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A vulnerable witness – recent experience in the Family Court

Vulnerable Witnesses were the topic of a recent PSqB seminar, the point was made in the seminar that the Family Law area of the legal system appears to be some 5 – 6 years behind their Criminal colleagues. We had the benefit of some input on the subject from those practising in each, or even both fields. I have recently been involved in a matter where I represented a vulnerable witness and I met some of the difficulties of putting the theory into practice.

I was representing an intervener in a case where a 5 month old child had sustained multiple limb fractures on at least four different occasions. A chartered clinical psychologist had been instructed. My client was found to have capacity to conduct legal proceedings and not to be suffering from a learning disability, but displayed “competences spanning the borderline and low average ranges of ability” with an IQ between 80 and 90. It was noted that “he would have great difficulty giving evidence” and the expert recommended that my client be “allowed to give evidence through an intermediary.”

The Advocate’s Gateway

I recalled the advice at the seminar to explore “The Advocate’s Gateway” on the internet – a highly recommended source of assistance. My instructing solicitor contacted organisations such as Communicourt in Birmingham, as well as Triangle Intermediaries (specialising in intermediaries for those under 25 years old) and Intermediaries for Justice. Communicourt was encouraging and helpful, but everything came to a grinding halt when the Legal Aid Agency refused to fund an intermediary, as did the local authority.

An urgent application was made to the court, which was listed to coincide with the IRH, by when we had insufficient time left to put matters in hand before the final hearing, even if funding could be arranged. The case of Re A (Care Proceedings: Learning Disabled Parent) [2013] EWHC 3502 (Fam) was quoted, but all to no avail. The court was not prepared to fund an intermediary, nor to adjourn the 3 day composite final hearing which included the fact finding aspect relevant to my intervener.

Expert guidance obtained on a vulnerable witness

The psychologist was again approached, appraised of the situation and asked about the client’s concentration span plus need for breaks in the witness box. The response was to the effect that “The issue is not so much one of concentration span as of anxiety and the consequent difficulties of marshalling his thoughts in a challenging situation.” It was suggested by the expert that ideally, short breaks could be arranged for his legal representatives to check his understanding of what he had been asked and said. Yet this would presumably not be permitted, as the client would be under oath at the material time.

The expert also advised that: “…as far as is possible therefore, those in court should use simple plain English and avoid jargon or technical terms. Where this is unavoidable, the meaning of any terms he is not likely to understand should be explained to him in simple words. Questions should be simply put and contain only a simple concept or idea per question – avoid multiple choices and use simple sentence structures, avoiding complex clauses, double negatives etc.” One might be forgiven for thinking that these suggestions may apply to the rules or art of framing questions to witnesses in general.

The chartered clinical psychologist went further: “Leading questions should be avoided, as his personality may make him suggestible. Counsel should also avoid creating an accusatory atmosphere (e.g. “you did do such-and-such, didn’t you?”). His efforts to answer questions should be supported (e.g. “thank you, that was helpful”) but without this being directed at specific responses as this could create a bias in evidence….it should be remembered that he is a vulnerable individual with considerable social and interpersonal difficulties; this means that no aspect of his presentation, such as anxiety, hesitancy, failure of memory, etc. can be considered to constitute evidence of mendacity or guilt.”

Reflections on representing a vulnerable witness

As it turned out in the case in question, the local authority and judge both took what many would have felt to be a realistic and sensitive view of the situation. The matter was ultimately resolved without my client having to give evidence. I myself may have been seen as overcautious by seeking to explain and discuss every step and development in the case with the client, accompanied by his solicitor and/or mother whenever possible.

While many practitioners may say that situations such as this are not at all new and that we must, or should, have been addressing them for many years, my perception is that the Family law approach is still catching up with the Criminal law jurisdiction, even if some of it could be argued to be an exercise in the blindingly obvious. I wonder what level of consistency we are currently experiencing with this in the court process generally?

Christopher Ferguson is a member of the Family Team at Park Square Barristers