Best evidence of vulnerable witnesses: Part 1

Intimidated witnesses in family proceedings

 

This first article (in a series of two) considers the evidence of any witness in family proceedings who diverges from the general procedural rules (as explained below) for evidence in family proceedings. It concerns evidence from:

 

• witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010) rr 3A.4(1) and 3A.5(1));
• children who give evidence in their own or others’ cases (and see Children’s views and evidence , David Burrows (Bloomsbury Professional, 2017);
• witnesses who are protected parties or otherwise lack mental capacity; and
• witnesses with learning difficulties.

 

Each of these categories of witness may be entitled to special measures directed by the court. Such measures may also, in some cases, be one of  the ‘measures’ available after the court has made a participation direction under FPR 2010 r 3A.8 and in accordance with the recently introduced FPR 2010 Pt 3.

 

The evidence of vulnerable witnesses – as the above witnesses tend to be categorised by legislators and rule-makers – will be dealt with in two articles. The first will set the scene for circumstances in which the court may order assistance for children and vulnerable witnesses by ‘control’ of the way the evidence is put before the court. The second will look at the measures available to the courts at common law and within the rules to provide this assistance (‘special measures’ or ‘measures’).

 

It is worth recording here of court rules: that creation of law (such as the power of any court to direct a special measure) can only be done by common law or statute. That is to say a rule (such as FPR 2010 Pt 3A) cannot create law (unless permitted by statute to do so: see eg Senior Courts Act 1981 s 51(1) on civil proceedings costs rules). It can only regulate its procedure (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). This was asserted crisply – in this case in relation CPR 1998 – by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

27 Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

This article will therefore stress the extent to which practitioners and parties must rely on common law and statute (ie primary law), not on any rule alone, save where that rule represents – as does FPR 2010 Part 3A.8(1) – existing primary law.

 

New rules; but no funding…

 

However, as the second article in this series concludes, little headway will be made with any of this in family proceedings till its funding is resolved. This is needed, plainly, for all but the richest of parties: first to provide special measures with cost implications (intermediaries, video-link etc); and, second, for expenses of the parties for assessment of vulnerability and of the cost of any special measure. There is no offer from Ministry of Justice (which also funds Legal Aid Agency) that the extra expense inevitable in a court assessment of vulnerability and order that a special measure be directed will be met – as needed: ie in most cases – by the tax payer.

 

FPR 2010 Pt 3A (entitled ‘Vulnerable persons: participation in proceedings and giving evidence’ supported by a practice direction PD3AA) came into operation on 27 November 2017. It is limited to adult witness the quality of whose evidence may be ‘diminished’ by their vulnerability; by their lacking mental capacity or being a ‘protected party’ (per FPR 2010 Pt 15); or their suffering learning difficulties. This article casts the vulnerable witnesses net much wider than is provided for by Part 3A.

 

Measures: ‘control’ of evidence in family proceedings

 

Evidence in family proceedings is controlled by FPR 2010 r 22.1 (which is derived directly from Civil Procedure Rules 1998 r 32.1) and by certain provisions in the case management rules (FPR 2010 rr 1.4 and 4.1). These together give family courts the power to ‘control evidence’ and in particularly to give directions as to how evidence to be adduced before a family court, considerably beyond what is available in FPR 2010 Pt 3A, which, anyway, applies only to adults and suggests that only a limited pallet of measures is available to judges and magistrates. Part 3A, for example, makes no provision for the common law remedies referred to by Lady Hale in Re A (at [36] below).

 

Specifically, in terms of control of evidence, FPR 2010 r 22.1 is as follows:

 

22.1 Power of court to control evidence

(1) The court may control the evidence by giving directions as to –…

(c) the way in which the evidence is to be placed before the court.

 

If a witness is found to be vulnerable – a child or one of the classes of witness referred to at the beginning of this article, they may be eligible for assistance by direction from the court, known as ‘measures’ or, in the language of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 and earlier common law, from which many of the assistance ideas derive, ‘special measures’ (YJCEA 1999 ss 23-30). Such special measures are widely used in criminal proceedings. Though available in family proceedings (see comments of Lady Hale in Re A (below)) they are rarely used. To an extent (see Table in Part 2 (below)) they have now been proposed for vulnerable adults; whilst evidence from children still depends on common law as represented by YJCEA 1999 Pt 2.

 

Achieving Best Evidence

 

One of the principal sources for operation of the common law in family proceedings is replication of the measures available under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2; though already Family Procedure Rules 2010 (FPR 2010) r 22.3 provides, as does YJCEA 1999 ss 24 and 27. Evidence under YJCEA 1999 for children and vulnerable and intimidated witnesses is explained by Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and a guide for those collecting evidence from children and vulnerable witnesses is provided by Vulnerable and Intimidated Witnesses A Police Service Guide, March 2011, Ministry of Justice.

 

The procedures set out in Achieving Best Evidence have been commended by Supreme Court and again by Court of Appeal and Family Division judges. For example, in a passage quoted by McFarlane LJ in Re E (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, [2016] 4 WLR 105 at [47] and [48], Lady Hale said of children’s evidence:

 

[27] But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom…. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy.

 

Direct cross-examination (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157) is not essential, so long as questions are fairly put to a child witness (this requirement is available now, regardless of Part 3A; and could be copied in adult proceedings: see eg H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J). Lady Hale continued:

 

[28] … The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot. Another is cross-­examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.’

 

Vulnerable witness and the common law

 

Re W and Re E dealt with a child’s evidence. Achieving Best Evidence applies equally to all ‘victims and witnesses’ – child and adult alike – who may be entitled to help to achieve their best evidence by measures available to the common law and FPR 2010. Of a vulnerable adult witness (‘X’) in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale said:

 

[36] It does not follow [from her directing that X should give evidence], however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….

 

Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness. Lady Hale continued:

 

[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.

 

Court’s power to ‘control the evidence’: the general rule

 

The objects of FPR 2010 r 22.1(1)(c) and Part 3A together are, in relation to evidence generically, to control – or alter from the general rules for adducing of evidence – how the evidence (‘participation’ per r 3A.4 is not in question here) of a particular witness is put before the court. The general rule (which can be diverged from by order of the court: r 22.1(3)) is as follows:

 

• Evidence is oral at a final hearing before the judge or magistrates (r 22.2(1)(a)), subject to the witness’s statement having been served by the party calling him or her (r 22.4(1)). The statement is treated as the witness’s evidence in chief (r 22.6(2)).
• The witness must be available in court in person for cross-examination.
• Other than at a final hearing, evidence is in writing only (r 22.2(1)(b), 22.7(1)) but application can be made for cross-examination of a witness (r 22.8(1)).

 

Anything which diverges from this for a witness or party who is to give evidence and who is vulnerable, can only be by direction of the court under FPR 2010 rr 22.1(1)(c) or as a ‘measure’ under r 3A.8. This is dealt with under common law as set down and summarised, to a degree, in YJCEA 1999 Pt and FPR 2010 Pt 3. That direction is likely to be for a special measure to assist the witness (subject to funding any expense of assessment for, and provision of, the measure); and will be dealt with in the next part of this article.