Criminal practitioners frequently encounter vulnerable witnesses in their cases. The handling of the issues around vulnerability and the approach to such witnesses both involve specialist skills. Over the last decade or so, special measures to assist vulnerable witnesses to give their best evidence have been a conspicuous success. Even half a generation ago, the thought of vulnerable witnesses giving evidence would have been inconceivable.
There are a growing number of excellent advocacy trainers in this area, and some advocates are already acquiring the necessary specialist skills. First-class materials such as the Advocate’s Gateway toolkits and the CBA training video ‘A Question of Practice’ are readily accessible online. However, there are strong and justified concerns that advocacy has not evolved in a way that has ensured best practice in respect of the handling and questioning of vulnerable witnesses and defendants is universally adopted.
Well-publicised shortcomings have been at their starkest in respect of some sex cases at a time when over one-third of contested cases in the Crown Court are in respect of sexual offences. The problem, however, is not confined to sex cases; vulnerable witnesses and defendants can be found in many different types of case. Furthermore, there are many reports suggesting that standards are falling short in both the magistrates courts and the youth courts.
The problem needs to be addressed as a matter of urgency. The dark days of traditional adversarial cross-examination of the vulnerable are over, and judges have been trained to adopt an interventionist approach to ensure compliance with the ground rules tailor-made for the particular vulnerable witness.
In late 2013, the Advocacy Training Council (ATC) formed a committee, comprising of representatives from both sides of the profession, including the Law Society and SAHCA, tasked with devising a training course for all advocates who undertake cases involving the vulnerable. Our main objective is to ensure high standards in the quality and consistency of advocacy by all advocates involved in these cases. A range of teaching courses at various levels will be developed, including a compulsory basic course so as to ensure that all advocates have a common grounding in the principles underpinning best practice. We will then move to develop further elective courses to enable advocates to further develop their skills.
In September 2014, just as we were about to promulgate our first pilot course, the Lord Chancellor indicated that he would be announcing a requirement that all publicly-funded advocates who defend in sex cases will need to have attended an appropriate accredited course. This will mean that advocates must attend such a course and providers must organise such courses within a period which may be as short as two or three years.
In our view, any such requirement should apply to all advocates who undertake cases involving the vulnerable, whether they act for the prosecution or the defence, and regardless of whether the cases are publicly-funded or not. It is worth noting that, in the face of legal aid cuts, more defendants accused of sexual offences are paying for their own defence.
If the Lord Chancellor’s requirement is limited to publicly-funded advocates doing sex cases in the Crown Court, there must be some initiative from the Bar Council, the Law Society, their respective regulators and the Crown Prosecution Service to ensure that all advocates who undertake cases involving the vulnerable in the lower courts are subject to the same requirement. If all advocates are not subject to the same rule of conduct or practice, the system will fail.
In the event, no requirement was announced before the election. However, it is likely that the new government, whatever its complexion, will return to the issue. Momentum must not be lost.
The course directors are Angela Rafferty QC, Gillian Jones and Jo Cooper. The first course (the pilot), which will set the standard, will focus upon (i) child and vulnerable youth witnesses and (ii) vulnerable defendants. 32 trainers were trained by specialist tutors on 21 February at the Old Bailey over six courtrooms. The training course itself will take place at University College London (UCL).
The course will be, in part, online, including a series of pre-recorded short lectures from legal academics, child psychologists and other experts. There will be some necessary pre-course reading of both legal and practical materials. The lectures will cover child development; the ground-breaking case law from the Court of Appeal underlining the importance of adapting practice to fit the needs of witnesses; and the conscious adjustments that may be necessary for handling defendant vulnerability.
A ground rules hearing in respective of vulnerable witnesses will be filmed, and delegates will be expected to have watched the film and be prepared to act on the judges’ directions.
The critical part of the course will be various interactive sessions involving examination-in-chief and cross-examination training, with actors playing the role of vulnerable / child witnesses. Every participant will be expected to undertake some advocacy at some stage during the course.
History is full of examples of society turning the proverbial blind eye to phenomena that were manifestly wrong. We now appreciate the flawed approach of the past in respect of the treatment of the vulnerable in court. Most people acknowledge that it will only be a matter of time before every criminal advocate will have to acquire the specialist skill of handling the vulnerable as part of their basic training. In the meantime, current advocates can be relied upon to make up ground as rapidly as possible and embrace this sea-change.
About the author - HHJ Peter Rook QC
His Honour Judge Peter Rook QC was appointed to the bench in 2005, currently sitting at the Central Criminal Court. He is a former barrister, former head of chambers at 18 Red Lion Chambers and former Chairman of the Criminal Bar Association.