Obtaining Special Measures for our ClientsOctober 6, 2015
In the abuse team at BBK we settle the majority of our clients’ cases out of court thereby negating the need to go to trial. In some cases however this is just not possible, either because the Defendant is not playing ball or because we believe that our clients are entitled to more compensation than is on the table.
For those few cases that do go to trial there is a chance that the person that sexually or physically abused our clients will attend the court, especially where a client is suing an individual for compensation alone.
Special Measures in Criminal Cases
During the criminal process the police will advise witnesses about special measures that are available to them at trial which they will be required to attend along with the Defendant. Understandably, many witnesses experience stress and fear when attending court to give their evidence. This can however affect the quality of their evidence which in turn could affect the outcome. Likewise, some witnesses have difficulty attending court because of their age or personal circumstances. In such cases where a witness is considered to be vulnerable or intimidated, special measures can be put in place to try to ensure that they are able to provide their best evidence at court.
There are a number of different types of special measures that can be implemented at a criminal trial such as a screen behind which a witness can give evidence, appearing at court via live link, giving evidence in private, the removal of wigs and gowns in the courtroom, video recorded evidence and examination of witnesses via an intermediary.
Can special measures be put in place for claims for compensation?
Just as witnesses in criminal trials face distress and anxiety at having to give evidence in court this is also the case for those that bring civil claims for compensation.
Unlike in criminal cases, however, there are no rules or provisions that provide for vulnerable witnesses in civil cases and as such the civil courts are behind the times. It was for this reason that members of the abuse team at BBK decided to become involved in a project to change this to protect witnesses when having to give evidence at trial.
The Advocates Gateway, which launched in July, is a website that provides free guidance on how to deal with vulnerable witnesses and parties. More specifically, the website features a number of different toolkits, one of which is a toolkit for vulnerable witnesses in civil cases.
Within that particular toolkit there is specific advice as to measures that could be taken in civil courts to help vulnerable witnesses when attending court and giving evidence. One such example, as in criminal cases, is the use of a screen or through giving evidence via a live link to the court. A vulnerable witness’s cross examination could be pre-recorded and in order to familiarise witnesses with the courtroom, pre-court visits could be arranged. Timetables could be drawn up to set down when a witness would give evidence, for example, if medication needs to be taken at a certain time.
How will this work in practice?
At the time of writing this blog I am shortly due to attend court for trials in two of my clients’ cases. Both are cases involving serious sexual abuse and both are suing their abuser directly. As a result of poor conduct from these Defendants my clients are now forced to attend the trial in order to resolve their cases thereby making it extremely likely that they will come face to face with their abusers. Understandably this is causing unnecessary stress and anxiety in the lead up to the trials.
For the first time however, relying on the toolkit for vulnerable witnesses Advocates Gateway, I applied to the court for permission for both of my clients to have special measures in the form of a screen so that they can give their evidence with as minimal distress as possible. I am pleased to report that the court agreed for the need of a screen in both cases. I hope now that this offers some comfort to my clients to reduce their anxiety levels.
At present however the Advocates Gateway and toolkits are in the form of guidance to the courts and parties. It is not, as yet, well known guidance however and it is now our job to make sure that the civil courts are aware of exactly what measures exist and to ensure they are put into place where required as a matter of course.
I am a Senior Solicitor at Bolt Burdon Kemp specialising in Child Abuse claims. If you think you may have a claim, contact me free of charge and in confidence on 020 7288 4827 or at firstname.lastname@example.org for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the Child Abuse team will contact you. You can find out more about the team.