One step forward and two steps back? The ‘20 Principles’ for questioning vulnerable witnesses and the lack of an evidence-based approach
| Author | Thomas Ormerod,Penny Cooper,Rebecca Milne,Ray Bull,Coral Dando,Ruth Marchant,Michelle Mattison |
| Date | 01 October 2018 |
| Published date | 01 October 2018 |
| DOI | 10.1177/1365712718793435 |
| Subject Matter | Articles |
Article
One step forward and two steps
back? The ‘20 Principles’ for
questioning vulnerable witnesses
and the lack of an evidence-based
approach
Penny Cooper
Birkbeck University of London, ICPR, London, UK
Coral Dando
University of Westminster, London, UK
Thomas Ormerod
University of Sussex, Falmer, UK
Michelle Mattison
Department of Psychology, University of Chester, Chester, UK
Ruth Marchant
Triangle, Brighton, UK
Rebecca Milne
University of Portsmouth, Portsmouth, UK
Ray Bull
University of Derby, Derby, UK
Abstract
It is a widely held belief that questioning vulnerable witnesses is a specialist skill. In England and
Wales vulnerable witness advocacy training built around ‘20 Principles’ has been developed and
is being delivered. The 20 Principles do not cite a tested theoretical framework(s) or empirical
evidence in support. This paper considers whether the 20 Principles are underpinned by
research evidence. It is submitted that advocacy training and the approach to questioning
witnesses in the courtroom should take into account the already available research evidence.
The authors make recommendations for revision of the training and for a wider review of the
approach taken to the handling of witness evidence.
Corresponding author:
Penny Cooper, Birkbeck University of London, ICPR, 42 Store Street, London WC1E 7DB, UK.
E-mail: penny.cooper@bbk.ac.uk
The International Journalof
Evidence & Proof
2018, Vol. 22(4) 392–410
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1365712718793435
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Keywords
advocacy, questioning, training, vulnerable, witnesses
Introduction
Few would disagreewith Mr Justice Green
1
when he said that ‘how thecourtstreatthosewhoareexposed
and weakis a barometerof our moral worth as a society’(Green, 2016). A similar sentimentwas expressed in
the Advocacy Training Council (ATC) research report Raising the Bar (Haddon-Cave, 2011),
2
which
considered how vulnerable witnesses
3
are questioned by barristers in the courts of England and Wales.
Whilst ‘in some respects the law in relation to vulnerable witnesses has moved very slowly over the
past quarter century’, at the same time there has been a ‘growing recognition among practitioners and
policy-makers of the significance and implications of vulnerability within the criminal justice system’
(Jacobson, 2017). Vulnerability matters because individuals are entitled to access to justice, those who
are vulnerable must not be excluded or marginalised and the courts have a duty to safeguard the welfare
of children and vulnerable adults. However, developments in England and Wales have resulted in a
‘mixed and complicated’ picture of provisions and case law and a ‘multiplicity’ of procedural guidance
(Jacobson (2017: 3) and in Cooper and Norton (2017) generally).
In England and Wales, ‘the concept of the “vulnerable witness” took root in the report Speaking up for
Justice [Home Office, 1998], which in turn led to the Youth Justice and Criminal Evidence Act 1999’
(Cooper and Wurtzel, 2014: 42) (YJCEA 1999). That Act includes a statutory scheme of ‘special
measures’ for vulnerable and intimidated witnesses and defendants albeit that what is available for
vulnerable defendants is more restrictive (Cooper and Wurtzel, 2013) and unequal (Fairclough,
2018). The English legal system has no single definition of what constitutes a vulnerable witness, but
a touchstone is s. 16 of the YJCEA 1999, which defines those vulnerable witnesses eligible for special
measures. Section 16 witnesses are those who are young (under 18 at the time of the hearing) or for
whom the quality of their evidence is likely to be diminished because of a mental disorder within the
meaning of the Mental Health Act 1983, a significant impairment of intelligence and social functioning,
or a physical disability or a physical disorder.
One of the strong themes that emerged from Raising the Bar was ‘the inconsistency and weaknesses
of some advocates in handling and questioning vulnerable people’ (ATC, 2011: 3). The first 12 of 48
recommendations of Raising the Bar were for:
(i) Training: A comprehensive modular programme of training in handling vulnerable witnesses, victims and
defendants should be put in place for all criminal and family practitioners, both new and experienced. It is
suggested that it should be led by the Bar Council in partnership with the Inns of Court and Criminal Bar
Association, with training programmes approved and moderated by the Advocacy Training Council (Rec-
ommendations 1–12). (ATC, 2011: 4)
The Bar Council did not lead the training initiative. Rather, it was led by the ATC, who began to develop
a vulnerable witness advocacy course,
4
the responsibility for which subsequently passed to the Inns of
Court College of Advocacy (‘ICCA’).
5
ICCA then created the Advocacy and the Vulnerable Training
Programme, which is:
1. Now Lord Justice Green.
2. (Now Lord Justice Haddon-Cave.)
3. Sometimes the term ‘witness’ and ‘victim’ appear to be used interchangeably in the literature. However, here we use the term
‘witness’ to refer to both witnesses and victims. In quoted material we retain the source terminology.
4. Initially through a working group chaired by HHJ Peter Rook QC.
5. Established in 2016 by the Council of the Inns of Court, ICCA is the successor to the ATC. ICCA acts ‘on behalf of all the Inns
in the development of education and training for the Bar and the wider profession’ (Wood, 2016). ICCA ‘comprises barristers,
Cooper et al. 393
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