A vital role to play

Happily it did not disappoint.

The conference – which was held in London on 20 June 2015 and which I attended on behalf of the Young Barristers’ Committee – brought together a large number of professionals across a broad spectrum of areas and disciplines, including those from the legal profession, psychologists, academics and registered intermediaries.

The majority of sessions covered both the criminal and family jurisdictions, where the issue of witness vulnerability is regularly grappled with by practitioners. Among those contributing on the day were ATC chairman, Mr Justice Green, Professor David Ormerod QC and, from the family jurisdiction, Charles Geekie QC.

Developments in both the criminal and family jurisdictions are ongoing, with reforms in the family system, in particular, currently being considered. It rapidly became clear how far behind the family courts currently are when compared to their criminal counterparts in addressing the issue of witness vulnerability, with the use of intermediaries and the generally high level of support provided to vulnerable individuals in the criminal courts providing examples of this. There was also a session on vulnerable witnesses in the commercial and civil courts, delivered by Felicity Gerry QC.

Presentations were given by professionals from all over the UK and Australia. These reminded us how much we can learn from the approach and experience of other countries in the area of witness vulnerability – the mediation model used in family proceedings in Australia and New Zealand, for example.

Of particular interest was the presentation by Vicki Bahen on the designated Child Witness Service set up in Victoria, Australia, in 2009. Staff experienced in working with children, and with a background in child psychology, befriend and assist children who are giving evidence and who have experienced trauma. They conduct research into the experience of the children at court. A similar government body in the UK could be invaluable to the criminal and family courts, although given the potential costs involved, it is questionable whether such a body will become a reality in the near future.

Use of intermediaries

The most interesting part of the day concerned the use of intermediaries, which are increasingly common in criminal proceedings where vulnerable witnesses are called to give evidence: their assistance often proves invaluable. It was fascinating to learn from Dr Camille Warrington, a researcher and lead for young people’s participation in the research of child sexual exploitation, violence and trafficking, the extent to which the use of emotional and anxiety state management techniques can assist in preventing what can effectively become the re-traumatisation of a witness when giving evidence.

Intermediaries are a much underused resource within the family courts; learning how the criminal courts use their assistance was eye-opening, in particular the presentation given by registered intermediary Dr Kimberly Collins. It was, however, apparent that there remains room for further reform within the criminal jurisdiction. Conor Gillespie, the chair of a working group to devise a Northern Ireland toolkit for vulnerable witnesses, questioned whether maintaining an adversarial approach when dealing with vulnerable witnesses is tenable in the longer term. Psychologist Dr Brendan O’Mahony discussed the appropriateness of allowing practitioners actually to formulate their own questions; he observed that many counsel may assume that they know more about the communication needs of vulnerable complainants, witnesses and defendants than they actually do. It was notable that studies undertaken in Australia have concluded that the responses of children in particular, to cross-examination, is much more positive with an intermediary present, than without.

Sticking points

Sir James Munby, the President of the Family Division, in his “view from the President’s chair”, said that the family system is currently “woefully and shamefully” behind our criminal counterparts in terms of our handling of vulnerable witnesses. The problem identified by the President was that family specialists believe we are good at identifying cases where witness vulnerability is an issue and addressing it, whereas in fact we are very bad at it.

The work undertaken by the Vulnerable Witnesses and Children Working Group was described, as were the issues arising from the imposition of legal aid cuts which, it is feared, will lead to situations where perpetrators who cannot afford their own legal representation will have to cross-examine their own victims. Surely the government needs to consider a reserved system of funding for legal representation in such circumstances? This was specifically noted by the Master of the Rolls in the recent decision of K and H (Children) [2015] EWCA Civ 543. In contrast to the family courts, the criminal jurisdiction has had the benefit of a statutory regime governing and regulating the way in which vulnerable witnesses give evidence (although this does not encompass defendants). There is, of course, no similar provision in the family jurisdiction, with the senior judiciary essentially having had to alter the way that children giving evidence in family cases is approached through case law, perhaps most notably in Re W (Children) [2010] UKSC 12. Prior to Re W, there remained a presumption against children giving evidence in the family courts.

The irony, as pointed out by Charles Geekie QC, is that although the family court exists to protect the best interests of children, the current provisions in place in relation to children giving evidence in family cases actually create the risk that the process will itself result in further damage to the child. A session presented by Dr Kimberly Collins, forensic psychologist, describing how re-traumatisation can occur as a result of giving evidence, only acted to consolidate the point.

Different approaches

The real benefits of the day came from the comparison of the various professional approaches taken by the criminal and family jurisdictions, with the presentations given by Conor Gillespie, Charles Geekie QC and Professor David Ormerod QC providing some innovative views on how those approaches can be altered and improved.

As Green J identified in his opening remarks, change is needed and the impetus for central change in the handling of vulnerable witnesses has to come from the legal profession itself, not from government. It is notable that the ATC has been planning a new training program to address witness vulnerability well before the Lord Chancellor’s announcement in September 2014 that public funds should only be available to advocates in serious sexual cases who had undergone accreditation training. The ATC recommended back in April 2011 (Raising the Bar: the handling of vulnerable witnesses, victims and defendants in court) a compulsory system of accrediting, or “ticketing”, advocates suitably trained, qualified and experienced in the handling of vulnerable witnesses and defendants. The suggestion was not adopted by the Bar at the time. In 2013, the ATC set up the Rook Working Party to devise a voluntary training course for those who chose to take advantage of it.

I came away from the conference recognising the need personally to undertake further professional training in the area of vulnerable witness handling; the reality is that such training needs to be regular and, I would say, compulsory for all legal professionals practising advocacy in the criminal and family courts. Standards must improve and must be maintained and the ATC can take a central role in this respect. Further education in this area is a necessity, with family practitioners in particular needing to take the initiative and actively seek out and promote training and development in the handling of vulnerable witnesses in court. Just as the ATC set up a working group for crime (HHJ Rook), it has set up one for training for family advocates (Newton J).

It can only be hoped that the conference, which was such a success, will become an annual fixture in the calendar. It would be fascinating to return in 12 months’ time to gauge the extent to which any developments and changes have taken place. I am certainly more alive now to the reality of the current situation and the need for change via both reforms of the system and continuing professional education, where the ATC clearly has a vital role to play.

Contributor Michael Jones