to offer commentary on a complainant’s evidence.’

[31]            [2021] IECA 238.

[32]            R v DL [2019] EWCA Crim 1249.

[33]            ibid [32].

[34]            ibid [43]. The Court had characterised the evidential issues in the case as relating to the credibility of the complainant and the reliability of her evidence rather than the competence of the complainant or indeed the fairness of the trial procedure.

[35]         [2021] IECA 238.

[36]         [2020] IECA 60.

[37]         [2017] IECA 200.

[38]         [2021] IECA 238.

[39]         ibid [26].

[40]         [2021] IECA 122.

[41]         The judgment states ‘26 November 2019’ which appears to be a typographical error. ibid [4].

[42]         [2021] IECA 152. The trial judge had given a corroboration warning based on inconsistencies and issues of memory recall by the witness. The appellant stated that the corroboration warning was not adequate in the circumstances but failed on that point.

[43]         [2018] IECA 232.

[44]         See also Miriam Delahunt, ‘Recorded Evidence for Vulnerable Witnesses in Criminal Proceedings’ (2015) 29(3) Bar Rev 46.

[45]         Or for persons with an intellectual disability who have reached that age: CEA 1992, s 19. This ties in with s 27, which allows for evidence of a child under 14 years to be admitted at trial without being sworn or affirmed.

[46]         CEA 1992, s 27 does include a perjury offence. The section has now been amended by the Criminal Justice (Perjury and Related Offences) Act 2021.

[47]         R v N [1998] NI 261.

See Peter Rook and Robert Ward, Sexual Offences, Law and Practice (6th edn, Sweet and Maxwell 2021) para 34.37.

[48]         [2015] IECA 152 [36].

[49]         ibid [36].

[50]         [2020] IECA 60.

[51]         ibid [165]–[166].

[52]         DPP v FN [2021] IECA 238; DPP v SK (CCDP0124/2020 Dec 2020)

[53]         Delahunt (n 46). Other technical issues include a case which was reported in the Irish Times in April 2021 where the parents of one of the youngest witnesses in Ireland described the issues they encountered with the trial procedure. ‘The couple cite a litany of things that made Zoe’s experience at court much more difficult than anticipated. Initially, there was no room available for her to view her DVD evidence before it was shown to the jury. After a frantic search one was found. The technology in the courtroom broke down repeatedly so Zoe had to leave the video-link room and return to it numerous times. “All that expensive marble, and the IT is substandard,” Kate says.’ Sarah-Jane Murphy, ‘The story of “Zoe”, One of the Youngest Sex-Abuse Cases Ever Heard in Irish Courts’ The Irish Times (Dublin, 24 April 2021).

[54]         [2021] IECA 152.

[55]         Delivering the Court’s judgment, Birmingham P stated: ‘The direct evidence of the complainant at trial came from the video recording of her interview conducted by the specialist interviewers in the Garda station. The situation is complicated somewhat by the fact that those interviews had touched on other rapes beyond those that were charged. The trial judge had indicated that references to other matters not charged, as well as counselling undergone by the complainant, should not go before the jury. This was achieved by the Garda, who was playing the tape, pressing the pause button and then fast forwarding as appropriate. The appellant says that this is unsatisfactory in circumstances where it is not possible to know just what was played to the jury and just what was heard by them.’ ibid [24].

[56]         Good Practice Guidelines (n 18).

[57]         Criminal Procedure Act 2021, s 12.

[58]         ibid, s 5.

[59]         Youth Justice and Criminal Evidence Act 1999, s 28. (England and Wales); Spencer (n 4). See also <https://www.cps.gov.uk/legal-guidance/special-measures> accessed 18 January 2022.

[60]         Criminal Justice (Victims of Crime) Act 2017; Criminal Law (Sexual Offences) Act 2017; Criminal Procedure Act 202; O’Malley Working Group, Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences (Department of Justice, August 2020); Supporting a Victim’s Journey – A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases (Department of Justice, October 2020).

[61]         See R v PMH [2018] EWCA Crim 2452; R v YGM [2018] EWCA Crim 2458.

[62]         ibid.          

See also Crown Court Compendium (August 2021) 10–26.