For the last two years, the Inns of Court College of Advocacy has been rolling out a training programme to teach practitioners how to deal with vulnerable witnesses. The move has been in response to criticism about how vulnerable witnesses are treated within the criminal justice system.
The Crown Prosecution Service expects all counsel who prosecute cases involving vulnerable witnesses to have undertaken the training, and it will shortly become a requirement of the Bar Standards Board that those who defend in such cases have also undergone the training. It is not limited to legal aid cases, but also those involving privately paying defendants.
What is a vulnerable witness?
At first blush it is assumed a vulnerable witness is a child, usually involving a sexual allegation, however, it is not limited to these cases. A vulnerable witness under s16 of the Youth Justice and Criminal Evidence Act is defined as:
- All child witnesses (aged under 18); and
- Any witness whose quality of evidence is likely to be diminished because he/she: is suffering from a mental disorder (as defined by section 1(2) of the Mental Health Act 1983); has a significant impairment of intelligence and social functioning; or has a physical disability or is suffering from a physical disorder.
This means you could be instructed in a fraud case to cross-examine a resident in a care home whom your client has allegedly defrauded. If you are instructed in such a case, it is likely the primary evidence will have been taken by the police through an achieving best evidence (ABE) video.
If the witness is vulnerable, then check whether the police employed an intermediary to assist in their taking of the evidence. If they haven’t then the evidence obtained may be flawed. For example, there may have been no checks about the witness’s understanding of a preposition, which could be crucial to the case.
If you have concerns about whether the ABE was properly undertaken, your first consideration should be an application to exclude such evidence under s78 of the Police and Criminal Evidence (PACE) Act 1984.
Practical difficulties
Assuming the evidence has been correctly obtained, how then does one prepare for cross-examination? Consider whether you are operating in a section 28 Pilot area pre-recorded cross-examination. The theory is that cross-examination takes place far closer to the alleged event, rather than at trial, and negates the need for the witness to have to wait too long for trial and attend court. The practical difficulties are that, quite often, disclosure is not complete before the cross examination is due to take place.
Measures are in place to expedite disclosure, but what if something is later disclosed that you would ordinarily have cross examined on? This is where agreed facts come to the fore; the prosecution ought to agree any relevant material that is contained within the unused evidence such as dates of complaint etc. This negates you having to put the material to the witness, but ensures your client is not disadvantaged in any way by not having the point available to them.
Cases involving vulnerable witnesses involve much more front heavy preparation, and questions must be submitted in advance for scrutiny by an intermediary. Ground Rules Hearings take place ahead of the trial. These hearings can play havoc with a busy diary but are mandatory for trial counsel in cases of this nature.
The nature of questioning is wholly different to that which counsel are used to, and questions must abide by the 20 principles see www.ICCA.ac.uk for more detailed analysis, but the main points to consider are:
- No tag questions;
- No leading questions; and
- Signpost your questions.
If you haven’t already undertaken the training, contact your Inn or Circuit who should be able to advise you of the next session in your area. The training involves at least eight hours preparation and involves understanding the use of props and toys to facilitate the questioning of such witnesses.
At present, it is predominantly the Criminal Bar which has undertaken such training, but the Family Law Bar Association (FLBA) is actively working on training its members, and it will only be a matter of time before the 20 principles are rolled out in all cases involving vulnerable witnesses.
The technique involves a sea change, the methods employed are vastly different to the way most of us have been trained. However, with practise the techniques learned can have a positive impact on all cases, cross-examination becomes more efficient and focuses on the issues, which in turn helps the tribunal you are appearing before.