1. Vulnerable Prosecution Witnesses

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Mark Le Brocq v The Liverpool Crown Court [2019] EWCA Crim 1398

Key concepts:  Advocates must accept the modern approach to questioning vulnerable witnesses 

1. Ground Rules Hearings are a fundamental part of the way in which evidence is now presented from young and vulnerable witnesses

2. What cannot be said or implied is that a trial is unfair because the defence has been “emasculated” by a judge’s rulings or by the Ground Rules Hearing and section 28 procedures

3. The purpose of cross-examination is to elicit evidence and not to discomfort, harass or abuse a witness for the sake of it

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R v B [2010] EWCA Crim 4

Key concepts:  Competence of children and vulnerable witnesses; advocates and court to adapt to the witness

1. The test for competence is entirely witness-specific, without presumptions or preconceptions and without the witness needing to understand every question or give a readily understood answer to every question (para.38).

2. The test for competence is not failed because the advocate’s questioning technique or the court processes have to be adapted (for example, short, simple questions) to enable the child to give best evidence (para.41).  

3. Matters which undermine credibility do not have to form detailed cross-examination but can, along with comment, be addressed after the child has given evidence.

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R v James Watts [2010] EWCA Crim 1824

Key concepts:  Primacy of jury verdict in vulnerable witness case

1. Although the witnesses were severely disabled and some had made proven false allegations in the past, a properly directed jury was entitled to accept their reliability in respect of the allegations

2. Even in a case of difficulty and complexity, the primacy of the jury in our system has to be respected particularly where matters of reliability and assessment of witnesses is at the centre of the case

3. The ordinary principles governing criminal trials require the court to face the realities which sometimes arise when special measures are put in place.

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R v Uddin and Ali [2014] EWCA Crim 2269

Key concepts:  How to treat evidence of victims of sexual exploitation

1. Victims of sexual exploitation are ‘frequently damaged young people.  They are nearly always wholly unused to giving evidence in court. They can be difficult, emotional, contradictory, aggressive and on some occasions wholly uncommunicative’.

2. The courts have a much greater understanding than hitherto as to the difficulties that exist for vulnerable witnesses and the need for care in assessing ‘whether inconsistent or varying accounts given on different occasions necessarily mean that they underlying allegation is untruthful or unreliable’

3. These are matters for the jury.  (para.54)

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2. Judicial Control of Questioning

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RT and Stuchfield v R [2020] EWCA Crim 155

Key concepts:  Advocates should abide by the judge’s directions on questioning including during the course of questioning

1. It would be entirely inappropriate if counsel were permitted to fail to observe the proper approach to questioning a vulnerable witness, cause them to refuse to continue giving their evidence and then argue that the trial should stop. NB In the present case it was held that the advocate had not deliberately provoked the witness

2. The principles of whether a fair trial is possible where a witness’s evidence is cut short can be found in R v Pipe.  Guidance on the appropriate style of cross-examination can be found in Wills, YGM  and Lubemba

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R v W & M [2010] EWCA 1926

Key concepts:  Question suitable for children; correct to leave disputed evidence to the jury

1. ‘It is particularly important in the case of a child witness to keep a question short, and even more important than it is with an adult witness where it also matters to avoid questions which are rolled up and contain, inadvertently, two or three at once. It is generally recognised that particularly with child witnesses short and untagged questions are best at eliciting the evidence.’ (para.30)

2. In a case where a child appeared to change her evidence it was still safe to leave the matter to the jury where most of the questions which produced the inconsistent answers were in response to suggestions such as ‘this happened, didn’t it?’ ‘where it can be very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance’ (para.31).   

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R v Wills [2011] EWCA Crim 1938

Key concepts:  Adapting questioning style for young witnesses; judicial guidelines upheld

1. Court of Appeal upheld a judge’s direction that defence counsel did not have to put the appellant’s case to young complainants and should ask open questions that were not “tagged”

2. Where the judge has put limitations on questioning, he is obliged to ensure that they are complied with and should explain them to the jury and the reasons for them (para.36).  The fact that other advocates failed to comply with the limits does not undermine the judge’s ruling

3. [echoing R v B] The traditional style of cross-examination where comment is made on inconsistencies in cross-examination must be replaced by a system where they are drawn to the jury after the evidence is given     

 Editor’s note:  The recommendation that the judge should produce a practice note or protocol for use by advocates (para.37) should now seen in the light of the development of Ground Rules Hearings (see Toolkit 1)

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R v Edwards [2011] EWCA Crim 3028

Key concepts:  Defence not obliged to ‘put’ their case to very young witness; judicial guidelines upheld

1. The Court of Appeal, citing R v B noted that the judge was astute to the difficulties faced by counsel in cross-examining a 5-year old witness though the judge did prevent the defence from confronting the witness ‘in what we might venture to call "the traditional way".’  

2. ‘Putting the same thing a different way, we struggle to understand how the defendant's right to a fair trial was in any way compromised simply because [counsel] was not allowed to ask: "Simon did not punch you in the tummy, did he?"

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R v F [2013] EWCA Crim 424

Key concepts:  Assessing a vulnerable witness’s competence to give evidence; court should have regard to R v B

1. The deaf witness/complainant was able to give an account of her allegation in her ABE interview.  The judge asked to see only a small portion of it “to get the flavour of it”.  During questions which concerned the witness’s body parts, there was a suggestion that the questions were ‘leading’ because the deaf interpreter would have to point to the body part although the interpreter suggested there were other means available to make it less leading. The judge asked questions about concepts of time and abstract matters which the witness had difficulty with.

2. The Court of Appeal cited R v B in support of the conclusion that the witness’s ability to communicate had not been effectively explored. The judge substituted the issue of the interpreter's difficulties in communicating for the test of whether the witness could understand questions and give intelligible answers. The judge’s procedure was an unsatisfactory way of testing the witness' understanding and ability to make herself understood and was not a valid or thorough test.  

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R v Stephen Hamilton [2014] EWCA Crim 1555

Key concepts:  Judge’s role in trials of sexual crimes; judge’s duty to prevent advocate taking advantage of complainant’s vulnerability

1. In a trial of any sexual crime, the judge must balance the needs and welfare of the complainant and the legitimate interests of the defendant particularly where the witness is a child and/or is or has been mentally impaired as a result of an intellectual deficit or by reason of having suffered mental illness (para.62).

2. Where cross-examination is “robust and combative” the judge was entitled to intervene to ensure no improper advantage is taken of a complainant’s vulnerability

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R v Cokesix Lubemba, R v JP [2014] EWCA Crim 2064

Key concepts:  Advocates must adapt to the witness; no right to put one’s case; Ground Rules Hearings required; time limit can be put on child’s evidence; children can be questioned

1. ‘Advocate must adapt to the witness, not the other way round. They cannot insist upon any supposed right “to put one’ case” or previous inconsistent statements to a vulnerable witness’. The jury can be made aware of these ‘without intimidation or distressing a witness’ (para.45)

2. The court is required to ‘take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process… We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances’ (para 42.)

3. The judge was entitled to put a time limit of 45 minutes on the evidence of a 10-year old and to prevent counsel from putting the defendant’s case to the jury. The judge gave ample directions about the difficulties faced by the parties and the need to look at the facts without sympathy or emotion

4. It was wrong for a judge to conclude that an 8-year old could not deal with questions ‘from people like us that would have added anything useful’.  Counsel should have been allowed to ask ‘sensitively phrased questions’.

 Editor’s note:  With its dicta on the duties of the advocates and the court, Lubemba is a key case

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R v Steven Pipe [2014] EWCA Crim 2570

Key concepts:  Fair trial not imperilled when judge stops cross-examination due to complainant’s distress

1. The judge was entitled to stop the cross-examination of the complainant when she became too distressed to continue even though the defence had not yet cross-examined her about alleged inconsistencies between what she had said in evidence and what she had said at the time of medical appointments

2. Medical records and their inconsistencies can still be placed before the jury once reduced to agreed facts

3. NB it had already repeatedly been put to the complainant that she was lying and that she had suffered from mental illness

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R v Sandor Jonas [2015] EWCA Crim 562

Key concepts:  Judge can limit cross-examination on credibility of complainant where co-defending counsel had already covered this ground

1. Previous counsel had cross-examined the witness for nearly a week most of which had been spent challenging the complainant’s account of her  life in her country of origin

2. The judge was correct in limiting second counsel to questioning the complainant for 15 minutes about two further points about her past before questioning her about matters ‘most closely related to the charges on the indictment’.

Editor’s note:  Subsequent to the trial of Jonas, the Criminal Procedure Rules 3.9(7)(b)(v) require the court to set ground rules including, where there is more than one defendant, of the allocation of topics between them about the witness

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3. Judicial vetting of Advocates' Questions before Trial

 

R v Lubemba; R v JP [2014] EWCA Crim 2064

Key concepts: Reasonable for defence advocates to reduce questions to writing; role of Ground Rules Hearings

1. ‘So as to avoid any misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance’. (para.43)

2. Ground Rules Hearings, should include the general care of the witness including the length of questioning and frequency of breaks and the nature of the questions to be asked.

 

R v FA [2015] EWCA Crim 209

Key concepts: Collaborative work of counsel and Registered Intermediary on questions; Court of Appeal hearing   

1. As a result of the ground rules hearing, questions to be put to the vulnerable witness (in the Court of Appeal) were reviewed by the Registered Intermediary ‘whose sensible expert suggestions were unhesitatingly adopted’. (para.13)

2. Both counsel and the Registered Intermediary worked ‘as a team’ better to promote the interests of justice in the conduct of the case, bearing in mind the welfare of the witness and the interests of the applicant.

 

R v RL [2015] EWCA Crim 1215

Key concepts:  Judge and intermediary vetted questions; Results not unduly restrictive; Section 28 hearing;

1. Counsel submitted intended questions for children in a section 28 pre-recorded cross-examination hearing which were considered by the judge in the Ground Rules Hearing (held in accordance with the advice in Toolkit 1), with the assistance of an intermediary.

2. It was irrelevant that the cross-examination was shorter than the Achieving Best Evidence interview and that the children’s father was cross-examined in a ‘conventional manner’

3. Judge did not go beyond the legitimate protection of young witnesses or restrict questions in such a draconian extent so as unfairly to disadvantage the defendant.

4. Appellant was unable to identify a question he should have been allowed to ask but was not allowed to.  He had put his case and tested the veracity of the witnesses.

 

R v Michael Boxer [2015] EWCA Crim 1684

Key concepts:  Questions agreed with help of the Registered Intermediary

1. Questions for cross-examination of the witness were agreed in advance ‘by all concerned with the assistance of the intermediary’.

2. Had the Achieving Best Evidence interview been excluded then the witness would have had to give evidence in chief in the conventional way ‘albeit with appropriate special measures in place including, no doubt, the advice of, and careful crafting of questions with the help of, an intermediary’.

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4. Challenging Intermediaries

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R v IA and others [2013] EWCA Crim 1308

Key concepts:  Roles of deaf intermediary at trial and pre-trial; whether intermediary can continue if their integrity is challenged

1. The judge was justified in allowing a deaf intermediary to assist at trial although he had also assisted in the pre-ABE process, his role during that process having been held to be proper in a voir dire.  The judge expressly approved the use of the trial intermediary, even though allegations might be made during the trial about his integrity. 

2. The criticism that the intermediary had become more than a relay interpreter was not sustained.  He was entitled to interject in order to ensure that the witness could understand what she was being asked.  His interjections were not intended to be disruptive. If anything, the extremely lengthy cross-examinations of the witness were permitted to go on far too long.

3. During the course of the trial the intermediary was obliged to give evidence before the jury where his integrity was challenged.  It was ‘unsatisfactory’ that he became a witness of fact assisting another witness of fact.

 

R v Michael Boxer [2015] EWCA Crim 1684

Key concepts:  Whether intermediary is needed for Achieving Best Evidence interview; whether intermediary is appropriate at trial if not used at ABE; intermediary used as a witness of fact/expert witness

1. The Achieving Best Evidence interviewing officer who was ‘trained in dealing with vulnerable adults’ carried out an assessment which led her to conclude that an intermediary was not required at that stage.  The Court of Appeal watched the DVD and decided that they would have reached the same conclusion as the judge in admitting the interview.

2. The appeal was not based on the assertion that if there were an intermediary at trial then there should have been one at the ABE.

3. The intermediary was asked at trial to give expert evidence as to the competence of the witness to give evidence and that he was unable to consent to sexual activity (para.5). The intermediary also gave evidence about the defendant’s difficulties and as to what the defendant could understand    

Editor’s Note:  Asking the intermediary who is acting at the trial to give expert evidence to the court about the witness is contrary to practice set out in Toolkit 16 (Intermediaries Step by Step).  If expert evidence is needed then someone other than the trial intermediary should give it. Contrast with:

 

R v Beards and Beards [2016] EW Misc B14 (CC)

Key concepts:  An intermediary’s report used as unchallenged expert evidence

1. Although an intermediary was ordered for a defendant and did assist during the evidence, there were occasions when ‘despite best efforts it became apparent that [the defendant] was simply agreeing with questions put to her regardless of the truth of the answer’.

2. In the circumstances the trial judge allowed a report written by an intermediary who took no part in the trial but who had earlier assessed the defendant to stand as expert evidence.  This was done to assist the jury by ‘guiding a jury in the art of deciphering answers to questions, which skill is not something which a jury will necessarily possess as routine or common place’ but ‘not re-interpreting for the jury what the witness really meant when she had actually said something different’.

 

James Pringle v R [2019] EWCA Crim 1722

Key concepts:  A court ought to consider the recommendations in an intermediary’s report where the intermediary does not attend 

1. Where a witness has difficulties, it is desirable to hold a ground rules hearing to give guidance as to the form of questions which would be appropriate, to take a properly assessed decision about providing breaks and to consider seriously other special measures requested

2. If such steps are not taken, it becomes particularly important to ensure that there is no unfairness during the conduct of cross-examination

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R v Anthony Christian [2015] EWCA Crim 1582

Key concepts:  Intermediary giving emotional support to witness during evidence; whether behaviour of intermediary prejudiced a fair trial

1. Before cross-examination, the witness watched her Achieving Best Evidence interview at the same time and within view of the jury.  During it, when the witness as the judge noted became extremely distressed, the intermediary who was seated next to the witness put her arm around her   Later the intermediary spoke to the witness, telling her to take time to breathe when she became upset, and allowed the witness to lie up against her.  She further during cross-examination said that the questioning was “coming over in a little harsh manner” and for the intermediary to be “able to control her for the rest of the trial” “it would be helpful if we could just go a little slower and at a different inflection”

2. The judge’s warning about putting sympathy to one side was sufficient for the circumstances:  the jury was aware of the witness’s difficulties, and the fact that she received physical support will have been particularly surprising or impactful upon them. There was no sensible risk of unfairness being caused to the appellant.

3. Defence counsel raised her concern during the trial; prosecution counsel reported that the intermediary felt that the witness would not be able to cope without physical support. The judge accepted this.

 

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5. Expert Evidence in Vulnerable Witnesses Cases

 

Stephen Hamilton v The Queen [2014] EWCA Crim 1555

Key concepts:  Correct role for expert witness; expert should not comment on the reliability of the witness    

1. Expert instructed by the defence who believed that the witness (who had suffered from mental illness) was suffering from ‘recovered’ memory, asserted in her report that the allegations of abuse made by the witness could not be relied upon.  The court found that much of the report did not fall within the expert witness’s function and should not have been contained in a report served as expert evidence for the court.   

2. It is for a jury, not the defence expert, to decide whether the witness has given reliable evidence.

3. Previous judicial decisions that reports by this expert usurped the function of the jury in deciding on the credibility of the witness had not been brought to the witness’s attention; they should have been.

 

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6. Vulnerable Defendants

 

R v Dean Thomas [2020] EWCA Crim 117

Key concepts:  Reports in support of the appointment of an intermediary should relate the vulnerabilities to the particular proceedings

1. Intermediaries should not be appointed as a matter of routine trial management but only when all other adaptations to the trial process will not sufficiently meet the defendant’s needs

2. The reports should analyse the defendant’s needs in the context of the particular circumstances of the case

3. The case of Cox (see below) gives a helpful guide of the extent to which court proceedings can be modified to ensure effective participation if an intermediary is not appointed or none is available.  It is also an excellent rehearsal of some of the steps that can be taken

4. In cases where there are substantive comprehension or communication difficulties, intermediaries can, in the right case, provide useful assistance to counsel in obtaining instructions

 

TI v Bromley Youth Court [2020] EWHC 1204 (Admin)

Key concepts:  There is no high hurdle to overcome for the appointment of an intermediary if one is necessary for the effective participation of a defendant in the trial process

1. There must be a careful scrutiny to the particular circumstances of the defendant in order to decide whether an intermediary is necessary. The prepared statement to the police drafted by a solicitor does not in itself demonstrate that a defendant could engage satisfactorily in the trial process

2. Whether or not there is a dispute over facts in a case or whether the issue is only the proper inference to draw from the facts or whether or not in the event the defendant will not have had to contribute directly during the prosecution case, if he is not engaged in the proceedings he will be unable to contribute should the need arise   

 

R v Mahmoud (Shuayb) [2019] EWCA Crim 667

Key concepts:  Defence counsel should not invite the jury to consider whether or not a defendant needed the assistance of an intermediary

1. The intermediary’s role is not to provide expert or professional opinion on the level of cognitive skill or intellectual functioning of a defendant or witness; such evidence should come from a suitably qualified expert.  None was called here

2. Counsel should not have linked the defendant’s level of intellectual functioning to the need for an intermediary or invited the jury to re-visit the issue of her appointment

Editor’s note:  In the light of the authority of Rashid  on the criteria of when the court should appoint an intermediary for the duration of the trial of a defendant, it was not accurate for counsel to tell the jury that it “would be a little intemperate for a judge to refuse it where a report had been written for the defence”  

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The Queen (on the application of OP) v The Secretary of State for Justice and Cheltenham Magistrates Court and Crown Prosecution Service.  Just for Kids Law as Intervener [2014] EWHC 1944 (Admin)

Key concepts:  Intermediaries may be needed to assist a defendant while giving evidence but not for the duration of the trial

1. There are two roles in a trial for which an intermediary is fitted: the first is founded ‘in general support, reassurance and calm interpretation of unfolding events’; the second ‘requires skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant’s evidence’ (para. 34).

2. The first task is ‘readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial’ who has the ‘understandable emotions’ of uncertainty, perhaps a territorial disadvantage, nervousness and agitation (para.35)

3. The second task required ‘developed skills of the type contemplated by inclusion on the WIS scheme’. The help of an intermediary ‘self-evidently bites at the point of maximum strain, that is when an accused should he do so elects to give an account of himself by entering the witness box and submitting to cross-examination’ (para. 36)

 

R v Cox [2012] EWCA Crim 549

Key concepts:  Fairness of trial not diminished by lack of intermediary; judge still obliged to ensure a fair trial through adapting the process 

1. A judge held that the defendant needed the assistance of an intermediary but none could be found.  The trial judge decided that the trial should proceed but he maintained a close control over the questioning, intervened where possible unfairness might arise and ensured that the appellant was not unduly stressed by the proceedings.  He said he would play the "part of the role which an intermediary, if available, would otherwise have played".

2. Held, there are occasions when the use of an intermediary would improve the trial process. But it is not mandatory for an intermediary to be made available whenever the process would be improved. The overall responsibility of the trial judge for the fairness of the trial has not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute.

3. To have stayed the proceedings would have been unfair to the complainant

 

R v R [21 October 2015]

Key concepts:  No appeal against refusal to allow an intermediary throughout a trial; judge’s assessment of defendant’s need reasonable

1. As part of a preparatory hearing before a trial, the judge ruled that there was no need for an intermediary to assist the defendant during the trial save for when he gave evidence if he chose to do so.

2. There is no jurisdiction under the Criminal Procedure and Investigations Act 1996 for the Court of Appeal to entertain an appeal against such a ruling.

3. Before reaching his decision the judge considered expert evidence from psychologists and a psychiatrist. 

4. The Court of Appeal noted the decision in OP that there was ‘no illogicality in restricting the use of the intermediary to a particular part of the trial where the applicant’s vulnerability might be greater’ (para.21)

Editor’s note:  the Criminal Practice Directions 2016 revised the guidance on the use of intermediaries both for witnesses and defendants.  They cite OP and Cox which are thus the leading cases on the issue of intermediaries for defendants. 

 

R (on the application of AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin)

Key concepts:  there is a right which may amount to a duty for an intermediary to assist a defendant at trial

1. The defendant although he had the ability to communicate his evidence to the court needed an intermediary because of his difficulties

2. The common law has evolved a ‘balancing set of protective measures for defendants who may have difficulty in presenting their case fully and properly before the court.  This was established in R v H [2003] EWCA Crim 1209.  There is a right which may in certain circumstances amount to a duty, to appoint a registered intermediary to assist the defendant to follow the proceedings and give evidence if without assistance he would not be able to have a fair trial’.

3. There was such a risk here.  The intermediary could ensure that questions were simple and that he had adequate time to respond and could alert the court to the difficulties which he faced in answering them.

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R v Dixon [2013] EWCA Crim 465

Key concepts:  defendant was assisted by an intermediary throughout the trial; positive assistance to the defendant

1. The judge was entitled to give an adverse inference direction where amongst other things the defendant would have been assisted by an intermediary had he given evidence; further, the defendant was able to participate in his trial despite shortcomings in the way the trial process was adapted for the defendant to accommodate his difficulties.

2. The Court of Appeal found that the intermediary did give positive assistance to the appellant during the trial.

3. ‘We are not left with the impression that the trial judge took an active role throughout the proceedings to ensure that this vulnerable Appellant was actively participating in the proceedings’ (para.97) but judges ought to.  

4. It ‘may not have been appropriate’ for the judge to use the defendant’s demeanour during the trial as a basis for concluding that the defendant was aware of what he was doing at the time of the offence (para.107).

 

Thompson v The Queen [2014] EWCA Crim 836

Key concepts:  Appeal allowed several years later due to new expert evidence not available at the time

1. The appellant who suffers from Asperger’s Syndrome was convicted of offences in 2007.  At his trial in 2012, for similar offences, a consultant clinical psychologist and others gave evidence about the effect of Asperger’s on the defendant’s state of mind.  He was acquitted on that indictment.

2. Court of Appeal held that the jury in 2007 would have been helped by the relevant and probative evidence adduced at the appeal.  The court could not conclude that the verdict in 2007 would ‘undoubtedly have survived [the jury’s] consideration of the new evidence’.  Conviction quashed.  No application for a re-trial.

 

R v Billy Joe Friend [2004] EWCA Crim 2661

Key concepts:  Appeal allowed due to fresh understanding of the defendant’s difficulties 

1. The appellant was convicted of murder in 1996 and appealed following a reference form the Criminal Cases Review Commission on the basis that he did not fully participate in his trial (where he did not give evidence) on the basis of fresh expert psychological evidence

2. Had the fresh evidence been available a trial, it was held that the judge would not have allowed the jury to draw an adverse inference in respect of the failure to give evidence and his silence in police interview and apparent lies told.  Conviction quashed.

 

R v Walls [2011] EWCA Crim 443

Key concepts:  finding other methods of accommodating defendant’s difficulties; consider use of an intermediary

1. The Court of Appeal considered expert psychiatric evidence on the question of the appellant’s fitness to plead

2. Before taking the ‘significant’ step of embarking on a trial of fitness the plead, a court should give consideration to the use of other powers and other ways in which the characteristics of a defendant evident from a psychological or psychiatric report can be accommodated within the trial process, so that his limitations can be understood by the jury. This includes the use of an intermediary under the court's inherent powers as described in the Sevenoaks case, pending the bringing into force of s.33BA (3) and (4) of the Youth and Criminal Evidence Act 1999 (added by the Coroners and Justice Act 2009).

 

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7. Family Law Cases

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Re W [2010] UKSC 12

Key concepts:  Children can give evidence but it is a balancing exercise as to whether they should in the particular case

1. There is no longer a presumption or starting point about children giving evidence. There should instead be a balancing exercise

2. The balancing exercise is what is to be gained in terms of the fair and accurate determination of the case from the process of the evidence as against the risk of harm to the child from the process of giving evidence. 

3. The likelihood that a child is rarely called to give evidence will be a result of the balancing exercise, not a threshold test

 

Re E (A Child) [2016] EWCA Civ 473

Key concepts:  Guidance in Re W has not been but should be followed

1. ‘The issue of children giving live evidence in family proceedings was considered in depth in the Supreme Court in the case of Re W (above). The Supreme Court held that the practice and culture of the Family Court that had hitherto applied, which amounted to a presumption against a child giving evidence, could not be justified and should be replaced by the court undertaking a bespoke evaluation in each case on the question of whether a complainant child should or should not be called to give live evidence.’ 

2. The key passages are in the judgment of Baroness Hale, paragraphs 22 to 28.  They ‘would seem to have gone unheeded in the five or more years since it was given’.  They should be followed together with the amendments to the FPR 2010 and Practice Directions.

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Re LC and RE LC (No. 2) [2014] UKSC 1

Key concepts: habitual residence of children is the reality of the child; what is the best evidence from the children 

1. The question of whether children (who had been taken to Spain by their mother) had become habitually resident in Spain involved the mental state of the children. ‘It is the child’s integration which is under consideration. . These are not necessarily determined by the decisions of his parents’ (para.62) ‘The relevant reality is that of the child, not the parents’ (para. 87)

2. The children’s mental state should therefore have been taken into consideration

3. Here the most reliable evidence would come from what the children said when interviewed the first time; it would be ‘damaging’ for them to give evidence.

 

Re B [2014] EWCA Civ 1015

Key concepts: test is not whether justice can be done without questions being put to a child; public and private law proceedings both require the pursuit of the truth

1. It was reasonable to heed the advice of the Family Advisory Service that a child could answer questions put to her (para.37 sets out the possible ways of achieving this)

2. Court rejected submission that the RE W test is whether justice could be done without questions being put to the child.

3. RE W guidelines were for care proceedings; this case was a private law proceeding in which the child had not yet given any account. In public and private proceedings, the pursuit of “the truth” about past events is not an abstract endeavour but the basis of decisions for the future.

 

Re B (A Child) [2014] EWCA Civ 843

Key concepts: balancing exercise for a child to give evidence; not appropriate here

1. Whether a child should give evidence is a balancing exercise between the need for the evidence and the welfare of the child

2. Here giving evidence would put him in conflict with his mother and would subject him to cross-examination on behalf of a man whom he felt had behaved abusively to his mother

 

Re P-S (Children) [2013] EWCA Civ 223

Key concepts:

1. A child has the right to be heard in the proceedings and is a party to the care proceedings and so is entitled to a fair and public hearing. ‘The hearing is not fair if the child’s case I not heard’.

2. However no one has the right to give evidence. This involves ‘the exercise of a welfare discretion’ with a balance to be struck. Here, the judge went about the matter properly when deciding not to require the child to give evidence,  ‘the harm to him far exceeding the benefit to the judge.’ (para.41)

3. There is no rebuttable presumption that a mature child’s wishes should prevail.  Each case is fact sensitive.

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Re D (No. 3) [2016]

Key concepts:  Need for intermediary for vulnerable adult; guidance for cases with parents with learning difficulties

1. At an earlier hearing [Re D (A child) [2014] EWFC 38] the judge found that the parents, who suffered from learning difficulties, were unable to participate without legal representation and that the father would need an intermediary even to give instructions

2. At the final hearing, the judge praised the use of intermediaries who had assisted the parties to participate

3. Guidance on how to approach cases with parents with learning difficulties:  see Re G and A (Care Order:  Freeing Order:  Parents with a Learning Disability [2006] 1 FLR 2050, para 5. 

 

Re R (deaf parents) [2014] EWCC B41 Fam

Key concepts:  facilitating communication for deaf parents

1. Discusses good practice of the kind of adjustments which need to be made in the case of deaf parents. The father’s frustration, aggression and sense of hopelessness may well have been linked to his communication difficulties

2. Recommended use of deaf relay interpreters

 

Re C (A Child) [2014] EWCA Civ 128

Key concepts:  facilitating communication for deaf parent

1. Deaf father not given sufficient support and was put at a disadvantage in understanding the issues in the case

2. ‘From the experience in the present case, it would seem that further training, which alerts the judges who undertake these cases to the particular need for an intermediary, a Deaf Relay Interpreter, is necessary to avoid other judges in the future unwittingly being drawn into a process which later, as this process has been, is found to be a process which has failed to meet the disability needs of the parties and failed to produce an effective evaluation of the parents' potential to look after their child.’ (para.34)

 

Re M (A Child) [2012] EWCA Civil 1905

Key concepts: giving evidence despite disabilities a breach of Article 6

1. Father obliged to give evidence ‘after an unsatisfactory makeshift’ was arranged in which the guardian ad litem adopted the role of an intermediary without previous experience thus carrying out two roles which were not mutually complementary

2. A judge has a duty to manage cases to achieve targets but a litigant must have a fair trial and sufficient support to compensate for disability

3. Adopting a “let’s see how we get on” management policy was incorrect

4. Procedure held to be a breach of Article 6

 

Re X [2011] EWHC 3401 Fam

Key concepts:  vulnerable witness:  how to carry out the balancing exercise

1. Paragraph 33 sets out the way in which the judge went about the balancing exercise in whether to allow a vulnerable adult to give evidence in the proceedings

2. Calls for ‘urgent attention’ to be paid to the question of meeting the cost of an intermediary in a family case

 

Re M (A Child: Failure to comply with Achieving Best Evidence) Family Case at Leicester LK14CO 0429

Key concepts:  need to follow correct ABE procedure when interviewing child witness

In paragraph 31-38 the judge sets out the failure of the police in how to conduct an Achieving Best Evidence interview with a young child.  Amongst the failings were a lack of any sign of planning, no free narrative and not exploration of ‘truth and lies’.

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Re J (A Child) [2014]

Key concepts:  How judge should deal with evidence of vulnerable witness whose cross-examination was cut short

1. Judgment overturned because of the way the judge analysed the evidence of a witness with learning difficulties who had been assisted by an intermediary where the cross-examination was cut short by the judge.

2. ‘Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness' evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.’ (para.94)

3. How a judge should give weight to evidence without full or adequate cross-examination

 

Re E (A Child) [2016] EWCA Civ 473

Key concepts:  The weight to be given to the evidence of child victims and witnesses where there are defects in the process and content of ABE interviews; the approach to be taken where a child is himself accused of being a perpetrator of abuse; the proper approach to determining whether a child should be called to give evidence

1. ABE interviews were flawed including a lack of any record made of the rapport phase or of the importance of telling the truth; in addition, the questioning was too leading. The judge concluded that the interviews met the ABE requirements, a conclusion that was ‘simply not open to the judge’ on these facts.

2.  The judge further failed to ‘engage with a thorough analysis of the process in order to evaluate whether any of the allegations that the children made to the police could be relied upon’.  There were further flaws in the way the judge evaluated the children’s evidence

3. The process of deciding whether the children should give live evidence  had been incorrect.  The court should engage with the factors identified in paragraphs 22 to 28 of Re W (supra.)

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8. Civil Law Cases

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Brian Morrow v Shrewsbury Rugby Union Football Club Limited [2020] EWHC 379 (QB)

Key concepts:  The civil courts have a general case management power to consider adjustments and to make appropriate directions to make sure a claimant can give his best evidence

Editor’s Note:  At a preliminary hearing, the judge ordered that the claimant could have the assistance of an intermediary.  At the time of trial, the Civil Procedure Rules did not yet provide for the use of intermediaries but the trial judge held a Ground Rules Hearing and gave directions arising from it.  She did not however permit the intermediary to carry out several of the functions which are part of the intermediary’s role in the criminal courts. These included (i) being the assessor of when the witness needed a break; (ii) recommending short questions (it was held not to be realistic to ask counsel to prepare questions on the recommended basis); (iii) intervening if a question breached the ground rules; (iv) helping counsel to rephrase questions; (v) assisting communication between the claimant and his legal team; (vi) assisting the claimant during the trial other than when giving evidence.  The judge also refused to make any rules to constrain the nature and content of counsel’s questions.

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Kimathi and others v Foreign and Commonwealth Office [2015] EWHC 3684 QB

Key concepts:  dealing with vulnerable witnesses in the High Court

1. Action brought by vulnerable litigants who are resident in Kenya some of whom would be unable to travel to London for the trial

2. Although the legislation relating to vulnerable witnesses does not extend to the civil division of the High Court, the judgment uses the language and methods of the criminal courts - special measures,  ground rules hearings, use of live link, use of intermediaries—all of which were considered by the judge although not all were adopted as appropriate here

3. ‘obtaining best evidence is an important factor in putting into effect the overriding objectives’

 

Rackham v NHS Professionals Ltd [2015] UKEAT 0110_15_1612

Key concepts:  Making adjustments to accommodate a litigant with disabilities; Guidance for future cases including a Ground Rules Hearings; Failure to have an expert report not an error of law

1. The Claimant suffered from Asperger’s syndrome.  A judge ordered an expert report to deal in part with what adjustments were reasonable to enable the Claimant’s participation in the hearing, but funding was not forthcoming.  At a hearing the parties including the Claimant agreed reasonable adjustments based on a GP’s report and after consulting the Equal Treatment Bench Book.  In addition, the respondent’s counsel offered a list of intended cross-examination questions in advance.

2. The EAT laid down guidance for future cases: (i) what is reasonable must be tailored to the needs of the individual before the tribunal; (ii) if a person is entitled to make a decision affecting the conduct of their case makes a decision, it is not in general for a court to second-guess that decision; (iii) emphasis should be given to holding Ground Rules Hearings where appropriate

3. The judge’s refusal to adjourn to obtain an expert report was not here an error of law

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