Policy Press
Thirteen The uneasy position of vulnerable defendants
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Abstract
An intermediary sometimes assists a vulnerable person called to court as a prosecution witness; that person can appear in a different case as a defendant, without intermediary help. As intermediaries observe, only the side of the fence has changed, not the person’s communication needs. The overriding objective in Criminal Procedure Rule 1 (2015), ‘that criminal cases be dealt with justly’, includes dealing with the prosecution and defence fairly and recognising the defendant’s rights to a fair trial under Article 6 of the European Convention on Human Rights. Courts are obliged to take ‘every reasonable step’ to facilitate the defendant’s participation, including setting directions and ground rules, especially in intermediary cases. The aim is to enable defendants to give their best evidence, understand the proceedings and ‘engage fully’ with their defence; the pre-trial and trial process should be adapted as necessary (Criminal Procedure Rules 3.9(3)(b), 3.9(6) and 3.9(7), 2015; toolkit 8, Effective participation of young defendants, www. theadvocatesgateway.org). This requires the judiciary to ensure ‘by any appropriate means’ that defendants understand what is happening and what has been said by those on the Bench, the advocates and witnesses (Criminal Practice Directions 3D.2 and 3G.9, 2015).
Many defendants would meet the criteria governing the provision of special measures, including intermediary assistance, as set out in the Youth Justice and Criminal Evidence Act 1999; however, the Act specifically excludes defendants (section 17(1)). Over half of children and adults who offend have communication difficulties: many have learning difficulties and mental health problems, often combined with alcohol or drug misuse (Talbot, 2012; Criminal Justice Joint Inspection, 2014b).
Abstract
An intermediary sometimes assists a vulnerable person called to court as a prosecution witness; that person can appear in a different case as a defendant, without intermediary help. As intermediaries observe, only the side of the fence has changed, not the person’s communication needs. The overriding objective in Criminal Procedure Rule 1 (2015), ‘that criminal cases be dealt with justly’, includes dealing with the prosecution and defence fairly and recognising the defendant’s rights to a fair trial under Article 6 of the European Convention on Human Rights. Courts are obliged to take ‘every reasonable step’ to facilitate the defendant’s participation, including setting directions and ground rules, especially in intermediary cases. The aim is to enable defendants to give their best evidence, understand the proceedings and ‘engage fully’ with their defence; the pre-trial and trial process should be adapted as necessary (Criminal Procedure Rules 3.9(3)(b), 3.9(6) and 3.9(7), 2015; toolkit 8, Effective participation of young defendants, www. theadvocatesgateway.org). This requires the judiciary to ensure ‘by any appropriate means’ that defendants understand what is happening and what has been said by those on the Bench, the advocates and witnesses (Criminal Practice Directions 3D.2 and 3G.9, 2015).
Many defendants would meet the criteria governing the provision of special measures, including intermediary assistance, as set out in the Youth Justice and Criminal Evidence Act 1999; however, the Act specifically excludes defendants (section 17(1)). Over half of children and adults who offend have communication difficulties: many have learning difficulties and mental health problems, often combined with alcohol or drug misuse (Talbot, 2012; Criminal Justice Joint Inspection, 2014b).
Chapters in this book
- Front Matter i
- Contents v
- About the authors ix
- Acknowledgements xi
- Foreword xiii
- Introduction: a fresh pair of eyes 1
- The intermediary scheme in England and Wales 7
- Behind the scenes: planning to assess the witness 25
- Assessment methods and involvement of the interviewer 39
- Communication aids and stress reduction strategies 55
- Contributing to the effectiveness of the police interview 75
- Negotiating professional space at the ground rules hearing 97
- Making the ground rules hearing effective 109
- ‘Every reasonable step’: preparation for giving evidence 129
- Cross-examination: research, case law, training and regulation 155
- Cross-examination: intervention at trial 187
- Cross-examination: challenges at the cutting edge 217
- The uneasy position of vulnerable defendants 247
- A new profession 281
- Conclusion 303
- References 309
- Index 325
- Table of cases 337
Chapters in this book
- Front Matter i
- Contents v
- About the authors ix
- Acknowledgements xi
- Foreword xiii
- Introduction: a fresh pair of eyes 1
- The intermediary scheme in England and Wales 7
- Behind the scenes: planning to assess the witness 25
- Assessment methods and involvement of the interviewer 39
- Communication aids and stress reduction strategies 55
- Contributing to the effectiveness of the police interview 75
- Negotiating professional space at the ground rules hearing 97
- Making the ground rules hearing effective 109
- ‘Every reasonable step’: preparation for giving evidence 129
- Cross-examination: research, case law, training and regulation 155
- Cross-examination: intervention at trial 187
- Cross-examination: challenges at the cutting edge 217
- The uneasy position of vulnerable defendants 247
- A new profession 281
- Conclusion 303
- References 309
- Index 325
- Table of cases 337
