The report of the 15-year-old victim of sexual abuse locked up in a cell for 20 hours after she refused to give evidence against her attacker is an opportunity for us to stop and ask whether the increased use of compulsion to effect the attendance of witnesses is an indication that the justice system is losing its perspective on this issue. It is quite right that her treatment has prompted urgent calls for an investigation.
The victim who had committed no crime, was held overnight on the orders of the Judge before giving evidence that lasted only 22 minutes. The man who groomed her had made the girl pregnant at 14. She did not want to give evidence because she had strong feelings for him. Judge Bartfield said the trial would have collapsed without the girl's evidence and that the police and CPS felt it necessary to apply for an arrest warrant in the interests of justice.
Complainants in cases such as these and similarly allegations of domestic violence often have contact with the police very soon after the alleged incident. They may be in a state of upset, physically and emotionally. The officer called to the scene may or may not be trained to deal with the specific issues involved in these types of offences. The complainant is asked to give an account which at that time is likely to be incomplete, lack coherence or be influenced by their mental and physical state. That account is summarised and recorded by the officer and the complainant asked to sign it. It is very rare that the complainant is told clearly at that stage that they are signing a statement which will be used at court and creates a compulsion to attend and give evidence at court. It is even more unlikely that they are told before signing that their failure to attend court and give evidence can result in them being arrested, held in custody or worse still prosecution for contempt of court.
The issuing of a warrant for the arrest of a witness should be a weapon of last resort used only where the public interest heavily and tangibly outweighs the interests of the complainant. The court should make rigorous inquiry of the prosecution before taking this step as to how and why the situation has arisen.
Did they keep in touch with the witness? Was the availability of special measures explained and where appropriate applied for? Has she (it’s often a she) had a chance to review her statement to ensure it is correct and something she still supports as accurate (without the sword of prosecution for lying or wasting police time hanging over her head)? Was she told that she could attend court and explain to the judge why she does not want to give evidence rather than just not turning up at all? If her failure to attend is through fear instigated by the defendant can the statement be admitted using the hearsay provisions of the CJA 2003? Can the prosecution prove a case without her even if this is by way of a different charge - on the facts of this case other offences may well arise.
When evidence is extracted under these circumstances we have to question the quality of it. More importantly, we have to consider the damage that is done, not just to that witness but other potential witnesses whose confidence in the criminal justice system is dented by experiences such as these.