It is incumbent on a system of justice to protect the vulnerable and the disadvantaged. The suicide of Frances Andrade in January 2013 was a wake-up call for everyone in the criminal justice system, which many perceived had failed her abysmally. It has inevitably shed light on the treatment of vulnerable witnesses in our civil courts too.

The case of Frances Andrade – a vulnerable witness and child abuse victim

Having just finished giving evidence against Michael Brewer at his criminal trial, whom she accused of abusing her when she was a child, Andrade took an overdose of prescription drugs and died three days later. She did not live to see Brewer convicted of offences against her. In cross examination, Brewer – through his barrister – accused Andrade of being a liar and a fantasist. Andrade had texted a friend after her ordeal in court saying that the experience had made her feel like she had been “raped all over again”.

Andrade had a known history of mental health problems, and her treatment as a victim of crime is not uncommon. Traditionally, witnesses are required to relive their traumatic experiences in the unfamiliar, very formal and sometimes hostile environment of a court room. However, this is not just a problem for the criminal justice system which – as we will see – has taken pro-active steps to address the issue of vulnerable witnesses.

The family courts and our civil courts are also daunting and unfriendly places, where very personal issues, often traumatic to the individual concerned, are ventilated in a similar way. Advocates and the judiciary in criminal and family cases are changing the way they practice. Lawyers like me – representing people in child abuse compensation cases – also have clients and witnesses who are vulnerable, and it is time that we also re-appraised the way that justice is done in our cases and our courts.

Personal experience from child abuse claims

I have personal (and very recent) experience of clients who have decided to take an offer against my advice (because it is too low), in order to avoid the trauma of a trial.  Through representing survivors of child abuse in compensation claims, my clients have often already undergone a bruising experience in the criminal courts. Many will come to me as damaged individuals with long-standing psychological problems.

We have to be sensitive to our clients in the way we interview them and interact with them generally before their case ever gets anywhere near a courtroom. Many psychiatrists believe that the stress and trauma of the litigation process can prolong or exacerbate the psychological symptoms with which our clients suffer. The whole reason I – and my colleagues at Bolt Burdon Kemp – do this work, and represent the people we do, is to help them recover from the appalling trauma they have experienced. It is difficult if not unpalatable to know that the very process we use to help our clients is also a means of their torment.

We must work together to ensure that our justice system, whilst remaining robust, is not abusive to those who participate in it. Claimants and defendants may be vulnerable, and this needs to be recognised and our processes adapted to accommodate them to deliver a fair result.

The NSPCC’s campaign to protect vulnerable witnesses

The NSPCC has launched a campaign to protect child witnesses in cases where they have alleged they are the victim of abuse. The charity cites examples of advocacy which did not apply expected good practice and it makes for grim reading.

One mother, Erica, says that the barristers for both prosecution and defence were so insensitive in their questioning that one day in the witness box destroyed her children’s self confidence which took years to re-build. Concern is expressed that the presiding judge must have taken the view that there was nothing wrong with this and did not step in.

Such examples are being used as part of a campaign to demand better treatment of child witnesses. The same issues have been raised by a few practitioners for a long time and are now, finally, being heard by the judiciary. It is vital that witnesses in all proceedings are supported to be able to give their best evidence.

Pilot schemes for vulnerable witnesses in criminal cases

A pilot scheme which allows vulnerable witness’s cross-examination to be pre-recorded is running in three crown courts – Kingston, Leeds and Liverpool. The judges are ‘vetting’ the cross-examination questions before they are put. Subject to a positive evaluation, the Justice Minister has pledged to roll out the scheme for child witnesses throughout England and Wales. In addition, the Ministry of Justice has announced that by March 2015 it will devise a requirement that publicly funded criminal advocates undergo specialist vulnerable witness training before being allowed to take on sexual assault and rape cases.

Toolkits for use in family cases to protect vulnerable witnesses

The Interim Report of the Children and Vulnerable Witnesses Working Group, set up by Sir James Munby, President of the Family Division was published in August 2014. It draws on the experience of the Advocacy Training Council after a decade’s research into the treatment of vulnerable witnesses in criminal cases. There are 20 recommendations, largely taken from the toolkits prepared and published by the Advocate’s Gateway. The findings are a lesson for the civil courts dealing with claims for personal injury and I hope that it is only a matter of time before civil proceedings involve similar measures. The toolkits demonstrate that the new approach does not inhibit cross examination and that fair trials are perfectly achievable.

The new European Directive on vulnerable witnesses

Interestingly, by November 2015, EU member states will need to have demonstrated that they have modified their domestic laws to give effect to the Directive 2012/29/EU. This Directive establishes minimum standards on the rights, support and protection of victims of crime by adopting various means, combining legislative, administrative and practical measures, and taking into account good practices in the field of assistance and protection for victims. To begin to understand how this might interest civil practitioners, it is worth noting that, for the purpose of the directive, a victim is defined as follows:

  • a natural person who has suffered harm (including physical, mental or emotional harm or economic loss) directly caused by a criminal offence — regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them
  • family members of a deceased victim, who have suffered harm because their loved one’s death was directly caused by a criminal offence. The criterion ‘harm’ should be interpreted in the context of the individual emotional relationship and/or direct material inter-dependence between the deceased victim and the relative(s) concerned.

Family courts are now leading the way on protecting vulnerable witnesses

The Family Court working group makes it plain:

“There is a pressing need for us to address the wider issue of vulnerable people giving evidence in family proceedings, something in which the family justice system lags woefully behind the criminal justice system. This includes the inadequacy of our procedures for taking evidence from alleged victims, …….processes which we still tolerate in the Family Court are prohibited by statute in the Crown Court”.

The President of the Family Division has proposed training for judges and advocates communicating with children and other vulnerable witnesses, increased support for such witnesses and the more effective and efficient use of court time. The practical application of the work of the Advocacy Training Council to the family justice system is already underway in the form of general guidance for family lawyers and advocates being prepared by the Advocates’ Gateway as a toolkit for use in family proceedings. The use of intermediaries and of pre-recorded oral evidence, for example, will:

enable vulnerable witnesses to participate in the hearing in a manner that best meets their needs by ensuring that the evidence they give is the best evidence achievable”.

If the family courts are to follow the criminal court example by virtue of the efforts of a few practitioners, the effect of the Directive will make that process inevitable and so, by extension, civil proceedings – including those for child abuse compensation – will need to adapt and adapt soon. In my view, this applies as much to the preparation stages of litigation as it does to the presentation of cases in court. It is perhaps obvious to say that a case cannot properly settle if the evidence has not been collected properly and advocates cannot rely on an assumption of expertise in this difficult field of law.

It is perhaps amazing that it has taken so long for the English courts to progress to enable vulnerable people to effectively participate in proceedings and remarkable that such change has been led by the criminal rather than family courts. For civil practitioners, it is a brave new world; child abuse and personal injury lawyers need to engage with, and be a part of the conversation.

This is an edited version of an article written by Jonathan Wheeler and Felicity Gerry QC, published by the Association of Personal Injury Lawyers in PI Focus, November 2014, volume 24, issue no. 9, pages 14 to 17 under the title “Rough Justice”. Jonathan would like to extend his thanks to Felicity Gerry for her help in writing this article.