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Where can one find the law about vulnerable participants?

The legal basis on which the courts, in England and Wales, deal with vulnerable participants are:   

  1. Statute law.  The Youth Justice and Criminal Evidence Act 1999, sections 16-35 (i) establishes eligibility (sections 16 and 17), (ii) sets out what special measures are available for the court to order and (iii) defines the relevant standard. The quality of a witness’s evidence means its quality in terms of completeness, coherence and accuracy.  ‘Coherence’ means the witness’s ability in giving evidence to give answers which address the questions put to the witness and that can be understood both individually and collectively (section 16(5)). The Act applies only to prosecution and to defence witnesses in the criminal courts.  Sections 33A and 33B of the 1999 Act (added by section 47 of the Police and Justice Act 2006) provides for eligible defendants to give evidence by live link.  Otherwise there is no statute law in effect which deals with vulnerable defendants in the criminal courts or with vulnerable participants in the family and civil courts.

  2. Rules and Directions. Criminal Procedure Rules and Practice Directions (and Family Procedure Rules and Civil Procedure Rules) set out the procedure to be followed (and the criteria to be applied) when adapting the trial process for vulnerable participants.  The Rules and Directions are continually under review and are regularly updated.  Only the latest version should be consulted.

  3. Judicial Aids. The Equal Treatment Bench Book and Crown Court Compendium provide extensive guidance for the judiciary in how to adapt procedures when there are vulnerable participants.  The editions are regularly updated and can be accessed on the internet

  4. Case law. A number of Court of Appeal decisions have ‘filled in the gaps’ in establishing the responsibility of trial judges and the duty of advocates.  Cases which established key principles are listed below with a link to the full judgment.  Further cases are listed in the archive section.​

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How are advocates to approach the questioning of vulnerable witnesses?

‘The forensic techniques of the advocate... have to be adapted to enable the child to give the best evidence of which he or she is capable.’ 

R v B [2010] EWCA Crim 4, [42] (Lord Judge CJ)

 

If the defence wish to challenge the evidence it can be done with ‘short, simple questions which put the essential elements of the defendant’s case to the witness’. 

R v B, [42] (Lord Judge CJ)

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'Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination'.

R v B, [42] (Lord Judge CJ)

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'[T]he witness need not understand every single question or give a readily understood answer to every question.'

R v B, [38] (Lord Judge CJ)

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'Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right "to put one's case" or previous inconsistent statements to a vulnerable witness. If there is a right to "put one's case" (about which we have our doubts) it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness'

R v Lubemba; R v JP [2014] EWCA Crim 2064, [45] (Hallett LJ)

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‘[T]he section 28 [pre-recorded cross-examination] procedure and the modern regime for cross-examining vulnerable witnesses has led to a sea change in advocacy techniques.  Advocates must adapt to the needs of the witness and ask questions in the manner and form approved by the judge, but... it does not follow from that fact that a defendant cannot have a fair trial’

R v PMH [2018] EWCA Crim 2452, [19] (Hallett LJ)

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‘There is nothing inherently unfair in restricting the scope, structure and nature of cross-examination or in requiring questions to be submitted in advance in any case involving a child witness or a witness who suffers from a mental disability or disorder’

R v Zafer Dinc [2017] EWCA Crim 1206, (Hallett LJ)

What level of competence are judges entitled to expect from advocates and when is it not professional for an advocate to conduct a case involving vulnerable witnesses?

In cases involving vulnerable witnesses, the judge must take into account the fact that the advocate ‘will have undergone specific training and must have satisfied himself or herself before continuing to act for the defendant or in continuing to prosecute the case, that the training and experience of that advocate enabled him or her to conduct a case in accordance with proper professional competence.  Such competence includes the ability to ask questions without using tag questions, by using short and simple sentences, by using easy to understand language, by ensuring that questions and sentences were grammatically simple, by using one ended prompts to elicit further information and by avoiding the use of tone of voice to imply an answer’. 

R v Rashid [2017] EWCA Crim 2, [80] (Lord Thomas CJ)

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