It is disappointing that the rules and PD do not include wider provision for children as previously proposed, but we understand that there will have been factors in play outside of the FPRC’s control.
Response to consultation questions
1. Do you agree that draft PD3AA gives sufficient guidance on the duties of the court, parties and their representatives in relation to vulnerable witnesses?
No.
If you do not agree, please give reasons and explain what further guidance you think is needed.
We suggest that 1.3 should include ‘and their legal representatives’ in the same way as 1.4. Whilst the duties of the court, parties and representatives are reasonably clear, it would be helpful in timetabling for the PD to state clearly that it is mandatory for participation directions to be considered at the advocates’ meeting prior to CMH and that any directions be applied for at CMH.
With regard to directions/ground rules hearings for giving evidence, we suggest these should be mandatory for consideration at IRH and the advocates’ meeting prior to IRH, with a standard recording on the order that this has been considered and is/is not necessary. (This should not mean a prohibition on a freestanding application at other times if necessary.)
2. Do you agree that draft PD3AA (particularly when combined with draft rule 3A.7) gives sufficient guidance on the term ‘vulnerability’, specifically in terms of how to identify if a party or witness is a vulnerable person?
No.
If you do not agree, please give reasons and explain what further guidance you think is needed.
The approach appears perhaps deliberately wide and vague, but the PD is in danger of presenting vulnerability as a threshold to be crossed. There are different degrees of vulnerability and different levels of assistance which may be required; also a witness or party may be vulnerable in one particular way but not in others, and it would assist to spell this out in the PD.
There also needs to be some caution around an alleged victim who has lied or exaggerated and is seeking a litigation advantage through ‘labelling’ as a ‘vulnerable witness’.
Although the PD and the draft r3A.7 talk about level of understanding, the draft r3A.7(a)(i) refers to one of the factors to be considered re vulnerability as whether the vulnerable party/witness ‘suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning’.
This appearing at the top of the matters to be considered may suggest a diagnosis or some form of medical or educational evidence is necessary, whereas most advocates will have come across
witnesses who are vulnerable by reason of poor understanding/distress without necessarily falling into the category of a ‘significant impairment’.
The introduction of the term ‘vulnerable or intimidated witness’ at 1.2 in the PD seems to us to be unhelpful as it is the only time the phrase is used and elsewhere it appears that intimidated
witnesses is simply included as one class of vulnerable witness.
It also remains unclear whether feeling intimidated, even if the other party has not acted to cause this, is sufficient to make a witness vulnerable. We suggest it should be sufficient if a genuinely held fear.
The FPRC may wish to consider whether the word intimidated should be included at all. There are many feelings a vulnerable person will have at court and to emphasise just one seems wrong. Just saying ‘vulnerable’ can cover a host of feelings and reasons.
3. Do you agree that draft PD3AA gives sufficient guidance on how the court should assist a vulnerable person to participate and give evidence effectively?
No.
If you do not agree, please give reasons and explain what further guidance you think is needed.
Paragraphs 4.1 to 4.7 provide for the factors for the court to consider at the grounds rules hearing, rather than clarifying the measures available to the court, and how decisions on the use of such
measures should be reached.
We suggest adding to 4.3 and 4.4 reference to an intermediary being an option to assist in the giving of evidence.
4. Do you agree that draft PD3AA is clear about the responsibilities of the parties and any legal representatives including when applying for directions and preparing for or conducting crossexamination?
No although only in that once the court has decided there is a need for a ground rules hearing, it is hard to envisage an unrepresented vulnerable party dealing with that hearing.
We assume that references will need to be included to the application of the prohibition of cross – examination in person provisions in Part 4B of the Prison and Courts Bill 2016-17 once the new
statutory provisions come into force. We look forward to receiving more information on the interplay between the new rule/PD and intended primary legislation and the timetables for both.
If you do not agree, please give reasons and explain what further guidance you think is needed.
Please see above.
We suggest that 4.5 (d) could include ‘any other ways to manage the taking of evidence’.
We wonder whether consideration has been given to whether a vulnerable party, vulnerable witness or protected party should be excused from attendance at a ground rules hearing and in what circumstances.
5. Do you have any other comments on draft PD3AA?
The assessment of vulnerability needs to be robust and effective, especially as ‘vulnerability’ appears potentially so widely drawn. The PD is silent on how the information on a party or witness’ vulnerability and what special measures are needed are to be assessed and by whom and who will pay for this including where both parties are unrepresented or at least one is legally aided. This could include obtaining reports, access to medical notes and medical history, and obtaining police and CPS material. It is specifically made clear this won’t be work done by Cafcass or paid for by the LAA. It might not be for the PD but all those in the system will need clarity on who will pay.
As mentioned in response to question 4, our members have various ‘nuts and bolts’ questions around the future implementation, alongside Part 3A FPR and this PD, of the court’s consideration of
prohibiting cross-examination in person and the appointment of a legal representative by a party or the court for the purposes of cross examination of a vulnerable party.
Turning to specific paragraphs:
3.1 (d) We query whether it is realistic in every situation for a vulnerable person to ‘attend the hearing without fear or unnecessary distress’. We suggest that the words with the ‘minimum level of
fear or distress possible’ might be preferable.
4.1 We wonder whether the guidance referred to is too narrow and should make provision to include other and future relevant guidance in some way.
4.2 We suggest the words ‘or measures’ need adding after the word ‘support’.
4.6 We suggest including specific reference to evidence given in an ABE Interview.