A recent study conducted by University College London has suggested that rape complainants who utilise “special measures,” such as pre-recording their evidence, could be harming their chances of securing a conviction at trial. By allowing complainants to be interviewed and cross-examined before the trial and away from the defendant, special measures were introduced in 2016. However, the study, which is the first of its kind and looked at comparable conviction rates for both adult and child complainants from 2016 onwards, revealed that there was a 20% drop in rape convictions.
While the policy of utilising special measures was expanded in 2021 to include adult rape complainants, the researchers are now suggesting that police and the Crown Prosecution Service should routinely advise witnesses of lower conviction rates. Prof Cheryl Thomas KC at UCL Faculty of Laws suggests that Section 28, under the Youth Justice and Criminal Evidence Act 1999 which introduced special measures, “may need reform.”
While some complainants have found particular benefits of special measures, the study suggests that there could be several reasons for the lack of convictions, including inherent weakness of special-measures cases, poor quality recording equipment, and the “inequality of arms” created when pre-recording evidence. The authors refer to psychological research, which shows that in-person interaction can create higher levels of empathy than on-screen interactions.
A criticism of special measures is their negative impact on the jury, particularly in regards to complainants who already chose pre-recorded cross-examination but wished to change their minds. The authors suggest that there needs to be a review of special measures and their use in the criminal justice system. Although the government has stated that it would consider the study, it has also stated that “pre-recorded evidence supports those extremely vulnerable victims who may otherwise feel unable to have their voices heard to see justice done.
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