The UK justice secretary Liz Truss has announced plans to allow rape complainants to give evidence via pre-recorded video. Rape complainants are already able to give portions of their evidence via video. Since 2009, they have been able to give their ‘evidence in chief’ – which is where they give their side of the story – on a video that is recorded almost immediately after they make their initial complaint. Truss’s plan is to allow pre-recording of their cross-examination, too. This is the part of the case in which their account is challenged, and the defendant’s version of events is put to them.
Of course, giving evidence about a crime you have been a victim of is deeply distressing. But Truss’s plans are terrible, for a number of reasons. First, they increase the inequality between the defendant and his accuser. Going to court as a defendant can also be extremely distressing, especially if you have been falsely accused. The fact that complainants will be afforded rights that are not afforded to defendants means their experience is uneven; it damages the ideal of legal equality.
In 2009, the Coroners and Justice Act introduced the giving of evidence in chief via video. The 1999 Youth Justice and Criminal Evidence Act created ‘special measures’ for vulnerable or intimidated witnesses, including a right to give evidence from behind a screen. So our justice system already treats the evidence of complainants as more worthy of protection and security than the evidence of defendants. This is a dangerous trajectory, heightening the possibility of miscarriages of justice. Truss’s plan will make things even worse.