‘Control’, measures and divergence from a general rule
The criterion for the court in diverging from the general rule and in directing any measure to assist with evidence, relates to maximising quality of a vulnerable witness’s evidence. The common law has long had a variety of measures available to it to help with this (see Lady Hale in Re D (a minor)) v Camberwell (above)).
To avoid the ‘normal…of court-room confrontation’ and to maximise the quality of a witness’s evidence Lady Hale described common law measures in family proceedings (‘long more flexible than other proceedings in this respect’). In Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948 Lady Hale (at ) summarised particular forms of assistance to vulnerable witnesses as follows:
- Hearsay evidence (and see Civil Evidence Act 1995; FPR 2010, Pt 23)
- ‘Accounts in videotaped conversations with specially trained police officers or social workers’ which can be ‘extended to other vulnerable witnesses’; and ‘could include the facility to have specific questions put to the witness at the request of the parties’.
- ‘Oral questioning…which did not involve face to face confrontation’.
Terminology in relation to children and vulnerable witnesses is derived from YJCEA 1999, Pt 2 (mostly in ss 16 and 17): children and adults defined as eligible for assistance. Court directions are for a ‘special measures direction’ under YJCEA 1999, s 19 (in criminal proceedings) and a participation direction (FPR 2010, r 3A.8(1)) specifically for adults in family proceedings. The terminology in YJCEA 1999, Pt 2 is explained in the ABE guidance; and procedurally, for criminal proceedings, ‘special measures’ is dealt with in Criminal Procedure Rules 2015 (SI 2015/1490), Pt 18 and its practice directions.
‘Control’ under r 22.1(1)(c) (set out in first article) depends on which of the measures available to the courts judges and magistrates allow. Screens have long been permitted in court proceedings; and that video-conferencing is available in family courts is already confirmed by FPR 2010, r 22.3 and PD22A.
‘Special measures’, ABE guidance and Part 3A ‘measures’
The ABE guidance sets out and discusses use of the various ‘special measures’ available under YJCEA 1999, ss 23 to 30 (at paras 5.2 to 5.8); and application for witness anonymity at para 5.12. The ‘special measures’ available for direction under YJCEA 1999 s 18(1)(a) are:
preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);
allowing a witness to give evidence by live link (s 24; ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
hearing a witness’s evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
video recorded evidence (s 27);
questioning a witness through an intermediary (s 29);
using a device to help a witness (eg because deaf or mute) to communicate (s 30).
FPR 2010, r 3A.1 defines a ‘participation direction’ as:
'(a) a general case management direction made for the purpose of assisting a witness [intended to be assisted by FPR 2010 Part 3A] to give evidence or participate in proceedings; or
(b) a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8'
FPR 2010 r 3A.8(1) lists a limited number of ‘measures’ for which, under the terms of FPR 2010, a ‘participation direction’ may be made:
(a) prevent a party or witness from seeing another party or witness;
(b) allow a party or witness to participate in hearings and give evidence by live link;
(c) provide for a party or witness to use a device to help communicate;
(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary; [or]
(e) provide for a party or witness to be questioned in court with the assistance of an intermediary….
A summary of the various measures available at common law and summarised by statute and the rules can be represented as follows:
Table: measures for evidence of vulnerable witnesses and children
Screen to prevent witness seeing, or being seen, a party
YJCEA 1999 s 23; ABE guidance para B.9.1
Live-link (video-link or conferencing) for evidence and cross-examination
FPR 2010 r 22.3 and PD22A; YJCEA 1999 s 24; ABE B.9.4
Hearing a witness in private
YJCEA 1999 s 25; ABE B.9.12
YJCEA 1999 s 27; ABE B.9.17
Assistance of an intermediary
YJCEA 1999 s 29; ABE B.9.29; Criminal Procedure Rules 2015 Pt 18 and PD IF
Aids to communication
YJCEA 1999 s 30; ABE B.9.38
Cross-examination by pre-written questions
MFPA 1984 s 38G(6); H v D  (below)
FPR 2010 r 23.2
Judge/court assistance with examination of witness
MFPA 1984 s 38G(6)
Measures for assistance of vulnerable or intimidated witnesses
Notes on these measures for children and to the evidence of vulnerable witnesses follow:
- Evidence by live-link (‘video link’ or ‘video conferencing’) is provided for in family proceedings (r 22.3; and see Annex 3 to PD22A). This is explained more fully in the Police Guidance at para 5.7.2 and in ABE Guidance at para B.9.4. The witness’s evidence is relayed live into the court-room while he or she is in another room or out of the court altogether. They are away from the presence of the party whose presence may be thought to intimidate them. Directions could be made for this evidence to be heard at a different location (from the court) and on a different occasion from any final hearing (FPR 2010 r 4.1(3)(f); for special arrangements for a child to be asked questions on behalf of a defendant see R v Lubemba & Ors  EWCA Crim 2064,  1 WLR 157).
- Video-recorded interviews are to be distinguished from ‘live-link’ evidence. Subject to court direction they can be used to provide evidence in chief, if the interview has been properly conducted; or sufficiently properly conducted (Wolverhampton City Council v JA & Ors  EWFC 62, Keehan J). Their use in children proceedings is already well-known and frequently used in children proceedings. If the video interview is the evidence in chief, permission from the court will be required to dispense with a statement from the witness/party (r 22.6(1)).
- Cross-examination by pre-written questions – Questions in place of cross-examination may be by list submitted to the judge in advance; and may be directed as part of case management (H v D (Appeal – Failure of Case Management)  EWHC 1907 (Fam), Peter Jackson J; and see the Matrimonial and Family Proceedings Act 1984, s 31G(6)).
- Hearing a witness in private – That some family hearings are in open court (eg divorce and some FLA 1996 Pt 4 (domestic abuse) and FGM proceedings) recalls that the hearing of a vulnerable witness in such cases may be called for.
- Assistance with communication – eg for deaf or mute witnesses.
- Intermediaries – Assistance from an intermediary is considered by ABE guidance B.9.29-37; but is dealt with relatively fully in the practice direction to the Criminal Procedure Rules 2015 at CPD I which includes (at paras 3F.1 and 3F.2) the following on the ‘Role and functions of intermediaries’:
- Intermediaries are independent of parties and owe their duty to the court. The court and parties should be vigilant to ensure they act impartially and their assistance to witnesses and defendants is transparent.
- Intermediaries facilitate communication with witnesses and defendants who have communication needs.
- Their primary function is to improve the quality of evidence and aid understanding between the court, the advocates and the witness or party to proceedings (eg they often advise on the formulation of questions so as to avoid misunderstanding)
- They may actively assist and intervene during questioning. The extent to which they do so (if at all) depends on factors such as the communication needs of the witness and skills of the advocates in adapting meet a witness’s needs.
Making the measures effective; witness assessment
The court has power to order these measures, whether at common law or under Pt 3A. There are two fundamental conditions precedent to any special measures (or ‘participation’) direction being made: (1) assessment of the witness and (2) funding (where needed) of the measure (eg IT equipment; fees of intermediary or signing help for deaf or mute). The funding of assessment or payment for measures has not been thought through by HM Courts and Tribunal Service.
The rule-makers (Family Procedure Rules Committee) have no power to provide funding. The Ministry of Justice has power to recommend forms of funding to Parliament which – only – can provide new sources of funding. For the avoidance of any doubt on this – some might think a little gracelessly – r 3A.8(4) includes:
'(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.'
Assessment of a witness must precede any direction for special measures. This may be by the court doing the best it can (how many judges or magistrates will be happy with that?); or, by court order (if there is funding for assessment. (A recent assessment of a child’s understanding is provided by Re S (Child as Parent: Adoption: Consent)  EWHC 2729 (Fam) Cobb J (assessment of understanding to consent to adoption of a child mother with learning difficulties: to be the subject of a forthcoming article by David Burrows in Family Law). Such assessment, especially for children and for those who may be suffering from mental incapacity or learning difficulties, may be – must be, surely? – done professionally. And yet?...
Funding of measures in family proceedings
Whatever may be the course available to the party who wishes to call the witness – for unlike in criminal proceedings where CPS can fund assessments and certain special measures – the assessment must be done with care, as explained by Sir Ernest Ryder, Senior President of Appeals, in the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1123. For example the court must be aware of:
- The way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and
- The importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done).
Though professional assistance must be required, for adults in private law proceedings nothing is said by Ministry of Justice as to who is going to pay. That is before the question of the cost of IT, equipment for recording evidence (eg of children or victims of domestic abuse), court video equipment (surely cannot be very expensive?), fees for an intermediary and so on is even touched upon.
At least one YJCEA 1999 ‘special measure’ available in open court proceedings – namely, getting judges and advocates to take off their gowns and wigs (for advocates who wear wigs) – while children or vulnerable witnesses give evidence (YJCEA 1999, s 26) – has no resources implications for the Lord Chancellor.