The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses.  There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here Professor Penny Cooper considers the issues and what guidance is  currently available to the civil courts to assist vulnerable witnesses.

“Special measures law and procedure in civil cases: Overdue or over-engineering?

In England and Wales, the statutory provisions, rules and practice directions for vulnerable witnesses and parties are, to be frank, a hotchpotch.  Across the justice system there is a complex array of law, rules, practice directions and guidance relevant to the treatment of vulnerable witnesses and parties. There are no statutory special measures for vulnerable witnesses in the civil courts.  The Chair and the Panel of the Independent Inquiry Child Sexual Abuse want that to change. Is primary legislation really necessary for special measures in civil trials? And, who is going to foot the bill?

Primary legislation for “the same protections” as in crime

On 25 April the Independent Inquiry Child Sexual Abuse (‘IICSA’) issued its interim report.

At page 79 it says:

The Chair and Panel recommend that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.
The Chair and Panel understand that cost is already a barrier to victims and survivors considering a civil claim. In considering how to fund the implementation of this recommendation, the Ministry of Justice must ensure that this barrier is not further increased.
The Chair and Panel recommend that the Civil Procedure Rule Committee amends the Civil Procedure Rules to ensure that judges presiding over cases relating to child sexual abuse consider the use of protections for vulnerable witnesses.”

The “same protections as vulnerable witnesses in criminal court cases” – presumably then special measures in sections 24 to 30 of the Youth Justice and Criminal Evidence Act 1999 (though not “removal of wigs and gowns” as they aren’t worn at civil trials anyway) i.e.

  1. screening a witness;
  2. evidence via live link (with an accompanying supporter if necessary);
  3. evidence given in private;
  4. video recorded evidence in chief;
  5. video recorded cross-examination and re-examination;
  6. using an intermediary to facilitate communication;
  7. the use of communication aids.

Prohibiting the cross-examination of a claimant by the unrepresented defendant 

Chapter 5 (page 57) of IICSA’s interim report says:

“Victims and survivors are being asked to provide evidence on the abuse they suffered in an often challenging setting ‒ for example, they can be cross-examined by an unrepresented perpetrator. This is in contrast to a criminal court, where the Youth Justice and Criminal Evidence Act 1999 sets out a range of measures designed to help vulnerable witnesses provide their evidence in court (such as providing pre-recorded evidence).”

The IICSA Chair and the Panel also want to see new legislation, for civil sex abuse claims, prohibiting an unrepresented defendant from cross-examining the claimant (the equivalent of section 34 of the YJCEA 1999 prohibiting the person charged with a sexual offence in criminal proceedings from cross-examining the complainant).

The family courts have been struggling with this issue for years and “where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory” – see Jackson J in D (Appeal : Failure of Case Management) [2017] EWHC 1907 (Fam). “Proposals to address the problem of a litigant in person who wishes or needs to cross examine a witness were contained in clause 47 of the Prison and Courts Bill which, in the event, fell when Parliament was dissolved prior to the General Election in 2017.”  McFarlane LJ in J (DV Facts) [2018] EWCA Civ 115.

Existing civil procedures rules – are they sufficient?

In practice civil judges already make directions to adjust the trial process to enable people to participate. For example, in Connor v Castle Cement & Ors [2016] EWHC 300 (QB) the court used an intermediary to help plan the questioning of the vulnerable claimant. The claimant was due “to give evidence via video-link from near his home in France” however “it soon became apparent that he would not be able to provide any evidence at all” (paragraphs 53 and 54).

Civil judges have been making adjustments for years. One QC told me that his father, now a retired high court judge, went to the bedside of an ill witness to hear their evidence. That was decades ago, long before anyone started talking about special measures for vulnerable witnesses and long before the Civil Procedure Rules (CPR).

The CPR set out the court’s duty to manage the case and the judge’s discretion to make necessary adjustments:

  • The court’s overriding objective (CPR 1.1 (1)) is to deal with cases justly and at proportionate cost
  • The court must further the overriding objective by actively managing cases (CPR 1.4)
  • The judge controls the evidence including the way it is placed before the court (CPR 32.1)
  • The general rule is that witnesses give their evidence orally in public (CPR 32.2) but the court’s general powers of management include a wide discretion to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective” (CPR 3.1(2)(m))
  • the court “may allow a witness to give evidence through a video link or by other means” (CPR 32.3)

In Kimathi & Ors v Foreign and Commonwealth Office [2015] EWHC 3684 (QB) the judgment adopted the criminal procedure language of ‘special measures’ and ‘ground rules’.

There has been a toolkit about civil cases and vulnerable people since 2015 and David’s Wurtzel provides civil case summaries on The Advocate’s Gateway.

In theory primary legislation is not necessary for the civil courts, just as family courts have not been held back from directing special measures even though there is no statutory framework there either. But family judges can’t direct that public funding is made available for a special measure. If there is no money, there are no measures. (Cooper, 2018).

Who pays for special measures?

In practical terms, civil courts aren’t set up for special measures even though the rules allow the directions to be made. For example:

  • How does one identify and pay for a suitable for venue for video recording a claimant’s evidence? (Borrowing facilities at a local police station ABE interview suite to record the claimant who is a survivor of sexual abuse is unlikely to be desirable).
  • How does one identify a suitably qualified and experienced intermediary?
  • Who is going to pay their fees?
  • And so on…

In crime, where there is special measures legislation, (mostly) the court infrastructure has been put in place to allow them to be used. However, huge cuts to the MOJ budget have had a knock-on effect for special measures in crime.  Take for example vulnerable witness intermediaries for criminal cases. Not only are the Registered Intermediaries in short supply but, compared to a few years ago, MOJ intermediary training and support is now a poor shadow of what it was.  The Ministers are not able to fund it like they used to.  I am not optimistic that the Government would feel any obligation to put resources into special measures in civil courts. As things stand in the civil courts, a party would need not only a special measures direction from the judge but also to be able to pay for it.

In civil cases, legislation to prevent cross-examination of vulnerable witnesses by unrepresented defendants is needed though wholesale import of criminal law provisions is not necessary and would be a case of over-engineering. Legislation and rules are one issue but the bigger one is surely funding.”

© Penny Cooper

Professor of Law, Barrister and door tenant at 39 Essex Chambers