Vulnerable Witnesses — Setting the Ground Rules
This article discusses the progress being made to help vulnerable parties and witnesses give their best evidence in the civil courts.
When vulnerable people butt up against our justice system, the result is seldom pretty or edifying. Frances Andrade was not the first and will not be the last, but her story was an inspiration for change. In January 2013, when she was 48, Frances gave evidence at the criminal trial of her former music teacher Michael Brewer. Brewer was charged with raping her on numerous occasions when she was a child. In cross examination, Brewer’s counsel persisted in describing Andrade as a liar and a fantasist. Andrade later confided in a friend that her court room ordeal was “like being raped all over again”. Hours later she took a lethal overdose and did not live to see Brewer convicted of the crimes against her. The coroner concluding the inquest into Frances’ death in April 2014 called on the Director of Public Prosecutions and the local health service to provide more help for vulnerable witnesses. 1
Claimant personal injury lawyers will often find themselves representing people who are fearful and traumatised by the very events they are litigating. Clients may already be damaged individuals with long-standing psychological problems, and many psychiatrists believe that the stress of litigation can prolong trauma. Defendants too can be vulnerable: a mistake they are alleged to have made may have had catastrophic consequences for another; perhaps they caused a road traffic accident which resulted in someone being seriously injured or even killed. Alternatively, consider the doctor at the centre of a clinical negligence claim, where their professional judgment, reputation, even their livelihood is on the line. Spare a thought too for the witness being asked to re-live and be questioned on tragic events they may have seen years before, within the formal confines of a court room. As officers of the court, it is surely beholden to us to ensure that our justice system, whilst remaining robust, is not abusive to those who participate within it.
Giving evidence in court will rarely be the best day of your life. There are, however, some particularly shocking examples from the writer’s own practice which should give all of us cause for concern:
- witnessing a vicious cross-examination of a vulnerable person where the judge declined to intervene;
- a case where a client’s abuser, convicted of crimes against her, was still allowed to cross-examine her directly;
- in another trial, two clients were asked questions by the judge going into the facts of their abuse, even after the defence counsel rose to explain that the facts were admitted, which meant there was no reason to do so. The judge persisted, and then peppered the clients’ testimony with inappropriate asides, belittling their abuse; and
- many practitioners may similarly have been instructed by a client to take a low offer just to avoid the trauma of giving evidence in court.
Accepting the need for change
The Civil Procedure Rules Committee is the latest organ of government (big and small) to consider the interplay between vulnerable people and the civil justice system, and to get behind the need for change. It follows a distinguished line of agitators for reform, from the Civil Justice Council, the Independent Inquiry into Child Sexual Abuse, and the Ministry of Justice themselves, to campaign groups such as APIL and the Advocate’s Gateway.
At its heart, the case for reform is a simple one: the civil justice system lags behind the work done in both the criminal and family divisions in the way that it deals with people who are vulnerable. As such, the experience of witnesses giving evidence is likely to be worse in the civil courts than in others where the need for special measures has been broadly recognised.
The contrast with criminal and family justice
The case for reform in the criminal courts was accepted over 20 years ago with the passing of the Youth Justice and Criminal Evidence Act 1999. Since then, any witness who may be vulnerable must be identified as such (ss.16 and 17) and then the court must consider applying a range of “special measures” to facilitate them giving evidence (ss.18 and 19). Special measures may include:
- screening the witness box from the defendant;
- allowing the witness to give evidence by video link, or in private, or by pre-recording their evidence;
- using an intermediary to facilitate communication;
- removing wigs and gowns to de-formalise the court room; and
- prohibiting the cross examination of a victim of a sexual offence by their assailant.
The key here is that the court is duty bound by statute to consider whether any witness giving evidence before it has any special requirements by reason of their vulnerability. The 2013 Criminal Procedure Rules introduced “ground rules” hearings to establish whether any and if so what assistance should be offered to a witness in advance of trial.
Amendments to the Family Procedure Rules (“FPR”) in 2017 introduced similar provisions (FPR 3A and Practice Direction 3AA). Again, there are ground rules hearings and the ability to make “participation directions” when discharging the court’s duty to consider whether a party or a witness is a vulnerable person. The court should then make enquiries as to what assistance that person may require to give their evidence or otherwise participate in the proceedings. The Domestic Abuse Bill has had a juddering passage through Parliament but in its current form is now at committee stage, with a report due by 25 June 2020. One of its measures seeks to prevent the cross examination of alleged victims of domestic violence by their alleged abusive ex-partners, making good on a promise first made by the Government in February 2017. Instead, the court would be able to appoint a lawyer to put questions to a victim on behalf of the alleged perpetrator who is otherwise appearing in person, with the lawyer’s fees being met by public funds (at an estimated annual cost of £8m).2
By contrast to date, the civil courts have not been obliged to consider the vulnerability of parties or witnesses, and whilst the court arguably has the power to assist them (by very virtue of the over-riding objective at CPR 1.1, to deal “with a case justly”), getting a court to use such powers is often a fool’s errand. A patchwork of measures can be prayed in aid, should the court be so minded:
- the court’s general powers of case management (CPR 1.4, and CPR 3.1(2) (m));
- ordering the hearing of oral evidence by video link (CPR 32.3); or
- by deposition (CPR 34.8); or
- that a hearing should be heard in private (CPR 39.2 (3)); or
- prohibiting the identity of a party or witness being known publicly (CPR 39.2 (4)).
Judges in civil courts have certainly been known to allow the use of screens behind which a witness may give evidence, to allow a vulnerable party the use of a private waiting room, and separate access to and from the court, should such facilities exist. In Connor v Castle Cement3 the court permitted the claimant in a personal injury case to rely on an intermediary to assist him give his oral testimony; he suffered from a chronic psychological condition akin to dementia.
However in all these scenarios, one is dependent on the caprice of the district judge or master as to whether such special measures will be ordered, and even if they are so ordered, the court must have the resources to put the practicalities in place. Making the case for vulnerability requires a change in mind-set, or a shift in obligations. Civil judges must be mandated to consider vulnerability of parties and witnesses as soon as the court is seized of the case (at the first case management stage), and the court’s obligation must be a continuous one to periodically review the situation thereafter.
The Advocate’s Gateway and the CJC
Founded in 2012, the Advocate’s Gateway4 is an independent body dedicated to the dissemination of best practice guidance for engaging with, examining and cross-examining vulnerable witnesses. Its toolkits for practitioners include guidance on dealing with witnesses with autism, learning difficulties and language impairments, children, the mentally ill, the traumatised and the deaf. They cover how to identify whether a witness is vulnerable, and how to help engage a vulnerable person in the court process, thereby obtaining their best evidence either for a witness statement or from the witness box. Toolkit 17 published in July
2015 specifically covers the experience of vulnerable parties and witnesses in the civil courts.5 In response to its own consultation on the issue, the Civil Justice Council described the toolkit as “an extremely valuable aid for Judges and practitioners … which should be consulted before any hearing involving a vulnerable or potentially vulnerable party or witness”.6
The Civil Justice Council (“CJC”) is an advisory public body established to oversee and co-ordinate the modernisation of the civil justice system. The Council was asked by the Ministry of Justice to look at the issue of vulnerable witnesses in the civil courts, following the publication of the Independent Inquiry into Child Sexual Abuse’s (“IICSA’s”) interim report in April 2018. The Inquiry had noted the inequality between the criminal justice and civil justice system where vulnerable witnesses were concerned and recommended that these be rectified, with a specific recommendation that the Civil Procedure Rules
Committee amends the rules “to ensure that judges presiding over cases relating to child sexual abuse consider the use of protections for vulnerable witnesses”.7
The real issue for the CJC was not that many of the powers which would aid a vulnerable witness to give their best evidence were not open to the civil court, but that they were not the subject of sufficient focus, and were just not being applied consistently or at all. In its February 2020 report then, the CJC came up with a number of recommendations to facilitate the reform of all civil cases (not just those limited to child abuse):
it was recognised that the court should consider the vulnerability of parties and witnesses at the earliest opportunity. The parties’ attention to this issue should be brought at directions questionnaire stage, with the court making enquiries and setting “ground rules” at the first case management conference if appropriate;
- it is imperative to train judges and all court staff on what can be done to enable witnesses to give their best evidence. Similarly, professional bodies need to educate their members;
- the civil courts must have the resources to put judge’s rulings into effect—the availability of screens and video-link facilities for example, as well as private waiting rooms and separate ways of accessing and exiting a court room. HMCTS must give consideration to the role and funding of intermediaries and interpreters for people for whom English is not a language in which they can communicate easily;
- a judge must have the power to prohibit the cross examination of a vulnerable witness by a litigant in person who may have been charged, cautioned or convicted of an offence against that witness. Consequently, the court also has the power to appoint a lawyer to conduct such a cross examination on behalf of the litigant in person, paid for from public funds (mirroring the similar provision in the Domestic Abuse Bill).
The role of the Rules Committee
Ultimately for the Civil Procedure Rules Committee (“CPRC”), it is a case of bringing existing powers under one roof as it were, but emphasising the need to consider vulnerability in all cases. Some specific “brass tack” issues were discussed at the CPRC’s public meeting on 15 May 2020:
- Should the over-riding objective be amended to accommodate this new focus on vulnerability?
- Should vulnerability be defined?
- Should the concept of proportionality be amended?
- How should fixed costs regimes be altered to accommodate the additional work necessary to assist vulnerable parties and witnesses?
To ensure that vulnerability is at the forefront of the court’s mind, the CPRC is working on amending the over-riding objective to ensure that parties are not only on an equal footing, but can also “fully participate in the proceedings”, “ensuring that witnesses can give their best evidence”.8 This is fundamental to the success of any reform.
There is no comprehensive definition of vulnerability in either the criminal or family procedure rules, and the CJC did not propose an over-arching definition either. Instead it was suggested that clarity is given by listing factors which should be considered in assessing whether a witness or party is vulnerable and needs assistance. To this end factors which may cause a witness or party to be vulnerable may:
“include (but are not limited to):
- Age, maturity or lack of understanding;
- Communication or language difficulties (including literacy);
- Physical disability or disorder;
- Mental disorder or significant impairment of intelligence or social functioning (including learning difficulties);
- The subject matter of, or facts relevant to, the case or the relationship with a party or witness
(examples being sexual assault, domestic violence or intimidation (actual or perceived);
- Social or domestic circumstances, cultural background or ethnic origins.”9
It is proposed that these factors be included in a new practice direction to the over-riding objective. As such, the court must consider a person’s vulnerability, and what impact that may have on what is being asked of them (for example, to attend a hearing, or deal with disclosure, understand the proceedings, or instruct their representatives). These issues must be considered at the earliest opportunity and ‘ground rules’ be established to determine what measures can be taken to facilitate vulnerable witnesses giving of their best in court.
For these reforms to work, changes will need to be made to allow for the recovery of additional costs occasioned by their implementation. So proportionality is likely to be further defined at CPR 44.3(5) to include “any additional work or expense incurred due to the vulnerability of a party or any witness”.10
Further, fixed recoverable costs would need to be flexed to allow for the additional costs of any step or measure taken for the purpose of assisting a vulnerable party or witness.11
Aldred v Cham
Change is at its most fundamental when amending the definitions of such core tenets as the over-riding objective and the principle of proportionality is in contemplation. This is, however, what has been sanctioned by Coulson LJ, head of the CPRC at its public meeting in May this year. Interesting then that it was Coulson LJ who gave the lead judgment in Aldred v Cham, which would appear to fly in the face of reform:12 Master Cham was aged seven when he was involved in a road traffic accident. Liability was eventually admitted by Mr Aldred’s insurers and the case compromised for £2,000. Costs fell to be decided under CPR 45IIIA as the case had fallen out of the low value personal injury pre-action protocol and was subject to the fixed recoverable costs regime. As a minor, a protected party (and as a child, a vulnerable litigant), Cham’s lawyers incurred the expense of counsel’s opinion to advise on the level of damages for the benefit of the court when approving the settlement, pursuant to CPR 21.10(1) and Practice Direction
21 (para.5.2). Mr Aldred refused to pay for the advice and the issue went all the way to the Court of Appeal. Coulson LJ, with whom McCombe LJ and Nicola Davies LJ agreed, reasoned that counsel’s advice was not a disbursement “reasonably incurred due to a particular feature of the dispute” within the meaning of CPR 45.29I(2)(h). Being a child was a characteristic of the claimant, not a characteristic of the dispute, and counsel’s fee was not therefore recoverable. In May this year, the Supreme Court refused the claimant’s petition to appeal, but made the point that the Civil Procedure Rules Committee should consider the matter. So back to Coulson LJ again! It is hoped that the work being done by the CPRC on taking measures to safeguard vulnerable witnesses will address this lacuna in the present rules.
Morrow v Shrewsbury Rugby Club
Another recent case on safeguarding a vulnerable party which went somewhat awry is Morrow v Shrewsbury Rugby Union Football Club Ltd.13 Mr Morrow had been a spectator at a match when one of the rugby posts on the try-line fell on him, causing him to lose consciousness. He sustained skull and facial injuries, and contended that he had a brain injury such that his cognition was affected, he had developed hearing problems, tinnitus and problems with his balance. He said he was also affected psychologically and his disturbed mood and poor sleep following the accident led to a relapse of his epilepsy, having suffered two seizures within nine months of his accident. Liability was admitted, but the claimant was put to proof of his injuries and causation was denied. Special damages (particularly loss of past and future earnings) were claimed at over £1 million.
Six weeks before trial, on 17 September 2019, Mr Morrow’s solicitors applied to the court for an intermediary to be appointed as their client was vulnerable, suffering from considerable anxiety and depression. HH Judge Bird made reference to the differing regimes which operate in the criminal and family courts when dealing with vulnerable witnesses, and the state of play in the civil courts, noting the assistance provided by the Advocate’s Gateway’s Toolkit 17, and that the CJC were consulting on this very issue. He accepted that the court, under its general case management powers, could order assistance for a vulnerable witness, that there was a need for it to do so in this case, and he ordered a ground rules hearing. The trial judge held that hearing a week before trial. She read reports from an accredited intermediary (a speech and language therapist by profession) who it was proposed would be in court when the claimant was giving evidence at trial to aid his understanding. With a degree of scepticism, the intermediary was allowed. However, it transpired following the trial that the intermediary had played no useful role, the claimant had had no difficulties with communication or comprehension and the advocates were conspicuously sensitive in their questioning. Farbey J noted that:
“Nothing that the intermediary did could not have been done by counsel and solicitors performing their well-defined roles founded on training, experience and professional ethics; or by the court in the exercise of its wide discretion to control proceedings and having the benefit of extensive expert evidence.”14
Much has been made of this judgment by those who pitch themselves against the reforms, concerned that they will add a degree of complexity and cost to litigation which is just not warranted. One must accept in this case that the involvement of an intermediary appears to have been mis-judged, but each case must be decided on its own merits and each witness on their particular set of characteristics. The reason it went so wrong in Mr Morrow’s case is precisely because there is no accepted way of employing special measures, which are thereby inconsistently applied in the absence of specific training for judges and advocates. Those ills are exactly what the CJC and the CPRC plan to remedy.
In the current public health emergency, virtual court hearings have replaced physical appearances in many courts. HMCTS’ reform programme which included the digitisation of the courts was well established when Covid-19 struck. Arguably judges on Zoom, Microsoft Teams or Skype for Business did in four weeks that which HMCTS had been trying to achieve in four years, and they should be praised for it. However, whilst giving evidence by video-link, and being able to follow proceedings remotely may assist some vulnerable people, it is, of course, not of general application. As ever, the individual needs of a party or a witness have to be assessed. Many vulnerable people will not have the IT skills to enable them to take part meaningfully, and it may be impossible for them to do so if they are physically disabled or have communication problems. Penelope Gibbs of the reform group Transform Justice has written about the rise in video hearings for defendants in criminal cases, but her conclusions are of wider application:
“Alarm bells are ringing particularly loud about the use of video for people with mental health problems, learning disabilities, and autism. It can be hard to recognise when a defendant has a disability or support needs when they appear in court in person, and it is harder still when they appear on video.15
In some specific circumstances the ability to give evidence on video may be beneficial to those who have mental health issues, particularly social anxiety, but practitioners felt that virtual justice mostly exacerbated existing difficulties in assessing disability and vulnerability and in facilitating the participation of disabled people. Those with English as a second language and unrepresented defendants were also felt to be at a significant disadvantage.”16
Video hearings are not the panacea to get us through lockdown in the midst of a pandemic, nor are they of assistance for all vulnerable people. They are one tool in the tool box to help the vulnerable give their best evidence, and different tools need to be deployed for different people to make that happen. Whilst in Mr Morrow’s case, one choice of tool (the intermediary) was not the right one, other measures ordered at the ground rules hearing (no robes or wigs in court, adjustments to the witness box, allowing the claimant to take a pen and paper into the witness box, familiarising the claimant with the court room before the trial, providing him with a private waiting room) may have all done their bit to help the claimant with his particular needs. He was awarded just over £285,000 in damages.
Civil justice has long been “treated as a Cinderella”, lower down on the list of Government priorities than the family and criminal courts, even though to a great extent it funds them. So said Gross LJ17 in a recent lecture. He bemoaned:
“a failure to fully appreciate that the provision of an accessible and effective civil justice system is an integral part of the delivery of one of the State’s primary duties: the provision of an effective means through which law and justice can be upheld—a system which enables litigants to vindicate and enforce their legal rights.”
Government cutbacks have pared back provision for special measures for vulnerable people. Despite the provisions of the Family Procedure Rules, one court admitted to the CJC that they did not advertise special measures to court users as they were not confident they could deliver them if the take-up was too enthusiastic. In the words of Professor Penny Cooper (chair of The Advocate’s Gateway) “if there is no money, there are no measures”.18
The Ministry of Justice should, however, be congratulated. It recognised the efficacy of IICSA’s interim recommendation to help abuse survivors when they litigate for compensation. It expanded that to cover all vulnerable witnesses in civil proceedings. It mandated the CJC to report. The CJC have made their recommendations, recognising the strides made in the criminal and family divisions behind which civil justice has been languishing. The case for recognising and protecting vulnerable parties and witnesses in the civil courts has been made. The CPRC must now provide the framework, and the Ministry must now provide the resources, to make this happen: a successful civil justice system should provide for all citizens a fair means by which they can enforce their rights, and by which they can properly defend themselves or their reputation. All participants in that endeavour have to be able to give their best evidence, and the civil justice system should help them to do that where necessary. Only then will Cinderella be properly equipped to go to the ball.
The original article entitled ‘Vulnerable Witnesses—Setting the Ground Rules’ by Jonathan Wheeler, first appeared in the Journal of Personal Injury Law on 10th September 2020. It is republished here with their kind permission.
1. “Violinist Frances Andrade ‘failed’ by mental health services, BBC News 25 July 2014” [Accessed 26 July 2020] ↩
2. Impact Assessment to the Domestic Abuse Bill, 21 January 2019, p.7.↩
3. Connor v Castle Cement  EWHC 300 (QB).↩
4. See https://www.theadvocatesgateway.org/ [accessed 26 July 2020].↩
5. The Advocates Gateway, “Toolkit 17: Vulnerable Witnesses and Parties in the Civil Courts” 31 July 2015 at https://www.theadvocatesgateway.org/images/toolkits/17-vulnerable-witnesses-and-parties-in-the-civil-courts-2015.pdf [accessed 26 July 2020].↩
6. Civil Justice Council, “Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change” 20 February 2020 at https://www.judiciary.uk/wp-content/uploads/2020/02/VulnerableWitnessesandPartiesFINALFeb2020-1.pdf para.151 [accessed 26 July 2020].↩
7. IICSA Interim Report, 25 April 2018, Chapter 7 para.9 at https://www.iicsa.org.uk/document/full-interim-report-independent-inquiry-child-sexual-abuse [accessed 26 July 2020].↩
8. Civil Justice Council, “Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change” 20 February 2020 para.182.↩
9. Civil Justice Council, “Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change” 20 February 2020 para.185. ↩
10. Connor v Castle Cement  EWHC 300 (QB).↩
11. Civil Justice Council, “Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change” 20 February 2020 para.233.↩
12. Aldred v Cham  EWCA Civ 1780;  1 W.L.R. 1276.↩
13. Morrow v Shrewsbury Rugby Union Football Club Ltd  EWHC 379 (QB).↩
14. Morrow v Shrewsbury Rugby Union Football Club Ltd  EWHC 379 (QB) at  per Farbey J.↩
15. Gibbs, “Defendants on video—conveyor belt justice or a revolution in access?” Transform Justice October 2017 p.2 at http://www.transformjustice.org.uk/reports/ [accessed 26 July 2020].↩
16. Gibbs, “Defendants on video—conveyor belt justice or a revolution in access?” Transform Justice October 2017 p.33.↩
17. Gross LJ’s lecture to the London Common Law and Commercial Bar Association, 16 January 2019 para.5.↩
18. For a wider discussion about the resource implications of implementing vulnerable witness reform against the background of austerity funding of the court system see the Civil Justice Council’s report, “Vulnerable Witnesses and Parties Within Civil Proceedings: Current Position and Recommendations for Change” 20 February 2020 paras 295–305.↩