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X is physically disabled. He had spent time campaigning for disabled rights. Last year, a jury convicted him of having seriously sexually assaulted others in the community far more profoundly disabled than himself. Elizabeth Smaller considers the issues raised by the trial
The witnesses and their disabilities
The case of X involved three witnesses who fitted every criteria of vulnerable. All suffered with cerebral palsy, a condition which affects motor development and amongst other things creates severe difficulties of speech making giving evidence in the conventional way impossible.
All three were wheelchair bound but with differing degrees of disability. They all had Personal Assistants (PAs) to try to enable them to live as independent a life as possible, but they could not move, dress, or feed themselves and every action and function required assistance. Their intellect was not affected. For the purposes of the trial, the major consideration was their severe difficulties of speech.
One complainant, “A”, could speak, but his words were intelligible only to those who knew him well and had much experience of speaking with him. “B” had a little use of one hand, and communicated by means of a Voice Output Communication Aids or “VOCA”. This is a machine on B’s wheelchair which he could operate with one hand, and with difficulty, which “spoke”.
Although it can be pre-programmed with what the person wants to say, it could not of course be used that way in court. It is a long hard struggle for him to hit every button correctly. The giving of answers would require a great deal of determination, and the receiving of them, a good deal of patience.
“C” also had no speech, and he too used a VOCA, but through a pressure pad on his wheelchair at the back of his head, which enabled him, with great effort, to select the correct word. The vocabulary of the VOCAs was limited to only 900 words.
Although we engaged and involved a Registered Intermediary as early as possible, we watched the ABE’s (Achieving Best Evidence interviews) with dismay. They were hours long, and much of the time was taken up with silence whilst the witness strived to answer. Even “yes”, could take a minute. How could we compel the jury to concentrate?
The first step in considering this issue was to work out how to tailor giving evidence to the needs of each individual witness. We knew that the witnesses rightly resented being regarded as learning disabled just because of their appearance and found it frustrating to be ignored and talked to via their PAs. They felt patronised if people imagined that they could not understand what was said to them.
With that in mind, we held a Special Measures meeting with the Crown Prosecution Service and each witness individually. A note was taken at the time and disclosed to the defence. At the meeting we did not discuss the case but simply tried to work out the way for the witnesses to give their best evidence.
All witnesses agreed that they were happy to come into the courtroom, rather than be in a remote live link room. Each sought a screen between them the defendant. A, B and C also all agreed that they thought that they could give evidence live - with one crucial caveat - they needed to be given enough time. This was clearly a concern for each of these men, who have found all their lives that even if asked a question, people often do not have time to hear their answer.
Disabled access at many courts is difficult. Moreover, because the defendant was coming to court in a wheelchair too, this case optimally required differing routes of disabled access to keep the defendant and the witnesses separate. In addition the usual screen could not be used because the witnesses could not use the witness box. There also needed to be access on the same level to facilities during a break.
Other pre-trial preparations involved the VOCAs. In such a case, we wanted to ensure that they had the correct vocabulary. It would be unfair to the witness to allow comment which criticised him for his choice of words, or not using a certain word, if his choice was limited by the vocabulary on his machine. We needed to explore the possibility of adding certain words, which in turn had to be done as early as possible to give the witness time to familiarise himself with where they were on the machine; essential words such as parts of the body, “friend” and “partner”, “I don’t know” and “I would like a break.”
Under the Disability Discrimination Act 2010 the court is a “service provider” and has an obligation to make “reasonable adjustments” for disabled people. All of these issues, including the need for breaks, need to be aired at a pre-trial meeting of judge and counsel, along with any intermediaries and carers or PAs for the witnesses concerned.
In addition, once the trial started, there were disabled friends of the witnesses who wished to observe the proceedings. As the judge observed, every one had a right to observe criminal proceedings in the Crown Court if they wish to do so. Members of the public were “service users” too. A space was made for the observers in the well of the court; a “reasonable adjustment”.
As we prepared for trial, a case was reported involving witnesses with analogous disablilities: R v. Watts [2010] EWCA Crim 1824. In Watts, the victim, TB had such profound cerebral palsy that she could only utter occasional random words, and shouted and spat when distressed. Another victim, JR, had similar difficulties but used a VOCA which she found “irksome and tiring”. Unlike the complainants with whom we were dealing all of these complainants suffered from a mental disorder constituting mental impairment within the Mental Health Act 1983.
Before the witnesses were heard, a Registered Intermediary who had assisted people with communication difficulties for 30 years gave evidence. She explained to the jury how the evidence would be given and how the VOCAs worked. She warned the jury about the difficulties of hearing about very human subjects from a “mechanical” voice and how it would be impossible to judge witnesses the way juries often do, from inflection, demeanour, and precise choice of words.
An innovation which proved invaluable was the use of a camera placed over the shoulder of the witnesses with VOCAs. This was connected up to the court equipment and enabled what was shown on the screen to be observed by the jury and counsel and the judge as the witnesses gave their evidence.
Giving evidence in the way the witnesses did was demanding and physically exhausting for them, particularly for C, who used his head to choose a word on the screen. 20 minutes was as long as such effort could be maintained. B had a highly restricted VOCA vocabulary and an (understandable) habit of putting words together, rather than sentences. He was asked why he didn’t tell A to go to the police when he found out A had been assaulted; B’s answer was “A problem hospital brain crazy”. B’s answer meant - “I couldn’t tell A, because at the time he was in hospital because of a nervous breakdown”.
The jury sent in two notes which indicated how carefully they were going about their task. During the evidence of C the jury asked whether when the witness repeatedly said “not know”, he might mean that he “did not remember”. Secondly during the evidence of A, they asked counsel cross-examining to let the witness finish his answer before asking the next question.
Flexibility was necessary too. For A, who could speak and who relied upon those who knew him to decipher what he said, it became clear that it would help him if his PA acted as an unregistered intermediary in place of the Registered Intermediary. This reduced the effort that had been needed on the part of the witness to keep repeating himself and not be understood and kept to a minimum the time spent giving evidence.
Experienced counsel learned that well tried questioning techniques had to be put to one side. Standard methods such as questions in the alternative were not possible, such as “Are you saying that you told your mother days or weeks after this happened?”
This case also made demands of the jury. They heard evidence from and about men who were wheelchair bound, sexually active, and gay. They had to consider, as they possibly had not before, the lives of consensually sexually active profoundly disabled people. The prosecution asked the jury to conclude that a disabled man in a wheelchair was sexually predatory and manipulative.
The witnesses asked for no special favours because of their disabilities, but the jury had to consider whether their communication disabilities meant, for example, that a delay in complaining to the authorities was all the more understandable - a man in a wheelchair who could use neither his limbs nor his voice might have a very limited social circle which in this case included the defendant.
After a lengthy deliberation the jury convicted X on two of the three counts. In sentencing X, the judge indicated that this trial would never have taken place half a generation ago.
There is a bigger principle to come out of this case and that of R v. Watts however. The criminal justice system has to consider how to offer access to justice for all. We must all strive to think, not about whether disabled witnesses can fit in with the procedures of the court, but how we can amend such procedures in order to enable disabled people to be included and involved. Then the most vulnerable in society will be given a voice.
Judgment was handed down by the Court of Appeal in August dismissing the appeal by X. In contrast to the arguments put forward in R v Watts, the allowances which had to be made for the witnesses and the way in which they gave evidence did not feature in the Grounds of Appeal.
Elizabeth Smaller 9-12 Bell Yard
All three were wheelchair bound but with differing degrees of disability. They all had Personal Assistants (PAs) to try to enable them to live as independent a life as possible, but they could not move, dress, or feed themselves and every action and function required assistance. Their intellect was not affected. For the purposes of the trial, the major consideration was their severe difficulties of speech.
One complainant, “A”, could speak, but his words were intelligible only to those who knew him well and had much experience of speaking with him. “B” had a little use of one hand, and communicated by means of a Voice Output Communication Aids or “VOCA”. This is a machine on B’s wheelchair which he could operate with one hand, and with difficulty, which “spoke”.
Although it can be pre-programmed with what the person wants to say, it could not of course be used that way in court. It is a long hard struggle for him to hit every button correctly. The giving of answers would require a great deal of determination, and the receiving of them, a good deal of patience.
“C” also had no speech, and he too used a VOCA, but through a pressure pad on his wheelchair at the back of his head, which enabled him, with great effort, to select the correct word. The vocabulary of the VOCAs was limited to only 900 words.
Although we engaged and involved a Registered Intermediary as early as possible, we watched the ABE’s (Achieving Best Evidence interviews) with dismay. They were hours long, and much of the time was taken up with silence whilst the witness strived to answer. Even “yes”, could take a minute. How could we compel the jury to concentrate?
The first step in considering this issue was to work out how to tailor giving evidence to the needs of each individual witness. We knew that the witnesses rightly resented being regarded as learning disabled just because of their appearance and found it frustrating to be ignored and talked to via their PAs. They felt patronised if people imagined that they could not understand what was said to them.
With that in mind, we held a Special Measures meeting with the Crown Prosecution Service and each witness individually. A note was taken at the time and disclosed to the defence. At the meeting we did not discuss the case but simply tried to work out the way for the witnesses to give their best evidence.
All witnesses agreed that they were happy to come into the courtroom, rather than be in a remote live link room. Each sought a screen between them the defendant. A, B and C also all agreed that they thought that they could give evidence live - with one crucial caveat - they needed to be given enough time. This was clearly a concern for each of these men, who have found all their lives that even if asked a question, people often do not have time to hear their answer.
Disabled access at many courts is difficult. Moreover, because the defendant was coming to court in a wheelchair too, this case optimally required differing routes of disabled access to keep the defendant and the witnesses separate. In addition the usual screen could not be used because the witnesses could not use the witness box. There also needed to be access on the same level to facilities during a break.
Other pre-trial preparations involved the VOCAs. In such a case, we wanted to ensure that they had the correct vocabulary. It would be unfair to the witness to allow comment which criticised him for his choice of words, or not using a certain word, if his choice was limited by the vocabulary on his machine. We needed to explore the possibility of adding certain words, which in turn had to be done as early as possible to give the witness time to familiarise himself with where they were on the machine; essential words such as parts of the body, “friend” and “partner”, “I don’t know” and “I would like a break.”
Under the Disability Discrimination Act 2010 the court is a “service provider” and has an obligation to make “reasonable adjustments” for disabled people. All of these issues, including the need for breaks, need to be aired at a pre-trial meeting of judge and counsel, along with any intermediaries and carers or PAs for the witnesses concerned.
In addition, once the trial started, there were disabled friends of the witnesses who wished to observe the proceedings. As the judge observed, every one had a right to observe criminal proceedings in the Crown Court if they wish to do so. Members of the public were “service users” too. A space was made for the observers in the well of the court; a “reasonable adjustment”.
As we prepared for trial, a case was reported involving witnesses with analogous disablilities: R v. Watts [2010] EWCA Crim 1824. In Watts, the victim, TB had such profound cerebral palsy that she could only utter occasional random words, and shouted and spat when distressed. Another victim, JR, had similar difficulties but used a VOCA which she found “irksome and tiring”. Unlike the complainants with whom we were dealing all of these complainants suffered from a mental disorder constituting mental impairment within the Mental Health Act 1983.
Before the witnesses were heard, a Registered Intermediary who had assisted people with communication difficulties for 30 years gave evidence. She explained to the jury how the evidence would be given and how the VOCAs worked. She warned the jury about the difficulties of hearing about very human subjects from a “mechanical” voice and how it would be impossible to judge witnesses the way juries often do, from inflection, demeanour, and precise choice of words.
An innovation which proved invaluable was the use of a camera placed over the shoulder of the witnesses with VOCAs. This was connected up to the court equipment and enabled what was shown on the screen to be observed by the jury and counsel and the judge as the witnesses gave their evidence.
Giving evidence in the way the witnesses did was demanding and physically exhausting for them, particularly for C, who used his head to choose a word on the screen. 20 minutes was as long as such effort could be maintained. B had a highly restricted VOCA vocabulary and an (understandable) habit of putting words together, rather than sentences. He was asked why he didn’t tell A to go to the police when he found out A had been assaulted; B’s answer was “A problem hospital brain crazy”. B’s answer meant - “I couldn’t tell A, because at the time he was in hospital because of a nervous breakdown”.
The jury sent in two notes which indicated how carefully they were going about their task. During the evidence of C the jury asked whether when the witness repeatedly said “not know”, he might mean that he “did not remember”. Secondly during the evidence of A, they asked counsel cross-examining to let the witness finish his answer before asking the next question.
Flexibility was necessary too. For A, who could speak and who relied upon those who knew him to decipher what he said, it became clear that it would help him if his PA acted as an unregistered intermediary in place of the Registered Intermediary. This reduced the effort that had been needed on the part of the witness to keep repeating himself and not be understood and kept to a minimum the time spent giving evidence.
Experienced counsel learned that well tried questioning techniques had to be put to one side. Standard methods such as questions in the alternative were not possible, such as “Are you saying that you told your mother days or weeks after this happened?”
This case also made demands of the jury. They heard evidence from and about men who were wheelchair bound, sexually active, and gay. They had to consider, as they possibly had not before, the lives of consensually sexually active profoundly disabled people. The prosecution asked the jury to conclude that a disabled man in a wheelchair was sexually predatory and manipulative.
The witnesses asked for no special favours because of their disabilities, but the jury had to consider whether their communication disabilities meant, for example, that a delay in complaining to the authorities was all the more understandable - a man in a wheelchair who could use neither his limbs nor his voice might have a very limited social circle which in this case included the defendant.
After a lengthy deliberation the jury convicted X on two of the three counts. In sentencing X, the judge indicated that this trial would never have taken place half a generation ago.
There is a bigger principle to come out of this case and that of R v. Watts however. The criminal justice system has to consider how to offer access to justice for all. We must all strive to think, not about whether disabled witnesses can fit in with the procedures of the court, but how we can amend such procedures in order to enable disabled people to be included and involved. Then the most vulnerable in society will be given a voice.
Judgment was handed down by the Court of Appeal in August dismissing the appeal by X. In contrast to the arguments put forward in R v Watts, the allowances which had to be made for the witnesses and the way in which they gave evidence did not feature in the Grounds of Appeal.
Elizabeth Smaller 9-12 Bell Yard
X is physically disabled. He had spent time campaigning for disabled rights. Last year, a jury convicted him of having seriously sexually assaulted others in the community far more profoundly disabled than himself. Elizabeth Smaller considers the issues raised by the trial
The case of X involved three witnesses who fitted every criteria of vulnerable. All suffered with cerebral palsy, a condition which affects motor development and amongst other things creates severe difficulties of speech making giving evidence in the conventional way impossible.
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