The issue of how vulnerable witnesses are examined in court is by no means a new issue, but it is one that has regularly been hit by the spotlight in recent years. This is due to a variety of factors but perhaps one of the biggest is the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). As a result of legal aid being cut from the majority of private family law cases, we have had the highest number of litigants in person to date. The latest Family Court quarterly statistics published in 29 March 2018 have shown that in 37% of cases neither party had representation.
The relevance to vulnerable witnesses is that these witnesses are being continually cross-examined by litigants in person. This involves untrained individuals taking part in a court process that includes witnesses such as those suffering from mental health issues as well as intimidated witnesses. To an even greater extreme, vulnerable witnesses are increasingly being cross-examined by their alleged abusers in domestic abuse situations. This has caused a great deal of concern amongst lawyers, with Sir James Munby; President of the Family Division stating that this type of cross examination was lending itself to the continuation of the abuse.
Vulnerable witnesses are also having to deal with the recurring issue of a lack of statutory authority that would secure their entitlement to special measures. Until recently, there was also the need for the Family Procedure Rules (FPR) to address the identification of vulnerable witnesses and the need for regular ground rules hearings, but these has largely been addressed by the newly implemented FPR Part 3A and Practice Direction (PD)3AA.
The situation in criminal law
In criminal proceedings there is statutory authority regarding the identification of vulnerable witnesses and the ability to have special measures secured. The Criminal Procedure Rules (CPR) provide a procedural basis for how vulnerable witnesses should be dealt with in court. As a result, both the primary legislation and relevant CPR addressed below are consistently recommended as models for family procedure reform and it is therefore important to consider them here.
The categories of a vulnerable witness in criminal law are found in the Youth Justice and Criminal Evidence Act 1999 (YJCE 1999) s16;
(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—
(a)if under the age of 17 at the time of the hearing; or
(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).
(2)The circumstances falling within this subsection are—
(a)that the witness—
(i)suffers from mental disorder within the meaning of the Mental Health Act 1983, or
(ii)otherwise has a significant impairment of intelligence and social functioning;
(b)that the witness has a physical disability or is suffering from a physical disorder
Intimidated witnesses are also considered vulnerable witnesses and are entitled to special measures. By virtue of s17(1)of YJCEA, these are witnesses whose evidence is likely to be diminished by fear or distress. S17(4) states that a complainant of a sexual offence is to automatically be considered a vulnerable witness and is therefore entitled to special measures.
S23-30 provides a list of special measures that can be used to assist an identified vulnerable witness such as;
· Screening the witness from the accused.
· Evidence by live link.
· Evidence given in private.
· Removal of wigs and gowns.
· Video recorded evidence in chief.
· Video recorded cross-examination or re-examination.
· Examination of the witness through an intermediary.
· Aids to communication.
The primary legislation is then supported by the CPR. The CPR does not only address how vulnerable witnesses should be identified and dealt with, but it also recommends useful sources for members of the court to use when dealing with a vulnerable witness. Rule 3.2(2) makes it a mandatory requirement on the court to identify the needs of a witness, which would then lead to the proper identification of a vulnerable witness. PD3D deals with vulnerable witnesses. It outlines the definitions within YJCE 1999 and emphasises the need for a vulnerable witness to be identified at the earliest stage.
PD3D.5 recommends the use of toolkits; useful guides on how to conduct advocacy, with a variety of toolkits available that are specific to vulnerable witnesses. These toolkits have been supported by both the Advocacy Training Council and the common law in R v Wills  EWCA 1938. These toolkits have also been relied on in family proceedings. PD3.6 acknowledges that these toolkits are available through the Advocate’s Gateway and PD3.7 encourages advocates to refer to these toolkits as best practice. What can be observed is not only the need to properly identify vulnerable witnesses, but for members of the court to get into the mentality of consulting available guidance when dealing with such witnesses.
Finally, and perhaps the strongest factor that encourages consistency in the treatment of vulnerable witnesses, procedure wise, is the formal requirement for a ground rules hearing. These are sessions where judges can make directions which addresses how a vulnerable witness is to participate in trial. PD3E provides guidance on the content of a ground rules hearing. This can include the special measures needed and how advocates should tailor their advocacy. Under rule 3.9 (7)(b) the consistency is maintained by the mandatory requirement of holding a grounds rules hearing in circumstances where ‘directions for appropriate treatment and questioning are required’. PD3E.2 states a ground rules hearing is required in cases involving an intermediary. Under PD3E.3 it is considered good practice to hold a ground rules hearing with any witness that may have communication needs.
The previous situation in family law
As noted above the law and procedure regarding the treatment of vulnerable witnesses in criminal law is extensive and goes into far more depth than this article can hope to cover. Unfortunately, the same cannot be said for vulnerable witnesses in family law.
In the 12th View from the President’s Chambers’ published in June 2014, Sir James Munby announced the setting up of the Children and Vulnerable Witnesses Working Group (CVWWG). This was to address a variety of matters, but relevant to this article, the CVWWG was to address and provide recommendations for vulnerable witnesses giving evidence in family proceedings. In the 12th View the family justice system was described as lagging ‘woefully behind the criminal justice system’ when it came to this issue. A similar view was expressed over 10 years ago by Roderic Wood J in H v L and R  EWHC 3099 where he expressed the need for statutory provisions similar to the YJCE 1999 to be implemented into family proceedings. An example being s34 YCJE 1999 that prevents a defendant from cross-examining the complainant of a sexual offence.
Prior to the FPR 3A and PD3AA being implemented there was a lack of procedural authority as well as primary legislation regarding vulnerable witnesses in family procedure. There have been cases that offer some guidance such as Re A (A Child) (Vulnerable Witness)  EWHC 1694 which took into account psychiatric evidence to determine how X, a 21 year old woman, could give evidence given her allegations related to matters that occurred when she was a child. Despite case law providing some guidance, a lack of set statutory restrictions has led to cases such as Re B (A Child) (Private law fact finding – unrepresented father), D v K  EWHC 700. Here in a fact-finding hearing where an allegation of rape was relevant, whether the complainant could be cross-examined directly by their alleged perpetrator was an issue to be determined, whilst in criminal law this would have been prohibited.
The CVWWG in its March 2015 report stated at paragraph 32 that its recommendations were ‘aimed at equipping judges to identify and handle vulnerable parties and witnesses and equipping advocates to handle and question such parties and witnesses’.
As part of its recommendations the report suggested a new rule 3B that would provide a definition for vulnerable witnesses that mirrored that of the YJCE 1991. A new practice direction was recommended to address the need for ground rules hearings, with a recommendation that the CPR be a model for its drafting. Finally, the recommendations, once more mirroring criminal procedure, suggested the inclusion of the advocates gateway in the FPR.
The current situation in family law
Over two years after the CVWWG’s report, FPR Part 3A and PD3AA were implemented. These for the most part addressed the recommendations made in the CVWWG’s report regarding procedures relating to identifying vulnerable witnesses and hosting ground rules hearings. FPR rule 3A.3 states the court’s duty to consider the vulnerability of a witness, taking into account factors under rule 3A.7 which are similar to factors under s16 YJCE 1999. Rule 3A.8 outlines measures that may be used, though these are not as extensive as s23-30 YJCE 1999. Under FPR PD3AA,1.3;
“It is the duty of the court (under rules 1.1(2); 1.2 & 1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.”
PD3AA,2.1 outlines factors the courts must have regard to when considering the vulnerability of a witness. Examples being domestic abuse as defined under PD12J, sexual abuse, and physical and emotional abuse. PD3AA,5.1 addresses the requirement, not the recommendation, that when vulnerability is determined, a ground rules hearing will be held. PD3AA,5.5 and 5.6 address potential special measures with reference to the YJCE 1999. Finally, and once more following the CVWWG’s report, the expectation under PD 3AA, 5.7 for advocates to be familiar with the advocates gateway is present.
Several recommendations have clearly been implemented in Part 3A and PD3AA. Though this is a positive step forward, it is nowhere near enough give the looming issue of a lack of statutory authority to provide funding for a number of special measures when legal aid has been denied. There is potential within the common law to acquire legal aid in these circumstances through an exceptional case determination under s10(3) LASPO 2012. In Re W (Children) (Abuse: Oral Evidence)  UKSC 12 Lady Hale stated the use of criminal ‘special measures by analogy’ in family proceedings. If the cross-examination of a vulnerable witness were to substantially diminish their evidence to the point it denies them a fair trial under Article 6 of the European Convention of Human Rights, then they may be entitled to an exceptional case determination (see R. (on the application of Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622).
Despite this option existing, it is far more difficult and time consuming to address than a provision in primary legislation that would prevent a vulnerable witness from being cross-examined in the first place by their alleged perpetrator. There was an attempt to legislate such a provision through the Prison and Courts Bill which would have also included a requirement for a specially funded advocate to step in for the purposes of cross examination. Unfortunately, the Bill was dropped prior to the general election in June last year.
We simply have to wait for primary legislation to step in and provide an authority for barring the cross examination of vulnerable witnesses in the circumstances above. Once this is done, FPR PD12J can be amended to follow suit. Currently we have the drafting of the Domestic Abuse Bill, but as its focus appears to be more on special measures and not the current lack of representation, it seems unlikely that we will see an increase in vulnerable witnesses being properly examined by qualified advocates.
By Ali Alrazak, law lecturer