Guidance published the handling of vulnerable witnesses, victims and defendants in court  

“Raising the Bar” : The Handling of Vulnerable Witnesses, Victims and Defendants in Court (published April 2011- Advocacy Training Council)

The Advocacy Training Council’s Working Group have clearly worked long and hard to produce a report giving serious and detailed consideration to the involvement in the criminal justice system of those with limited comprehension, communication and concentration. It is a report to be welcomed and is essential reading for all criminal practitioners. The requirements of the vulnerable in a system driven by ‘robust’ case management and performance statistics can appear inconvenient, expensive and time-consuming. It is therefore encouraging to see a study that actually confronts the inherent inequality of the vulnerable in securing access to justice within a system that does not properly address their particular needs. Also encouraging is to see the position of vulnerable defendants finally being considered on an equal footing with those of complainants and prosecution witnesses.

The Report concludes with 48 specific recommendations aimed at all working in the system and also includes a ‘toolkit’ for practitioners. Otherwise, the real substance of the Report comprises an examination of the differing perspectives of a wide range of practitioners and experts in relevant fields, from child psychiatrists to judges and includes input from intermediaries, educators and social workers.

Whilst much of the input may not come as a surprise to experienced practitioners, all is of interest and some fascinating insights emerge. For example, many practitioners may not be familiar with the specialised profiling work of the Liverpool Investigations Support Unit who support vulnerable witnesses through the trial process; this group deserve our particular thanks for the long-overdue confirmation that TV link evidence is often positively unhelpful, hampering rather than helping effective communication by those with learning disabilities.

The recommendations include some welcome suggestions. Comprehensive specialist training (2 hours CPD “ring fenced”) for all criminal and family practitioners at all levels, including training by non-advocate experts, is clearly essential and the “ticketing” of approved advocates for cases involving children and vulnerable adults is recommended. A duty of disclosure “going beyond the legal minimum” and alternative approaches to the need to “put” one’s case are also recommended where vulnerable individuals are involved in a case. At the same time, it is depressing to discover that clear reminders of the need for frequent timetabled breaks and to reduce exhausting travel for young defendants in custody (moving the venue of trial if necessary) are still required.

Some recommendations are likely to prove more controversial. Whilst generic judicial directions concerning a particular vulnerability may be possible, the suggestion of an “Agreed Practice Note”, setting out for a jury the difficulties likely to be encountered by a particular witness or defendant during questioning, may sound innocuous but is likely to raise significant problems in practice.

The quality and efficacy of the clearly misnamed “Achieving Best Evidence” interviews attracts particular and well-deserved criticism from many. A wholesale review of the validity and desirability of the ABE interview falls well outside the remit of the Working Group, but the recommendations in this area are disappointing; their observation that “the perceived decline in the quality of ABE interviews is a cause for concern” comes in the context of 6 recommendations to police which really amount to little more than an instruction to learn how to do it properly! It can only be hoped that those who express concern about the issue of vulnerable witnesses as well as the conviction rate in sex cases, give some urgent thought to this area.

Overall, this is an extremely valuable Report on issues often given poorly informed and sometimes only token attention by those working in the criminal justice system. However, one concern is that the recommendations will be viewed as the final word on the matter rather than what they should be – the beginning of an ongoing discussion.

There are many experienced practitioners who have doubts about the effective use of the adversarial system in cases involving children and those with learning difficulties. This Report continues the well-established process of assisting the vulnerable by forcing an increasingly inquisitorial approach into a pre-existing adversarial system. Louise Wallis of Respond UK challenged the Working Group by asking whether we can ensure access to justice for defendants, victims and witnesses“who will never be able to understand or fully engage with the legal process as it stands”? . This Report acknowledges the “friction” implicit in balancing the needs of all within the current system, but its remit is not broad enough to answer the question. It still needs an answer.

Commentary by Nina Grahame

Quick links

> A copy of the ATC "Raising the Bar" report can be downloaded here:
http://www.advocacytrainingcouncil.org/images/word/raising%20the%20bar.pdf

> 21/4/11 Advocacy Training Council calls for vulnerable witness support (Law Society Gazette)