CHAPTER ONE – WHO IS ‘VULNERABLE’?
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Vulnerable is an adjective not a noun – so not ‘the vulnerable’ but situations in which a person may be ‘vulnerable’
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No universal legal definition in England and Wales
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Criminal, family and civil law approach it differently
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Only legislation for criminal courts, though there are practice directions in many other courts and tribunals such as the family courts.
So it is important to remember to ask the following questions before the trial or hearing with the vulnerable person?
Often people use the following terminology to ask.
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Accommodations/adjustments/measures/special measures?
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Is a vulnerable accused person within the scope of these measures?
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Two words that people do seem to agree on: “effective participation”
Can the person concerned have effective participation in the trial process without these adjustments?
I would often ask myself this question. I would also ask whether we can achieve the best evidence rule.
Three proven Judicial Approaches.
Advocates should take these practical approaches.
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Take a Witness specific approach
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Make an Early applications for special measures
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Hold a Ground Rules Hearings
Let us explore these in a little more detail.
Principle 1: Witness specific adjustments
Some examples:
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Supporter present
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Four-legged or even feathered friend
https://www.counselmagazine.co.uk/articles/therapy-animals-and-abe
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Cross-examination in the corridor
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Pre-recorded questioning
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Intermediary (communication support)
Principle 2: Early applications for measure/s
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The application should show clearly what is proposed and why (the application might be supported by a report from a teacher/doctor/ intermediary/speech therapist/carer etc)
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What are the wishes and feelings of the witness?
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Ultimate issues: Are the proposed measures necessary to improve the quality of the witness’s evidence?
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*quality = completeness, coherence, accuracy
Principle 3: Ground rules hearings
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The application should show clearly what is proposed and why (the application might be supported by a report from a teacher/doctor/ intermediary/speech therapist/carer etc)
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What are the wishes and feelings of the witness?
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Ultimate issues: Are the proposed measures necessary to improve the quality of the witness’s evidence?
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*quality = completeness, coherence, accuracy at least in my view anyway.
The Case Law
PS v PB [2018] EWHC 1987 (Fam)
“Once it becomes clear to the court that it is required to hear a case “put” to a key factual witness where the allegations are serious and intimate and where the witnesses are themselves the accused and accuser, a “Ground Rules Hearing” (GRH) will always be necessary;”
GRH “in most cases, be conducted prior to the hearing of the factual dispute”
“Judicial continuity between the GRH and the substantive hearing is to be regarded as essential
This case is a good summary for having ground rules hearing.
Case 2
R v Lubemba (2014)
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“[the judge is] duty bound to control the questioning of a witness. He is not obliged to allow a defence advocate to put their case. He is entitled to and should set reasonable time limits and to interrupt where he considers questioning is inappropriate.”
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Must have GRH in all but “very exceptional circumstances”
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“an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance.”
This was probably the pre cursor to written directions, written openings and much of advocacy now becoming written advocacy in the Crown court.
Now more than ever ones written work has become more crucial than ever. Therefore a practical advice is to advice that, If in doubt commit your arguments against a GRH or against a special measure in writing.
In summary, it was summarised beautifully in the case of
Ajayi v Abu & Anor (labour exploitation : human trafficking : modern slavery) (Rev 1) [2017] EWHC 1946 (QB)
Where it was said:
“It is essential that the court fulfils its obligations in respect of proper measures to allow witnesses to give their testimony freely.”
The Advocates Tool Kit provides a very useful Kit for preparation in this area.
Indeed the advocates Training council encourages all advocates to read this.
Moreover, in the case of R v Lubemba
It was endorsed when it was said that,
“The Toolkits may be downloaded at no cost from the Advocates Gateway Website. They provide excellent practical guides and are to be commended. They have been endorsed by the Lord Chief Justice in the Criminal Practice Directions Amendment No2 as best practice.”
Effect so far and the future.
It has been a Culture change for many advocates.
It has undoubtedly taken time. The early Resistance has largely gone and the feeling by defendants that they are prevented from having a fair trial by their defence advocates still remains.
There is a feeling sometimes that the introduction of special measures and video recordings have meant juries feel disconnected from complainants. As we have discovered during Covid-19 hearings and remote working, most things are better on a face-to-face basis.
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And so Hesitation
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Objections
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Avoidance
Remain. Some colleagues have decided not to conduct certain cases on the bases that it takes away from the adversarial system and you can’t teach old dogs new tricks.
In my view you can. This is a short-sighted approach and now with those practicing in the Youth Court now requiring to go on a special training, the ability to deal with vulnerable witnesses is crucial.
In my research for this book, I came across an interesting quote from Detective Chief Inspector Peter Yeomans, APM
Child Abuse & Sex Crimes Squad, State Crime Command of NSW Police Force in Australia. He said that historically police have been the sole experts in obtaining evidence from child victims and was therefore hesitant in utilising someone external to this process. However he found that the use of Witness Intermediaries (working independently but alongside police) had been a ‘watershed moment’ in continually gaining the best evidence from child victims.