Dr Samantha Fairclough, Associate Professor in Law, University of Birmingham
Introduction
This blog post outlines some of my preliminary research insights into the way in which defence barristers conceptualise what is in their vulnerable clients’ best interests when making decisions (alongside defendants) about whether and how they give evidence in criminal trials. While defendants are not compellable as witnesses (Criminal Justice and Public Order Act 1994, s.35) many defendants want to give evidence and there are often situations where it is pertinent to hear the defendant’s account at trial. Some specific examples include in sexual offence cases where consent is in issue or in trials where the defendant wishes to raise a defence. More generally, it is often advisable, from a tactical perspective, to humanise the defendant and ‘lift them off the page of the indictment’.
This research draws on findings from interviews with 25 criminal barristers in practice across England. The interviews focused on special measures decision-making, and as part of this the role that special measures play (or do not play) in a defence barrister’s conceptualisation of what is in their vulnerable client’s best interests. Put simply, do defence barristers consider the use of special measures by vulnerable defendants to be in their best interests in Crown Court trials?
Methods
The interviews took place between May and December 2022, mostly via Zoom, and lasted approximately an hour in duration. 11 of the barristers were from Chambers in London and 14 from Chambers in large cities in England outside of London (Birmingham, Bristol, Leeds, Manchester, and Nottingham). The interviewees had a range of post-qualified experience from two to 45 years (PQE >10 years = six barristers; PQE 10-20 years = 10 barristers; PQE 21-30 years = six barristers; PQE < 31 years = three barristers). A small number of participants also had previous experience as solicitors before they were called to the Bar. The barristers’ practice split between prosecution and defence work varied. Seven barristers solely defended (B4, B8, B11, B13, B14, B16, B25); one defended 80% of the time (B6); nine prosecuted at least two-thirds of the time (B1, B5, B7, B9, B10, B17, B18, B20, B21) and the remaining eight had a roughly 60/40 or 50/50 prosecution/defence split (B2, B3, B12, B15, B19, B22, B23, B24).
Duty to act in client’s best interest
The Bar Standards Board Handbook (BSB Handbook 2020) sets out the ten Core Duties of defence barristers. These Core Duties (and the Rules that come with them) are mandatory, defining the core elements of professional conduct. They limit what barristers can do/regulate how they should act, so for instance requiring that they act within the law, with honesty and integrity, and not in a way that could diminish trust/confidence of public in profession. The ‘Outcomes’ in the Handbook essentially explain the reasons for this regulatory scheme and show what compliance with the Core Duties is designed to achieve. They are not mandatory rules but are to be considered when looking at how the Core Duties and Rules are to apply in particular circumstances. There is also Guidance to help further with the interpretation and application of the Core Duties and Rules.
The relevant Core Duty for consideration here is Core Duty 2, the defence barrister’s duty to act in their client’s best interests. A defendant’s vulnerability is explicitly signposted as a relevant factor for consideration in decisions about their best interests in Outcome 14 (‘Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met’) and accompanying guidance:
You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful. You should do what you reasonably can to ensure that the client understands the process and what to expect from it and from you. You should also try to avoid any unnecessary distress for your client. This is particularly important where you are dealing with a vulnerable client. (gC41)
With these requirements in mind, my on-going analysis is concerned with whether there are (or should be) limits to what defence barristers can expect of their vulnerable clients when it comes to testifying in criminal trials. My previous work on humane treatment highlights concerns with witnesses and defendants being subjected to heightened distress during the trial that is not necessary or proportionate to the legitimate aim of accurate fact-finding (Fairclough, 2021b). It is against this backdrop – that instrumental gain ought not undermine fair procedures (see Mayerson and Mackenzie, 2018) – that this work takes place. While the defence’s purpose in adversarial proceedings is to put the prosecution to proof/create reasonable doubt, this should not be pursued at all costs, without sufficient regard for the treatment and well-being of a vulnerable defendant on trial.
Findings
In interviews, I asked barristers to flesh out what it means to act in a vulnerable client’s best interests when thinking about their potential testimony. The most common response was that acting in a client’s best interests means securing an acquittal. Many noted that this may come at a cost to the defendant’s well-being:
‘Acquittal is more important … maximising chances of acquittal is so much, so much more important than how traumatic the process of giving evidence might be for a defendant. Because, I mean, okay, that might be slightly traumatising, but not as traumatising [as a long period of time in prison]. I mean, yeah, hands down you do what’s most likely to see him acquitted of the crime.’ [B5]
‘The impact on a defendant of having to give evidence is sort of stressful. Is there a more significant position being the person on trial… and they have the consequences of the verdict. I think I would normally rationalise it and say to them, look … the benefits [an acquittal] will outweigh the short-term discomfort to your well-being.’ [B9]
The prevailing view among those interviewed was that the best way to secure an acquittal is for the vulnerable defendant to testify in court, in front of the jury, without special measures:
‘I don’t really want to go down the special measures route with my work. I want them to be transparent, open, thrown to the wolves, do the best they can if they give evidence, and then let me try and paint a pretty picture in the speech of what they did.’ [B8]
Several reasons were given for this, including the desire for human, face-to-face connection, the potential benefits of showcasing a vulnerability before the jury that presents in a favourable way, concern that special measures make it look like a defendant is hiding, that the impact and emotional intensity of the evidence is lost, and that it is easier to prompt and direct a client in person in the witness box than via live link (supporting existing research including Fairclough 2018b, Gunby et al 2020).
The difference was stark when these responses about defendants were compared to the way barristers reported approaching witnesses for the prosecution. The same concerns about the negative impact of special measures on evidence quality (in particular video evidence) were apparent for prosecution witnesses – live evidence in court was seen as the ‘gold standard’. However, there was a distinct recognition that there was more of a ‘trade-off’ when it comes to witnesses between how the barrister would like their evidence to be presented in the trial and the need to protect the well-being of the witness:
‘…are you trying to get an impact in the evidence or are you looking out for the witness. You’re doing both, but the witness comes first.’ [B2]
‘And you’re far more concerned when you’re defending to say… well, I think more people would be prepared to say, “I don’t mind putting the 14-year-old through the wringer a bit, if I think it’s going to make it materially more likely that we’ll get an acquittal.”’ [B17]
There are many factors to consider when thinking about why there is this difference in views concerning the approach to defendants and other witnesses, some of which I examine at length in previous publications (see Fairclough, 2017; 2018b; 2021a; 2023). These include the way the law has developed, the ongoing disparity in legal provision, the different processes and prompts for securing special measures for the defence and prosecution, and the significant resource issues (on the defence side in particular). B5’s response as to why there was a difference in approach was interesting:
‘… the impact of retraumatising a complainant, I think, has more weight. And you are more likely to prioritise making this slightly less traumatic, so long as their evidence can come across in some way, shape or form … Than even if it slightly makes them a little bit less sympathetic to a jury and so on, because the importance – I mean, this is a very defence perspective arguably – but the importance of a conviction is far… for anyone involved is far lower relatively than the importance of an acquittal for a defendant. … That is a completely life changing matter for the defendant, whereas you know, for a complainant, there’s other things.’ [B5]
This has left me thinking about whether, given all that the defendant has to lose from a conviction, the balance should shift in terms of what it is ethically acceptable to ‘put them through’ as a witness in their own defence. The BSB Handbook’s reference to avoiding any ‘unnecessary distress’, and my own definition of humane treatment as the avoidance of heightened suffering that is disproportionate to the necessary goal of accurate fact-finding, could arguably look different when we consider what is at stake. But it still remains the case that a person should not be used as solely a means to an end (Kant). And this calculation is further complicated by the fact that there may be longer-term implications of a traumatic trial for defendants, who could still be convicted in any event. This was something that was acknowledged by a few respondents:
‘There are cases, of course, where I think my client is going to be convicted, … where would it have been best to just say, “Don’t give evidence, don’t stress yourself out.” And there is a part of you that wonders whether that would be better for them in the long, long term, but you can’t run a defence practice that way because stranger things have happened than a client being acquitted when you think they’re not going to be.’ [B7]
Ultimately, however, when pressed, it always came back to the importance of an acquittal as being in all clients, including vulnerable clients’, best interests:
‘… being convicted is probably not terribly good for your mental health either.’ [B2]
Barristers did not view a defendant’s use of special measures to assist towards this end.
Conclusion
It should be noted that the quotes selected for this blog showcase the more extreme views presented in this research, and that a more careful analysis of the full dataset reveals more nuance around the issues. However, the conundrum presented here remains – how should a (vulnerable) defendant’s well-being be balanced against the goal of an acquittal when conceptualising what is in a client’s best interests? And how do special measures fit into this balancing act? This is a somewhat oversimplified discussion of these issues, but one that I will be delving into in more depth on in due course.
Acknowledgements
I am grateful to the SLS for funding this empirical research, and attendees at The Vulnerable Accused Network work-in-progress group and the SLSA Conference 2023 for feedback on these initial musings. I intend to write up this aspect of the project on my return from maternity leave in September 2024.
References
Bar Standards Board Handbook (2020, version 4.6).
Criminal Justice and Public Order Act 1994
Fairclough, S. (2017) ‘“It doesn’t happen…and I’ve never thought it was necessary for it to happen.” Barriers to vulnerable defendants giving evidence by live link in Crown court trials.’ 21(3) International Journal of Evidence and Proof 209-229.
Fairclough, S. (2018a) ‘Speaking up for Injustice: Reconsidering the Provision of Special Measures through the Lens of Equality’ Criminal Law Review 4-19.
Fairclough, S. (2018b) ‘Using Hawkins’ surround, field and frames concepts to understand the Complexities of special measures decision-making in Crown Court trials’ 43(3) Journal of Law and Society 457-485.
Fairclough, S. (2021a) ‘The Consequences of Unenthusiastic Criminal Justice Reform: A Special Measures Case Study’ 21(2) Criminology and Criminal Justice 151-168.
Fairclough, S. (2021b) ‘The Lost Leg of the Youth Justice and Criminal Evidence Act (1999): Special Measures and Humane Treatment’ 41(4) Oxford Journal of Legal Studies 1066-1095.
Gunby et al (2020) Rape and the Criminal Trial: Reconceptualising the Courtroom as an Affective Assemblage (Palgrave Socio-Legal Studies).
Mayerson, D. and Mackenzie, C. (2018) ‘Procedural justice and the law’ Philosophy Compass.
Defending Vulnerability 