The Advocate’s Gateway includes a list of recent cases (in date order, most recent first) relevant to responding to vulnerable witnesses and defendants. This information is not a substitute for obtaining appropriate legal advice nor is it a substitute for thorough legal research.
- Vulnerable prosecution witnesses – General principles
- Cases following R v B: Judicial control of questioning (Prosecution witnesses)
- The most recent authorities on questioning
- Vetting of advocates’ questions before trial
- Cases where the role of the registered intermediary at trial was questioned
- Expert evidence in vulnerable witness cases
- Cases concerning vulnerable defendants
- Cases decided before OP
- Expert evidence and defendants
- Family Law – Cases involving children
- Family Law - Cases involving other vulnerable witnesses
- Correct procedure with vulnerable witnesses
- Civil Law
Key concepts: How to treat evidence of victims of sexual exploitation
- 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’
- 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’
- These are matters for the jury (para.54)
Key concepts: Primacy of jury verdict in vulnerable witness case
- 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 in our system has to be respected particularly where matters of reliability and assessment of witnesses is at the centre of the case
- The ordinary principles governing criminal trials require the court to face the realities which sometimes arise when special measures are put in place
Key concepts: Competence of children and vulnerable witnesses; advocates and court to adapt to the witness
- 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)
- 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)
- 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
Key concepts: Assessing a vulnerable witness’s competence to give evidence; court should have regard to R v B
- 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
- 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
Key concepts: Defence not obliged to ‘put’ their case to very young witness; judicial guidelines upheld
- 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"
- ‘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?"
Key concepts: Adapting questioning style for young witnesses; judicial guidelines upheld
- 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”
- 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
- [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)
Key concepts: Question suitable for children; correct to leave disputed evidence to the jury
- ‘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)
- 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)
Key concepts: Judge can limit cross-examination on credibility of complainant where co-defending counsel had already covered this ground
- 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
- 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
Key concepts: Fair trial not imperilled when judge stops cross-examination due to complainant’s distress
- 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
- Medical records and their inconsistencies can still be placed before the jury once reduced to agreed facts
- NB it had already repeatedly been put to the complainant that she was lying and that she had suffered from mental illness
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
- ‘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)
- 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.)
- 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
- 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
Key concepts: Judge’s role in trials of sexual crimes; judge’s duty to prevent advocate taking advantage of complainant’s vulnerability
- 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)
- 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
Key concepts: Judge’s control of questioning part of the ‘difficult’ balance between protecting the interests of a young and vulnerable witness while ensuring the defendant receives a fair trial.
- 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. It is the judge's duty to control questioning of any witness and to ensure it is fair both to the witness and the defendant. Far from prejudicing the defence, it is the experience of many trial judges that the practice ensures that defence advocates ask focussed and often more effective questions of a vulnerable child witness.
- A list of admissions of behaviour or previous inconsistent statements that potentially undermine the complainant's credibility can be put before the jury to cover those issues on which questioning is restricted.
- The case of SG  EWCA Crim 617 did not say that requiring a list of questions in advance for the court’s approval was an exceptional approach. It was not thought appropriate on the particular facts of that case
Key concepts: If the witness does not have difficulty in understanding the questions, it would be exceptional to require an advocate to prepare a list of questions for the court’s approval during the course of cross-examination.
- The Court of Appeal held that where a witness became distressed during questioning, a judge needs to hold a balance; a witness exhibiting signs of distress is not necessarily to be treated as vulnerable.
- To require an advocate to prepare a list of questions for the court’s approval in the course of cross-examination and where the witness did not have difficulty in understanding them is an ‘exceptional course’ and could inhibit the development of cross-examination in response to a particular answer. In this instance it would have been better to wait and see if the witness felt more ‘composed’ the next day. However in the event the defence did challenge every aspect of the witness’s account and no unfairness resulted
Key concepts: Questions agreed with help of the Registered Intermediary
- Questions for cross-examination of the witness were agreed in advance ‘by all concerned with the assistance of the intermediary’
- 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’
Key concepts: Judge and intermediary vetted questions; Results not unduly restrictive; Section 28 hearing
- 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
- 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’
- 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
- 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
Key concepts: Collaborative work of counsel and Registered Intermediary on questions; Court of Appeal hearing
- 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)
- 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
Key concepts: Reasonable for defence advocates to reduce questions to writing; role of Ground Rules Hearings
- ‘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)
- 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
Key concepts: An intermediary’s report used as unchallenged expert evidence
- 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’
- 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’
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
- 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
- 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
- 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 the case above (R v Beards and Beards  EW Misc B14 (CC))
Key concepts: Intermediary giving emotional support to witness during evidence; whether behaviour of intermediary prejudiced a fair trial
- 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”
- 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
- 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
Key concepts: Roles of deaf intermediary at trial and pre-trial; whether intermediary can continue if their integrity is challenged
- 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
- 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.
- 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
Key concepts: in deciding on whether to allow an intermediary to assist a defendant throughout a trial, a judge is not obliged to base his decision solely on expert evidence but may take into account his own observations in relation to the applicant and other evidence about him. The experts themselves must comply with their duties under the Criminal Procedure Rules.
- The applicant, aged 18 at the time of the offence, argued that his first police interview where there was no appropriate adult should be ruled inadmissible as unreliable, on the basis of his mental vulnerability. There was expert evidence from a clinical psychologist and a forensic psychologist called by the defence and a forensic psychiatrist called by the Crown. The judge also watched the video tapes of the interview and was aware of the defendant’s education attainments. He concluded that the defendant ‘understood both the significance of what was said and the questions themselves’; he was not mentally vulnerable and had not required an appropriate adult
- In addition, the Court held that the submission was ‘misconceived’ that the judge had to make his decision on whether or not to allow an intermediary based solely on expert evidence and could not use his own observations in relation to the applicant or other evidence (para 71).
- The trial judge noted that the approach of the experts was ‘undisciplined. They strayed well beyond matters set out in their reports (para 25).’ They had also seriously breached the CPR by not determining ahead of time what was or was not agreed between them. At trial they were required to prepare a short note for the jury on the issues upon which they were to give evidence; in that they agreed what was meant by cognitive function and mental vulnerability.
Key concepts: A judge should prevent cross-examination which is founded on the stereotypical view about the behaviour of rape complainants
- The defendant had applied under section 41 of the Youth Justice and Criminal Evidence Act 1999 for permission to cross-examine the complainant in a rape allegation that seven months after the alleged rape, the parties had taken part in consensual sexual activity.
- The Court of Appeal upheld the trial judge’s view that to allow such cross-examination in part risked reinforcing the stereotypical view about the manner in which victims of rape and alleged perpetrators of rape behave towards each other after an alleged assault. The court felt reinforced by the Respondent’s submission that the applicant’s argument was that it was a matter of common sense that no victim of serious sexual assault would subsequently engage in consensual sexual intercourse with their attacker.
- It was stereotypical and potentially false to say how a rape victim ought to behave in cases where there is a complex relationship with the defendant.
Key concepts: Correct role for expert witness; expert should not comment on the reliability of the witness
- 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
- It is for a jury, not the defence expert, to decide whether the witness has given reliable evidence
- 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.
Key concepts: sentencing under section 5 of the Domestic Violence Crime and Victims Act 2004 must be commensurate with the defendant’s duty to the vulnerable.
- The deceased who had a learning difficulty came to live with the offender family where he became the victim of violent assaults together with a failure to summon medical attention for him. The Court of Appeal allowed the appeal against unduly lenient sentences against two defendants but not in respect of the third, who also had learning difficulties.
- ‘Parliament has imposed a positive duty on members of a household to protect the vulnerable including vulnerable adults’.
- Allowing a child or vulnerable adult to die is not necessarily less culpable than causing them to die. ‘It will depend on all the circumstances’
Key concepts: The Court of Appeal asserted that current measures to ensure effective participation of vulnerable defendants in their trial are sufficient. Those measures include the provision of intermediaries where necessary, extensive training of judges and advocates, the endorsement of advocacy toolkits and the holding of ground rules hearings to ensure the particular needs of individual witnesses and defendants. The Court also provided guidance in respect of the conduct of such trials, and of the conduct of appeals based on a defendant’s lack of proper participation in his trial.
- Depending on the circumstances of the case, a juvenile in the crown court does not necessarily have to sit outside the dock during the trial.
- It was not found necessary to tailor specially a joint enterprise direction by a judge because of a defendant’s age, maturity, cognitive ability, etc.
- It is the task of an intermediary to provide a report and to assist as directed by the judge. The burden rests on the trial judge to ensure the effective participation of the vulnerable person.
- ‘It would be difficult to conceive of an advocate being competent to act in a case involving young witnesses or defendants unless the advocate has undertaken specific training’.
- If there has been a change in representation, counsel at the appeal must make adequate enquiries of counsel at the trial and in particular in respect of those factors which could give rise to the submission that a defendant had not been able properly to participate in his trial.
- An expert psychologist whose evidence an appellant wishes to adduce must obtain a full history of the defendant, consider it and analyse it for the benefit of the court. The Court criticised another expert for his willingness to opine on the basis of ‘inaccurate, incomplete and partisan accounts’.
Key concepts: There are two distinct types of assistance which an intermediary can give to a defendant and it will only be very rare for an intermediary to be present throughout a trial. An advocate would be in serious dereliction of their duty to the court if they could not carry out the basic tasks of asking appropriate questions. It is the advocate’s duty to do what was needed for the defendant to be able fully to participate in the trial.
- In a preparatory hearing (R v R [2015 EWCA Crim 1870) a previous Court of Appeal held that there was no jurisdiction under the Criminal Procedure and Investigations Act to entertain an appeal against the trial judge’s ruling 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 and 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). The appellant nevertheless appealed effectively for the second time on the same grounds that the trial judge’s ruling had been wrong. The present court of appeal repeated that the trial judge had been ‘unimpeachably correct’ in his decision.
- In the ‘overwhelming majority of cases, competent legal representation and good trial management’ will provide that a defendant gives best quality evidence, participates in his trial and has a fair trial. There may be rare cases where a defendant nevertheless requires an intermediary because of his mental or other disability (para 73).
- The court approved the judgment in R (OP)V Ministry of Justice  EWHC 1944 (Admin))) and the distinction between two types of assistance, i.e., throughout the trial or only when giving evidence and that the court must determine what is necessary for the particular defendant. It would be a ‘rare’ case where the threshold of disability is crossed such that an intermediary is required when the defendant gives his evidence’ and ‘very rare’ for an intermediary to be present for the whole trial (para 84).
- The judge must make the assessment on the basis that the advocate will have undergone specific training and can conduct the case in accordance with proper professional competence including appropriate questioning and that the advocate would be in serious dereliction of duty and breach of professional duty if they were not able properly to carry out the basic tasks (as set out in para 80).
Key concepts: There is no incompatibility between an intermediary assisting a defendant during consultation with their legal representatives and the same intermediary assisting that defendant during their oral evidence.
- Defence intermediaries are bound by an obligation of confidentiality in respect of anything which the defendant says in the intermediary’s presence including any matters which might attract legal professional privilege viz. the defendant and his or her legal representatives.
- The role of an intermediary and of a language interpreter are not comparable, e.g ., an intermediary does not communicate the answers of the defendant witness; the defendant communicates his own answers to the court.
Editor’s Note: This is a decision of the Divisional Court in Northern Ireland, where the provision of intermediaries for defendants is on a statutory basis. It is included here as the basic principles of the decisions ought to apply to defendant intermediaries in England and Wales
Key concepts: The ability of the court to regulate its procedures means that there will be few cases where it is not possible for a defendant to give evidence because of ill health.
- The defendant suffered inter alia from chronic angina and from a psychological reaction to his chronic ill health such that he was not able to attend his trial. It was held that he was not eligible for special measures to give evidence by live link (section 33A, Youth Justice and Criminal Evidence Act 1999). The issue was the effect on his angina of giving evidence and he therefore did not fulfil the statutory criterion of suffering from a mental disorder or otherwise having a significant impairment of intelligence and social function.
- However there was no obstacle to his account being given by way of hearsay evidence (ss114 and 116, Criminal Justice Act 2003) for example by a written, audio or video recording giving his account. The Court rejected the submission that section 72 of the Criminal Justice Act 1982 prevented a defendant from giving evidence unless it is possible for him to be cross examined.
- ‘[T]he ability of the court to regulate its procedure in ways which make it easier for a defendant to give his evidence for example by permitting him to give his evidence from a place other than the witness box or by allowing frequent breaks or by restricting the duration or terms of cross-examination, means that there will be few cases in which a court will conclude that it is simply not possible for a defendant to give evidence because of his ill health’.
Key concepts: A vulnerable defendant who is fit to stand trial and who insisted on representing himself for the remainder of his trial cannot appeal his conviction on the grounds that he should not have been allowed to represent himself. The judge’s power to appoint an advocate to assist the defence is very restricted.
- The applicant was found fit to stand his trial despite his history of mental illness. After dismissing his legal representatives, the Crown applied for an order prohibiting him from cross-examining the alleged victim in person. The judge refused the application but subsequently appointed counsel to assist the court and the applicant with legal issues, the applicant delivering his own speeches and cross-examination. The Court of Appeal rejected the argument put forward by the applicant’s counsel that the judge should have forced representation on the defendant because of his history of mental illness.
- There was no power to appoint an advocate to assist the court as an amicus but this did not undermine the safety of the conviction of the applicant who had a fair trial.
Key concepts: A defendant’s ‘fitness to plead’ cannot be determined by reference to part only of the trial process
- The defendant who was charged with laundering corrupt monies became unwell after giving his evidence in chief. Two psychiatrists attended court and assessed him as unfit to be cross-examined. The judge allowed the trial to proceed and likened the defendant to a vulnerable witness who had difficulty in dealing with part of the trial process and who should not be disadvantaged by not being cross-examined.
- The Court of Appeal held that the issue of fitness to plead or ‘more aptly’ ‘fitness to participate in the trial process’ could be raised at any time prior to verdict but cannot be determined by reference to part only of the trial process. Although the defendant had been fit up to the point of cross-examination, the jury should not have been allowed to return a verdict other than (i) the defendant did the act charged against him on the basis of the evidence already heard or (ii) acquittal.
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.  EWHC 1944 (Admin)
Key concepts: Intermediaries may be needed to assist a defendant while giving evidence but not for the duration of the trial
- 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)
- 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)
- 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)
Key concepts: Fairness of trial not diminished by lack of intermediary; judge still obliged to ensure a fair trial through adapting the process
- 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"
- 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
- To have stayed the proceedings would have been unfair to the complainant
Key concepts: defendant was assisted by an intermediary throughout the trial; positive assistance to the defendant
- 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
- The Court of Appeal found that the intermediary did give positive assistance to the appellant during the trial
- ‘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
- 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)
Key concepts: there is a right which may amount to a duty for an intermediary to assist a defendant at trial
- The defendant although he had the ability to communicate his evidence to the court needed an intermediary because of his difficulties
- 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  EWCA Crim 1208. 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’
- 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.
Key concepts: Appeal allowed several years later due to new expert evidence not available at the time
- 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
- 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
Key concepts: finding other methods of accommodating defendant’s difficulties; consider use of an intermediary
- The Court of Appeal considered expert psychiatric evidence on the question of the appellant’s fitness to plead
- 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)
Key concepts: Appeal allowed due to fresh understanding of the defendant’s difficulties
- 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
- 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
Family Law – Cases involving children
Key concepts: Guidance in Re W has not been but should be followed
- ‘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.’
- 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
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
- 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)
- Court rejected submission that the RE W test is whether justice could be done without questions being put to the child
- 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
Key concepts: habitual residence of children is the reality of the child; what is the best evidence from the children
- 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)
- The children’s mental state should therefore have been taken into consideration
- 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
Key concepts: balancing exercise for a child to give evidence; not appropriate here
- 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 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
- 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’
- 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)
- There is no rebuttable presumption that a mature child’s wishes should prevail. Each case is fact sensitive
Key concepts: Children can give evidence but it is a balancing exercise as to whether they should in the particular case
- 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
- There is no longer a presumption or starting point about children giving evidence. There should instead be a balancing exercise
- The likelihood that a child is rarely called to give evidence will be a result of the balancing exercise, not a threshold test
Key concepts: Need for intermediary for vulnerable adult; guidance for cases with parents with learning difficulties
- At an earlier hearing [Re D (A child)  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
- At the final hearing, the judge praised the use of intermediaries who had assisted the parties to participate
- 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  1 FLR 2050, para 5
Key concepts: facilitating communication for deaf parents
- 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
- Recommended use of deaf relay interpreters
Key concepts: facilitating communication for deaf parent
- Deaf father not given sufficient support and was put at a disadvantage in understanding the issues in the case
- ‘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)
Key concepts: giving evidence despite disabilities a breach of Article 6
- 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
- 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
- Adopting a “let’s see how we get on” management policy was incorrect
- Procedure held to be a breach of Article 6
Key concepts: vulnerable witness: how to carry out the balancing exercise
- 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
- Calls for ‘urgent attention’ to be paid to the question of meeting the cost of an intermediary in a family case
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
- 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
- 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
- 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.)
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’
Key concepts: How judge should deal with evidence of vulnerable witness whose cross-examination was cut short
- 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
- ‘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)
- How a judge should give weight to evidence without full or adequate cross-examination
Key concepts: In a civil case alleging human trafficking and labour exploitation, and where the court (a QB Master) in due course made a finding of fact about the power relationship between the claimant and the defendants, it may be necessary to make reasonable adjustments which in effect amount to ground rules and the use of special measures.
- Although it was not a criminal trial, it was held to be appropriate consistent with the Overriding Objective and with Article 6 of the Convention to direct that the trial take place in a court room which provided separate entrances and exits for the parties, separate waiting areas for the parties and screening during the giving of evidence by the claimant.
AM (Afghanistan) v Secretary of State for the Home Department and Lord Chancellor  EWCA Civ 1123
Key concepts: Where an application for asylum is from a child or other vulnerable person, the court must take sufficient steps to ensure their effective participation in proceedings. Failure to do so is neither fair nor just and is a material error of law. The Court of Appeal gave guidance on the general approach to be adopted in law and practice by First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chambers) in order for them fairly to determine such cases.
- Expert psychological advice should be considered when adopting ground rules in the proceedings. Although the court has options including hearing from the expert or reasoning to a different position, ‘effectively ignoring the psychologist’s strong advice was not one of those options’.
- Although they are not an exhaustive or immutable check list, paragraph 21 sets out some core principles. They include a lower standard of proof and the need to carry out a holistic assessment of the applicant’s credibility which should be done in the context of known objective circumstances and making use of expert medical evidence which may explain, for example, inconsistencies in an account.
- There are further key features (cf paragraph 31) including an early identification of the issues of vulnerability and how to deal with the applicant’s oral evidence if indeed it is necessary to hear any. The Guidance note to the PD provides further assistance.
- Provision can be made for the use of a guardian, an intermediary or a facilitator, where appropriate.
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
- 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
- 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
- The judge’s refusal to adjourn to obtain an expert report was not here an error of law
Key concepts: dealing with vulnerable witnesses in the High Court
- Action brought by vulnerable litigants who are resident in Kenya some of whom would be unable to travel to London for the trial
- 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
- ‘obtaining best evidence is an important factor in putting into effect the overriding objectives’
E v The Commissoners for Her Majesty’s Revenue and Customs. In the First-Tier Tribunal Tax Chamber, TC 05822, Appeal number TC/2016/-3868
Key concepts: HMRC is obliged under the Equality Act 2010 to take account of the needs of vulnerable people when dealing with their appeals.
- The appellant had been stopped at Dover and served with an excise duty assessment and a penalty assessment in respect of tobacco which she claimed someone else had given her. She had Asperger’s Syndrome and ADHD and the tribunal accepted that she was a “vulnerable adult’’
- HMRC should ‘have realised the vulnerability of the appellant and should not only have made all appropriate adjustments themselves but should have informed the Tribunal so that the rather unsuitable directions and letters from the Tribunal would not have been issued in the form that they were’. In dealing with vulnerable adults ‘the approach taken in this case is profoundly wrong’.
- HMRC throughout ‘persisted in asking the wrong questions and making assumptions through ignorance or not being bothered to read the papers in front of them’; and they confused “tax” and “duty”. The Tribunal noted that in other cases, HMRC does not seek to take points about a failure to comply with directions by a litigant in person but in fact help the appellant thus furthering the overriding objective and cooperating with the Tribunal.
NOTE: Before the eventual hearing the parties agreed a ‘memorandum of special measures’ in respect of the witness whose evidence was given in June 2018. This included having breaks, a companion in the live link room, counsel not wearing wigs and gowns and both the witness and translator being visible on the video link. The Defendants stated their commitment to not putting ‘every perceived evidential inconsistency to each claimant’ and to allowing time for the witness to understand the question. The judge stated that nothing in the process affected the court’s ability ‘to rely upon his evidence, nor as a reason in itself why the defendant could not properly cross-examine him on the important issues’. (see Kimathi and ors. v The Foreign and Commonwealth Office  EWHC 2066 (QB)