Supporting vulnerable witnesses
29 January 2024
While at the General Medical Council, I participated in several continuous improvement projects to enhance the witness experience during 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.
The guidelines focus on supporting vulnerable witnesses and testifying parties in proceedings before the Court of Arbitration for Sport (CAS). Their main goal is to create a framework that ensures vulnerable witnesses can deliver testimony safely and feel supported. The guidelines also encourage those who might hesitate to come forward to feel protected.
Defining “vulnerable”
A witness or testifying party is considered “vulnerable” if their participation could lead to re-traumatisation, pose a threat to personal safety, or risk damage to reputation or retaliation. The guidelines also include minors and individuals with mental disabilities, recognising their unique vulnerabilities in legal proceedings.
Guideline overview
The guidelines cover the various pinch points throughout the legal process:
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Before the hearing
Before the hearing, the guidelines encourage protective measures by the parties or CAS Panels. These include submitting written requests for protection and allowing the opposing party to respond. CAS Panels have broad discretion to adapt these measures, ensuring flexibility.
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During the hearing
During the hearing, CAS Panels can implement various protective measures. These include remote testimony to avoid direct contact, anonymous testimony, and pre-approval of cross-examination questions to protect witness identity. Panels also control questioning to reduce the risk of re-traumatisation.
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Anonymous testimony
The guidelines balance the use of anonymous testimony. Requests must include proof that revealing a witness’s identity poses a serious safety risk. If granted, the CAS court office ensures anonymity through identity verification, secure locations, and transportation arrangements.
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Award publication
After the hearing and the panel’s decision, the CAS court office protects sensitive information, including witness identities, in public records. Parties may also request witness anonymity, and the CAS court office decides on these requests.
Conclusion
Although the guidelines are non-mandatory, many agree there’s still room for improvement. Commentary suggests that incorporating these measures into the CAS Procedural Rules would strengthen their effectiveness. This approach would align with other tribunals that explicitly address the risk of harm to vulnerable individuals during legal proceedings.
While the guidelines represent progress, their impact depends on how committed CAS Panels and parties are to consistently implementing protective measures. As with any measures involving evidence and testimony, the challenge is balancing the rights of respondents with the protection of vulnerable witnesses, especially in safeguarding and abuse cases, while ensuring a fair trial.
Regulatory Defence has extensive experience in communicating with vulnerable witnesses and clients. Our expertise ensures a high standard of service, focusing on respect, empathy, and the human element.
Call Regulatory Defence today for a free initial consultation in a safe, supportive environment.
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