Abstract
Law reform and source material
Sexual History—Adverse Inferences—Video-recorded Evidence—Cross-Examination—Expert Evidence—New Zealand
New Zealand Law Commission, Report 142: Second Review of the Evidence Act 2006—Te Arotake Tuarua i te Evidence Act 2006: He Puka Kaupap (13 March 2019), www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/EA2%20-%20FINAL%20REPORT%20R142%20-%20Web%20Publishing.pdf.
A review of New Zealand’s Evidence Act 2006. The report makes 27 recommendations for reform, several concerning the rules of evidence in sexual and family violence cases. The report recommends ‘tighter controls’ on the admission of evidence of sexual history and sexual character, more flexibility for complainants in family violence cases as to how their testimony is delivered, a requirement on judges to intervene when they decide that the questioning of a witness is ‘unacceptable’ and the development of jury instructions designed to address myths and misconceptions about sexual and family violence. The report also recommended ‘a new provision to clarify that a court may regulate its procedures for giving evidence in a manner that recognises tikanga Māori.’ The report makes a number of other, discrete recommendations. These would, among other things, establish that evidence of a conviction gives rise to a rebuttable (rather than conclusive) presumption that the individual convicted committed the offence; ‘clarify that judges may not draw an adverse inference of guilt from a defendant’s pre-trial silence’; remove restrictions on defence counsel’s access to video-recorded interviews with complainants in sexual and violent cases; and require expert witnesses to abide by a code of conduct when giving evidence in criminal cases.
Juries—Northern Ireland
Northern Ireland Office, Consultation Response: Non-Jury Trials (29 April 2019), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/798532/NJT_Consultation_Response_-_Final_29.04.19__1_.pdf
The Justice and Security (Northern Ireland) Act 2007 permits the Director of Public Prosecutions for Northern Ireland to certify that a trial on indictment is to be conducted without a jury. The Northern Ireland Office engaged in consultation to determine whether the non-jury provisions in the Act should be extended. Ultimately, the Secretary of State for Northern Ireland concluded, over the objections of the Northern Ireland Bar, that they should.
Child witnesses—England and Wales
Joyce Plotnikoff and Richard Woolfson, Falling Short? A Snapshot of Young Witness Policy and Practice (National Society for the Prevention of Cruelty to Children, April 2019), https://learning.nspcc.org.uk/research-resources/2019/falling-short-young-witness-policy-practice/
This revisits a 2009 report by the same researchers, in which they examined whether and to what extent government policy and practice ‘met the needs of young witnesses in England and Wales’. The authors found improvement, but nonetheless observed that there are a number of respects in which the ‘provision of support is inconsistent’. The report makes several recommendations about ways in which child witnesses should be supported, how questioning and cross-examination should be conducted, and the need to avoid delay in the trial process.
Forensic evidence—England and Wales
House of Lords, Science and Technology Select Committee, Third Report of 2017–19, Forensic Science and the Criminal Justice System: A Blueprint for Change (1 May 2019), https://publications.parliament.uk/pa/ld201719/ldselect/ldsctech/333/333.pdf
In this scathing report, the Committee found ‘a serious deficit of high-level leadership and oversight of forensic science from the Home Office and Ministry of Justice’ and recommended the creation of a Forensic Science Board ‘to deliver a new forensic science strategy and take responsibility for forensic science in England and Wales’. The Committee found that ‘[s]imultaneous budget cuts and reorganisation, together with exponential growth in the need for new services such as digital evidence, have put forensic science providers under extreme pressure’, leading to the real possibility of ‘major forensic science providers going out of business and putting justice in jeopardy’. Furthermore, the Committee found ‘no consistency in the way in which the Police Authorities commission forensic services’, ‘call[ing] into question equitable access for defendants and rais[ing] issues over the quality of the analysis undertaken and the evaluation of the evidence presented.’ The difficulty is heightened by cuts to legal aid, making it harder for defendants to arrange for their own forensic testing, and by the ‘rapid growth’ of digital forensic evidence. The Committee recommended a number of reforms to the Forensic Science Regulator, urged the government to ‘prioritise investment in research on automation techniques for the retrieval and analysis of large volumes of digital evidence’, and recommended the creation of ‘a National Institute for Forensic Science to set strategic priorities for forensic science research and development, and to coordinate and direct research and funding’.