When participation is at risk: supporting vulnerable witnesses and securing the best evidence

When dealing with reports of anti-social behaviour, landlords often encounter witnesses who are either too fearful to be named in a witness statement and/or attend court to give first-hand evidence, or are themselves too vulnerable to attend trial.

While it is possible to produce hearsay evidence on behalf of witnesses who do not wish to attend court themselves, and include anonymous complaints in a statement from the landlord’s officer, the courts have reminded us in recent cases that such evidence is subject to scrutiny and challenge by the judge at trial, and the judge can decide what weight, if any, to place upon such hearsay evidence. Relying solely on anonymised, hearsay evidence can mean that a claim for an injunction, or a claim for possession, fails.

The court has recently handed down a Judgment in a possession claim where the landlord relied heavily on anonymised witness evidence. Whilst the landlord officers statement confirmed the witnesses were too intimidated to attend court, the judge noted that the statement did not include vital evidence such as:

• confirmation of conversations between landlord staff and witnesses regarding their unwillingness to attend court
• details of any intimidation of, or threats made to, the witnesses as evidence as to why they were so fearful about attending court
• no anonymised statements from the witnesses being obtained and/or exhibited to the officers statement
• the statement did not indicate that conversations had taken place with the witnesses around the special measures that the court could put in place to enable them to give evidence personally

The judge put a particular emphasis on the “special measures” that the court can put in place to support fearful or vulnerable witnesses – but what are they, and when can they be applied?

The court’s overriding objective is to ensure proceedings are conducted fairly and this includes the need to ensure that the parties are on an “equal footing” and able to participate fully, giving their best evidence.

Where a witness is vulnerable, this can significantly impact both participation and the quality of the evidence to be given. The courts are therefore expected to take proportionate steps to address any such disadvantage.

What amounts to vulnerability?

The court will consider a party or a witness vulnerable where any factor adversely affects their ability to engage with proceedings. The factors the court will take into account include, but are not limited to, the following:

• age, immaturity, or limited understanding
• communication or language barriers
• physical or mental health conditions
• learning difficulties or impaired functioning
• trauma connected to the case
• relationships with others involved in the proceedings which involve abuse or intimidation
• wider social, cultural, or domestic circumstances

What does the court look at?

When assessing vulnerability, the court focusses on practical participation—can the individual:

• understand the proceedings?
• communicate effectively?
• give evidence clearly?
• comply with court directions?
• instruct legal representatives?
• attend hearings?

What steps can the court take?

It is essential for both the parties and the court itself to flag issues of vulnerability at the earliest stage of proceedings so that appropriate adjustments can be made where needed. Where vulnerability is identified, the court may make specific directions to ensure fairness. This can include:

• controlling how evidence is given
• setting “ground rules” for questioning
• limiting or adapting cross-examination
• protecting personal details

Importantly, the court must take into account the views of the vulnerable party or witness before implementing measures.

Special measures in practice

What can the court order to assist those who are vulnerable? The court rules themselves set out a list of special measures that can be considered but are careful to confirm that the list is not exhaustive. The list of special measures provided in the rules are:

• the ability to give evidence via video link
• use of screens to prevent direct contact
• hearings in private
• pre-recorded evidence
• intermediaries to assist communication
• adjustments to the court environment (e.g. no wigs and gowns)

When thinking of a fearful or vulnerable witness who is, for example, perhaps fearful of meeting the other party to the proceedings face to face in court, the ability to give evidence via a video link is particularly helpful, as is the ability to perhaps give evidence behind a screen.

Giving evidence via video link may also assist a witness who has a physical disability or other health condition or impairment that makes travel to court difficult.

It must be remembered that this list is not exhaustive and the court rules specifically state that the opinions of the vulnerable witness or party must be taken into account when special measures are put in place. It is therefore important to discuss such issues with the witness in question and ask them what they feel would benefit them and enable them to attend to give first-hand evidence. As long as the proposed special measure is proportionate, the court must give reasonable consideration to granting that which is requested.

Why this matters

By recognising that fairness is not achieved by treating everyone identically, special measures can ensure everyone can participate effectively in proceedings and a party can present its best evidence.

Landlords must proactively identify vulnerability at a very early stage and ensure appropriate steps in proceedings are taken to secure special measures where they are appropriate. Done properly, it not only protects the vulnerable witness but also improves the integrity and reliability of the evidence before the court.

Key takeaways

Things to remember when securing witness evidence:

• First-hand evidence is always the best standard of evidence – hearsay can be used, but the reason for it must be justified and an explanation given as to why the witness cannot attend court themselves
• Consider whether the witnesses’ personal circumstances make them vulnerable? – is the witness disabled or suffering from an impairment that makes it difficult for them to attend court in person?
• Consider whether the situation at hand makes the witness vulnerable? – are they fearful of reprisals due to having been abused or intimidated by the other party to the proceedings, for example?
• If yes, consider whether special measures will enable the vulnerable witness to attend court – take the witnesses’ views into account and explore with them what could be put in place to enable them to attend court
• Raise any vulnerabilities with the court as soon as possible – you may need to make an application to the court for permission for special measures to be put in place. Ensure any application is made at the earliest opportunity and do not leave it to the last minute

If you’d like to discuss this topic further, please get in touch with our housing management team.