The Advocate's Gateway Responding to communication needs in the justice system

Where can one find the law about vulnerable participants?

The legal basis on which the courts in England and Wales deal with vulnerable participants includes:

Key Principles

"The forensic techniques of the advocate... have to be adapted to enable the child to give the best evidence of which he or she is capable." R v B [2010] EWCA Crim 4, [42] (Lord Judge CJ)
"If the defence wish to challenge the evidence it can be done with short, simple questions which put the essential elements of the defendant's case to the witness." R v B [2010] EWCA Crim 4, [42] (Lord Judge CJ)
"Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination." R v B [2010] EWCA Crim 4, [42] (Lord Judge CJ)
"The witness need not understand every single question or give a readily understood answer to every question." R v B [2010] EWCA Crim 4, [38] (Lord Judge CJ)
"Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right "to put one's case" or previous inconsistent statements to a vulnerable witness. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness." R v Lubemba; R v JP [2014] EWCA Crim 2064, [45] (Hallett LJ)
"The section 28 procedure and the modern regime for cross-examining vulnerable witnesses has led to a sea change in advocacy techniques. Advocates must adapt to the needs of the witness and ask questions in the manner and form approved by the judge, but it does not follow that a defendant cannot have a fair trial." R v PMH [2018] EWCA Crim 2452, [19] (Hallett LJ)
"There is nothing inherently unfair in restricting the scope, structure and nature of cross-examination or in requiring questions to be submitted in advance in any case involving a child witness or a witness who suffers from a mental disability or disorder." R v Zafer Dinc [2017] EWCA Crim 1206 (Hallett LJ)
"Competence includes the ability to ask questions without using tag questions, by using short and simple sentences, easy to understand language, grammatically simple questions, one-ended prompts to elicit further information, and by avoiding the use of tone of voice to imply an answer." R v Rashid [2017] EWCA Crim 2, [80] (Lord Thomas CJ)

Case Summaries

This section provides a summary of some of the key common law authorities associated with vulnerable witnesses, broken down by key themes and concepts. You may see the same authority cited under more than one theme. Each summary highlights the key concepts and, where relevant, the facts of the case.

Vulnerable Prosecution Witnesses

Mark Le Brocq v The Liverpool Crown Court

[2019] EWCA Crim 1398

  • Advocates must accept the modern approach to questioning vulnerable witnesses.
  • Ground Rules Hearings are a fundamental part of the way in which evidence is now presented from young and vulnerable witnesses.
  • It cannot be said or implied 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.
  • The purpose of cross-examination is to elicit evidence, not to discomfort, harass or abuse a witness for the sake of it.

R v B

[2010] EWCA Crim 4

  • The test for competence is entirely witness-specific, without presumptions or preconceptions, and the witness need not understand every question or give a readily understood answer to every question (para.38).
  • The test for competence is not failed because the advocate's questioning technique or the court processes have to be adapted, e.g. short, simple questions, to enable the child to give best evidence (para.41).
  • 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.

R v James Watts

[2010] EWCA Crim 1824

  • 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.
  • Even in a case of difficulty and complexity, the primacy of the jury has to be respected, particularly where reliability and assessment of witnesses is central to the case.
  • Ordinary principles governing criminal trials require the court to face the realities that sometimes arise when special measures are put in place.

R v Uddin and Ali

[2014] EWCA Crim 2269

  • Victims of sexual exploitation are frequently damaged young people, often unused to giving evidence and can be difficult, emotional, contradictory, aggressive or wholly uncommunicative.
  • Courts now have much greater understanding of the difficulties for vulnerable witnesses and the need for care in assessing whether inconsistent accounts mean the underlying allegation is untruthful or unreliable.
  • These are matters for the jury (para.54).

Judicial Control of Questioning

RT and Stuchfield v R

[2020] EWCA Crim 155

  • It would be entirely inappropriate for counsel to fail to observe the proper approach to questioning a vulnerable witness, cause them to refuse to continue, and then argue the trial should stop.
  • The principles on whether a fair trial is possible where a witness's evidence is cut short are found in R v Pipe; guidance on the appropriate style of cross-examination is found in Wills, YGM and Lubemba.

R v W & M

[2010] EWCA 1926

  • It is particularly important with a child witness to keep questions short and untagged, and to avoid rolled-up questions containing two or three ideas at once (para.30).
  • Where a child appears to change their evidence, it can still be safe to leave the matter to the jury where the inconsistent answers arose from suggestive questions such as "this happened, didn't it?" (para.31).

R v Wills

[2011] EWCA Crim 1938

  • The 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, untagged questions.
  • Where a judge limits questioning, the judge must ensure compliance and explain the limitations and reasons to the jury (para.36).
  • The traditional style of cross-examination, where comment is made on inconsistencies during cross-examination, must be replaced by a system where they are drawn to the jury's attention after the evidence is given.

R v Edwards

[2011] EWCA Crim 3028

  • The Court of Appeal, citing R v B, noted the judge was right to prevent the defence from confronting a 5-year-old witness "in the traditional way".
  • The defendant's right to a fair trial was not compromised simply because counsel was not allowed to ask a particular leading, confrontational question.

R v F

[2013] EWCA Crim 424

  • The Court of Appeal cited R v B in concluding that a deaf witness's ability to communicate had not been effectively explored.
  • The judge substituted the interpreter's difficulties for the proper test of whether the witness could understand questions and give intelligible answers; this was not a valid or thorough test.

R v Stephen Hamilton

[2014] EWCA Crim 1555

  • In a trial of any sexual crime the judge must balance the needs and welfare of the complainant against the legitimate interests of the defendant, particularly where the witness is a child or mentally impaired (para.62).
  • Where cross-examination is "robust and combative" the judge was entitled to intervene to ensure no improper advantage was taken of a complainant's vulnerability.

R v Cokesix Lubemba; R v JP

[2014] EWCA Crim 2064

  • Advocates must adapt to the witness, not the other way round, and cannot insist on any supposed right to put one's case to a vulnerable witness (para.45).
  • A ground rules hearing should be expected in every case involving a vulnerable witness, save in exceptional circumstances (para.42).
  • The judge was entitled to put a 45-minute time limit on the evidence of a 10-year-old and to prevent counsel from putting the defendant's case to the jury directly.
  • It was wrong to conclude an 8-year-old could not deal with sensitively phrased questions from the court; counsel should have been allowed to ask them.

R v Steven Pipe

[2014] EWCA Crim 2570

  • The judge was entitled to stop cross-examination when the complainant became too distressed to continue, even before all inconsistencies had been explored.
  • Medical records and their inconsistencies can still be placed before the jury once reduced to agreed facts.

R v Sandor Jonas

[2015] EWCA Crim 562

  • The judge was correct to limit a second co-defendant's counsel to 15 minutes of further cross-examination on credibility where prior counsel had already spent nearly a week on the topic.
  • The Criminal Procedure Rules now require the court to set ground rules including, where there is more than one defendant, allocation of topics between them.

Judicial Vetting of Advocates' Questions before Trial

R v Lubemba; R v JP

[2014] EWCA Crim 2064

  • It is reasonable for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance (para.43).
  • Ground Rules Hearings should include the general care of the witness, including length and frequency of breaks and the nature of questions to be asked.

R v FA

[2015] EWCA Crim 209

  • Questions to be put to the vulnerable witness were reviewed by the Registered Intermediary, whose suggestions were unhesitatingly adopted (para.13).
  • Counsel and the Registered Intermediary worked as a team to promote the interests of justice while bearing in mind the welfare of the witness.

R v RL

[2015] EWCA Crim 1215

  • Counsel's intended questions for a section 28 pre-recorded cross-examination were reviewed by the judge at a Ground Rules Hearing with the assistance of an intermediary, in line with Toolkit 1.
  • The judge did not go beyond legitimate protection of young witnesses or restrict questions so as unfairly to disadvantage the defendant.

R v Michael Boxer

[2015] EWCA Crim 1684

  • Cross-examination questions were agreed in advance by all concerned with the assistance of the intermediary.

Challenging Intermediaries

R v IA and others

[2013] EWCA Crim 1308

  • The judge was justified in allowing a deaf intermediary to assist at trial, having also assisted pre-trial, and expressly approved his continued use even amid integrity allegations.
  • The intermediary was entitled to interject to ensure the witness understood questions; his interjections were not intended to be disruptive.
  • It was "unsatisfactory" that the intermediary was obliged to give evidence before the jury as a witness of fact when his integrity was challenged.

R v Michael Boxer

[2015] EWCA Crim 1684

  • An ABE interviewing officer trained in dealing with vulnerable adults concluded an intermediary was not required at that stage; the Court of Appeal agreed with the judge's admission of the interview.
  • Asking the trial intermediary to give expert evidence about the witness's competence is contrary to the practice in Toolkit 16; if expert evidence is needed, it should come from someone other than the trial intermediary.

R v Beards and Beards

[2016] EW Misc B14 (CC)

  • A report written by an intermediary who did not take part in the trial, but had earlier assessed the defendant, was allowed to stand as expert evidence to help the jury decipher answers, without re-interpreting what the witness meant.

James Pringle v R

[2019] EWCA Crim 1722

  • A court ought to consider the recommendations in an intermediary's report even where the intermediary does not attend.
  • Where such steps are not taken, it becomes particularly important to ensure there is no unfairness during cross-examination.

R v Anthony Christian

[2015] EWCA Crim 1582

  • An intermediary providing physical and emotional comfort to a distressed witness, and requesting a slower pace of questioning, did not create a sensible risk of unfairness to the appellant.
  • The judge's warning to the jury about setting sympathy aside was sufficient in the circumstances.

Expert Evidence and Vulnerable Witnesses

Stephen Hamilton v The Queen

[2014] EWCA Crim 1555

  • An expert report asserting that a witness's allegations could not be relied upon strayed outside the expert's proper function; it is for the jury, not a defence expert, to decide whether a witness has given reliable evidence.
  • Prior judicial findings that this same expert's reports had usurped the jury's function should have been disclosed to the witness.

Vulnerable Defendants

R v Dean Thomas

[2020] EWCA Crim 117

  • Reports supporting the appointment of an intermediary should relate the vulnerabilities to the particular proceedings; intermediaries should not be appointed as a matter of routine trial management.
  • R v Cox (below) gives a helpful guide to how trial proceedings can be modified if an intermediary is not appointed or available.

TI v Bromley Youth Court

[2020] EWHC 1204 (Admin)

  • There is no high hurdle to overcome for the appointment of an intermediary if one is necessary for the effective participation of a defendant.
  • Careful scrutiny of the particular circumstances of the defendant is required; a police-drafted prepared statement does not itself show a defendant can engage satisfactorily in the trial process.

R v Mahmoud (Shuayb)

[2019] EWCA Crim 667

  • An intermediary's role is not to provide expert opinion on a defendant's cognitive skill or intellectual functioning; such evidence should come from a suitably qualified expert.
  • Defence counsel should not have linked the defendant's level of intellectual functioning to the need for an intermediary or invited the jury to revisit that appointment decision.

The Queen (on the application of OP) v Secretary of State for Justice and others

[2014] EWHC 1944 (Admin)

  • There are two distinct roles for a trial intermediary: general support and calm interpretation of events, and skilled support and interpretation with potential for intervention during the giving of evidence (paras.34-36).
  • The first task is achievable by an adult with life experience; the second requires the developed skills of a registered intermediary.

R v Cox

[2012] EWCA Crim 549

  • Where a defendant needed an intermediary but none could be found, the judge could still ensure a fair trial by maintaining close control over questioning and playing something of the intermediary's role himself.
  • It is not mandatory for an intermediary to be made available whenever the process would be improved by one; the trial judge retains overall responsibility for fairness.

R v R

21 October 2015

  • There is no jurisdiction under the Criminal Procedure and Investigations Act 1996 for the Court of Appeal to entertain an appeal against a ruling restricting an intermediary's role to when the defendant gives evidence.
  • There is no illogicality in restricting the use of an intermediary to the part of the trial where the defendant's vulnerability is greatest (para.21).

R (on the application of AS) v Great Yarmouth Youth Court

[2011] EWHC 2059 (Admin)

  • There is a right, which may in certain circumstances amount to a duty, to appoint a registered intermediary to assist a defendant to follow proceedings and give evidence, where without assistance he would not have a fair trial.

R v Dixon

[2013] EWCA Crim 465

  • The Court of Appeal found the intermediary did give positive assistance to the appellant during the trial, though the trial judge could have taken a more active role in ensuring participation throughout (para.97).
  • It may not have been appropriate for the judge to rely on the defendant's demeanour at trial as a basis for concluding what he knew at the time of the offence (para.107).

Thompson v The Queen

[2014] EWCA Crim 836

  • An appeal was allowed years later after expert evidence about the effect of Asperger's syndrome on the defendant's state of mind, unavailable at the original trial, became available at a later trial for similar offences. Conviction quashed.

R v Billy Joe Friend

[2004] EWCA Crim 2661

  • A 1996 murder conviction was quashed on reference from the Criminal Cases Review Commission after fresh expert psychological evidence showed the defendant did not fully participate in his trial.

R v Walls

[2011] EWCA Crim 443

  • Before embarking on a trial of fitness to plead, a court should consider other ways a defendant's characteristics can be accommodated within the trial process, including the use of an intermediary under the court's inherent powers.

Family Law Cases

RE M (A Child: Intermediaries)

[2025] EWCA Civ 440

  • Intermediaries should be appointed whenever necessary, and to the extent necessary, without a presumption that this is "rare" or "exceptionally rare".
  • The court must, so far as practicable, adapt its procedures to achieve fairness for vulnerable individuals and ensure all participants are on an equal footing.
  • A report recommending intermediary use must evidence why it is necessary and why alternative means are inadequate.

Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court

President of the Family Division, 23 January 2025

  • The question for the court is whether an intermediary assessment or appointment is "necessary" to enable a party to participate fairly by enhancing their ability to receive and answer questions.
  • The Practice Guidance pre-dates, and should be read alongside, the Court of Appeal decision in M (A Child: Intermediaries).

Re W

[2010] UKSC 12

  • There is no longer a presumption against children giving evidence; instead there should be a balancing exercise between the value of the evidence and the risk of harm to the child from giving it.

Re E (A Child)

[2016] EWCA Civ 473

  • The guidance in Re W on children giving live evidence, set out at paragraphs 22-28 of Baroness Hale's judgment, should be followed together with the FPR 2010 and Practice Directions.
  • ABE interviews that lacked a proper rapport phase or used leading questions should not have been found to meet ABE requirements on these facts.

Re LC and Re LC (No. 2)

[2014] UKSC 1

  • Whether children had become habitually resident in Spain turned on the children's own mental state and integration, not solely their parents' decisions (paras.62, 87).

Re B

[2014] EWCA Civ 1015

  • The test is not whether justice can be done without questions being put to a child; in both public and private law proceedings the pursuit of the truth about past events underpins decisions for the future.

Re B (A Child)

[2014] EWCA Civ 843

  • Whether a child should give evidence is a balancing exercise between the need for the evidence and the welfare of the child; here, giving evidence would put the child in conflict with his mother.

Re P-S (Children)

[2013] EWCA Civ 223

  • A child has the right to be heard in care proceedings, but no one has the right to give evidence; it involves a welfare discretion and a balance to be struck (para.41).
  • There is no rebuttable presumption that a mature child's wishes should prevail; each case is fact sensitive.

Re D (No. 3)

[2016]

  • Parents with learning difficulties were found unable to participate without legal representation, and the father needed an intermediary even to give instructions.
  • Guidance on approaching cases involving parents with learning difficulties is found in 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

  • Discusses good practice on adjustments for deaf parents; a father's frustration and sense of hopelessness may well have been linked to unaddressed communication difficulties. Recommends use of deaf relay interpreters.

Re C (A Child)

[2014] EWCA Civ 128

  • A deaf father was not given sufficient support and was disadvantaged in understanding the case; further judicial training on the need for a Deaf Relay Interpreter was called for (para.34).

Re M (A Child)

[2012] EWCA Civ 1905

  • A guardian ad litem was made to double as an untrained intermediary; a "let's see how we get on" case management approach was incorrect and the procedure was held to breach Article 6.

Re X

[2011] EWHC 3401 (Fam)

  • Paragraph 33 sets out how the judge carried out the balancing exercise on whether to allow a vulnerable adult to give evidence, and called for urgent attention to funding intermediary costs in family cases.

Re M (A Child: Failure to comply with Achieving Best Evidence)

Family Case at Leicester, LK14CO 0429

  • Sets out failures in an ABE interview with a young child, including a lack of planning, no free narrative, and no exploration of truth and lies (paras.31-38).

Re J (A Child)

[2014]

  • A judgment was overturned over how the judge assessed the evidence of a witness with learning difficulties whose cross-examination, assisted by an intermediary, was cut short (para.94).

Civil Law Cases

Brian Morrow v Shrewsbury Rugby Union Football Club Limited

[2020] EWHC 379 (QB)

  • The civil courts have a general case management power to consider adjustments and directions to ensure a claimant can give best evidence.
  • At the time, the Civil Procedure Rules did not yet provide for intermediaries, but the trial judge held a Ground Rules Hearing and did not permit the intermediary to carry out several functions typical in the criminal courts.

Kimathi and others v Foreign and Commonwealth Office

[2015] EWHC 3684 (QB)

  • Although vulnerable-witness legislation does not extend to the civil division of the High Court, the judgment used the language and methods of the criminal courts: special measures, ground rules hearings, live links and intermediaries.
  • Obtaining best evidence is an important factor in putting the overriding objective into effect.

Rackham v NHS Professionals Ltd

[2015] UKEAT 0110_15_1612

  • The EAT laid down guidance: what is reasonable must be tailored to the individual before the tribunal; a competent litigant's own decisions on conduct of their case should not generally be second-guessed; and emphasis should be given to holding Ground Rules Hearings where appropriate.
  • A judge's refusal to adjourn for an expert report was not, on these facts, an error of law.
An unhandled error has occurred. Reload 🗙

Rejoining the server...

Rejoin failed... trying again in seconds.

Failed to rejoin.
Please retry or reload the page.

The session has been paused by the server.

Failed to resume the session.
Please retry or reload the page.