FAILING TO TAKE STEPS IN RELATION TO A VULNERABLE WITNESS RENDERED THE TRIAL UNFAIR: COURT OF APPEAL DECISION

In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 the Court of Appeal set aside a judgment when the court had not appreciated that a key witness was a vulnerable witness and that steps needed to be taken to assist her.  The rules relating to vulnerable witnesses were extended to civil proceedings last year, see the posts here and here.  It is an issue for all practitioners to take into account at the case management stage.

“…the duty to identify any party or witness who is a vulnerable person, and to assist the court to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished, extends to all parties to the proceedings and their representatives. “

THE CASE

The appellant was the mother of children subject to care proceedings.  After a seven day hearing findings were made against her.   She appealed those findings.  Because of Covid the appellant had never met her solicitor or counsel prior to the hearing and gave evidence remotely. However, after the hearing it became clear that she was a vulnerable witness and steps should have been taken to assist her during the course of the evidence.  There was an application to amend the grounds of appeal to plead procedural unfairness.

THE COURT OF APPEAL DECISION

The Court of Appeal granted permission to amend the grounds of appeal and allowed the appeal on this basis, there being no need to consider any of the other grounds of appeal.

The Court set out the initial grounds of appeal.

(1) Procedural irregularity/unfairness – The court made findings against the intervener which exceeded those sought in the schedule of findings and did not provide any reason for doing so, and the intervener has had significant findings made against her in proceedings not related to the welfare of her child and in which no relevant social work evidence was produced.

(2) The court departed from the view of the expert Dr Goddard’s opinion in respect of the injuries caused to J and provided no reasoned judgment for disregarding Dr Goddard’s view and reaching a different conclusion.

(3) The court has erred in its application of the facts.

(4) The court has fallen into speculation and made findings which have no base in facts.

(5) The court has made findings in respect of the injuries which are contradictory and are such that have no basis in the evidence, cannot reasonably be explained or justified and is one that no reasonable judge could have reached.

(6) The court failed to give proper consideration to Y’s failure to attend to give evidence and failed to properly draw adverse inferences which would have significantly affected the findings made.

1. 1. On 24 September, Peter Jackson LJ refused permission to appeal on the first ground but granted permission on grounds 2 to 6. The appeal hearing was fixed for 23 November and directions given for the filing of skeleton arguments.

1. 1. On 10 November, A’s solicitors filed an application for permission to amend the grounds of appeal by adding a new ground based on procedural irregularity/unfairness in the following terms:

“The appellant has cognitive difficulties which were unidentified. Dr Josling [a forensic psychologist] has assessed that the appellant may be assisted by an intermediary and an appointment with Communicourt for assessment is due to take place on 18 November 2021. The court made findings against the appellant in proceedings where the appellant’s cognitive issues were not considered or adjustments made to ensure her fair participation. The findings are therefore unsafe.”

In addition, they sought permission to file a redacted cognitive and psychological assessment of A and an intermediary assessment from Communicourt once that became available, together with an amended skeleton argument. These various applications were listed for determination at the hearing of the appeal.

The amended ground of appeal: procedural unfairness

1. 1. In the event, the issue raised in the proposed additional ground of appeal featured prominently at the hearing. In view of the conclusion we have reached, it is convenient to consider this issue first.

1. 1. The origin of the application to add the new ground of appeal lay in two reports which were prepared in the course of proceedings relating to J and his brother on joint instructions from the local authority and solicitors acting for A and for the children. The copies of the reports filed in support of the application were heavily redacted, although we were told that leading counsel for the local authority had seen unredacted copies of both reports. The first report, dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:

“We are not recommending any special measures to enable [A] to participate in a hearing although she is likely to take benefit from there being regular breaks in the proceedings so that information can be explained to her in words that she can understand. Important information pertaining to the proceedings may need to be explained to her more than once. Professionals should ask her to repeat, using her own words, what has been said to her so that they can confirm her understanding.”

The second report, dated 7 September 2021, prepared by Dr Indira Josling, a consultant clinical and forensic psychologist, included the following paragraph:

“[A]’s cognitive functioning assessment showed that she is better at perceptual reasoning than verbal reasoning; she prefers written and verbal information to be presented in clearer formats extra time given to her to assimilate the material. Her full comprehension of what she may be reading may need further support and time and would not necessarily be immediate. I ensured that I gave [A] adequate time on all of her assessments to enable her to do so. I would also question whether she may need a separate assessment for dyslexia which may also present as a learning need. FSIQ score was assessed as being 88, low average. [A] may therefore require an advocate or intermediary in formal meetings, interviews and assessments to help assimilate written and verbal material and her comprehension needs may be better accommodated if other forms of communication were to be used e.g. flow diagrams, charts etc.”

1. 1. On 18 November, A attended an assessment meeting with an intermediary employed by Communicourt Ltd. On 22 November, the day before the appeal hearing, an email was received by A’s solicitors from Communicourt in the following terms:

“I am recommending an intermediary for [A]. As she has difficulties with:

-processing long sentences
-understanding court specific terminology
-understanding and responding to complex grammatical structures
-understanding complex vocabulary
-processing simple verbal information
-remembering key dates, and often gets the detailed confused.”

1. 1. On the basis of these assessments, Ms Suzanne Kelly, who represented A before the judge and before this Court, submitted that her client had hidden cognitive difficulties which were not apparent during these proceedings. She informed us that A had been able to give clear instructions and appeared to understand the advice provided and the proceedings. Towards the end of A’s evidence, Ms Kelly had some concerns that she might have some difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a result of the Covid-19 pandemic, she and her instructing solicitors had never met A in person before the appeal hearing. All instructions had been taken over the telephone.

1. 1. A attended the fact-finding hearing remotely in accordance with the practice adopted in the family courts during the pandemic. She gave her evidence sitting alone in a room in her solicitor’s office. Ms Kelly took us to a number of passages in the transcript which, she submitted, demonstrated that it was recognised that A was on occasions finding giving evidence difficult. Ms Kelly asserted that, had the court been aware of her client’s cognitive difficulties, provisions would have been put in place for her and this would have led to a different outcome at the hearing. Thus Ms Kelly submitted that the hearing before the judge was flawed, that A should have had an intermediary present with her in court and that, prior to the court hearing, there should have been a ground rules hearing where submissions could be made as to the best way to receive her evidence.

1. 1. These assertions are, of course, all made “after the event“, after A had serious findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms Sally Stone QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds. She relied on the fact that no one had expressed concern about A’s cognitive functioning or understanding at any stage in the proceedings up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her solicitors and to participate fully in the hearing. Ms Stone took us to a number of examples in the transcript where, she suggested, it is clear that the appellant was competent to give evidence. Ms Stone drew attention to A’s use of language and to her ability to answer back, for example at one point saying “I’m not having you put words into my mouth”. Ms Stone also contended that A’s use of various words (“insinuate”, “tendency”) shows that she had a good command of vocabulary. In the circumstances, Ms Stone submitted that there was no reliable evidence that A was denied a fair trial.

1. 1. For the mother, Ms Poonam Bhari opposed both the application to amend the grounds and the substantive appeal, adopting the submissions made by Ms Stone.

Discussion

1. 1. In recent years, courts and tribunals across the English and Welsh legal system have recognised the need to make due provision for vulnerable persons to participate in proceedings. In family proceedings, the rules are set out in Part 3A of the Family Procedure Rules, “Vulnerable Persons: Participation in Proceedings and Giving Evidence”, introduced in 2017 and supplemented by Practice Direction 3AA (“PD3AA”). There is no definition of “vulnerability” in the rules, but the provisions plainly extend to persons with comprehension difficulties of the sort identified by Dr Josling in her assessment of A.

1. 1. It is necessary to set out the rules in some detail. Rule 3A.4, headed “Court’s duty to consider how a party can participate in the proceedings”, provides:

“(1) The court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.

(2) Before making such participation directions, the court must consider any views expressed by the party about participating in the proceedings.”

Rule 3A.1, headed “Interpretation”, provides that ‘participation direction’ means:

“(a) a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings; or

(b) a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8 ….”

1. 1. Rule 3A.5, headed “Court’s duty to consider how a party or a witness can give evidence”, provides:

“(1) The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.

(2) Before making such participation directions, the court must consider any views expressed by the party or witness by giving evidence.”

In the interpretation section in rule 3A.1 it is stated that:

“references to ‘quality of evidence’ are to its quality in terms of completeness, coherence and accuracy; and for this purpose ‘coherence’ refers to a witness’s or a party’s ability in giving evidence to give answers which address the questions put to the witness or the party and which can be understood both individually and collectively.”

1. 1. Rule 3A.6 makes provisions for protected parties which are not relevant to this appeal. Rule 3A.7, headed “What the court must have regard to”, provides, so far as relevant to this appeal:

“When deciding whether to make one or more participation directions the court must have regard in particular to

…

(b) whether the party or witness

(i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;

….

(c) the nature and extent of the information before the court;

(d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;

(e) whether a matter is contentious;

(f) the age, maturity and understanding of the party or witness;

…

(j) any characteristic of the party or witness which is relevant to the participation direction which may be made;

(k) whether any measure is available to the court;

(l) the costs of any available measure;

(m) any other matter set out in Practice Direction 3AA.”

1. 1. Rule 3A.8, headed “Measures”, provides inter alia:

“(1) The measures referred to in this Part are those which

…

(d) provide for a party or witness to participate in proceedings with the aid of an intermediary;

(e) provide for a party or witness to be questioned in court with the assistance of an intermediary, or

(f) do anything else which is set out in Practice Direction 3AA.”

“Intermediary” is defined in rule 3A.1 as meaning:

“a person whose function is to

(a) communicate questions put to a witness or party;

(b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and

(c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions.”

1. 1. Rule 3A.9, headed “When the duties of the court apply and recording reasons for decisions made under this Part”, provides:

“(1) The court’s duties under rules 3A.3 to 3A.6 apply as soon as possible after the start of proceedings and continue until the resolution of the proceedings.

(2) The court must set out its reasons on the court order for

(a) making, varying or revoking directions referred to in this Part; or

(b) deciding not to make, vary or revoke directions referred to in this Part, in proceedings that involve a vulnerable person or protected person.”

1. 1. Rule 3A.10(1) provides that “an application for directions under this Part may be made on the application form initiating the proceedings or during the proceedings by any person filing an application notice.”

1. 1. These provisions in the rules are supplemented by PD 3AA. Paragraphs 1.3 and 1.4 of the PD provide:

“1.3 It is the duty of the court (under rules 1.1(2); 1.2 &1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.

1.4 All parties and their representatives are required to work together with the court and each other to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability as defined with reference to the circumstances of each person and to the nature of the proceedings.”

Paragraph 3.1 gives guidance about the assessment of a person’s vulnerability and its impact on their participation in the proceedings. Sections 4 and 5 of the PD give guidance about participation directions, including, with regard to participation other than by way of giving evidence, directions about the structure and timing of the hearing and the formality of language and, with regard to giving evidence, the convening of a ground rules hearing and directions about the conduct of cross-examination.

1. 1. These comprehensive provisions are of fundamental importance to the administration of family justice. As paragraph 1.3 of PD 3AA makes clear, the court’s duty to identify any party or witness who is a vulnerable person arises not only under the express provisions in Part 3A of the FPR but also under the overriding objective provisions in Part 1. (It is notable that the equivalent, albeit more succinct, provisions subsequently inserted in the Civil Procedure Rules are specifically contained within the overriding objective provisions in Part 1 of those rules supplemented by Practice Direction 1A.) The duty is to identify such persons “at the earliest possible stage”, an obligation reinforced in proceedings under Part IV of the Children Act by the requirement in the Public Law Outline in Practice Direction 12A to consider the need for directions as to special measures and intermediaries at the initial case management hearing.

1. 1. It is equally clear that the duty to identify any party or witness who is a vulnerable person, and to assist the court to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished, extends to all parties to the proceedings and their representatives. It will almost invariably be one of the parties or their representatives, rather than the court, who first identifies that a party or witness is or may be vulnerable. We consider that good practice requires the parties’ representatives actively to address the question of whether a party is vulnerable at the outset of care proceedings. Indeed, as social workers will as a matter of course be looking for vulnerabilities in families as part of their practice, it is to be hoped that this issue will be identified before care proceedings are started. We recognise, however, that it is often not easy to identify vulnerabilities and that professionals dealing with urgent and difficult situations in families will have to contend with a large number of issues. For that reason, we consider that, to comply with the obligation under rule 3A.9, the judge conducting the case management hearing at the start of care proceedings should as a matter of course investigate whether there are, or may be, issues engaging Part 3A of the rules and that the parties’ advocates should as far as practicable be in a position to respond. Furthermore, rule 3A.9 stipulates that the court’s duty continues to the end of the proceedings. There will therefore be other points at which the court may have to address the issue – for example, where another party is joined to the proceedings.

1. 1. These rules are well established and understood by judges and practitioners. Usually, where a ground rules hearing is convened, experienced advocates will agree on the correct process for which they will seek judicial approval. Of particular importance to many vulnerable witnesses will be the need for frequent breaks and also the need for straightforward questions, rather than several questions wrapped up in one. The judge will be careful to ensure that recommendations made in respect of a vulnerable witness are followed. Intermediaries will sit with the vulnerable witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and sitting for two or more hours without a break are commonplace, must be alive to the fact that most witnesses have never previously experienced the court process and that vulnerable witnesses may become overwhelmed by it.

1. 1. We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child) [2019] EWCA Civ 1997 at [53]:

“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.”

1. 1. It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.

1. 1. Returning to the case under appeal, we have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings, greatly extended by the problems caused by the Covid-19 pandemic. For reasons which it is unnecessary to spell out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone records, and police disclosure. Given the particular care which the judge devoted to ensuring that X had a fair opportunity to give her evidence, we feel confident that she would have adopted an equally careful approach to A’s evidence had she been aware of her difficulties. In the event, no party or legal representative identified the possibility that A was or might be a vulnerable person because of impaired level of comprehension and we are satisfied that she was fairly treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A’s legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they are unable to meet them in person. In this case, A’s difficulties were not immediately evident to Ms Kelly who only became concerned about her client’s level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A’s difficulties only became apparent in the subsequent assessments carried out by Dr Josling and Communicourt.

1. 1. Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.

1. 1. In her judgment, the judge observed that assessing the parties’ evidence was not a straightforward matter and at times it was “very difficult to identify the truth”. The judge’s attribution of responsibility for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a significant possibility that this evaluation would have been refined if not revised by knowledge that A had difficulties of comprehension as a result of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was substantially based on the judge’s assessment of A’s evidence, from which she drew a number of conclusions adverse to A’s credibility. These included conclusions about (1) the reasons A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate seriousness; (3) her account of how on the evening of 19 January she had noticed the abrasion to J’s arm but not the abrasion on his face; (4) her failure to inform school staff about the injuries, and (5) the delay of forty minutes in reporting the injuries to social services. It is likely that the judge’s interpretation of A’s acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A’s intellectual and communication problems. Most striking of all is the judge’s description of A as being “very deflective” during her oral evidence, “able to answer the question in a way that lost the actual question”, manipulative and “very calculating”. There is at least a significant possibility that this assessment would have been different had the judge known of A’s difficulties as subsequently explained by Dr Josling.

1. 1. We therefore grant A permission to amend her grounds of appeal and to adduce the evidence relating to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity set out in the amended ground. It is important to stress that we are not saying that the judge’s findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.

1. 1. In those circumstances, we have decided that it is neither necessary nor appropriate to consider the remaining grounds for which permission has already been granted. Having concluded that the judge’s decision was unjust because of procedural irregularity, there is no point in this Court conducting a critique of the judge’s findings. If there is to be a rehearing of the fact-finding hearing, it would be unhelpful for this Court to make any observations about the findings we are setting aside.

1. 1. Where findings are set aside on appeal on procedural grounds, the normal practice is for a rehearing to take place before a different judge. That may well be appropriate in this case which involves serious allegations of assault of a child which if proved would plainly give rise to a likelihood of significant harm to any child in the care of the perpetrator. We were informed, however, that S is now settled in her family and the local authority has no plan to remove her. We were also told that, in the care proceedings concerning J and his brother, an expert parenting assessment is due to be completed very shortly. J and his brother remain at home with their mother under interim supervision orders. It may therefore be the case that, notwithstanding the serious allegations which the local authority has rightly brought before the court, a rehearing would be neither proportionate nor in the interests of any of the children in these two proceedings.

1. 1. We are not in a position to make a decision about this, not least because the proceedings concerning A’s children are not before us. It will, however, be a difficult decision involving a number of conflicting issues. Accordingly, the best course is to remit these proceedings to the Family Division Liaison Judge for the South-Eastern Circuit, Williams J, and to invite HHJ Nisa to transfer the proceedings concerning A’s children to Williams J so that he can reach a decision as to whether there should be a rehearing of the fact-finding hearing as to the cause of J’s injuries and, if so, to allocate the proceedings and the hearings as he thinks fit.