It ranks alongside the more widely known injustices in British culture and provides a shocking example of the abuse of judicial power.

A young homeless orphan stands before a magistrate, sick, unable even to utter his name when demanded of him. A police officer acts as his intermediary. Similarly unable to elicit any response from the boy, he promptly makes a name up: ‘He says his name’s Tom White, your worship’. Through fabricated cooperation the officer hopes the orphan boy will be shown leniency. The boy’s plea for water then falls on deaf ears and he promptly faints. At that moment, despite his complete inability to participate at all in the proceedings, his sentence is declared: three months in prison with hard labour. The scene is, of course, taken from Oliver Twist. The magistrate, Mr Fang, was fashioned on a notoriously harsh magistrate that Dickens had himself seen in action, Allan Laing, whose flagrant abuse of power saw him dismissed by the Home Secretary in 1838. Things have come along way since the Dickensian era. Nowadays rules of evidence and procedure, developed and refined over the years, provide safeguards to ensure the fairness of proceedings, and the ability of parties to put their case. The judiciary, advocates and solicitors all have a role to play in ensuring a fair trial. The rules and guidance are introduced here along with some practical examples of how they might be applied. Readers are encouraged to access the source material to aid bespoke application. Useful introductions to the role of intermediaries, and how the courts can adjust procedures to meet the needs of Deaf people, can also be found in the contributions that accompany this article, from Dr John Taggart and Dr Susan O’Rourke respectively (see pages 38 and 39).

Civil Procedure Rules

The CPR places on obligation on the courts to deal with cases justly [r.1.1(1)], to ensure the parties are on an equal footing, can participate fully in proceedings and that witnesses can give their best evidence [r.1.1(2)(a)]. The courts must give effect to the overriding objective [r.1.2] and the parties must assist the court in this [r.1.3]. This is reinforced by PD1A, specifically concerned with the impact vulnerability may have on a party’s ability to participate or give evidence in proceedings. Here some factors that might cause vulnerability, which it is noted may be personal, situational, permanent or temporary, are identified. The practice direction refers to age, lack of maturity, communication barriers, physical and mental health conditions, and impairments in intelligence or social functioning. It also notes that vulnerability might arise in the context of an issue in the case, due to a relationship with another party or witness or due to social, domestic or cultural circumstances. Where the court identifies a vulnerability and determines that it is likely to diminish a party’s ability to participate or give their best evidence, it is expected to use ‘all proportionate measures’ to address such issues to further the overriding objective. The provisions may relate to the giving of evidence, the conduct of the advocates or other parties and the nature of cross examination. Some specific special measures are identified at PD1A paragraph 10. The CPR therefore obliges the courts to account for the needs of vulnerable parties in ensuring a fair trial. Further detailed guidance is found in the Equal Treatment Bench Book (ETBB) and The Advocate’s Gateway (TAG).

The Equal Treatment Bench Book

The ETBB aims to help judges deliver justice in a fair way. It places emphasis on effective communication, not just on the part of the judge, but also when it comes to participation by those giving evidence. It also emphasises the need to demonstrate fairness by ensuring parties feel they have received fair treatment, have been fully heard and understood. Along with chapters addressing issues of race/ ethnicity, religion, sexual orientation, modern slavery and trans people, there are sections covering:

• Children/vulnerable adults;

• Those with physical, and, separately, mental disabilities;

• Those lacking capacity;

• Those experiencing social exclusion and poverty.

The ETBB is not intended to be prescriptive but simply to inform, assist and guide. Courts are therefore very unlikely to be impressed by parties who seek to make the issue of fairness a battleground. The expectation is that parties will seek to assist the court (as required by the overriding objective) in the task of ensuring a fair trial. What steps are ultimately appropriate in any given case will vary, and the court enjoys a discretion about how the objective of fairness might be achieved.

It is emphasised that making reasonable adjustments or otherwise accommodating the needs of disabled or vulnerable people is not a form of favouritism or bias. It may, however, be necessary to level the playing field. The expectation is that advocates must adapt to the witness, rather than the other way around.

Decisions about how to adapt procedures should be made as early as possible. Account should be taken of the impact delay might have on the quality of a party’s evidence, with clean starts encouraged where appropriate. This involves letting a witness know in advance what time their evidence will begin, enabling them to arrive at court promptly, minimising the stressful effects of delay.

Account should also be taken of the effect medication might have on a party’s ability to give evidence. Breaks should be factored in, and consideration also given to the overall duration of cross examination. In appropriate cases a ground rules hearing might be convened where the issue of cross examination technique might also be explored (see paragraphs 148 et seq in Chapter 2 for adjustments to cross examination of children, young people and vulnerable adults; paragraphs 55 et seq in Chapter 4 is the equivalent for those with a mental disability). Consideration should also be given to seeking input from a specialist who might be able to advise the court on appropriate adjustments. In Ashton v City of Liverpool YMCA [2023] EWHC 707 (KB) (in which the author represented the claimant) a variety of the above measures were applied for a six-day High Court trial before HHJ Wood KC. A claim under the Occupier’s Liability Act 1957, it concerned a fall from a fourth floor window at a hostel resulting in extensive polytrauma. The claimant had a history of rough sleeping, alcoholism, heroin and crack cocaine addiction. She suffered from a psychotic personality disorder, depression and anxiety, was a lower limb amputee due to intravenous drug use, and had a history of self harm and aggressive behaviour. She also suffered from liver cirrhosis, heart disease and hepatitis C.

A ground rules hearing was requested to coincide with the pre-trial review. Prior to the PTR, evidence from the Pt 35 neuropsychiatrist was obtained to offer a view on reasonable adjustments accounting for the various physical and mental health issues and the sedative effects of medication. This recommended regular breaks, that the trial proceed in Liverpool (as opposed to Manchester where it had been issued), less formality in terms of dress, simple single proposition questioning, and that the support worker be sat nearby during cross examination. Those measures were subsequently largely agreed and featured in the PTR Order.

Wilson v Ministry of Justice [2024] EWHC 2389 (KB) concerned another claimant with a troubled background and a serious injury. HHJ Melissa Clarke’s judgment shows that breaks of around 15 minutes every hour were taken during cross examination of the claimant, it appears to account for emotional dysregulation and ADHD.

The Advocate’s Gateway

Known as TAG, this set of 20 toolkits covers a range of topics including planning to question those with autism, a learning disability, children, or those who are Deaf. There is also a toolkit to help lawyers identify if a witness is vulnerable. The latter (toolkit 10) emphasises that not all people with a characteristic that might indicate vulnerability would wish to be regarded as such. Their views must therefore be taken into account. With more lawyers handling cases remotely with limited direct client or witness contact, and where issues of proportionality might affect the time that can be devoted to case preparation, familiarity with approaches to identifying vulnerability is essential. Some of the questions from toolkit 10 include:

• Are you in receipt of disability living allowance or personal independence payments?

• Do you have a social worker, or is there anyone who helps you with daily living, such as helping to pay your bills?

• Do you use/have you used mental health services / learning disability services?

• Do you/did you get any extra help at school?

• Do you need any help with reading or writing/ managing money/getting about or going to appointments/with reading/to fill in forms?

The increasing prevalence of allegations of fundamental dishonesty, and the consequences that such a finding might bring, mean that the need to investigate such matters takes on added importance. It goes without saying that such issues should be addressed long before the day of trial (see PD1A para 6).

Concluding thoughts

We have come a long way since the days of Allan Laing, the harsh magistrate who inspired Dickins’ Mr Fang. We cannot, however, become complacent. While there are degrees of anything, including injustices, an injustice is per se a serious wrong. Ensuring vulnerable people can fully participate in proceedings is an essential component of avoiding injustice. It is something that we all have a duty to assist with.

Richard Edwards is principal solicitor at Richard Edwards & Co Solicitors and Advocates, Liverpool