1. VULNERABLE WITNESSES AND DEFENDANTS 1 Lady Justice Hallett DBE and Dame Linda Dobbs DBE

2. 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; 2

3. WHO IS VULNERABLE? (contd.) UN Convention on the Elimination of all forms of Discrimination against Women 1979; UN Convention on Rights of the Child 1989; UN Declaration on the Elimination of Violence against Women 1993; 3

4. WHO IS VULNERABLE? (contd.) UN Convention on the Rights of Persons with Disabilities 2006 The American Convention on Human Rights 1969 + Protocols 1988 and 1990; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women 1994 4

5. DEFINITION OF “VULNERABLE” 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 1983. 5

6. DEFINITION OF “VULNERABLE” (contd.) 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) 6

7. DEFINITION OF “VULNERABLE” (contd.) 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? If they exist, are the definitions/guidelines exhaustive? 7

8. DIFFERENT KINDS OF VULNERABILITY Physical Problems with mobility, hearing, seeing, speaking, sitting, standing, reading; difficulty with physical coordination, ill health, sensory impairment, disfigurement. Mental/psychological ADD, autism spectrum disorder including Asperger syndrome, learning difficulties, mental illness, cognitive impairment, comprehension problems, long term drug/alcohol abuse. 8

9. DIFFERENT KINDS OF VULNERABILITY (contd.) Social/cultural/youth Limited comprehension/vocabulary; religious or cultural issues; anti-social issues; background ( i.e. from very poor marginalised family) Gender Youth Age 9

10. THE NEED OF THE PARTICIPANTS 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. 10

11. THE RESPONSIBILITY OF THE JUDGE/LAWYERS Duties under Codes of Conduct Fair trial rights generally Particular rights of the individual 11

12. 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 12

13. 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

14. SOME POINTS TO REMEMBER ABOUT CHILDREN (contd.) 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

15. SOME POINTS TO REMEMBER ABOUT CHILDREN (contd.) 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

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