JUDICIAL ETHICS AND VULNERABLE WITNESSES by Dame Linda Dobbs Not to be copied without permission of author © March

WHO IS VULNERABLE? A) International protections which include: Universal Declaration of Human Rights 1948, European Convention on Human Rights 1950, UN Covenant on Civil and Political Rights 1966, UN Convention on the Elimination of all forms of Discrimination against Women 1979, Africa Charter on Human and Peoples Rights 1986, UN Convention on Rights of the Child 1989, UN Declaration on the Elimination of Violence against Women 1993, Africa Charter on the Rights of the Child 1999, UN Convention on the Rights of Persons with Disabilities

WHO IS VULNERABLE? (2) Protections under National Law. e.g. The Constitution. Equality Legislation? International definitions of vulnerable? e.g. UK Youth Justice and Criminal Evidence Act 1999 ( s.16) sets out a list of witnesses who qualify for special measures due to their vulnerability. a.All witnesses under the age of 18 at the time of hearing. b.A witness with a mental disorder within the Mental Health Act c.A witness with “significant impairment” of intelligence and social functioning. d.A witness with a physical disability or is suffering from physical disorder. e.Persons suffering fear or distress in connection with giving evidence. f.Alleged victims of sexual offences. ( s.22a) 3

WHO IS VULNERABLE ( 3) UK Domestic Violence, Crime and Victims Act 2004 refers to children and vulnerable adults- a vulnerable adult is a person aged over 16 whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness or through old age or otherwise. National Definitions of vulnerable? If they exist, are the definitions/guidelines exhaustive? 4

DIFFERENT VULNERABILITIES Physical Problems with mobility, hearing, seeing, speaking, sitting, standing, reading; difficulty with physical coordination. Mental/psychological ADD, autism spectrum disorder including Asperger syndrome, learning difficulties, mental illness. 5

DIFFERENT KINDS OF VULNERABILITY (2) Social/cultural/youth Limited comprehension/vocabulary; religious or cultural issues; anti-social issues; background ( i.e. from very poor marginalised family) 6

THE RESPONSIBILITY OF THE JUDGE Duties under Code of Conduct Fair trial rights generally Particular rights of the individual 7

THE NEED OF THE COURT USER The witness, party, defendant has to be able to get across to the decision maker that which they want and need to communicate in order for the decision maker to be able to do justice in the case by coming to a fair and reasoned decision based on the overall circumstances of the case. 8

THE ROLE OF THE JUDGE Identification of vulnerable witnesses and their vulnerabilities. Considering measures to manage the vulnerabilities Ensuring parties are able to make informed representations Implementing measures to manage vulnerabilities 9

PRACTICAL MEASURES A)PHYSICAL Wheelchair access; positioning in court; use of microphones; hearing aids; seated when giving evidence; computer technology to enlarge documents, regular breaks 10

PRACTICAL MEASURES (2) B) MENTAL/PSYCHOLOGICAL Screens, evidence via video link, use of intermediary, use of computer technology, modification of advocacy techniques, regular breaks, presence of support worker 11

PRACTICAL MEASURES (3) C) Social/cultural/youth Intermediary, support worker, interpreter, regular breaks, modification of advocacy, use of tools 12

SOME POINTS TO REMEMBER ABOUT CHILDREN Children do not process or understand language in the same way as adults. It is important to take into account their chronological and developmental age, emotional state, culture, education. Disadvantaged children often have significantly lower than average speech/language skills. 13

SOME POINTS TO REMEMBER ABOUT CHILDREN ( 2) Children under stress may function at a lower level. Children are likely to agree with propositions put to them by people they perceive to be in authority although they don’t in fact agree with them. They need more time to process questions especially those involving concepts. 14

SOME POINTS TO REMEMBER ABOUT CHILDREN (3) Children often do not admit to having a problem in a court situation when in fact they do. The effect of delay on a child’s memory needs to be taken into account. Simple non leading questions should be asked. People’s names and names of places should be used. The normal pace should be slowed for a child. 15

KEY POINTS TO REMEMBER TRANSPARENCY/FAIRNESS/EVEN- HANDEDNESS PROPORTIONALITY PATIENCE COURTESY FLEXIBILITY REASONED DECISIONS 16