Law Centre (NI) Response

June 2010

1.   About Law Centre (NI)

Law Centre (NI) is a public interest law non-governmental organisation.  We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: mental health, social security, immigration, community care and employment.  Law Centre services are provided to over 450 member agencies in Northern Ireland. 

In this response we focus on the potential impact of the proposals on those with mental health issues and make some other general comments for consideration.

2.   Introduction

We agree that there is a strong case for reform of the protection offered to vulnerable witnesses in civil proceedings.  We welcome the recognition by the Commission that it is entirely probable that witnesses in civil proceedings will display the same characteristics such as mental disorder or physical disability or disorder which would make them eligible for special measures in criminal proceedings.  It is reasonable to assume that given 18 percent of all people living in private households in NI experience some degree of disability and 21 percent of adults and 6 percent of children in NI are disabled[1] significant numbers of people with some form of disability will use the civil courts and therefore may wish to avail of special measures which should be available to support them. 

Current law and practice in NI gives only limited protection to witnesses who may experience difficulty in giving evidence in civil proceedings in the usual way i.e. via oral evidence.  We agree that the Commission should develop a more coordinated, consistent and accessible legal regime for allowing witnesses to give evidence in civil proceedings otherwise than by oral evidence.  A careful balance, however, needs to be maintained to ensure that witnesses are protected without unduly affecting the rights of any other party to the civil proceedings.

 3.   Mental Disorder/Impairment

Currently in NI, in criminal proceedings, witnesses are eligible for special measures if the court considers that the quality of their evidence will be diminished because they are suffering from a mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986, or are otherwise suffering a significant impairment of intelligence and social functioning.[2]  We welcome the Commissions recognition that the proposed single bill to reform the Mental Health Order and introduce capacity legislation in NI will have an impact on the Commission’s planned reform.  It is likely that new legislation in this area will alter the definition of ‘mental disorder’ currently relied on by the courts and will remove the omission of personality disorder from the current definition in the Order.  It is important that any suggested reforms for witnesses in civil proceedings take account of the proposal to legislate in the area of mental health and mental capacity legislation. 

We agree with the Commission’s view that as people experiencing a mental disorder or significant impairment of intelligence and social functioning can avail of protection in criminal proceedings it is only fair and sensible to offer protection to these people if they are required to give evidence in civil proceedings.  It is important, however, to avoid unhelpful and stigmatizing assumptions that every person who is experiencing a mental disorder or other impairment will need or want to avail of special measures. 

Providing additional support and special measures for people who suffer from a mental disorder or other such impairment in civil proceedings should prove to be beneficial to witnesses and to the court as a whole by enabling individuals to give their best evidence to the court, allowing individuals to play a full role in their civil proceedings and ensuring access to justice.

 4.   Types of special measures

• Screening

Although perhaps more relevant for use in the case of child witnesses, Law Centre NI supports the view that there is merit in including the option of using screens in a list of special measures to be adopted in civil proceedings.  We also recommend that all eligible witnesses should be allowed to apply to the court to give evidence from behind a screen. 

• Live Television Link

Again although these measures are more commonly used in order to protect child witnesses we believe that there is merit in having the option available to those with mental disorders including those who are detained in hospital or too unwell to attend court in person.  We note the reference to the consultation by the Office for Criminal Justice Reform in England and Wales  which found that using live television link helped witnesses achieve their best evidence, reduced the stress of the evidence-giving process and allowed witnesses to give evidence in a more supportive, responsive and safe environment.  Again while these responses are based on the experiences of child witnesses similar arguments can be made for those with mental disorder or impairment.  Care needs to be taken to ensure that the use of special measures does not unduly influence or impact upon the outcome of a case considering that evidence via live television link will make the witness more remote and it may therefore be more difficult to draw conclusions from the demeanor and reaction of the witness.

• Evidence Given in Private

Currently this special measure only applies in criminal cases involving a sexual offence or intimidation of the witness.  There is a balance that needs to be struck between protecting a witness and ensuring transparency in court proceedings.  A special measure of this nature could supplement the existing court powers regarding privacy and would also place privacy in the context of a specific scheme which is designed to offer protection to witnesses whilst giving evidence, therefore placing it on a different footing.  We can see the potential benefits for some witnesses with certain mental disorders however such an extreme special measure would need careful consideration on a case by case basis. 

• Removal of Wigs and Gowns

If deemed appropriate and necessary we see no issue with including a special measure to allow for the removal of wigs, gowns and robes.  As with all such measures this will depend on the witness as some individuals would feel more at ease if such formalities were removed while others may expect a certain level of formality and may question the authority of the court if they were not present.

• Pre-Recorded Evidence in Chief

Introducing such a measure into civil proceedings could create significant administration, resourcing and training issues.  Solicitors or whoever was interviewing a witness in NI would need to be fully trained in accepted interviewing techniques and would need access to equipment.  We would welcome information therefore on the practical measures of implementing this special measure including the proposed venue(s) for pre-recorded evidence and who would be allowed to interview the witness.

Considerable care would need to be taken to ensure that witnesses were treated fairly and equally whether in court or pre-recorded.  Guidance relating to criminal proceedings[3] recommends that consideration should be given to having a witness assessed by an expert (clinical psychologist, speech and language therapist, psychiatrist) to avoid compromising any evidence obtained during an interview.  If this measure were to be introduced it could further impact on the timeliness of a court hearing and the cost of proceedings.  Law Centre would recommend further specific research on the potential benefits of this special measure prior to any decision being made. 

• Use of Intermediaries

There would need to be a very clear definition of an intermediary and his/her role.  Very little detail is provided within the consultation document on this proposal.  We would welcome further information on who would act as an intermediary, how he/she would be appointed and how the role of an intermediary would differ from that of a supporter.

Such facilitated communication raises considerable concerns regarding the ability to judge the effectiveness of an intermediary in communicating a witness’s answers and the potential influence of an intermediary’s contribution to a case.  Considering the use of intermediaries has not been introduced in NI for criminal cases we would recommend that further research be undertaken to examine the potential pros and cons of the use of intermediaries in civil cases as a special measure prior to any introduction.

• Use of Supporters

We agree that the use of supporters would appear to be a useful method of assisting witnesses in civil proceedings.  As stated above we would welcome further clarification on the practical implementation of this special measure.  This includes how a supporter would be appointed, the measure to be put in place to guard against undue influence and an exact definition of their role and remit.

5.   Conclusion

Law Centre (NI) welcomes the opportunity to respond to this consultation.  We trust you will find our comments helpful.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so. 

[1] NISRA, Population and Migration Estimates NI (2008) statistical report July 2009

[2] Article 4 of the Criminal Evidence (Northern Ireland) Order 1999

[3] Achieving Best Evidence in Criminal Proceedings (Northern Ireland): Guidance for Vulnerable or Intimidated Witnesses including Children (Northern Ireland Office), October 2003