The Court of Appeal have looked again at a case involving the issues of a vulnerable adult giving evidence. Re M (A Child) 2013
Sadly, given how often this crops up, they have not given any generic guidance for the Courts to apply, but the case throws up some interesting issues.
The issue related to a finding of fact hearing, where the father was one of the adults “in the frame” for causing the injury to the child. Noting his cognitive difficulties, a cognitive assessment was undertaken of him.
That concluded that he was not capable of instructing a solicitor, but was capable of giving evidence. He would not be capable of providing a narrative statement.
His capacity to give evidence was both fluctuating and deteriorating and before the fact finding hearing, a further updating report on his cognitive abilities was commissioned.
This arrived the day before the fact-finding hearing was to begin
6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father’s capacity to testify had deteriorated in consequence of mounting stress and anxiety. Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility. In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:
“He should be offered a ‘supporter’ whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers.”
7. Then, below the bullet points, Dr North wrote:
Mr Smith becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link.”
And then, importantly, in the concluding paragraph:
“Mr Smith is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings.”
Now, obviously, none of this was in place the next working day, and those representing the father made requests that such arrangements be made.
The Judge rather ‘parked’ that issue, saying “well, we will all try, counsel and myself, to make it easy for the witness“, but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father’s performance.
The Court of Appeal describe this as a ‘high risk judicial case management decision’ and of course, not actually determining the application for the steps proposed by Dr North to be taken or not taken, robbed the father of either having those safety mechanisms or being able to appeal the decision for them not to be provided.
This next bit is very peculiar –the Guardian was charged with the role of being the ‘advocate or intermediary’ to help the father in the witness box.
The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary. He had no previous experience of that role unlike Dr North. He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.
This seems to me to have been an intolerable position both for the father and the Guardian to find themselves in.
At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services. He said, by way of self-criticism, that he felt that he had failed the father
The Court of Appeal came to the conclusion that the father had not been fairly treated by the process and that his article 6 right to a fair trial had not been properly adhered to, and directed that the finding of fact hearing be re-tried. [underlining mine for emphasis]
21. By way of conclusion, I would like to express my appreciation of the burden borne by [the Judge] , who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases. Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date. Had she acceded to Ms Storey-Rae’s application, the consequence would have been months of delay. So I would wish to be in every way supportive of the judge’s general duty to manage all cases to achieve targets. I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability. It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae’s application of 13 April. I think she fell into error in adopting the “let’s see how we get on” management policy. As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.
22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity. It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal. Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place. Some steps were taken to ease the mother’s contribution by ensuring sight lines that did not bring her into direct eye contact with the father. It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.
23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights
It does seem that the importance of this case will be in those representing such vulnerable persons to secure detailed expert evidence addressing the difficulties of the client in giving evidence and what can be put in place, and in persuading the Court that such recommendations need to be adjudicated on and not merely ‘parked’
Given what we know of the Legal Services Commission, I am unclear as to how funding to obtain the intermediary or advocate to assist father in the witness box would be obtained, but those efforts would have to be made. It must be manifestly unfair for a party to the proceedings to have to take that neutral role.