Vulnerable witness, domestic abuse and special measures- the importance of ensuring a fair trial.

This article explores the approach a court should take in relation to vulnerable witnesses, in particular those that have experienced domestic abuse. The recent case of H v F [2020] EWHC 86 (Fam) demonstrates that a case will be successful on appeal if the correct procedures are not complied with.

Re H v F [2020] EWHC 86 (Fam)

The case of Re H v F is a case on appeal, following an order made at a fact-finding trial in Children Act (CA) 1989 proceedings for child arrangement orders. This article will not repeat the extensive history of the case. Suffice to say the case concerned serious allegations from the Appellant JH of domestic abuse including the most serious sexual assault against the Respondent MF. Such allegations were supported in part by the police records which were disclosed as part of the evidence in support of the Appellant. The police records indicated that there had been complaints made about the Respondent’s violent and abusive behaviour by his own family and previous partner, prior to his relationship with the Appellant. The police records further disclosed that there had been multiple incidents reported between the Appellant and Respondent throughout their relationship. The Appellant’s assertion was that the Respondent was aggressive, intimidating, controlling and emotionally abusive during the relationship. It was her case that she had been subjected to domestic abuse which including verbal, physical and sexual- some of which took place whilst the child was present in the home.

The Judge’s conduct was fundamentally flawed

Seven grounds were advanced on behalf of the Appellant for appeal. This article focuses on the finding of The Honourable Ms Justice Russell DBE regarding her observation that: “the judge’s conduct of the hearing was fundamentally flawed and unjust for procedural irregularity as set out in the Family Procedure Rules (FPR_ 2010 (Cf. FPR rule 30.12 (3)); and the appeal is allowed for that reason…”.

The matter was originally before the court on 8th August 2019. A “special measures” application was made for the Appellant to include the use of screens to assist her in giving her evidence. The need for such measures having been highlighted in the safeguarding letter. This letter indicated that the author had been unable to complete the safeguarding checks because of the Appellant’s distress. The Appellant was reported by her support worker as experiencing “feelings of severe trauma” and that the proceedings had led to a deterioration in her emotional well-being.

The application was refused. Instead the judge “took the inexplicable step, contrary to the expressed view and request of the Appellant, and contrary to the rules of procedure, of ordering that the Appellant give evidence from counsel’s row as “better” than using the witness box and screens. In doing this he had not only decided not to follow Part 3A of the FPR 2010, but he also completely failed to give any or adequate reasons for doing so as required by r3A.9 of the FPR 2010. These are serious procedural irregularities which would allow for an appeal to be granted under FPR 2010 r30.12 (3) (b).”  

Unsurprisingly difficulties were encountered in being able to hear the Appellant’s evidence. The judge himself accepted that he did not hear significant parts of what the Appellant said. The judge went further and allowed the Respondent to give evidence from counsel’s row, without any application being made. This put the Respondent at an unfair advantage as he was then given the opportunity of being assisted by his McKenzie friend.

The rules relating to a vulnerable witness

The Family Procedure Rules r3A.4 (1) states that the “court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.”

R3A.5 (1) further states “The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions”.

R3A.7 provides an extensive list of what the court must have regard to when deciding whether to make one or more participation directions. These include (but are not limited too) any mental disorder; physical disability; any medical treatment; age maturity and understanding; any actual or perceived intimidation; issues arising in proceedings; social cultural and religious background.

R3A.8 highlights the measures the court can put in place such as: screens, live link, intermediary etc.

Why these rules are important

It is all too easy for advocates to take for granted the significant levels of distress giving evidence in court can cause to any witness, let alone those considered vulnerable.  However, these rules are crucial to have an effective trial. It is arguable that without such measures a vulnerable witness is not able to access a fair trial.

Conclusion

It is imperative that advocates familiarise themselves with the rules pertaining to vulnerable witnesses. The judge’s findings in Re H v F were fundamentally flawed for a number of concerning reasons which are outlined in the judgment. A full copy of the judgment may be found here: https://www.familylawweek.co.uk/site.aspx?i=ed208693. However, it is clear that a fair trial cannot take place where a witness feels unable to provide the court with evidence. Failure to provide a witness with the opportunity to give clear and coherent evidence, particularly when such a witness is vulnerable, can lead to unsafe findings.

Re H v F goes further to identity and emphasizes the out-of-date and archaic views pertaining to rape and domestic abuse, which are still live issues within our court. It is concerning that such serious and life changing allegations were blatantly disregarded as the Appellant “not taking pleasure from the physical enjoyment of sex”. Despite there being evidence that the Appellant said no and was upset after the judge found that as she had not physically stopped the Respondent it could not be rape. It is yet another case which underlines the needs for those representing the vulnerable witness in court to remain alert to such issues and deal with them firmly. Although this article has not explored the issue of consent in sexual abuse allegations, the topic is dominant throughout this case.