Unit Four Vulnerable People in the Courtroom
A National Curriculum
Rationale
Vulnerable people can be involved in the court process as a plaintiff, defendant, accused person or witness. Moreover, people can be ‘vulnerable’ in different and sometimes overlapping ways. Judicial officers must be conscious of these vulnerabilities, avoid stereotyping individuals on account of particular vulnerabilities or disadvantage and appropriately manage proceedings in which vulnerable people are involved.
A National Curriculum
Application of the Core Dimensions
Substantive and Procedural Law
Programs in this unit may cover substantive law (such as procedural fairness) and procedural matters.
Judge Craft Skills
Programs might cover practical suggestions for facilitating self-represented vulnerable litigants’ participation in court proceedings without ‘descending into the arena’; particular requirements for child and vulnerable witnesses;
Attitudes and Values
Programs in this unit may wish to include a consideration of various societal attitudes and values towards vulnerable groups and how the personal attitudes and values of judicial officers may have been influenced by these societal views. Programs developed under this unit may wish to consider exploring the application of the principles of equality and fairness in a diverse society.
A National Curriculum
Core Judicial Qualities
- Independence
- Impartiality
- Fairness
- Accountability
- Efficiency
- Transparency
- Competency
- Integrity
- Courage
- Compassion
Independence
The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions.
Impartiality
This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making
Fairness
Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias
Accountability
open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles.
Efficiency
Ensuring the reasonably timely resolution of cases.
Transparency
Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible.
Competency
Having sound knowledge of the relevant law and procedure as well as good court craft skills
Integrity
Displaying intellectual honesty, respect and placing the obligations of judicial office above personal interests both inside and outside the courtroom.
Courage
Doing justice according to law irrespective of the consequences or popularity of the decision
Compassion
Compassion involves recognising the suffering of others and wanting to alleviate it. Within the constraints of the law, judicial officers can show compassion through procedural fairness, judicial engagement (exploring underlying issues and empowering a party to address them) and other therapeutic jurisprudence practices.
A National Curriculum
Judicial Learning Units
Aim
These programs help judicial officers to be aware of and understand the legal and practical issues which will confront them in dealing with litigants in person and to develop strategies for dealing with them.
Scope
These programs may encompass –
- A review of legal and practical issues including the rules and practices for accommodating self-represented litigants
- A review of published work, by courts and other organisations, in relation to such litigants
- The provision of data to participants on the extent of self-represented litigants in the courts and on the impact on court work
- Practical advice on how to deal with various situations
- Self-represented litigants in pre-trial hearings and in trials
- Differences in trials without juries and those with juries
- Self-represented litigants and the use of interpreters
- Difficulties in certain types of trials, eg. sexual offence trials
- Consideration of abnormal and querulous litigants from a psychiatric perspective and strategies for dealing with them.
The Judicial Role
The primary focus of these programs is the fair and efficient management of cases involving self-represented litigants.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to manage difficult individuals who appear before them such as querulant litigants or sovereign citizens.
Scope
These programs may encompass –
- The law relating to summary dismissal and strike out applications, abuse of process and vexatious litigant declarations
- Examining what makes particular litigants difficult and techniques for managing difficult litigants
- Consideration of the psychology behind and/or beliefs of different difficult litigants
The Judicial Role
The primary focus of these programs is the efficient management of cases, the court room and judicial officers’ work outside the court room.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to deal effectively with situations where children are in the court room as a victim or as accused or as a witness.
Scope
The programs could encompass –
- Legislative provisions in relation to evidence from child witnesses
- Taking evidence from child witnesses – children as reporters of history – how they differ from adults in their perception of events, how age and capacity affect the reliability of their evidence
- Appropriate techniques for questioning of children or dealing with them in court
- The extent to which usual court procedures should be adjusted for children
- The pre-recording of evidence
- Child witnesses and juries
- Factors relevant to child welfare, care and protection
- Permission to marry
- Child-related family law matters, such as sexual/child abuse cases
- Best practice for courts.
The Judicial Role
The primary focus of these programs is the efficient management of cases, the court room and judicial officers’ work outside the court room. In some cases a secondary focus will be an understanding of the relationship between the judiciary and society and of changes in society.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to deal effectively with situations where vulnerable witnesses are in the court room.
Scope
The programs could encompass –
- Identifying vulnerable witnesses
- Pre-recording of evidence
- Remote witness rooms
- Use of screens and other legislative protections
- Specific tests for special witness status
- Dealing with those who are not identified legislatively as vulnerable witnesses but appear vulnerable
- Appropriate techniques for dealing with and protecting vulnerable witnesses without disadvantaging the other side
- Dealing with the vulnerable self-represented litigant, particularly where the other side is also self-represented.
The Judicial Role
The primary focus of these programs is the efficient management of cases, the court room and judicial officers’ work outside the court room. In some cases a secondary focus will be an understanding of the relationship between the judiciary and society and of changes in society.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to deal effectively with victims of crime.
Scope
The programs could encompass –
- Use of victim impact statements
- The place of the victim in the criminal law process
- Victim mediation
- Restorative justice and similar processes
- Victim support services and their proper role in the court
- Compensation orders
- Criminal injuries compensation.
The Judicial Role
The primary focus of these programs is the efficient management of cases, the court room and judicial officers’ work outside the court room. In some cases a secondary focus will be an understanding of the relationship between the judiciary and society and of changes in society.
Judicial conduct and ethical issues may arise.
Aim
These programs help judicial officers to deal effectively with situations where individuals with a mental illness are involved in court proceedings.
Scope
The programs could encompass –
- Different kinds of mental illnesses and how they present
- Forensic mental health
- Fitness to plead hearings and findings of not guilty by reason of mental impairment
Aim
These programs help judicial officers to deal effectively with situations relating to socially and economically disadvantaged individuals.
Scope
The programs could encompass—
- The nature and extent of social and economic disadvantage in Australia
- The experiences of particular groups of people who are more socio-economically disadvantaged, both personal and of the court system
- Practical guidance for particular situations, eg what to do when a party does not have an address for service