Since special measures were introduced by the Youth Justice and Criminal Evidence Act 1999, courts have implemented a raft of changes to help vulnerable witnesses give their best evidence. The process has acquired new momentum and scope through the input of intermediaries. The most recent of the changes are also the most profound; they involve reshaping the core of conventional cross-examination.

Three of the ways cross-examination is changing are dealt with in this chapter. All have emerged or developed significantly during the period of writing this book: none has yet reached a ‘steady state’. The first involves the defence disclosing crossexamination questions to the court, and sometimes even the prosecutor (until recently, unthinkable), and subjecting them to possible revision by the judge and the intermediary (until recently, unimaginable).

The second issue relates to the development of practice, in light of Court of Appeal decisions, around restrictions on defence lawyers ‘putting their case’ to the witness. There is a sharp divide between the objective of cross-examination as defined by the justice system and that perceived by many defence practitioners. This chapter explores the resulting tension, its impact on crossexamination and some unanticipated effects on ‘best evidence’ that remain to be addressed.

The final issue concerns a pilot project to pre-record crossexamination before trial. Section 28 of the Youth Justice and Criminal Evidence Act 1999 is the last special measure of the Act to be implemented. It was first proposed by Judge Pigot over 25 years ago (Home Office, 1989). Used in combination with provisions to admit the film of the police interview as evidence-in-chief (Criminal Justice Act 1988, section 32A, as amended), this allows the whole of the witness’s evidence to be captured before the trial and played again at a retrial if that proves necessary. Implementation was delayed due to strong resistance, in part because of anticipated difficulties in expediting the prosecution’s pre-trial disclosure to the defence of material that might assist the defence case.

Western Australia introduced pre-recording of crossexamination for young witnesses in 1992 (Jackson, 2012). This is done routinely for those under 10 and is often granted for older children on prosecution applications supported by recommendations from the Child Witness Service.