Judge Malcolm Simmons
The Criminal Procedure Act places a ‘special duty of care’ on investigating authorities who perceive that the accused is a minor, or a person suffering physical or mental disability or is blind or deaf or having severe speech problems or is illiterate. In the absence of any information to prove otherwise, it is deemed that law enforcement officer owes towards the minor or disabled accused a special duty of care. Article 206 extends that ‘duty’ to proceedings before the court.
In cases where the parent or guardian of the minor or disabled person need to be summoned before law enforcement authorities, it must be communicated to him/her that the purpose of summoning him/her is to (a) advise the minor or disabled person, (b) to observe the treatment the minor or disabled person receives and (c) to assist the minor or disabled person in expressing his/her own thoughts and hence assisting them to communicate.
The minor or disabled person is deemed to have applied for legal aid wherever the parent/guardian of that minor or disabled person applied on their behalf.
When considering whether a minor or disabled person shall be detained, their parent or guardian shall be provided with the opportunity to explain the negative impact of such detention and the best way which they believe the minor or disabled person should be treated in that situation and also the status of the minor or disabled person.
Anyone who is unable to defend their own interests due to physical or mental disability shall be treated in accordance with the following guidelines at both, the investigative and judicial proceedings of the case:
- Unless in the presence of the parent or guardian of that person, he/she shall not be interviewed;
- The investigating authority has the burden of ensuring that questions asked, statements given and documents produced by the accused are all consciously made;
- The mental and physical status of the detainee shall be taken into consideration and the welfare of the detainee shall be the responsibility of the relevant authority;
- Any criminal procedure which is inappropriate to the physical or mental status of the detainee shall not be applied to him/her;
- The relevant authority shall make all arrangements to ensure that the detainee does not become subjected to victimization or violence from other detainees;
- The statement of the accused shall be read in front of a person not involved in investigation or judicial proceedings of the case where the accused is blind or illiterate;
- The Court or the investigating authority shall provide a person who knows how to communicate with persons who are deaf or unable to communicate at the earliest possible opportunity where the accused is a deaf or unable to communicate in order to assist him/her.
The search of a person with a mental impairment/incapacity shall be done in the presence of his/her parent or guardian. However, this section does not prevent carrying out the search and seizing any property even in the absence of parent/guardian, in “exceptional situations”.
Search and seizure, without a parent or guardian present shall be carried out after obtaining the approval of a police officer above the rank of Sub Inspector. And if an authority other than Police is responsible for carrying out search and seizure, the approval of the Head of the Department shall be obtained.
After carrying out the search and seizure of a minor or person with mental impairment/incapacity the reason for carrying out that search shall be recorded in writing and the written record signed by both the officer conducting search and the person approving the search.
Section 206 (a) and sub section (4) refer to “physical or mental disability”. Subsection (7) refers only to “deaf or dumb”.
Section 206 (a) (4) provides that “any criminal procedure which is inappropriate to the physical or mental status of the detainee shall not be applied to him/her.” The Act does not explain further what is meant by “procedure”, “inappropriate” or “shall not be applied to him/her”.
Unless the defendant has been deemed ‘incompetent’ by the court to stand trial under Section 121, he/she must stand trial.
In practical terms, “procedure” refers to a rule of procedure. Section 206 (a) (4) of the Act does not state an accused suffering from a physical or mental disability shall not stand trial but that it may be inappropriate to apply a particular procedure.
Subsection (7) provides “the Court…shall provide a person who knows how to communicate with persons who are deaf or unable to communicate at the earliest possible opportunity where the accused is a deaf or unable to communicate in order to assist him/her.”
Section 206 (a) (4) and (7) introduce the concept of ‘intermediary’.
Intermediaries are communication specialists (not supporters or expert witnesses) whose role it is to facilitate communication between the witness and the court, including the advocates. Intermediaries are independent of the parties and owe their duty to the court. Their primary responsibility is to enable complete, coherent and accurate communication. They are expected to prevent miscommunication from arising and actively to intervene when miscommunication may or is likely to have occurred or to be occurring.
Accommodating a vulnerable person’s needs requires the court or tribunal to adopt a more flexible approach. This is an issue that might appropriately be discussed at the Preliminary Hearing.
The Act imposes on Courts safeguarding responsibilities in respect of children and vulnerable adults. The exercise of judicial discretion often has a safeguarding dimension.
All witnesses, regardless of age, are presumed competent.
Children and defendants have been shown to experience much higher levels of communication difficulty in the justice system than was previously recognised. This is also likely to be the case for vulnerable adult witnesses and the elderly.
Children and vulnerable adults under stress can function at a lower level, making it harder for them to remember accurately and think clearly.
The judiciary should be alert to vulnerability, even if not previously flagged up. Indicators may arise, for example, from someone’s demeanour and language; age; the circumstances of the alleged offence; a child being ‘looked after’ by the local authority; or because a witness comes from a group with moral or religious proscriptions on speaking about sexual activities.
Judges and magistrates should ask for relevant information, if not provided (in the case of vulnerable prosecution witnesses, by the police and Witness Care Units). Information may also be provided by parents or guardians, social workers or other professional assessments.
Courts and tribunals should adapt normal trial procedure to facilitate the effective participation of witnesses, defendants and litigants.
When necessary, the processes have to be adapted to ensure that a particular individual is not disadvantaged as a result of personal difficulties, whatever form they may take.
Decisions about how procedures should be adapted should be made as early as possible.
Flexible arrangements in respect of children and vulnerable defendants might include:
- Allowing the parent or guardian to sit with the child while he/she testifies in court;
- Allowing the parent or guardian to sit with the child while he/she testifies from a remote location
- Allowing an intermediary to sit with a vulnerable adult witness while he/she testifies in court or from a remote location;
- Permitting frequent breaks in proceedings;
- Permitting an intermediary to work alongside a defendant in the dock to help him/her to understand proceedings;
- Requesting that all witnesses be asked ‘very simply phrased questions’;
- Agreeing that a defendant with mental health issues be given brief pauses during cross‐examination to manage his emotional state and remain calm enough to respond to questions
Competence is assumed if a witness of any age is capable of giving intelligible testimony. This may require the assistance of an intermediary. The test does not require the witness to understand every question or give a readily understood answer to every question; the test is not failed because the forensic techniques of the advocate or court processes have to be adapted to enable witnesses to give the best evidence of which they are capable.
Even if competency is assumed, or ruled upon in favour of the witness by the judge, the judge is under a continuing duty to keep the matter under review and a party is not precluded from raising it during the course of the trial if justified.
Trial management powers should be exercised to the full where a vulnerable witness or defendant is involved. Be alert to the possibility that needs have not been considered or identified and ask for information to be updated if necessary.
At the Preliminary Hearing the judge should consider any special needs of the child or vulnerable adult, deal with any applications for protective measures, consider listing the case for early disposal (the capacity of a vulnerable witness to give evidence is likely to deteriorate if they are kept waiting.)
Last‐minute legal discussions should not be allowed to have the knock‐on effect of prejudicing the effectiveness of a vulnerable witness’s evidence through tiredness and stress. It is good practice to schedule the start of a vulnerable witness trial in the afternoon (enabling the trial judge to deal with any outstanding issues), with the first vulnerable witness listed promptly at the start of the second day (with further directions for other vulnerable witnesses). Even if the court has to rise early, it is a small price to pay to maximise the quality of evidence of the vulnerable witness the next morning. If there is any risk that their evidence will not start on time, they should be advised to wait on standby. It is vital to:
- Agree staggered witness start times, ensuring opening/preliminary points will be finished when the first witness’s evidence is due to start;
- Schedule testimony to start while the witness is fresh (usually at the start of the day though for some vulnerable witnesses this may be different), taking account of concentration span and the effect of any medication;
- Schedule each stage of the witness’s evidence, including breaks. Duration should be developmentally appropriate and limits may be imposed. As a general rule, a young child will lose concentration after about 15 minutes, whether or not this becomes obvious;
- Schedule a ground rules hearing. If deferred until the day of the witness’s testimony, ensure that the hearing does not add to the witness’s waiting time
The evidence a child or vulnerable adult witness gives might be improved by imposing protective measures. These should be considered at the Pre-Trial Hearing.
It is important that Protection Measures and related directions achieve their objective of helping the witness to give evidence. The normal methods are remote live link, screens and emotional support.
Remote live links
Many courts can now connect to other court buildings; some have routinely linked to a non‐court facility (with good experiences reported by judges and witnesses).
Decide what, if any, evidence needs to be taken to the remote site.
Where the witness and defendant are screened from one another in court, if it is not feasible also to shield the witness from the dock and public gallery while entering court, (s)he should be behind the screen before the defendant and members of the public are seated and leave at a different time during adjournments.
Potential benefits to witness recall and stress reduction flow from the presence of a known and trusted supporter who can provide emotional support. Courts may specify who accompanies a witness in the live link room and must take the witness’s wishes into account. This can be anyone who is not a party/ has no detailed knowledge of evidence; ideally, the person preparing the witness for court. Others may be appropriate.
The Act makes no provision for a witness to refresh his/her memory from a prior statement.
Decisions about how, when and where refreshing should take place should be made on a case‐by‐case basis. Arrangements should be judicially led.
Prior to trial confirm the timetable and that the following checks have already been made:
- All directions are in place and the person’s needs are catered for;
- The equipment is working and if a DVD is to be used, that it is compatible with equipment in the courtroom where the trial is listed;
- In the case of a vulnerable witness, that the defendant cannot be seen over live link (checked before the witness enters the live link room).
Early signs of the person’s loss of concentration may not be apparent to the court, especially over the live link. Ask the intermediary or supporter accompanying the witness or defendant to alert you.
Efforts to simplify language should not be confined to cross‐examination. Any instructions should avoid court jargon and figures of speech. Use simple language with which the person is familiar. This includes advice to a witness about to give evidence, which should be tailored to their needs and understanding, for example:
- Tell the truth. Don’t guess. Tell everything you remember;
- Say if you don’t know the answer;
- Say if you don’t understand (but do not rely on witnesses to do so. They often try to answer anyway. Be alert to non‐verbal clues to miscommunication, e.g. puzzled looks, knitted eyebrows, downcast eyes and long pauses);
- “We will take a rest in about X minutes. If you need a rest before then, tell me” (but witnesses may not ask for a break even if needed, to get things over with);
- “Tell me if you have a problem. I can always see you over the live link even when you can’t see me.”
Ensure duration of questioning is appropriate to the witness’s needs and attention span. Do not exceed the estimated time without good reason. Monitor the time approaching planned breaks, as otherwise the agreed time is often exceeded. Be alert to the need for unscheduled breaks (the need may be urgent). Giving the witness a brief rest is sometimes sufficient. Questioning may be curbed if the witness becomes seriously distressed or ill.
Be alert for possible miscommunication and ask the advocate to rephrase. Do not ask ‘Do you understand?’ as many vulnerable people do not recognise when difficulties occur or would be embarrassed to admit this. If appropriate, check directly on understanding by asking the person to explain the question.
Prevent questioning that lacks relevance or is repetitive, oppressive or intimidating.
If the advocate is unable or unwilling to adapt his or her questions appropriately despite repeated interventions, some judges exercise their duty to ensure directions are complied with by taking over and asking the advocate’s questions in a simplified way.
Remember that when hearing the testimony of children or vulnerable adults the court may depart from the usual practices and procedures in order to achieve justice.