New Zealand Law Society - “Benchmark” helps vulnerable witnesses achieve justice

“Benchmark” helps vulnerable witnesses achieve justice

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A new online resource will help judges and lawyers work more effectively with vulnerable witnesses and defendants, who often face difficulties navigating the legal system and achieving justice.

Based on a British model, Benchmark includes an initial seven guidelines, including pre-trial case management for vulnerable witnesses and working with court-appointed communications assistants. There are also specific guides for dealing with children, older adults, and people with autism spectrum disorder, fetal alcohol syndrome, intellectual disability, and mental distress.

The case of Teina Pora, a man with fetal alcohol syndrome who was wrongly convicted of rape and murder and spent 20 years in prison, highlights the importance of interviewing and cross-examination techniques that take account of the particular vulnerabilities of such people.

The project is jointly funded by the Law Foundation and IHC. Project writer senior solicitor Dr Emily Henderson says practitioners have strongly supported the project, recognising that traditional court procedure isn’t working well for vulnerable people.

“There’s now a 30-year-old mountain of empirical literature saying that what we do in cross-examination is really pretty awful. We now know that what we thought were useful ways of pinning a deceptive witness to the ground are, in fact, often immensely coercive.

“Even ordinary adults not dealing with anything especially stressful find much of the court procedure confusing. It’s much, much worse for vulnerable people,” she says.

Guides on each topic

The online hub, the first in Australasia, includes easy-read “cheat sheets” as well as longer articles on each of the topics covered. Aiming to achieve both increased disability awareness and responsive legal practice, the guides explain each disability and cover everything from first interviews to pre-trial directions and the trial itself, including how to question appropriately. Dr Henderson says there are similarities between them – for example, people on both the autism and fetal alcohol spectrums need a calm environment. Each guide is co-authored by New Zealand experts and reviewed by local and international academics and clinicians.

“Preparing vulnerable witnesses and defendants for court is so important. Children get a pre-trial courtroom orientation visit, but often adult defendants and witnesses need them too. Some people react badly to certain sounds or lights in the CCTV room, for instance, and need them changed,” she says.

Additional guides will be added in future, for young defendants, adult sexual violence complainants, and trial management, among other topics.

The original UK toolkits were the brainchild of two British experts, Dame Joyce Plotnikoff and Dr Richard Woolfson, who waived their copyright so the Law Foundation team could launch the project. The pair met with judges and experts in New Zealand and “they gave us carte blanche to produce versions that fit the Aotearoa context,” Emily Henderson says.

The project is hosted by Otago’s Donald Beasley Institute and led by the institute’s director, Dr Brigit Mirfin-Veitch. Along with Dr Henderson, the team also includes Dr Kirsten Hanna and Professor Kate Diesfeld of AUT University.

The Law Foundation has supported considerable past work on improving vulnerable people’s access to justice, including 2010’s ground-breaking study by Doctors Hanna and Henderson on child witnesses, and more recent work by Dr Mirfin-Veitch and Professor Diesfeld on witnesses and defendants with intellectual disability. Emily Henderson also looked at use of the UK Toolkits during her Law Foundation International Research Fellowship.

The new project is designed to make all this research accessible to practitioners: “We have tried to produce something that is practical, that judges and counsel will find valuable,” Dr Henderson says. “It’s all very well for academics to know this stuff – the important thing is to get the information out there to lawyers in a form they can actually use.”

Lynda Hagen is Executive Director of the New Zealand Law Foundation.

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