1. Preparing for the Court Experience
One of the roles of legal support is to help you to prepare for Court.
It can be both helpful and reassuring to understand what to expect at an early stage, and the following is some general information based on the lived experience of social workers who have provided oral evidence at a Court of Protection hearing.
The size and layout of the courtroom
Every courtroom is different but, generally speaking Court of Protection courts are normally fairly small. There may be 7 or 8 rows of seating, with the Judge's bench on a raise podium at the front of the room. The witness stand will be located at the front of the room, adjacent to the bench.
People that will be there
Court of Protection hearings are open to the public and, as such, members of the public may be present. Counsel or the legal representative of your organisation should provide you with any specific guidance around conduct that may apply.
When you arrive at Court you will be asked to wait in a designated waiting area outside of the courtroom, along with everyone else who will be attending. You will all be called into the courtroom at the same time.
When entering the courtroom you should not go to the witness stand (unless you were part way through your evidence when a break was called). You will be summoned to the witness stand when it is time for you to give evidence.
The Judge will not be present in the courtroom. His arrival will be announced and at this point everyone should stand. The Judge will advise everyone to be seated when he has taken his own seat.
Breaks and refreshments
You should not take any food or drink into the courtroom.
The Judge will determine at which point (if any) there should be a refreshment break and this could be several hours.
Nobody is normally permitted to leave the courtroom whilst a hearing is in progress, so it advisable to use the toilet beforehand.
If you have started to provide oral evidence and the Judge calls a break, you must not speak to anyone else involved in the proceedings until you have finished providing your evidence.
When you are called to give evidence you should make your way to the evidence stand. This is normally a small podium, but in a larger courtroom could be a box.
On the stand will normally be the following:
- A copy of the oath you will be asked to read before giving evidence;
- A copy of the Court bundle (all of the evidence submitted thus far); and
- A glass of water.
You will be asked to state you name, occupation and to swear an oath that the evidence you shall give will be the truth.
You will then be examined (questioned) by the Barrister or solicitor representing the organisation making the application (your organisation). This is in your capacity as a witness for the applicant.
The Judge will then ask the Barrister or Solicitor representing P (the person who lacks capacity) if they have any questions regarding your answers to the questions already asked of you, and invite them to cross-examine you (see below).
After this, the same opportunity will be offered to any other respondents (people named in the proceedings) or their legal representatives.
The Judge will ask questions of you at any point they feel it is required.
If there is a lot of evidence for you to give, and a great deal of cross examination you could be on the stand for several hours.When there are no further questions you will be invited by the judge to return to your original seat.
2. Examination and Cross Examination
Examination (also known as Direct Examination) is the term given to any questions asked of you by the Barrister or Solicitor of the organisation that has called you as their witness.
The main purpose of this questioning is to confirm and verify the evidence that you have already submitted to the Court, in particular any witness statement, mental capacity assessment or Best Interests report.
During examination your credibility or the validity of your evidence is not bought into question.
Cross examination takes place when the Barrister or Solicitor representing P (or any other respondent) feels there is a need to ask further questions about the oral evidence that you provided during examination.
Cross examination can sometimes feel more aggressive than examination, because:
- Questions are generally more probing; and
- The validity of your evidence may be bought into question; and
- Your credibility as a witness may be bought into question.
During cross examination you will likely be asked to explain in more details:
- Why you took a particular action; or
- Why you did not take a particular action; and
- The process that you used to make a particular decision.
The person carrying out the cross examination will also:
- Identify and ask you about any gaps in your evidence;
- Highlight any contradictions that you have made; and
- Make suggestions as to what you 'may' mean if this is not clear.
If cross examination does not take place this means that the answers you have given are accepted by all parties.
The purpose of examination and cross examination
The overall purpose of examination and cross examination is the same, despite the different approaches to questioning:
- To understand what you are saying;
- To understand why you are saying it (your rationale); and
- To ensure that you have followed due process; so that
- The Judge can decide whether P lacks capacity and what is in his Best Interests.
3. Top Tips for Court
The following are some general tips from social workers who have provided oral evidence at a Court of Protection hearing.
|1||Look professional. First impressions count at Court. Even if you dress down in the office wear a suit.|
|2||Use the toilet before entering Court-hearings can take several hours.|
|3||Find out what to call the Judge before you are called as a witness-this can vary from Your Honour to Sir/Madam to My Lord/Lady.|
|4||Speak clearly and make eye contact with the person asking you questions.|
|5||Read through all your evidence before going to Court, especially the older evidence and make sure you understand it all.|
|6||Be confident in your rationales and processes.|
|7||Anticipate where you may be questioned under cross examination, based on gaps or inconsistencies in your evidence. Prepare to be questioned about these.|
|8||Be honest-it shows integrity. Don't feel pressured into giving an answer to a question if you do not have/know the answer. Mental Capacity is complex and everyone knows that answers are not always clear cut.|
|9||If you need to refer to a piece of evidence in the Court bundle before answering a question, explain that you are going to take a moment to do this.|
|10||Use your legal support and ask lots of questions to help you prepare and manage the Court experience.|
|11||Don't state that something is a fact if it isn't. If you do, you risk being asked for evidence that you will not be able to provide and this could bring your whole credibility into question.|
|12||Sometimes Barristers will use complicated language. If you do not understand a question respectfully ask for it to be repeated or phrased differently.|
|13||If a Barrister rephrases something you have said and this alters the meaning say something like 'with all due respect I think that you may have misinterpreted my comments'. Normally you will be asked to rephrase things into your own words again.|