Vulnerable Witnesses – Best Evidence John Cooper QC Barrister 25 Bedford Row
Vulnerable Witnesses – Best Evidence – John Cooper
What is Vulnerability? • Victims Code: Also apply the test in YJCEA 1999 Section 17. • Overall principle to obtain accurate evidence. • Article 6 and Article 8 ECHR. Juxtaposition of four trial rights and respect for private and family life. • Achieving Best Evidence, defining those who are vulnerable and intimidated in respect of special measures.
Ground Rules Hearings • Necessity, whether or not an intermediary • Same advocate who conducts cross examination • Preliminaries • Topics under consideration o length of cross examination o nature of questioning o “putting” the defence case o who asks the questions • The preparation of an agreed practice note • The role of the intermediary
The Role of the Judge • The Judge will be interventionist • She/He has a duty to control the questioning over-rigorous and repetitive. Cross-examination will not be tolerated • Multi-handed trials Techniques of Questioning • Language • Understanding children and know how they think • Memory • Communication • Idiosyncratic styles • Time and numbers • Understanding the passive voice • Children’s response to adults • Suggestibility See: R v Baker  EWCA Crim 4 R v Lubemba  EWCA Crim 2014
Vulnerable Witnesses Other Than Children • As defined by the YJCEA 1999 Section 17 [as amended by the Coroners and Justice Act 2009] • YJCEA 1999 Section 16(2), includes witnesses who have a mental disorder as defined by the Mental Health Act 1983 [as amended by the MHA 2007] • Witnesses significantly impaired in relation to intelligence and social functioning • Witnesses who have a physical disability, if their evidence is likely to be diminished by reason of that disability [Section 16(1)(b)]
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