Civil Justice Council - Vulnerable witnesses and recommendations for change
The Civil Justice Council has published its report into the problems that vulnerable witnesses face in civil courts.
The Civil Justice Council (“CJC”) has published its report into the problems that vulnerable witnesses face in civil courts. It is a detailed piece of work, running to 155 pages and setting out 18 recommendations.
Although the report considers issues arising from the vulnerability of parties and witnesses in all types of civil litigation, its provenance lies in a specific recommendation of an interim report issued by IICSA and it is the CJC’s recommendations for greater protection of litigants who are survivors of child sexual abuse that is the focus of this update. Some of the key recommendations include:
- CPR/procedure - a new practice direction directly addressing vulnerability in a way that gives assistance to litigants in person and representatives with the identification of circumstances in which a court may consider a party or witness to be vulnerable and some of the steps/measures which can be taken to give assistance.
- Costs – an amendment of the definition of proportionality in CPR r.44.3(5) to include additional work/expense generated by the fact of vulnerability of parties/witnesses.
- Training – specifically for judges and legal representatives in relation to vulnerability (detection, case management, conduct of hearings, advocacy).
- Ground rules - a requirement to consider ground rules for the giving of evidence by any vulnerable witness (e.g. pre-submitted questions, limiting the length of cross-examination, questioning conducted by the judge).
- Criminal convictions of perpetrators – in claims where there is a conviction in respect of assault or abuse, the court should clarify the basis (if any) upon which any conviction is being challenged and consider what issues properly remain for determination and what orders should be made in respect of the evidence to be adduced. Such consideration should include the extent to which evidence within, or transcripts of, the criminal trial should form the evidence considered by the court and a requirement that the defendant presents his/her evidence first.
- Compensation Orders - the Judicial College should consider the need for guidance/training/re-enforcement of training for judges regarding the ability of the criminal court to make a compensation order to a victim of a sexual offence in respect of which.
One issue that clearly vexed the CJC was the potential for cross-examination of victims by self-represented perpetrators. In criminal proceedings a defendant is prevented from cross-examining the complainant if the charges are in respect of sexual offences. The Government has also proposed measures in family proceedings to prohibit direct cross-examination of a victim by any party who has been convicted of a specified offence. The CJC was concerned that the diversity of civil cases made a ban on cross-examination more difficult. Instead, it has recommended a presumption that such cross-examination will not be permitted in civil claims but with a residual discretion to allow it having regard to the breadth of the civil jurisdiction.
This is an in-depth piece of work and it will be a vital read for all relevant stakeholders, to include judges and practitioners across both civil and criminal jurisdictions.