The extent to which the Criminal Justice system is changing its priorities with regard to witnesses was highlighted notably in a case in Winchester Crown Court. The case involved a complainant who is a vulnerable witness with mental health difficulties and had been assessed as requiring an intermediary. Despite this having been identified long ago the first available date when an intermediary with the appropriate experience and expertise would be able to be present at court to assist her was six months after the trial date first assigned. Apparently there are only 2 or 3 such intermediaries available in the country. Intermediaries are self employed and have no obligation to accept work offered to them, so there can be no question of forcing co-operation or sanctions for someone who is not available. The Court has its targets to think of, and the Defendant was in custody with custody time limits expiring but without an intermediary available to assist the complainant the Crown had no option but to apply to break the fixture. A measure of the seriousness with which a witness’s needs are now considered is demonstrated by the fact that reluctantly, and expressing frustration as to the unavailability of an intermediary and the inadequacies of the system, the Court did indeed break the fixture and extend the custody time limits.

Such an approach would undoubtedly receive the Court of Appeal’s approval. Huge publicity has surrounded the collapse of high profile cases of systematic abuse of vulnerable witnesses and cases where complainants have proved unable to cope with the system and even gone so far as to commit suicide. The system has been called upon to change. The recent case of R v Lubemba [2015] 1 W.L.R. 1579 has Lady Justice Hallett stating “Considerable progress has been made in terms of the provision of training for judges and advocates. The aim of the training, which all Judges who try cases involving vulnerable witnesses are expected to undergo, echoes the aim of the Toolkits. The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process.’ (my emphasis). In this, Lubemba built upon the progress made in the case of R v Barker [2010] EWCA Crim 4 where a specially constituted court of the Court of Appeal considered vulnerable witnesses’ evidence and noted “The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard…’ This approach has been endorsed in the case of R v Wills [2012] 1 Cr.App.R. 2 which also endorsed the Advocacy Training Council’s report “Raising the Bar: The Handling of Vulnerable Witnesses, Victims and Defendants in Court’ and the Toolkits compiled as to how to treat vulnerable witnesses and referred to by Hallett L.J in Lubemba. These toolkits have been endorsed by the Lord Chief Justice himself in the Criminal Practice Directions Amendment No 2 which includes the unequivocal statement “All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can.’ The provisions for pre-trial cross examination of witnesses in certain cases are currently being piloted in various court centres.

The Bar is doing what it can to train advocates under this new regime although the logistics (and expense) of such an exercise is proving complex and significant. It is likely that within the next couple of years advocates will have to prove they have been trained to deal with vulnerable witnesses if they are to receive publicly funded work involving serious sexual offences. The question of ticketing advocates in the same way as Judges if they are to conduct sexual offences trials is under consideration.

It’s a brave new world which involves a whole new way of thinking. Crucially, the assumptions have to be dispensed with that in some way Defendants are prejudiced in the fairness of their trials by these arrangements. Once sufficient intermediaries with the requisite abilities are available and delays are not being occasioned, these changes have significant benefits for Defendants.

In the first place, Defendants can seek the same benefits if they themselves are vulnerable. The Defence will need to get assessments to show the vulnerability asserted but if this can be proved then the same access to intermediaries (albeit not registered as working under a different system) and the same consideration at a ground rules hearing and the same methods of questioning can be employed as for any Crown witness, thereby enabling a Defendant to take an active role in their own Defence and to give evidence without being subjected to confusing or inappropriate questioning.

In the second place, if certain questions or methods of questioning cannot be employed then the Courts are finding a variety of ways to correct the imbalance and assist the Defence in setting out their case. It can be a powerful tool for an advocate after limited questioning of a vulnerable witness to explain to the jury that because of the witness’s limitations they cannot put their case but then to set it out so the jury hear it – in this manner – un-contradicted. Agreed documents containing lists of matters recorded in the unused material that might previously have only been able to be put to a witness and then if denied put to no further use, can now be placed before the jury to allow for their consideration. Undoubtedly further strategies will have to be formulated and considered as new experiences give rise to the need.

Above all, the Bar and Solicitor Advocates can relish the fact that we are currently in charge of the training and development of these measures. Recent systems of evaluating advocates imposed upon the professions have a poor history of success. Whilst we are involved and in the driving seat we can ensure the changes are fit for purpose as well as effective.