While the general rule is that justice should be administered in public, in court, there are certain situations where a different approach is taken to protect those who are more vulnerable in our society.
What is the legal framework the court must adhere to?
The court must take “every reasonable step” to facilitate the participation of any person, including the defendant. This includes enabling people to:
- give their best evidence;
- comprehend the proceedings; and if relevant,
- engage fully with their defence.
Who is protected from being referred to in press/media reports?
Anyone in youth court proceedings is automatically protected; the court has discretion to give the same protection to any child in adult criminal proceedings. Anonymity can be granted to be effective on a lifelong basis. Also, protection is automatic for complainants in sexual offences trials, victims of human trafficking, and victims of female genital mutilation. After a conviction of a child, a court may consider removing reporting restrictions if it is “just” to do so, but only after considering the circumstances, for example, their welfare, age and the seriousness of the crime.
Why is it so important for justice, for care to be taken with young defendants?
There may be a risk of miscommunication, especially where those under 18 may be reluctant to ask for clarification and adults may overestimate a child or teenager’s ability to understand. Mental health problems or additional needs may be more likely to present in a child in the criminal justice system, and these may lead to impaired reasoning or ability to comprehend the seriousness or impact of their behaviour. It is helpful to the court and advocates if any issue is evidence-based by medical reports, but equally, such issues may have not yet been identified, so the court has discretion to order special measures during proceedings.
What can the court do to help a young or vulnerable defendant or witness give evidence effectively?
A judge will decide which special measures are appropriate in every case; these may include to:
- allow an “intermediary” (a communications specialist to help understanding and participation in court proceedings);
- provide an opportunity to visit the court outside court hours for familiarisation;
- take steps to prevent them from being intimidated or vilified by enlisting the assistance of police, especially where there is media interest;
- facilitate seating arrangements to sit with family or other supporting adults, or that the court is all on one level.
- ensure breaks are timetabled as required for the individual;
- consider whether court robes, wigs and uniforms (e.g. police) are removed;
- restrict numbers of members of the public;
- ask all parties to use clear, concise and non-legal language throughout the trial; and/or
- allow evidence to be given from behind a screen, or through a video link or pre-recorded interview.
Aside from being under 18, what could be wider signs of vulnerability?
- a victim of domestic, racial, financial or sexual abuse
- a victim of trafficking, exploitation or discrimination
- being unable to speak English fluently or read or write effectively
- indication of an undiagnosed additional need, e.g. difficulty with concentration or focusing, or being physically withdrawn
- a physical condition which restricts speech and communication, e.g. Motor Neurone Disease
What process is followed if a witness or defendant is thought to need an intermediary (communications specialist)?
There should be an assessment to consider whether an intermediary is necessary. Expert reports should be provided to the court to address:
- how the individual’s condition impacts on their ability to communicate; and
- how the ability to communicate will impact on how the jury hears their evidence.
Who should apply to the court for an intermediary or other special measures?
Legal representatives of either side, or a Litigant-in-Person. For defence witnesses (including the defendant), the duty to identify vulnerability is for the defendant’s legal representatives. Any need should be considered “at the earliest stage in the proceedings” possible, and the court should be reminded of its relevance for ensuring a fair trial. Advocates should explain to the court the reasons why there is a risk that the person will be unable to give a sufficient response if they do not have support. For example, not having an intermediary could impact on a jury’s ability to make a fair and reasonable assessment of their evidence, or a person may be at risk of greater vulnerability without the specialist skill of an intermediary.
Contact our expert team
Article author – Kathryn Maintzer is a paralegal in our Crime Department with previous experience in Civil proceedings in the County Court, supporting defendants under the Legal Aid housing loss prevention advice scheme.
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