Sea-change in advocacy

The handling of issues around vulnerability and the approach to such witnesses involve specialist skills. Special measures to assist vulnerable witnesses to give their best evidence have been a conspicuous success. Witnesses have been able to give evidence where even half a generation ago it would have been inconceivable.

Some advocates have already acquired the necessary specialist skills. There are a growing number of excellent advocacy trainers in this area. First class materials such as The Advocate’s Gateway toolkits and the CBA training video ‘A Question of Practice’ are readily accessible. However, there are strong and justified concerns that advocacy has not evolved so as to ensure best practice is universally adopted in respect of the handling and questioning of vulnerable witnesses and defendants.

Well-publicised shortcomings have been at their starkest in respect of some sex cases at a time when over one-third of contested cases in the Crown court are in respect of sexual offences. However, the problem is not confined to sex cases as vulnerable witnesses and defendants are to be found in many different types of case. The problem needs to be addressed as a matter of urgency.

The dark days of traditional adversarial cross-examination of the vulnerable are over, and judges have been trained to adopt an interventionist approach to ensure compliance with the ground rules tailor-made for the particular vulnerable witness. In late 2013 we were invited by the Advocacy Training Council to devise a training course for all advocates who undertake cases involving the vulnerable.

Our main objective is to ensure high standards in the quality and consistency of advocacy by all advocates involved in these cases. A range of teaching courses at various levels will be developed including a compulsory basic course so as to ensure that all advocates have a common grounding in the principles underpinning best practice.      

We will then move to develop elective other courses to enable advocates further to develop their skills. In September 2014, just as we were about to promulgate our first pilot course, the Lord Chancellor made it clear that he would be announcing a requirement that all those who undertake these cases should have attended an appropriate accredited course. This will mean that advocates must attend such a course and providers must organise such courses.

The course directors are Angela Rafferty, Gillian Jones and Jo Cooper. The pilot course will focus on (i) child and vulnerable youth witnesses and (ii) vulnerable defendants. On 21 February, 32 trainers will be trained by specialist tutor trainers at the Old Bailey when six court rooms will be used. The training course itself will take place at University College London on 16 May, and representatives of the providers will be invited as observers to assist them in organising their own accredited courses.

We are heartened to have already received a positive response from the Circuits and Inns, and offers of assistance from charties such as Kids4Law, Barnardos, Victim Support, the Prison Reform Trust and the NSPCC. The course will include short lectures from experts such as legal academics and child psychologists; some of which will be delivered in person and some pre-recorded.

There will be pre-reading of legal and practical materials on child development, the ground breaking case law from the Court of Appeal underlining the importance of adapting practice to fit the needs of witnesses and the conscious adjustments that may be necessary for defendant vulnerability. These will be filmed for further use. Interactive sessions will involve examination-in-chief and cross-examination with actors taking the role of witnesses. The use of camcorders will ensure that trainees can benefit from constructive feedback in small groups.

History is full of examples of society turning the proverbial blind-eye to phenomena that were manifestly wrong. We now appreciate the flawed approach of the past in respect of the treatment of the vulnerable in court. Most acknowledge that it will only be a matter of time before every criminal advocate will have to acquire the specialist skill of handling the vulnerable as part of their basic training. In the meantime current advocates can be relied upon to make up ground as rapidly as possible and to embrace the sea-change.

HHJ Peter Rook QC