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Any witness could be vulnerable in a hearing. The vulnerability could relate to their background, circumstances or personal attributes, and aspects of the case such as the alien court environment could make matters worse.
Vulnerability not only affects specific sub-groups of lay participants. We know from our research that vulnerability is manifest in multiple ways within court and tribunal proceedings: there are vulnerable moments as well as vulnerable people.
What is an advocate to do when the potential for vulnerability among lay participants is so great? Research offers up four guiding principles: communicating clearly; supporting the participant’s voice; being considerate and respectful; and making adjustments.
Studies show that lay participants do not always understand the language of the courtroom, for example when legal jargon, complex sentences or complicated words are used. One research interviewee described it like this: ‘Everyone talks in this funky language.’ Many find it hard to say when they don’t understand. Advocates asking, ‘Do you understand?’ may be unhelpful. One young defendant said:
‘They asked me if I understood – I just said yeah… I just wanted to get it over with, and that. I didn’t want them to think I was being rude or something.’
It is vital to express questions (or directions and decisions if you are a judge) using short, simple sentences and language. In a recent study, an employment tribunal judge said:
‘Even very well-educated, professional litigants in person don’t hear what’s being said… I’ve got a friend who’s currently going through the process – she’s a banker. She comes out of the hearings, and I ask, “What did the judge say?” and she can’t t ell me.’
Where a person has a known communication need, The Advocate’s Gateway toolkits can help. Much of the advice in Toolkit 2 applies to all witnesses. For example, where possible introduce yourself to the witness and make sure they understand their role. When asking questions take your time, keep your body language neutral, maintain the witness’s attention and speak at an appropriate pace.
Having a ‘voice’ is not simply about expressing oneself but is also about being heard. This was powerfully expressed in research on the Coroner’s Court. A bereaved mother said of the inquest she attended:
‘Sometimes it’s more agony when you can explain yourself, and people are still not listening. It’s almost worse than when you are silenced by your grief.’
Proceedings should not appear to be entirely a discussion between legal representatives – what some have described as a ‘legal game’ or a ‘legal dance’. Often the layout of a courtroom can reinforce this sense of proceedings being all about the lawyers and not much about the lay people who are the ones whose lives will be directly impacted, and sometimes irreversibly changed, by the result. A criminal lawyer who we interviewed commented:
‘A trial can get a life of its own… and very often… looks a bit like an argument between two lawyers with another lawyer refereeing. And it’s very easy to forget that the defendant’s sitting at the back watching all of this.’
The layout of the courtroom cannot usually be altered, but advocates can provide explanations and reassurance, check that participants can hear and be heard, and that they can understand and be understood. They should not feel marginal to proceedings.
If a party is not represented then judges have an additional role to play. One tribunal judge in a recent study offered explanations for technical terms to an unrepresented claimant, reworded as questions some comments she made to witnesses, and checked with her that she had covered everything she wanted to.
It seems self-evident that participants in proceedings should be treated with consideration and respect. Why is it so important? One retired judge from our study on the Court of Protection said:
‘One of the obvious truths is that the justice system is a human system, and the human beings who are playing the major part are all different.’
The act of listening is a powerful way of expressing basic human respect for the different voices involved the court process, particularly for those who may be especially vulnerable in court proceedings, such as a grieving parent or a person with a learning disability. The subtle manner in which lay participants are spoken to and engaged with can express respectful and considerate treatment.
Being considerate includes recognising the importance of building and maintaining rapport. Meeting a vulnerable witness before they give evidence can be a first step to creating rapport and reducing anxiety and stress. In contrast, disrespect and insensitivity can exacerbate the sense of dehumanisation, powerlessness, trauma and vulnerability that many lay participants feel. It has been shown to accentuate a sense that the justice system is fundamentally inhumane – insensitive to the emotional and psychological complexities of individual court users and ineffective as a meaningful way to resolve conflict.
Many need specific adjustments in order to understand and engage with proceedings. Legislation, procedural rules and practice vary across the courts; ultimately it is the judge’s responsibility to direct necessary adjustments and advocates must adapt to the witnesses – not the other way round.
Adjustments include the use of special and bespoke measures in courts that don’t appear in legislation, rules or practice directions. A measure could be an advocate going into the live link room to question a witness, a ‘fidget’ gadget to help a defendant stay calm, an accompanying animal (support dog, pet cat or even a pet rooster), juries and lawyers staying in the court while the witness has a short, scheduled break, or a witness using model figures to show what was happening when they don’t have the words to describe it.
If a lay participant has a known vulnerability, for example because they are a child or they have a disorder affecting communication, a ground rules hearing (with an intermediary present if there is one) will enable a litigant in person and advocates to request adjustments. One intermediary described ground rules hearings as follows:
‘There are two kinds. One where the judge just skips through the recommendations and barristers pay lip service to agreeing to them and two, where there is a genuine discussion between all parties about the witness and the recommendations.’
One judge said:
‘A ground rules hearing, well timed, (ie a few days from the date of the trial and with the trial judge and advocates present) makes the whole process go so smoothly, that I hardly have to intervene during questioning.’
If a litigant in person who is due to give evidence has difficulty processing language, a tribunal could consider whether the questions should be written down for the witness. If a witness has known sensory issues in relation to lighting, the environment might need to be altered to make sure the witness has the best chance of engaging with the hearing. These would be matters for discussion and planning at a ground rules hearing.
*
In conclusion, whenever there are lay participants advocates should demonstrate and facilitate clear communication, ensure lay participants can provide and elicit information in the courtroom, promote a culture where lay participants are treated with consideration and, when necessary, use ground rules hearings to plan adjustments.
Inside Crown Court: Personal experiences and questions of legitimacy, Jessica Jacobson, Gillian Hunter and Amy Kirby (Bristol University Press: 2016)
The Youth Proceedings Advocacy Review, Ali Wigzell, Amy Kirby and Jessica Jacobson (Bar Standards Board: 2015)
Participation in Courts and Tribunals: Concepts, Realities and Aspirations, Jessica Jacobson and Penny Cooper (eds) (Bristol University Press: 2020)
Time to get it right: enhancing problem-solving practice in the Youth Court, Gillian Hunter et al (Centre for Justice Innovation: 2020)
See also the toolkits on The Advocates Gateway.
Vulnerable People and the Criminal Justice System: a Guide to Law and Practice, edited by Penny Cooper and Heather Norton (OUP: 2017)
Taking and Making a Statement: an exploratory study analysing through the lens of research the production of witness statements by lawyers and litigants in person, Dr Penny Cooper and Dr Michelle Mattison.
Enhancing Problem-Solving Practice in the Youth Court.
Judging Values and Participation in Mental Capacity Law.
Voicing Loss: Meanings and implication of participation by bereaved people in inquests
Professor Jessica Jacobson, PhD, is the Director of ICPR at Birkbeck, University of London. She oversees the institute’s ambitious and wide-ranging programme of academically grounded, policy-oriented research on crime and justice. She has designed and led a large number of funded research projects and published widely on many aspects of justice including prisons, sentencing, criminal investigations, and lay participation in judicial proceedings
Dr Camillia Kong is an IHSS Fellow and Strategic Senior Lecturer at Queen Mary University of London. She was the Principal Investigator of the AHRC-funded Judging Values and Participation in Mental Capacity Law Project and Senior Research Fellow at the Institute for Crime and Justice Policy Research, Birkbeck College. Camillia is also a Research Associate at the Ethox Centre, University of Oxford.
Any witness could be vulnerable in a hearing. The vulnerability could relate to their background, circumstances or personal attributes, and aspects of the case such as the alien court environment could make matters worse.
Vulnerability not only affects specific sub-groups of lay participants. We know from our research that vulnerability is manifest in multiple ways within court and tribunal proceedings: there are vulnerable moments as well as vulnerable people.
What is an advocate to do when the potential for vulnerability among lay participants is so great? Research offers up four guiding principles: communicating clearly; supporting the participant’s voice; being considerate and respectful; and making adjustments.
Studies show that lay participants do not always understand the language of the courtroom, for example when legal jargon, complex sentences or complicated words are used. One research interviewee described it like this: ‘Everyone talks in this funky language.’ Many find it hard to say when they don’t understand. Advocates asking, ‘Do you understand?’ may be unhelpful. One young defendant said:
‘They asked me if I understood – I just said yeah… I just wanted to get it over with, and that. I didn’t want them to think I was being rude or something.’
It is vital to express questions (or directions and decisions if you are a judge) using short, simple sentences and language. In a recent study, an employment tribunal judge said:
‘Even very well-educated, professional litigants in person don’t hear what’s being said… I’ve got a friend who’s currently going through the process – she’s a banker. She comes out of the hearings, and I ask, “What did the judge say?” and she can’t t ell me.’
Where a person has a known communication need, The Advocate’s Gateway toolkits can help. Much of the advice in Toolkit 2 applies to all witnesses. For example, where possible introduce yourself to the witness and make sure they understand their role. When asking questions take your time, keep your body language neutral, maintain the witness’s attention and speak at an appropriate pace.
Having a ‘voice’ is not simply about expressing oneself but is also about being heard. This was powerfully expressed in research on the Coroner’s Court. A bereaved mother said of the inquest she attended:
‘Sometimes it’s more agony when you can explain yourself, and people are still not listening. It’s almost worse than when you are silenced by your grief.’
Proceedings should not appear to be entirely a discussion between legal representatives – what some have described as a ‘legal game’ or a ‘legal dance’. Often the layout of a courtroom can reinforce this sense of proceedings being all about the lawyers and not much about the lay people who are the ones whose lives will be directly impacted, and sometimes irreversibly changed, by the result. A criminal lawyer who we interviewed commented:
‘A trial can get a life of its own… and very often… looks a bit like an argument between two lawyers with another lawyer refereeing. And it’s very easy to forget that the defendant’s sitting at the back watching all of this.’
The layout of the courtroom cannot usually be altered, but advocates can provide explanations and reassurance, check that participants can hear and be heard, and that they can understand and be understood. They should not feel marginal to proceedings.
If a party is not represented then judges have an additional role to play. One tribunal judge in a recent study offered explanations for technical terms to an unrepresented claimant, reworded as questions some comments she made to witnesses, and checked with her that she had covered everything she wanted to.
It seems self-evident that participants in proceedings should be treated with consideration and respect. Why is it so important? One retired judge from our study on the Court of Protection said:
‘One of the obvious truths is that the justice system is a human system, and the human beings who are playing the major part are all different.’
The act of listening is a powerful way of expressing basic human respect for the different voices involved the court process, particularly for those who may be especially vulnerable in court proceedings, such as a grieving parent or a person with a learning disability. The subtle manner in which lay participants are spoken to and engaged with can express respectful and considerate treatment.
Being considerate includes recognising the importance of building and maintaining rapport. Meeting a vulnerable witness before they give evidence can be a first step to creating rapport and reducing anxiety and stress. In contrast, disrespect and insensitivity can exacerbate the sense of dehumanisation, powerlessness, trauma and vulnerability that many lay participants feel. It has been shown to accentuate a sense that the justice system is fundamentally inhumane – insensitive to the emotional and psychological complexities of individual court users and ineffective as a meaningful way to resolve conflict.
Many need specific adjustments in order to understand and engage with proceedings. Legislation, procedural rules and practice vary across the courts; ultimately it is the judge’s responsibility to direct necessary adjustments and advocates must adapt to the witnesses – not the other way round.
Adjustments include the use of special and bespoke measures in courts that don’t appear in legislation, rules or practice directions. A measure could be an advocate going into the live link room to question a witness, a ‘fidget’ gadget to help a defendant stay calm, an accompanying animal (support dog, pet cat or even a pet rooster), juries and lawyers staying in the court while the witness has a short, scheduled break, or a witness using model figures to show what was happening when they don’t have the words to describe it.
If a lay participant has a known vulnerability, for example because they are a child or they have a disorder affecting communication, a ground rules hearing (with an intermediary present if there is one) will enable a litigant in person and advocates to request adjustments. One intermediary described ground rules hearings as follows:
‘There are two kinds. One where the judge just skips through the recommendations and barristers pay lip service to agreeing to them and two, where there is a genuine discussion between all parties about the witness and the recommendations.’
One judge said:
‘A ground rules hearing, well timed, (ie a few days from the date of the trial and with the trial judge and advocates present) makes the whole process go so smoothly, that I hardly have to intervene during questioning.’
If a litigant in person who is due to give evidence has difficulty processing language, a tribunal could consider whether the questions should be written down for the witness. If a witness has known sensory issues in relation to lighting, the environment might need to be altered to make sure the witness has the best chance of engaging with the hearing. These would be matters for discussion and planning at a ground rules hearing.
*
In conclusion, whenever there are lay participants advocates should demonstrate and facilitate clear communication, ensure lay participants can provide and elicit information in the courtroom, promote a culture where lay participants are treated with consideration and, when necessary, use ground rules hearings to plan adjustments.
Inside Crown Court: Personal experiences and questions of legitimacy, Jessica Jacobson, Gillian Hunter and Amy Kirby (Bristol University Press: 2016)
The Youth Proceedings Advocacy Review, Ali Wigzell, Amy Kirby and Jessica Jacobson (Bar Standards Board: 2015)
Participation in Courts and Tribunals: Concepts, Realities and Aspirations, Jessica Jacobson and Penny Cooper (eds) (Bristol University Press: 2020)
Time to get it right: enhancing problem-solving practice in the Youth Court, Gillian Hunter et al (Centre for Justice Innovation: 2020)
See also the toolkits on The Advocates Gateway.
Vulnerable People and the Criminal Justice System: a Guide to Law and Practice, edited by Penny Cooper and Heather Norton (OUP: 2017)
Taking and Making a Statement: an exploratory study analysing through the lens of research the production of witness statements by lawyers and litigants in person, Dr Penny Cooper and Dr Michelle Mattison.
Enhancing Problem-Solving Practice in the Youth Court.
Judging Values and Participation in Mental Capacity Law.
Voicing Loss: Meanings and implication of participation by bereaved people in inquests
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