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A day in the life of a DDJ: vulnerable witnesses

6 February 2017

Our resident deputy district judge columnist explains how she approaches vulnerable litigants in person, and how she expects advocates to behave in their dealings with them.

With the cuts to public funding, no longer can judges rely on people being legally represented in court. Litigants in person (LiPs) require extra time and sensitivity from the court, especially if they are dealing with personal problems too, or simply when they face advocates on the other side. 

It is important that the judge does not assume the LiP knows what is happening. I need to explain procedure from the outset; put them at ease; speak in plain language; and place them on an equal footing with their opponent, whilst remaining neutral throughout. LiPs may have no knowledge of their rights and options, and are inevitably at a disadvantage when presenting their case; they may also have difficulty navigating or understanding court processes. It is obviously crucial that I explain any orders to them, so they leave court knowing what happens next.

There has been some publicity in recent years about cases involving applicants enduring cross-examination by their alleged perpetrators. It is essential that, as judges, we ensure that the evidence can be heard and challenged, but also that we achieve parity and fairness for both sides. In those circumstances, I ask the LiP to make a list of any relevant questions they wish to ask. Those questions which are appropriate I then ask on their behalf. The responses to those questions are directed to me. Obviously, I do not make their case for them, and the same rules of evidence apply to both sides.

It takes awareness and assertiveness to prevent people from feeling intimidated, or being unnecessarily confrontational during questioning, and to ensure parties are not denied the opportunity of giving their account out of fear or duress. This is particularly difficult in emotive cases involving children or violence. Routinely, I now see families in court without lawyers, who have no idea what lies ahead, and with the future living arrangements of their children and/or safety at stake. These families have to present their case to a judge hoping for the best. This must be a terrifying prospect. The court cannot advise and must be non-partisan, so striking the right balance between providing assistance, and controlling the court room and progressing the case, is essential. But it takes time, skill and experience.

When such witnesses have health or other personal issues, and have difficulty managing their daily lives - let alone coping with a court case - it is an even bigger challenge for judges, who must do their best to empathise with the witness, administer justice on the information available, and use their crafted people skills to manage the parties and the process in a way that enables the case to be aired fully.

Moreover, any children involved in proceedings (ie Children Act cases) have a right to an outcome that is in their best interests, and their welfare is paramount. The judge’s role inevitably becomes more interventionist, but it is also more time-consuming and stressful. I worry about the decisions we are expected to make in cases where the parties have had no legal assistance, and where there may be other unknown evidence available which may assist the court (medical expert evidence that cannot be afforded by the LiP, for example). Yes, we have case management powers to help, but poor preparation, inadequate statements and LiPs floundering with the formalities of the court is not conducive to the early settlement or the straightforward determination of the matter.

I have noticed that advocates don’t always engage with the LiP opponent. Of course, the advocate can’t advise the LiP, but there is no disloyalty to their client in trying to find common ground with the LiP and treating them with respect and not as the enemy. LiPs don’t have to be lawyers to be capable of negotiating. I think some advocates assume that with an LiP, no settlement is likely, that there is a risk in talking to them and being misunderstood or of their exchanges being misrepresented. Likewise, some LiPs can feel intimidated by advocates too. 

When advocates question vulnerable witnesses, it should be very straightforward - treat them as human beings and with courtesy, have patience and try to place yourself in their shoes. Whoever and wherever we are, I believe in treating others as we would wish to be treated. There is no place in court or need for disrespecting or taking advantage of the vulnerable.