C17: Vulnerable clients and witnesses

Question 1

What does a witness need to be in order for their evidence to be received by the court?

Answer 1

Competent

Question 2

What does a witness being compellable mean?

Answer 2

If they can be required to give evidence and will suffer a penalty if they refuse to testify.

Question 3

According to which act will witnesses be vulnerable?

Answer 3

Youth Justice and Criminal Evidence Act 1999

Question 4

According to YJCEA 1999, which witnesses are vulnerable?

Answer 4

1. All child witnesses (U18)
2. Evidence is likely to be diminished because they suffer from a mental disorder or have significant impairment of intelligence/social functioning
3. Evidence is likely to be diminished because have a physical disability/disorder

Question 5

Can defendants be categorised as vulnerable witnesses?

Answer 5

No, according to s16 YJCEA 1999.

Question 6

How old does a witness have to be to give sworn evidence?

Answer 6

14 years or older

Question 7

What is an ABE interview?

Answer 7

Achieving Best Evidence interview, during which a child will be asked to explain the difference between truth and lies via video-recorded interview.

Question 8

What are the options for a child to give evidence?

Answer 8

1. Video recorded interview
2. Live link
3. Behind a screen at court

Question 9

Can a child be cross-examined by an unrepresented defendant?

Answer 9

No, they cannot.

Question 10

What is the presumption for mentally unwell witnesses and child witnesses?

Answer 10

That they are competent to give evidence - this is rebuttable.

Question 11

When would a mentally unwell witness be not able to provide a intelligible testimony?

Answer 11

If they cannot:
- understand questions put to them
- give answers which can be understood

Question 12

What is the burden of proof for the competency of the witness and who does it sit with?

Answer 12

On the balance of probabilities and it lies with the party calling the witness.

Question 13

What is the first and second category of witnesses who are considered ‘vulnerable’ under YJCEA 1999?

Answer 13

1. s16 Young/mentally or physical unwell
2. s17 Intimidated due to fear or distress about testifying

Question 14

Who automatically qualifies as an intimidated witness under YJCEA 1999?

Answer 14

Complainant in a sexual offence

Also, witnesses to knife and gun crimes

Question 15

What does providing for special measures do?

Answer 15

Improves the quality of the evidence.

Question 16

What 7 kinds of special measures are available for witnesses?

Answer 16

1. Screens around witness box
2. Live link evidence
3. Private evidence
4. Removal of wigs and gowns
5. Video recorded evidence-in-chief or cross-examination
6. Examination through an intermediary
7. Use of communication aids

Question 17

Who cannot be excluded from the court when a witness is giving evidence in private?

Answer 17

The accused and their lawyers
The interpreter to assist the witness
A court reporter

Question 18

What must an intermediary be to a witness and what must they not be?

Answer 18

They must be impartial and neutral and not a witness supporter.

Question 19

Can a spouse or civil partner give evidence on behalf of their partner?

Answer 19

They are always competent and compellable to give evidence on behalf of the accused, unless they’re also charged.

Question 20

Can a spouse or civil partner be made to give evidence against their partner?

Answer 20

They are competent but not compellable to give evidence against the accused. There are exceptions.

Question 21

What are the exceptions to when the spouse or civil partner may be able to give evidence against their partner and be compellable?

Answer 21

When the accused is charged with:

• an assault to the spouse/civil partner
• an assault on a person under 16
• a sexual offence on a person under 16
• attempting or conspiring to commit the above offences.

Question 22

What is a ‘protected witness’?

Answer 22

Either the complainant in a sexual offences case or someone who is a witness or is a child.

Question 23

What is the rape shield?

Answer 23

A protection against the defence to stop them from examining them about their past sexual behaviour that doesn’t relate to this incident.

Question 24

Can sexual history be used in court as evidence?

Answer 24

No, unless:

1. it is a relevant issue in the case apart from an issue of consent
2. it is an issue about consent and the sexual behaviour took place at the same time
3. it is an issue of consent and the complainant’s sexual behaviours is so similar that it cannot be a coincidence
4. sexual behaviour needs to be explained

AND

there is a risk of reaching an incorrect conclusion if this is not considered.

Question 25

What is a ground rules hearing?

Answer 25

A part of case management, a grounds rules hearing sets ground rules for the conduct of questioning.

Question 26

Where are witness anonymity orders in statute?

Answer 26

Coroners and Justice Act 2009

Question 27

Why are there witness anonymity orders?

Answer 27

To deal with the growing problem of witness intimidation.

Question 28

How can witnesses become anonymous?

Answer 28

• Witholding their name
• Using a pseudonym
• Screening the witness
• Disguising the witness’s voice by modulation

Question 29

Who is protected by reporting restrictions?

Answer 29

Under 18 year olds
Victims of sexual offences
Victims of female genital mutilation
Victims of modern slavery/human trafficking

Question 30

Is a defendant an competent and compellable witness int heir defence?

Answer 30

They are competent but not compellable.

Question 31

What happens if a defendant fails to give evidence?

Answer 31

Adverse inferences may be drawn against them (CJPOA 1994)

Question 32

When does s35 CJPOA 1994 not apply to defendants when they fail to give evidence?

Answer 32

When the physical or mental state of the defendant makes it undesirable for them to give evidence or when guilt isn’t in issue.

Question 33

Why are appropraite adults necessary?

Answer 33

Young or vulnerable suspects may be prone to falsely incriminating themselves at a police station, through fear or lack of understanding.

Question 34

When can defendants give evidence by live link?

Answer 34

If all the below apply:

1. Is in the interests of justice
2. Defendant is not capable of being a witness, due to a mental problem of a SIGNIFICANT social/intelligence problem
3. Live link will help be a witness.

Question 35

If the defendant is under 18, when can they give evidence by live link?

Answer 35

The same as an adult, but SIGNIFICANT is only COMPROMISED by their level of intelligence/social problems.

Question 36

Can an appeal be based on the fact that the defendant should have had an intermediary?

Answer 36

Yes, it can.