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Whilst working at the General Medical Council I was heavily involved in several continuous improvement projects to improve the witness experience for those giving evidence at Medical Practitioners Tribunals. So it was with great interest when I read about the new guidelines which were introduced by the International Council of Arbitration of Sport (‘ICAS’) last year. 

With a focus on supporting vulnerable witnesses and testifying parties in proceedings before the Court of Arbitration for Sport (‘CAS’), the primary objective of these guidelines is to establish a framework that facilitates the safe and supportive delivery of testimony by vulnerable witnesses while also encouraging those who might be hesitant to come forward to feel safe and supported in doing so. 

Defining “vulnerable”

Within this context, a witness or testifying party is deemed “vulnerable” if their participation in the proceedings carries the potential for re-traumatisation, poses a threat to personal safety, or creates a significant risk to reputation or the possibility of retaliation. Importantly, the guidelines extend this classification to encompass minors and individuals with mental disabilities, acknowledging their unique vulnerabilities in legal proceedings. 

Guideline overview

The guidelines cover the various pinch points throughout the legal process:

1. Before the hearing

PAhead of the actual hearing, the guidelines advocate for the adoption of protective measures either by the involved parties or at the discretion of CAS Panels. This includes the submission of written requests for protective measures and the opportunity for the opposing party to respond. CAS Panels retain a broad discretion to tailor these measures, emphasising flexibility and adaptability.

2. During the hearing

During the hearing itself, CAS Panels are empowered to implement a range of protective measures. These include remote testimony to avoid direct contact with adverse parties, anonymous testimony, pre-approval of cross-examination questions to prevent witness identification, and controlled questioning to minimise potential re-traumatisation.

3. Anonymous testimony

The guidelines provide a balanced approach to anonymous testimony. Requests for such measures must be substantiated by sufficient proof that revealing the witness’s identity would pose a serious threat to personal safety. If approved, the CAS court office takes on the responsibility of ensuring the witness’s anonymity through identity verification, secure locations, and transportation arrangements.

4. Award publication

Upon the conclusion of the hearing and the issuance of the CAS panel’s award, the CAS court office is entrusted with preventing the disclosure of sensitive information, such as the identity of vulnerable witnesses, in public records. Parties are also granted the right to request the anonymisation of witness identities, with the CAS court office having the authority to decide on such requests.

Conclusion 

Acknowledging the non-mandatory nature of the guidelines, it’s widely accepted that there remains plenty of room for further improvement. Various sources of commentary suggest that the incorporation of these measures into the CAS Procedural Rules would enhance their effectiveness, drawing parallels with the rules of other tribunals that explicitly consider the risk of harm to vulnerable individuals during legal proceedings.

While the guidelines signify a positive step in the right direction, their full impact may hinge on the commitment of CAS Panels and involved parties to consistently implement protective measures. As always with the introduction of any measures involving the hearing of evidence and testimony, the emphasis remains on striking a delicate balance between respondents and vulnerable witnesses, particularly in cases involving safeguarding and abuse and the right to a fair trial. 

Regulatory Defence draws on a wealth of experience when communicating with vulnerable witnesses and vulnerable clients. Our expertise in this area allows us to provide a high standard of service without losing sight of the human factor element, with a commitment to dealing with all parties with respect and empathy. 

Call Regulatory Defence today for a free initial consultation in a safe and supportive environment.