The Equal Treatment Bench Book has been updated and expanded by the Judicial College who state that ‘true equal treatment may not always mean treating everyone in the same way’. Chapter 2 relates to children, young people and vulnerable adults.
Practitioners representing children in the criminal courts will need to familiarise themselves with the chapter 2, however, some points of interest are:
- There is a strong case for a distinct approach to the treatment of young adults (18 – 25) in the criminal justice system. The House of Commons Justice Committee in its report, ‘The treatment of young adults in the criminal justice system’, says that dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood (page 2).
- Although the decision whether to use an intermediary is ultimately the judge’s, it is important to remember that the extent of communication difficulties can sometimes be hidden, and that despite best intentions, advocates do not necessarily have the required expertise either to diagnose difficulty, or to adapt their questioning (page 4).
- If justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy may be necessary. There is strong support from the higher courts for detailed constraints on the length, tone and wording of cross-examination where required (page 4).
- Judges and magistrates have a role in safeguarding vulnerable people at court in ways which further the overriding objective and do not interfere with judicial independence (page 9).
- Judges can contribute to safeguarding children’s welfare by ensuring that a named individual has responsibility for the child’s welfare at the hearing, with a line of communication to them to alert them to difficulties (page 9).
- Safeguarding concerns should not be over-ridden because of pressures arising elsewhere in the justice system process (page 10).
- Time should be allowed for introductions, and take account of the witness’s wishes. Prosecutors are expected to meet the witness and defence advocates may find it useful to do so. Accompanying the advocates at such a meeting can be a useful opportunity for judges to introduce themselves and to ‘tune in’ to the witness’s level of communication. Where justified by the circumstances, some trial judges have met the vulnerable witness with the advocates before the day of the witness’s evidence (page 17).
- Allow children to pause cross-examination briefly to relieve their stress without leaving the live link room, by going under a table, behind a curtain or under a blanket (page 20).
- Assessment by an intermediary should be considered if the person seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to say so to a questioner in a position of authority. Studies suggest that the majority of young witnesses, across all ages, fall into one or other or both categories (page 23).
- Appointment of an intermediary by itself may not in itself be a sufficient adjustment. In R v Jordan Dixon1 an intermediary was appointed to assist a vulnerable defendant during the trial, but failures to hold a ground rules hearing and to modify the language used during the proceedings were described as ‘regrettable’ by the Court of Appeal (page 25).
The recognition by The Judicial College of the fact that children should be treated in a very different way to adults is welcomed. The extensive provisions for child witnesses are impressive, however, they are not clearly stated to apply to child defendants. The equality of arms principle determines that child defendants should be afforded the same treatment as the young witnesses, these are essential safeguards to ensure child defendants receive a fair trial.
- R v Jordan Dixon EWCA Crim 465 (back)