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FACT-FINDING APPEAL: Re M (Oral Evidence: Vulnerable Witness)

Sep 29, 2018, 18:34 PM
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Date : Nov 29, 2012, 02:30 AM
Article ID : 101023

(Court of Appeal, Thorpe, Rimer Black LJJ, 21 November 2012)

A fact-finding hearing was scheduled to determine whether the father had caused non-accidental injuries to the 18-month-old child. The father was found to have low intelligence and a psychologist recommended that due to his vulnerability, tendency to be manipulated and anxiety of speaking in front of people, special measures should be put in place when he gave oral evidence either by way of video-link or screens in court.

As video facilities were not available the father had to give evidence in court but a screen was not provided and the father's application for an adjournment was refused. The father's guardian acted as an intermediary but had no experience of doing so. Following the father's evidence his representative applied for the trial to be terminated due to an infringement of the father's rights under Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The judge determined that the father had capacity to give evidence and that he had caused the non-accidental injuries to the child. The father appealed.

The appeal would be allowed. While the judge had a duty to manage the instant case in a busy court that did not override the duty to ensure the father had a fair trial. The judge had erred in failing to specifically rule on the father's application for an adjournment when it became clear that a qualified intermediary had not been available. Overall the judgment could not stand in light of the breach of the father's Art 6 rights.

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