The Civil Justice Council has just launched a consultation which invites respondents to offer feedback on ways in which vulnerable witnesses could be better supported by the courts.

The consultation will look at the current procedures and legislation around vulnerable witnesses in the family courts, and will focus in part on the cross-examination of vulnerable and alleged vulnerable witnesses by proven and alleged domestic violence offenders.

Vulnerable witnesses inside the justice system can include children, victims of sexual abuse and domestic violence and parties with physical and mental health conditions.

While the consultation aims to look at issues arising in both civil and criminal courts in relation to vulnerable parties, the consultation has been launched specifically because  of a recommendation made by the nation’s Independent Inquiry into Child Sexual Abuse (IICSA), which was added in its April 2018 Interim Report.

In that report, the IICSA recommended special statutory protections for vulnerable witnesses who had experienced child sexual abuse and who were claiming compensation in civil court cases for that abuse. The panel also advised that those protections should be in line with legislation supporting vulnerable witnesses in criminal courts across the country.

The Ministry of Justice asked the Civil Justice Council to consider the issues raised by the Inquiry’s recommendation and to put together a report.

Though the exact percentage of vulnerable witnesses going through the civil and family courts is not known, in the criminal courts 18% of witness were recorded by the Crown Prosecution Service as either vulnerable or intimidated from 2015 to 2017.

However, a civil court user survey indicated that 25% of individual Claimants who completed the questionnaire said that they considered they had a physical or mental condition.

In the Justice Council’s report, the Council says that there is “clear room for improvement in the way that claims relating to child sexual abuse cases are managed by parties and the Court.” It added , “In undertaking this [consultation], the Council was asked to consider vulnerability of parties and/or witnesses in civil actions not just in relation to claims arising from sexual assault/abuse but also more widely i.e. in relation to the wide variety of other types of civil claim.”

Pages 20 to 33 of the consultation set out the background to vulnerable witnesses inside the family courts, what has been done so far to address concerns about how these witnesses are treated and the current gaps inside these courts when it comes to protecting vulnerable witnesses.

These pages offer a very useful breakdown of how such witnesses have been treated in the family courts historically, new initiatives being implemented, and current legislation being considered like the Domestic Abuse Bill.

The report the Council produces runs to 74 pages, and includes 7 recommendations:

  1. Amend the current procedure rules (and any relevant accompanying practice directions) to focus the attention of all civil Judges, parties and advocates upon the issue of vulnerability;
  2. Directions Questionnaires should be amended to request information as to the vulnerability or potential vulnerability of a party;
  3. Enhanced training of civil judges in relation to issues of vulnerability;
  4. HMCTS should review and produce guidance in relation to the use and funding of
    intermediaries in civil cases;
  5. HMCTS should ensure that individual court centres/courts should (after consultation with the Designated Civil Judge and Designated Family Judge) prepare comprehensive operational protocols around vulnerable witnesses;
  6. As a matter of urgency HMCTS should ensure all staff who handle civil cases are given adequate training with regard to identifying, communicating with and assisting vulnerable court users and;
  7. The Judicial College and the CPS should consider the need for guidance /training/re-enforcement of training as to applications for and the making of/refusal to make compensation orders in cases of sexual assault/abuse.

The consultation itself is short, running to just three questions.

These questions are:

  1. Are there issues in relation to vulnerable parties /witnesses in the civil courts which that have not been covered/adequately covered within this preliminary report? If so please give relevant details;
  2. Do you agree with the proposed recommendations set out at section 7? If not why not? and;
  3. Do you believe that there should be further or alternative recommendations? If so please set out relevant details.

Responses to the consultation can be emailed to, or popped in the post to:

Civil Justice Council E205, Royal Courts of Justice Strand London WC2A 2LL

The Council also offer the following guidance:

“If you are responding in writing, please make it clear which questions you are responding to. You should also indicate whether you are replying as an individual or submitting an official response on behalf of an organisation and include: – your full name, – your position (if applicable), – the name of organisation (if applicable), – an address (including post-code), – an email address, and – a contact telephone number.”

A list of respondents will be published on the Council’s website, as well as a summary of the responses received.

Deadline for submissions is 23:59 on Friday 11 October 2019.

You can read the Council’s report and access the consultation questions here.