Professor Penny Cooper (ICPR, Birkbeck, University of London)
Introduction
- Effective participation in the courtroom is the right of every defendant.
- Vulnerable defendants are entitled to adjustments to support their effective participation.
These two sentences are uncontroversial enough, but the reality of their implementation in the courtroom is not. The meaning of ‘effective participation’, who can be classed as ‘vulnerable’, and what adjustments are available to defendants lack clarity and research is vital.
What is effective participation?
A research study that I conducted with colleagues at the Institute for Crime and Justice Policy Research (Jacobson and Cooper, 2020) concluded that though there is ‘wide agreement among law reformers and commentators, as well as among the judiciary and legal practitioners, that participation is essential to the delivery of justice’, practitioners interviewed in the study held different understandings of ‘participation’ in the courtroom. According to our research, participation entails at least six key aspects. Greater clarification about the meaning of participation, and its function, is needed. The results of our study can be found in an online open access book. The link is in the references section below.
What about screening for vulnerability?
Another concerning recurring message from research is this: There is no standard screening tool for the police and the courts to use to identify the suspect’s or defendant’s vulnerability and the adjustments to support their communication. Much evidence for the criminal courtroom is gathered and tested in the police station via the questioning of witnesses and suspects (later ‘defendants’ if charged). Recognition of and adjustments for a suspect’s vulnerability in the police station can directly impact not only police questioning but also CPS decisions whether to prosecute and the admissibility of evidence at the trial (Cooper, 2014). The need for a screening tool for suspects remains urgent.
What adjustments can a vulnerable defendant expect?
As Hunter points out, ‘much of how the courts accommodate lay participation is determined by practice directions and procedure rules, by appellate decisions and through professional convention’ (Hunter, 2020). The unfortunate reality is that for a vulnerable defendant, the question of what adjustments they are likely to get in the courtroom does not have a simple answer. In large part it depends on the legal practitioners’ know-how, the expertise of intermediaries who support communication and the proper use of ground rules hearings.
For many defendants giving evidence is a ‘once in a lifetime’ experience, for each defendant who gives evidence the quality of the communication with the judge and legal representatives will have a long-lasting impact, whether they are acquitted or not. For many years there was no intermediary scheme in England and Wales for vulnerable defendants despite calls (including my own) for a scheme that would match and allocate trained, regulated intermediaries for vulnerable suspects and defendants (Cooper and Wurtzel, 2013). A practice of ad hoc appointments developed to meet demand, and it operated outside the Ministry of Justice Witness Intermediary Scheme. In 2022 HMCTS expanded intermediary services for those who need communication support at a court or tribunal hearing. HMCTS now provides intermediary support for defendants in criminal cases and all parties in family, civil and tribunal cases. At the time of writing, it is too early to judge how efficiently and effectively the new HMCTS intermediary scheme operates; it is without doubt a step in the right direction since previously there was no single point of access and no overarching regulation of intermediary services beyond those for witnesses in the criminal courts.
Planning adjustments ahead of the hearing
Ground rules hearings were initially an idea I devised and developed in the classroom during some of the first intermediary training courses (Cooper, Backen and Marchant, 2015). As a result of this training, intermediaries attempted to engage judges and legal practitioners in setting ‘ground rules’ of good practice for questioning a particular witness; their attempts sometimes succeeded but sometimes they failed. Following the publication of my research with intermediaries (Cooper, 2014), the good sense of a ground rules hearing was recognised by the Criminal Procedure Rule Committee and written into the Criminal Procedure Rules in 2013. Ground Rules Hearings subsequently became a staple of judicial training in England and Wales. The general principle was captured in 2014 by the then Vice President of the Court of Appeal Criminal Division when she emphasised the need for a radical departure from traditional advocacy (R v Lubemba, 2014). ‘Advocates must adapt to the witness, not the other way round’. Even where there is no intermediary for a vulnerable defendant, ground rules for their questioning should be set. When there is no intermediary for the vulnerable defendant, legal practitioners have their training and free online resources such as The Advocate’s Gateway toolkits to fall back on, but this is no substitute for the advice and input of a suitably qualified intermediary.
Big questions for research
Big questions remain about what it means for a defendant to participate effectively, how to identify when a defendant is vulnerable, the use of ground rules hearings and the impact of adjustments. In these areas more research is needed. How that research is carried out is another issue of vital importance. Much more research with people with lived experience as vulnerable suspects and defendants is long overdue.
Reference List
Jacobson, J. and Cooper. P. (2020) ‘Participation in Courts and Tribunals: Concepts, Realities and Aspirations’, BUP. This book is also an open-access e-publication and available to download at: https://bristoluniversitypress.co.uk/participation-in-courts-and-tribunals
Cooper, P. (2014) Lacking empathy: Asperger Syndrome and the criminal justice system. The Circuiteer, Spring (38), pp. 12-15.
Cooper, P. and Wurtzel, D. (2013). A day late and a dollar short: in search of an intermediary scheme for vulnerable defendants in England and Wales. Criminal Law Review, 1, 4-22. Other publications calling for an intermediary scheme for vulnerable defendants followed.
Hunter, G. (2020), Chapter Two: Policy and Practice Supporting Lay Participation in Jacobson, J. & Cooper. P. (Eds) (2020) ‘Participation in Courts and Tribunals: Concepts, Realities and Aspirations’, BUP.
Cooper, P., Backen, P., & Marchant, R. (2015). Getting to grips with Ground Rules Hearings – a checklist for judges, advocates and intermediaries. Criminal Law Review, 6, 420-435.
Cooper, P. (2014). Highs and lows: the 4th intermediary survey. (Project Report) Kingston upon Thames, U.K.: Kingston University.
R. v Lubemba [2014] EWCA Crim 2064, para 45.
Defending Vulnerability 