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Research published on cross-examination of vulnerable and intimidated witnesses

Report considers how the family judiciary manage cases and what further support might be needed

The Ministry of Justice has published a research study exploring how the family judiciary manage cases with the cross-examination of vulnerable or intimidated witnesses by alleged perpetrators of abuse, and establishing what, if any, further provisions could be considered to support them in doing so.

Twenty-one semi-structured interviews were undertaken between August and October 2015 with members of the family judiciary. A workshop was held with external organisations that have experience of supporting vulnerable witnesses or litigants in person, and may be able to apply some of the findings and implications of this research to inform their own guidance or practice.

Judicial interviewees were aware of a variety of techniques to manage these cases. These included facilitating the direct cross-examination of a vulnerable witness by an alleged perpetrator of abuse, or judges relaying questions to the vulnerable witness on behalf of the litigant in person. The judiciary raised concerns that employing such practices may lead to questions about their impartiality.

Screens to separate the parties and video links to enable evidence to be given from outside the courtroom were also used, although access to these measures was perceived as inadequate and inconsistent. HMCTS legal advisors or professional McKenzie friends were used for cross-examination, as were Cafcass guardians or children's solicitors, although the latter two were deemed less appropriate. Judicial confidence in facilitating the direct cross-examination of a vulnerable witness varied based on their seniority and experience. Judges called for clearer guidance on appropriate case management practices in these cases.
The judges interviewed felt that court staff or Cafcass were more appropriately placed than they to signpost relevant external organisations for support. Organisations such as the Personal Support Unit for help navigating the court process, and Citizens Advice for legal advice, were highlighted as particularly positive examples of support for vulnerable witnesses and alleged perpetrators of abuse. It was suggested that some areas of support currently defined as legal advice, such as advising which forms to complete, could be sensibly redefined as 'legal help'. This would enable a wider range of support services to provide this assistance and allow litigants in person to make better use of the free legal advice available to them.

Concerns were raised that some perpetrators would wish to cross-examine their victim as a further form of abuse. Judges were more willing to encourage litigants in person to seek legal representation than to signpost support organisations. This was normally done by directing them to the Bar Pro Bono Unit. The criteria for gaining Exceptional Case Funding for legal representation were viewed as too narrow. Other forms of external support included duty solicitor schemes or Law Centres whose remit is to provide one session of face-to-face advice. Workshop representatives highlighted that these were no longer being used as intended and were being visited repeatedly by individuals with complex needs.

Both the judiciary and representatives from external organisations proposed that public funding should be available to provide an advocate for the purposes of cross-examination to prevent an alleged perpetrator of abuse cross-examining a vulnerable witness. Whilst some assessed that an advocate should be available in all cases where there was the possibility for this type of cross-examination, some judges felt that due to the variable nature of both the cases and the individuals involved, it was important to apply discretion with their own case management practices. Several factors were taken into account by judges when considering when a paid advocate might be required. There was general consensus that additional provisions were required in cases of the cross-examination of intimidated witnesses in severe cases of sexual or physical abuse. In other circumstances – including cases where an individual was deemed vulnerable because they had a physical disability or learning difficulty – the judiciary may consider they are able to effectively facilitate a cross-examination without an advocate.

Other solutions suggested developing an inquisitorial approach within the family justice system and for judges to be trained accordingly. The research also suggests there is scope to strengthen the links between the judiciary, the courts, and external organisations. This may involve closer collaboration between the judiciary and the Bar Pro Bono Unit to enable them to prioritise cases with highest need, or integrating professional McKenzie friends further into the court process.

Representatives from external organisations proposed the option of introducing an assessment of vulnerability for all witnesses in private family law cases. This assessment would outline the provisions required to protect the witness, ensuring needs are met and assisting the judiciary in managing these cases.

For the research study, click here.