Two bites of the apple- limitation in professional negligence cases
Perverting the course of Justice
So, even if there was a possibility of Shula’s evidence of Rob using violence was admissible, the difficulty is that Shula has demonstrably been untruthful before. This is because she lied to the police to protect Rob. This resulted in the police taking no action against Rob regarding the incident. Her own admission will make her evidence very easy to undermine.
Perverting the course of Justice is the same offence for which the former MP Chis Huhne and his wife were imprisoned in 2013. The court is very protective of the court’s integrity and those found lying to the authorities, especially when that affects the outcome of a police investigation or court case, can almost guarantee themselves bed and board at Her Majesty’s pleasure.
Anna has not helped her self either as in speaking to Shula she has created a conflict of interest. She should have advised Shula to stop talking and seek independent legal advice as soon as it became clear that she had committed an offence. Anna should now tell Helen about Shula’s evidence and of course Helen would be within her rights to require Shula to give that evidence at the court (either voluntarily or by way of a witness summons). It’s a bit of a mess.
Related to this is Rob’s behaviour towards Jess. Rob anticipated that Jess was a rich source of bad character evidence which would be dynamite in Helen’s defence. He lay in wait for Jess, with Henry in tow (particularly despicable to have involved poor Henry). The odious undertones of his conversation with Jess conveyed a clear threat that to get involved with the proceedings would be bad for her health and welfare. Had jess by then, been a “witness” in the proceedings, Rob’s behaviour may have amounted to perverting the course of justice or intimidation of a witness. Alas she was not and the effectiveness of his threat was clear in jess’s initial refusal to speak to Anna.
Fortunately Anna was able to get past that and if Jess agrees to give evidence, telling the court about Rob’s “visit” will be powerful evidence of quite how insidious he is.
Jess is rightly concerned about giving evidence. Not wanting to be in the same room, let alone see Rob is understandable. Where there is a possibility that the quality of a witness’ evidence can be improved, the court is able to provide “special measures” to make the witness more comfortable in giving their evidence. The special measures can include:
Special measures are granted under the Youth Justice and Criminal Evidence Act 1999 (as amended) (YJCEA) sections 23-30, 39 and 49 and their practical application is governed by the Criminal Procedure Rules. They can be used for prosecution and defence witnesses. Some witnesses have them as of right e.g. witnesses under 18 or where the offences alleged concern violence or sexual conduct. The measures are used routinely and the jury is given a direction that they must not hold the use of the special measures against the defendant i.e. don’t presume that the witness is screened because of something the defendant has done. My experience is that juries accept this direction. Defendant’s often perceive it as prejudicial and find it more difficult. The aim of the special measures is to enable the witness to feel more comfortable and thereby enhance their willingness to give evidence and improve the quality of their evidence.
Interestingly, the defendant, even if he or he is a child, is not eligible for special measures. Weird. So Helen will have to give her evidence under Rob’s steely glare. I have no idea how she will cope! There is a little used opportunity in s19(6) of the Youth Justice and Criminal Evidence Act 1999 under which the court has discretion to offer the defendant a limited number of special measures which were not repealed/replaced by the YJCEA. In Helen’s case, if Anna can show that Helen is unable to participate effectively in the proceedings, while giving her evidence, because of a mental disorder, or significant impairment of social functioning (query battered woman syndrome?) then maybe, she can give her evidence:
I hope that Jess will get on board and agree to give evidence but what if she doesn’t? Technically, the defence can apply to the court for a witness summons requiring Jess to attend court. If Jess failed to attend court she could be held in contempt of court, the punishment for which is usually a custodial sentence. But hold on:
a. That is not a very nice thing to do (yes I am going to say it, especially to another woman)
b. Even a baby barrister knows that it is an incredible risk to call a reluctant witnesses. You just never know what they might say and there is a real risk of it being counter-productive.
Understatement of the week
Goes to Anna Tregorran, Helen’s barrister, who is having a particularly testing time both professionally and personally. In an uncharacteristic, self- pitying exchange with her mother, Anna poses and answers the question “am I rubbish at my job, yes”. Rubbish is perhaps a bit harsh, but the preparation of Helen’s defence is not going well is it? If this was my case, I would be very worried.
For more information regarding any of the legal issues featured in this blog please contact Sandra.
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