In 1999 the Youth and Criminal Justice Act enabled the protection and assistance to vulnerable witnesses attending criminal courts, including those with learning disabilities and children.
The Act included investigative and pre-trial measures, court procedures and training for those dealing with vulnerable witnesses. Despite these procedures for criminal courts, the family courts were ‘lagging woefully behind’ with procedures for those who were in vulnerable situations.
Mr Justice Green stated in 2015;
“…how the courts treat those who are exposed and weak is a barometer of our moral worth as a society. Many of those we encounter in the criminal and family courts are from troubled backgrounds and have suffered a lifetime of disadvantage, prejudice and abuse”
The Family Procedure Rules were amended in 2017 to make specific provisions for vulnerable parties and witnesses, however these are still not seen as adequate enough. In addition, the Civil Procedure Rules give protection to vulnerable parties through various forms of assistance, including safeguarding, but again these are considered too ‘passive’ and not proactive enough in enabling participation of vulnerable parties in proceedings.
The current consultation paper by the Civil Justice Council, ‘Vulnerable witnesses and parties within civil proceedings – Current position and recommendations for change’ looks to improve the facilities and support to vulnerable parties in civil and family cases.
Within the civil justice system, there is a large majority of people who are considered potentially vulnerable parties, including those with mental health conditions and learning disabilities. Research carried out on behalf of the MoJ found that those considered vulnerable experienced particular difficulties in giving evidence in court, especially when it came to the language and terminology used in the court process. Causing a lack of understanding in the process can lead to confusion which negatively affects the party and giving of evidence. Vulnerable parties also felt they were excluded from proceedings and prevented from giving clear evidence. Although special measures are regularly used in criminal courts, it has been recommended that they be further extended to civil courts, including making these measures better known to practitioners.
In January of this year, JUSTICE (the all-part reform and human rights charity) recommended “reasonable adjustments to enable lay users to provide their best evidence…in all courts and tribunals where the needs of a fair trial demand it.”.
Further to detailing what measures are currently in place for vulnerable persons in civil courts, the consultation has made seven recommendations;
- Rule changes ensuring all parties can effectively participate in proceedings and that all witnesses can give their best evidence.
- Questionnaires requesting information as to the vulnerability of any parties.
- Training for civil judges to detect and manage persons with vulnerabilities and conduct hearings appropriately.
- Intermediaries should have guidance issued in regards use and funding by the HMCTS.
- Court protocols and guidance should be prepared by HMCTS considering the assistance and protection that can be given to vulnerable parties.
- Staff training should be given as a matter of urgency in regard to identifying, communicating with and assisting vulnerable court users.
- Compensation orders – guidance as to applications for compensation orders in cases of sexual assault and abuse.
The consultation is open to responses on three questions regarding the recommendations until the 11th October. The questions can be found at here as well as details on how to respond.
