Helping vulnerable witnesses give evidence in court In this feature | financial abuse | special measures | hearsay applications Witness support How can you work with vulnerable witnesses to ensure their testimony stands up in court? Adam pearson offers some valuable advice D Evidential and legal measures not only enable the strongest case to be put before the court, but also ensure that the victim is treated in a way that lessens the stresses of the trial process oorstep crime and other forms of financial abuse of the vulnerable in our society is a growing problem. Itis very often their vulnerability, whether caused by age or infirmity, that makes them the target of, and more susceptible to, such crimes and can cause the impact tobe much greater. Those same vulnerabilities can affect the victim as a witness in proceedings. There may be difficulties in the witness ability to give a sufficiently strong account of events, or to recall important details. Thewitness may be able to give a detailed account, but there may be difficulties with his or her ability to present that account in court. Their health may have deteriorated between the statement being taken and the trial, to the extent they are unable to give evidence as they would have done at an earlier stage. Key to the effective investigation and prosecution of such crimes is the use of investigative techniques, and the evidential and legal measures available. Such measures not only enable the strongest case to be put before the court, but also ensure avulnerable victim is treated with respect, dignity and in a way that lessens, insofar as is possible, the stresses and strains of the trial process laudable aims. Whether what is ultimately required at trial is the use of special measures to enable a witness to give their best evidence, or an application under the hearsay provisions* to include the evidence of a witness who cannot give live evidence, investigators need to have a focus on those issues from the outset of an inquiry to ensure that the strongest case is built from the start. Effective evidence gathering Where a victim is vulnerable, it can be particularly important to obtain full and detailed accounts early on. Sadly, particularly when a witness iselderly, there may not be an opportunity to seek further details later. Gathering evidence from the outset of an investigation allows the effective presentation of the evidence at trial however the evidence ofthe victim is ultimately to be presented. Investigators and prosecutors would therefore be wise to consider the potential need for special measures and hearsay applications at an early stage, and to bear in mind that a witness who is capable of giving evidence now may not be able to by the time of the trial. If, for example, the potential need for a hearsay application is identified, then the necessity for full and detailed statements at an early stage can readily be seen. If there is the means to conduct an Achieving Best Evidence (ABE) interview for example, with the assistance of the police then such a recording can be a very valuable piece of evidence. Not only can a special measures application be made to include that video statement as evidence-in-chief but, if it should be necessary to make a hearsay application, then the court has the added advantage ofnot just being able to hear the account being read, but of seeing the witness and hearing their account in their own words with all the greater impact that brings. Consideration should also be given at an early stage to obtaining evidence from other sources that are independent of, and supportive of, the principal account from the victim: for example, statements of neighbours and family, body-worn video and other contemporaneous material, and recordings of 999 calls or other reports to the authorities. Special measures Where a witness is eligible for assistance by virtue of section 16 or 17 ofthe Youth Justice and Criminal Evidence Act 1999, then special measures are available to maximise the quality of the witness evidence. A witness may be eligible for assistance under section 16 by age or incapacity. Age in this context means the young those under 18. For the elderly or otherwise vulnerable, the application is most likely to be made on the grounds of incapacity. To establish eligibility, it is necessary to show that the quality of the evidence (defined in terms of its completeness, coherence or accuracy) is likely to be diminished by reason of mental disorder within the meaning of the Mental Health Act 1983, or some other significant impairment of intelligence or social functioning, or by physical disability or physical disorder. A witness may also be eligible for assistance by virtue of section 17 Youth Justice and Criminal Evidence Act 1999, where the quality of their evidence is likely to be diminished by reason of fear or distress about testifying in proceedings. Inassessing that question, account should be taken of the views ofthe witness, the nature and alleged circumstances of the offence, the witness age, social and cultural background and ethnic origins, domestic and employment conditions, religious beliefs or political opinions, and any behaviour towards witness by the accused, members of the accuseds family or associates, or others likely to be an accused or a witness in proceedings. Where a witness is eligible for assistance, the court must then assess whether any of the available measures either alone or in combination would be likely to improve the quality of the evidence given by a witness and, if so, to make an appropriate direction. Available measures in all cases include video-recorded evidence-inchief (ABE), giving evidence by live-link including from a remote location such as the home of the witness, which can be of particular assistance with elderly or infirm witnesses and giving evidence from behind a screen. Where the ground of eligibility is age or incapacity, further available measures include giving evidence with the assistance of an intermediary, or using aids to communication. Investigators need to ensure that the strongest case is built from the very outset Hearsay applications Consideration should also be given at an early stage to obtaining evidence from other sources that are independent of, and supportive of, the principal account from the victim Special measures can allow a witness who would otherwise have great difficulty in giving evidence in court to do so, maximising its quality. Insome cases, however, a witness is simply unable to give evidence in court, either because they have died in the interim, or because they are physically or mentally unfit. Section 116 of the Criminal Justice Act 2003 deals with the situation where a witness is unavailable. Hearsay evidence is admissible under this section if any of the following conditions apply, namely that the witness is dead; is unfit by reason of bodily or mental condition; is outside the UK and it is not reasonably practicable to secure their attendance; cannot be found; or does not give evidence through fear inwhich latter case only leave is required, the requirement being that the court is satisfied that it is in the interests of justice for leave to be given. In the context of doorstep crime and financial abuse cases, applications will be most common for witnesses who are unfit to attend or have since died. Where such an application is made, the burden of proof in establishing the conditions above is on the party seeking to admit the evidence. When sought by the prosecution, the standard to which those conditions must be established is the criminal standard thus, it will befor the prosecution to establish to the criminal standard that the witness is unfit or deceased, as the case may be. The need for evidence in that regard should not therefore be overlooked. Once it is established that the witness is deceased or unfit to be a witness, the evidence is admissible, rather than being a matter for the courts discretion. It should be noted, however, that the court retains a residual discretion to exclude the evidence under section 78 of thePolice and Criminal Evidence Act 1984, where the admission of the evidence would have such an adverse effect on the fairness of proceedings that it ought not to beadmitted. Best evidence, least stress Giving evidence in court is often perceived as being stressful. Those concerns can be even more pressing in cases where a victim is truly vulnerable. In such cases, however, the use of the measures set out above can appropriately alleviate or mitigate those concerns, and enable the court to receive the best evidence in allegations of serious crime and in respect of which the public interest plainly requires prosecution. *Hearsay in criminal proceedings is a statement not made in oral evidence in the proceedings that is evidence of any matter stated Credits Adam Pearson is a barrister and the head of 36 Consumer, the consumer law team at The 36 Group. Images: iStock/lvcandy To share this page, in the toolbar click on You might also like Beating the cyber criminals August 2017