Children and vulnerable witnesses: YJCEA 1999 Pt and ABE guidance
The first article in this series of two dealt with where special provision might be appropriate for children and vulnerable witnesses in family proceedings and how, procedurally, that might be dealt with. This article looks at the type of measure which the court might provide for such witnesses in family proceedings, and these are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems yet to have put its mind to.
As Lady Hale explained in R (D (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393 the existing common law remedies are, for the most part, summarised and authoritatively set out in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2. The 1999 Act and its supporting ABE guidance set out the respective definitions of vulnerable and intimidated witnesses (ss 16 and 17, and including children under 18). They explain the ‘special measures’ available under the Act and at common law to help witnesses give their best evidence set out in YJCEA 1999 ss 23-30 (as explained below). An abbreviated version of ‘measures’ for vulnerable adults (only) in family proceedings appears in FPR 2010 r 3A.8(1).
Divergence from the general rule for giving evidence in family proceedings and the call for ‘control’ (or where Pt 3A applies, a participation direction) arises from the extent to which the court directs measures (as summarised in the table below) to help vulnerable witness to maximise the quality of their evidence.
‘Control’, measures and divergence from a general rule
The criterion for the court in diverging from the general rule and in directing any special measure relates to maximising quality of a vulnerable witness’s evidence. The common law has long had a variety of measures available to it (see Lady Hale in R (D (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR at ). To avoid the ‘normal… of court-room confrontation’ and to maximise the quality of a witness’s evidence Lady Hale described common law measures in family proceedings (‘long more flexible than other proceedings in this respect’ (sic)) in Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948 (Lady Hale at ):
- Hearsay evidence (and see Civil Evidence Act 1995; FPR 2010 Pt 23)
- ‘accounts in videotaped conversations with specially trained police officers or social workers’ which can be ‘extended to other vulnerable witnesses’; and ‘could include the facility to have specific questions put to the witness at the request of the parties’.
- ‘oral questioning… which did not involve face to face confrontation’.
Terminology in relation to children and vulnerable witnesses is derived from YJCEA 1999 (mostly in ss 16 and 17): children and adults defined as eligible for assistance. A case management direction for a ‘special measure’ (and much the same can apply for family proceedings for vulnerable witnesses outside Part 3A) and a participation direction (FPR 2010 r 3A.8(1)). The terminology in YJCEA 1999 Pt 2 is explained in 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 procedurally, for criminal proceedings, ‘special measures’ is dealt with in Criminal Procedure Rules 2015 Pt 18 and its practice directions.
‘Control’ under r 22.1(1)(c) (set out in first article) depends on which of the measures available to the courts judges and magistrates allow. Screens have long been permitted in court proceedings.
‘Special measures’ and ABE guidance
The ABE guidance sets out and discusses use of the various ‘special measures’ available under YJCEA 1999 ss 23 to 30 (at paras 5.2 to 5.8); and application for witness anonymity at para 5.12. The ‘special measures’ available for direction under YJCEA 1999 s 18(1)(a) are:
(1) preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);
(2) allowing a witness to give evidence by live link (s 24; ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
(3) hearing a witness’s evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
(4) video recorded evidence (s 27);
(5) questioning a witness through an intermediary (s 29);
(6) using a device to help a witness (eg because deaf or mute) to communicate (s 30).
Table: measures for evidence of vulnerable witnesses and children
|Measure||Rule 3.8A||Other source|
|Screen to prevent witness seeing, or being seen, a party||(1)(a)||YJCEA 1999 s 23; ABE guidance para B.9.1|
|Live-link (video-link or conferencing) for evidence and cross-examination||(1)(b)||FPR 2010 r 22.3 and PD22A; YJCEA 1999 s 24; ABE B.9.4|
|Hearing a witness in private||YJCEA 1999 s 25; ABE B.9.12|
|Video-recorded evidence||YJCEA 1999 s 27; ABE B.9.17|
|Assistance of an intermediary||(1)(e)||YJCEA 1999 s 29; ABE B.9.29; Criminal Procedure Rules 2015 Pt 18 and PD I F|
|Aids to communication||(1)(c)||YJCEA 1999 s 30; ABE B.9.38|
|Cross-examination by pre-written questions||MFPA 1984 s 38G(6); H v D  (below)|
|Hearsay evidence||FPR 2010 r 23.2|
|Judge/court assistance with examination of witness||MFPA 1984 s 38G(6)|
Measures for assistance of vulnerable or intimidated witnesses
Notes on these measures for children and vulnerable witnesses follow:
- Evidence by live-link (‘video link’ or ‘video conferencing’) is provided for in family proceedings (r 22.3; and see Annex 3 to PD22A). This is explained more fully in the Police Guidance at para 5.7.2 and in ABE Guidance at para B.9.4. The witness’s evidence is relayed live into the court-room while he or she is in another room or out of the court altogether. They are away from the presence of the party whose presence may be thought to intimidate them. Directions could be made for this evidence to be heard at a different location (from the court) and on a different occasion from any final hearing (FPR 2010 r 4.1(3)(f); for special arrangements for a child to be asked questions on behalf of a defendant see R v Lubemba & Ors  EWCA (Crim) 2064,  1 WLR 157).
- Video-recorded interviews are to be distinguished from ‘live-link’ evidence. Subject to court direction they can be used to provide evidence in chief, if the interview has been properly conducted; or sufficiently properly conducted (Wolverhampton City Council v JA & Ors  EWFC 62, Keehan J). Their use in children proceedings is already well-known and frequently used in children proceedings. If the video interview is the evidence in chief, permission from the court will be required to dispense with a statement from the witness/party (r 22.6(1)).
- Cross-examination by pre-written questions – Questions in place of cross-examination may be by list submitted to the judge in advance; and may be directed as part of case management (H v D (Appeal – Failure of Case Management)  EWHC 1907 (Fam), Peter Jackson J; and see MFPA 1984 s 31G(6)).
- Hearing a witness in private – That some family hearings are in open court (eg divorce and some FLA 1996 Pt 4 (domestic abuse) and FGM proceedings) recalls that the hearing of a vulnerable witness in such cases may be called for.
- Assistance with communication – eg for deaf or mute witnesses.
- Intermediaries – Assistance from an intermediary is considered by ABE Guidance B.9.29-37; but is dealt with relatively fully in the practice direction to Criminal Procedure Rules 2015 at CPD I which includes (at paras 3F.1 and 3F.2) the following on the ‘Role and functions of intermediaries’:
- Intermediaries are independent of parties and owe their duty to the court. The court and parties should be vigilant to ensure they act impartially and their assistance to witnesses and defendants is transparent.
- Intermediaries facilitate communication with witnesses and defendants who have communication needs.
- Their primary function is to improve the quality of evidence and aid understanding between the court, the advocates and the witness or party to proceedings (eg they often advise on the formulation of questions so as to avoid misunderstanding)
- They may actively assist and intervene during questioning. The extent to which they do so (if at all) depends on factors such as the communication needs of the witness and skills of the advocates in adapting meet a witness’s needs.
Making the measures effective: witness assessment and funding
The court has power to order these measures, whether at common law or under Part 3A. There are two fundamental conditions precedent to any special measures (or ‘participation’) direction: (1) assessment and (2) funding. Neither of these has been thought through by HM Courts and Tribunal Service and the rule-makers. The latter have no power over to deal with funds, but before setting out the rules they might have given funding some thought. All the litigant gets on the subject is the redundant and thoroughly charmless (no-one who understands the law would imagine a family proceedings rule could provide funding for litigation) r 3A.8(4):
(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.
Cost to HM Courts and Tribunal Service remains an issue while conferencing facilities and other necessary IT equipment are elusive. Whether HMCTS are amenable to judicial review for failing to fund special measures in individual cases remains a subject for further research.
Assessment of a witness must precede any direction for special measures. This may be by the court doing the best it can, which is hardly good enough; or, subject to any funding (again…; and for assessment questions, see eg Re S (Child as Parent: Adoption: Consent)  EWHC 2729 (Fam) Cobb J (assessment of understanding to consent to adoption of a child mother with learning difficulties); and see Family law: capacity to consent, this may be – must be? – done professionally.
Whatever may be the course available to the party who wishes to call the witness – for unlike in criminal proceedings where CPS can fund assessments and certain special measures – the assessment must be done with care, as explained by Sir Ernest Ryder, Senior President of Appeals, in the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1123. For example the court must be aware of:
- The way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and
- The importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done).
Professional assistance must be required; but in private law proceedings who is going to pay; and that is before the question of the cost of IT, equipment for recording evidence (eg of children or victims of domestic abuse), court video equipment (surely cannot be very expensive?), fees for an intermediary and so on is even touched upon. At least one YJCEA 1999 ‘special measure’ available in open court proceedings – namely, getting judges and advocates to take off their gowns and wigs (for advocates who wear wigs) while children or vulnerable witnesses give evidence (YJCEA 1999 s 26) – is free….