Gillian Frost'un (Avukatl\u0131k Departman\u0131) san\u0131klardan birini temsil etmek \u00fczere g\u00f6revlendirildi\u011fi ve beraatla sonu\u00e7lanan yak\u0131n tarihli \u00f6nemli bir cinayet davas\u0131nda, davan\u0131n en yeni y\u00f6nlerinden biri, m\u00fcvekkiline yard\u0131mc\u0131 olmak i\u00e7in bir arac\u0131n\u0131n kullan\u0131lmas\u0131yd\u0131.<\/p>\n\n\n\n
The defendant in question had significant learning difficulties and was in grave risk of being left at an unfair disadvantage without specialised destek<\/a> to help him understand and follow the proceedings. Application was made for this support and granted. In the following article Gillian explains the legal background to this developing area.<\/p>\n\n\n\n Section 16(1) of the Youth Justice and Criminal<\/a> Kan\u0131t<\/a> Act 1999 (the Act) made provision for the use of special measures in the case of vulnerable and intimidated witnesses to facilitate the giving of their evidence.<\/p>\n\n\n\n Bu Kanunun 29. B\u00f6l\u00fcm\u00fc, bir tan\u0131\u011f\u0131n bir arac\u0131 vas\u0131tas\u0131yla sorgulanmas\u0131na izin veren \u00f6zel tedbirlerden biridir.<\/p>\n\n\n\n Daval\u0131lar i\u00e7in \u00f6zel tedbirlerin kullan\u0131lmas\u0131 Kanunun 16(1) maddesi ile a\u00e7\u0131k\u00e7a hari\u00e7 tutulmu\u015ftur. Ancak, 2009 tarihli Sorgu Yarg\u0131\u00e7lar\u0131 ve Adalet Yasas\u0131 s.104 ile eklenen bir de\u011fi\u015fiklikle Yasa'ya s.33BA eklenmi\u015ftir. S.104'\u00fcn bir k\u0131sm\u0131 a\u015fa\u011f\u0131da yeniden \u00fcretilmi\u015ftir:<\/p>\n\n\n\n (1) Bu b\u00f6l\u00fcm, bir su\u00e7tan dolay\u0131 bir ki\u015fi aleyhine (ister sulh mahkemesinde ister Kraliyet Mahkemesi'nde) a\u00e7\u0131lan davalar i\u00e7in ge\u00e7erlidir.<\/p>\n\n\n\n (2) Mahkeme, san\u0131\u011f\u0131n ba\u015fvurusu \u00fczerine, a\u015fa\u011f\u0131daki hususlarda tatmin olmas\u0131 halinde (3) numaral\u0131 f\u0131kra uyar\u0131nca bir talimat verebilir<\/p>\n\n\n\n (a) that the condition is subsection (5) is or, as the case may be, the conditions<\/a> in subsection (6) are met in relation to the accused, and<\/p>\n<\/blockquote>\n\n\n\n (b) san\u0131\u011f\u0131n adil bir \u015fekilde yarg\u0131lanmas\u0131n\u0131 sa\u011flamak i\u00e7in talimat\u0131n verilmesinin gerekli olmas\u0131.<\/p>\n<\/blockquote>\n\n\n\n (3) Bu alt b\u00f6l\u00fcm kapsam\u0131ndaki bir talimat, san\u0131\u011f\u0131n muayenesinin bir terc\u00fcman veya bu b\u00f6l\u00fcm\u00fcn ama\u00e7lar\u0131 do\u011frultusunda mahkeme taraf\u0131ndan onaylanan ba\u015fka bir ki\u015fi (\u201cbir arac\u0131\u201d) arac\u0131l\u0131\u011f\u0131yla yap\u0131lmas\u0131n\u0131 \u00f6ng\u00f6ren bir talimatt\u0131r.<\/p>\n\n\n\n (4) Bir arac\u0131n\u0131n i\u015flevi ileti\u015fim kurmakt\u0131r -<\/p>\n\n\n\n (a) san\u0131\u011fa, san\u0131\u011fa y\u00f6neltilen sorular ve<\/p>\n<\/blockquote>\n\n\n\n (b) bu t\u00fcr sorular soran herhangi bir ki\u015fiye, san\u0131\u011f\u0131n bu sorulara verdi\u011fi cevaplar,<\/p>\n<\/blockquote>\n\n\n\n ve s\u00f6z konusu sorular\u0131n veya cevaplar\u0131n san\u0131k veya ilgili ki\u015fi taraf\u0131ndan anla\u015f\u0131lmas\u0131n\u0131 sa\u011flamak i\u00e7in gerekli oldu\u011fu \u00f6l\u00e7\u00fcde a\u00e7\u0131klamak.<\/p>\n\n\n\n (5) Ba\u015fvuru yap\u0131ld\u0131\u011f\u0131nda san\u0131\u011f\u0131n 18 ya\u015f\u0131ndan k\u00fc\u00e7\u00fck olmas\u0131 halinde ko\u015ful, san\u0131\u011f\u0131n mahkemede s\u00f6zl\u00fc ifade veren bir tan\u0131k olarak yarg\u0131lamalara etkin bir \u015fekilde kat\u0131lma yetene\u011finin, san\u0131\u011f\u0131n zihinsel yetenek veya sosyal i\u015flev d\u00fczeyi nedeniyle tehlikeye girmesidir.<\/p>\n\n\n\n (6) San\u0131\u011f\u0131n ba\u015fvurunun yap\u0131ld\u0131\u011f\u0131 tarihte 18 ya\u015f\u0131n\u0131 doldurmu\u015f olmas\u0131 halinde, a\u015fa\u011f\u0131daki ko\u015fullar aran\u0131r<\/p>\n\n\n\n (a) san\u0131\u011f\u0131n (1983 tarihli Ak\u0131l Sa\u011fl\u0131\u011f\u0131 Yasas\u0131 anlam\u0131nda) bir ak\u0131l hastal\u0131\u011f\u0131ndan muzdarip olmas\u0131 veya ba\u015fka bir \u015fekilde zeka ve sosyal i\u015flevlerinde \u00f6nemli bir bozulma olmas\u0131 ve<\/p>\n<\/blockquote>\n\n\n\n (b) san\u0131\u011f\u0131n bu nedenle mahkemede s\u00f6zl\u00fc ifade veren bir tan\u0131k olarak yarg\u0131lamalara etkin bir \u015fekilde kat\u0131lamamas\u0131.<\/p>\n<\/blockquote>\n\n\n\n (7) San\u0131\u011f\u0131n (3). f\u0131kra kapsam\u0131ndaki bir talimata uygun olarak yap\u0131lacak herhangi bir sorgusu, Ceza Muhakemeleri Usul\u00fc Kurallar\u0131n\u0131n veya talimat\u0131n \u00f6ng\u00f6rd\u00fc\u011f\u00fc ki\u015filerin huzurunda ve a\u015fa\u011f\u0131daki ko\u015fullarda yap\u0131lmal\u0131d\u0131r<\/p>\n\n\n\n (a) yarg\u0131c\u0131n veya yarg\u0131\u00e7lar\u0131n (veya her ikisinin) ve yarg\u0131lamada g\u00f6rev alan yasal temsilcilerin san\u0131\u011f\u0131n sorgusunu g\u00f6rebilmeleri ve duyabilmeleri ve arac\u0131 ile ileti\u015fim kurabilmeleri ve<\/p>\n<\/blockquote>\n\n\n\n (b) j\u00fcrinin (e\u011fer varsa) san\u0131\u011f\u0131n sorgusunu g\u00f6rebilmesi ve duyabilmesi ve<\/p>\n<\/blockquote>\n\n\n\n (c) yarg\u0131lamada iki veya daha fazla san\u0131\u011f\u0131n bulunmas\u0131 halinde, di\u011fer san\u0131klar\u0131n her biri san\u0131\u011f\u0131n sorgusunu g\u00f6rebilecek ve duyabilecektir.<\/p>\n<\/blockquote>\n\n\n\n Bu alt b\u00f6l\u00fcm\u00fcn ama\u00e7lar\u0131 do\u011frultusunda, herhangi bir g\u00f6rme veya i\u015fitme bozuklu\u011fu dikkate al\u0131nmayacakt\u0131r.\u201d<\/p>\n\n\n\n Nonetheless, an application can succeed on the basis of the case of C v Sevenoaks Youth Court \u2013 EWHC 3088 (3\/11\/09), where an application was granted on behalf of a juvenile Defendant on a charge of assault. The case was heard in the High Court on an application for permission<\/a> to apply for judicial review. Paragraph 16 of the judgment of Openshaw J reads:<\/p>\n\n\n\n \u201cI have already made clear that there is no statutory<\/a> power permitting the appointment of an intermediary for a Defendant, but there may be some procedural<\/a> power in the Criminal Procedure Rules. Criminal Procedure r 1.11 sets out the overriding objective to deal with criminal cases justly, which includes at (c) recognising the rights of a Defendant, particularly under art 6 of the European Convention<\/a> on Human Rights. Furthermore, the court\u2019s case management powers at r 3.10(b)(v) require the court to consider what arrangements are necessary to facilitate the participation of any person in the trial, including the Defendant. In an appropriate case this surely requires the appointment of an intermediary for the Defendant himself.\u201d<\/p>\n\n\n\n B\u00fcy\u00fck bir davada san\u0131k arac\u0131s\u0131n\u0131n ilk kez kullan\u0131ld\u0131\u011f\u0131na inand\u0131\u011f\u0131m\u0131z davada bir san\u0131\u011f\u0131 temsil ettik. Bu, bir Y\u00fcksek Mahkeme Yarg\u0131c\u0131 \u00f6n\u00fcnde g\u00f6r\u00fclen bir cinayet davas\u0131yd\u0131. Dava ayn\u0131 zamanda adam ka\u00e7\u0131rma, sahte hapis ve adaletin ak\u0131\u015f\u0131n\u0131 sapt\u0131rma su\u00e7lar\u0131n\u0131 da i\u00e7eriyordu.<\/p>\n\n\n\n This was a six handed case. The fifth Defendant was our client who had limited abilities which we will<\/a> detail below (but included an IQ of 63). The intermediary sat in the Dock alongside the Defendant throughout the evidence relevant to him and went with him to the witness box when he testified.<\/p>\n\n\n\n Duru\u015fma, Savunmalar\u0131n \u201cbo\u011faz bo\u011faza\u201d do\u011fas\u0131 nedeniyle karma\u015f\u0131kt\u0131 ve ortak san\u0131klar taraf\u0131ndan bir Arac\u0131n\u0131n gereklili\u011fine ili\u015fkin bir sorun ortaya at\u0131ld\u0131.<\/p>\n\n\n\n (1) SAVUNMA TARAFINDAN YAPILAN ILK DE\u011eERLENDIRME<\/p>\n\n\n\n Bizim davam\u0131zda, 36 ya\u015f\u0131nda bir erkek olan San\u0131k, ilk iki m\u00fclakat\u0131nda temsil edilmemi\u015f ve kendisine bir arac\u0131 sa\u011flanmam\u0131\u015ft\u0131r (FME (polis doktoru), San\u0131\u011f\u0131n IQ'sunun \u00e7ok d\u00fc\u015f\u00fck oldu\u011funu bilseydi bir arac\u0131 tavsiye edece\u011fini kan\u0131t olarak kabul etmi\u015ftir).<\/p>\n\n\n\n When we read the answers given by the defendant in those police interviews we appreciated that the defendant was likely to struggle to give evidence on his own behalf at trial. He spoke of having a very bad memory during the interview<\/a>. When we met him he presented as vulnerable and slow.<\/p>\n\n\n\n Bir psikiyatri raporu ve bir e\u011fitim psikolo\u011fu raporu al\u0131nmas\u0131n\u0131 tavsiye ettik.<\/p>\n\n\n\n (2) RAPORLAR<\/p>\n\n\n\n The reports we obtained showed that the Defendant would be able to stand<\/a> trial but that he did not have the capacity<\/a> to properly give evidence in normal court working procedure conditions. He would need regular breaks and he would need to be given information in extremely small packages. His concentration would be limited and breaks would be required to check that he understood the proceedings.<\/p>\n\n\n\n Bu davada raporlar \u00f6zellikle bir arac\u0131n\u0131n yard\u0131m\u0131n\u0131 tavsiye etmi\u015ftir. Raporlar Kraliyet'e tebli\u011f edilmi\u015ftir.<\/p>\n\n\n\n The application for an intermediary has to be made expeditiously because if granted an appropriate intermediary has to be located and funding obtained. In our case the Prosecution<\/a> also obtained two medical reports. (At trial we called the Prosecution psychologist as a defence witness as she had been able to do more extensive testing of the Defendant). It was agreed that the Defendant had low level of verbal comprehension, low IQ and very poor short term memory.<\/p>\n\n\n\n Savc\u0131l\u0131k, San\u0131\u011f\u0131n bir arac\u0131 kullanmas\u0131na itiraz etmedi. Ancak, avukatlar\u0131n\u0131n sahip olabilecekleri endi\u015feleri dile getirebilmeleri i\u00e7in raporlar\u0131 e\u015f san\u0131klara tebli\u011f etmek zorunda kald\u0131k.<\/p>\n\n\n\n Prensip olarak, duru\u015fma yarg\u0131c\u0131, daval\u0131n\u0131n ifade vermesi durumunda ve di\u011ferlerinin ifadeleri s\u0131ras\u0131nda kendisine yard\u0131mc\u0131 olmas\u0131 i\u00e7in bir arac\u0131n\u0131n kullan\u0131lmas\u0131 gerekti\u011fini kabul etmi\u015ftir.<\/p>\n\n\n\n (4) BA\u015eVURUNUN KABUL EDILMESINDEN SONRAKI ADIMLAR<\/p>\n\n\n\n The Register of Approved Intermediaries is maintained by a Department of the Ministry of Justice. They assist in helping to find an appropriate intermediary. A period of liaison between the intermediary and \u201cclient\u201d is recommended so that they can establish a relationship. This may not always be a long period but ideally should be established by one or two interviews before trial and after the Intermediary has been provided with at least a \u00d6zet<\/a> of the case and any interview Exhibits. The intermediary will normally be required to furnish an assessment of his own, written or oral, depending on the circumstances and time available.<\/p>\n\n\n\n San\u0131klar i\u00e7in arac\u0131n\u0131n finansman\u0131, Hukuki Hizmet Komisyonu'na \u00f6n yetki ba\u015fvurusu yoluyla yap\u0131l\u0131r. Arac\u0131lar i\u00e7in \u00fccretlerin sunulmas\u0131 gerekmektedir. Yetki, duru\u015fma \u00f6ncesi de\u011ferlendirme ve duru\u015fmaya kat\u0131l\u0131m i\u00e7indir. Adalet Bakanl\u0131\u011f\u0131 Politika Sorumlusu Jason Connolly, Kay\u0131tl\u0131 Arac\u0131 Uygulama ve Etik Kurallar\u0131 ve bunlar\u0131n \u00fccret oranlar\u0131 gibi bilgileri sa\u011flamada bize yard\u0131mc\u0131 oldu.<\/p>\n\n\n\n (4) DAVA KONULARI<\/p>\n\n\n\n Ele al\u0131nmas\u0131 gereken 4 konu vard\u0131:<\/p>\n\n\n\n (1) Arabulucunun g\u00f6revini davan\u0131n ak\u0131\u015f\u0131n\u0131 en az kesintiye u\u011fratacak \u015fekilde yerine getirebilmesi i\u00e7in \u201cTemel Kurallar\u0131n\u201d belirlenmesi gerekiyordu. Arabulucumuz mahkemeye (j\u00fcrinin yoklu\u011funda) rol\u00fcn\u00fc nas\u0131l g\u00f6rd\u00fc\u011f\u00fcne dair baz\u0131 g\u00f6zlemlerde bulundu. Arac\u0131, avukatlara \u00e7ifte olumsuzluklardan ve \u00e7oklu c\u00fcmlelerden ka\u00e7\u0131nmalar\u0131n\u0131 ve k\u0131sa sorular sormaya \u00e7al\u0131\u015fmalar\u0131n\u0131 tavsiye etti. Arac\u0131, San\u0131\u011f\u0131n ara vermesi gerekti\u011fini Yarg\u0131ca nas\u0131l belirtmesi gerekti\u011fine dair benimsenecek prosed\u00fcr\u00fc tart\u0131\u015ft\u0131.<\/p>\n\n\n\n (2) San\u0131kla birlikte r\u0131ht\u0131mda g\u00f6r\u00fclen \u201cg\u00f6revlinin\u201d i\u015flevine ili\u015fkin olarak j\u00fcriye hangi talimatlar (veya rehberlik) verilmelidir.<\/p>\n\n\n\n The learned trial Judge made some introductory remarks when the jury were first made aware of the intermediary\u2019s presence. Later on in the trial the trial Judge circulated to counsel a proposed statement to be given to the jury in relation to the intermediary assisting the defendant in the witness box. This set out the psychologist\u2019s findings and recommendation for an intermediary. The jury were also told that not all parties accepted that evidence but the Judge had allowed the intermediary on the basis that he had to ensure a fair trial. The jury were told that the Barristers<\/a> had been advised as to how they should ask questions (eg avoiding double negatives). The jury were told the intermediary would indicate if he considered the defendant did not understand a question. The jury were told that they would have to decide relevant matters themselves, regardless of the Judge\u2019s decision that an intermediary should be allowed and regardless of the presence of the intermediary in court.<\/p>\n\n\n\n (3) At what stage to deal with the Issue of the need for an Intermediary. Each case will vary depending on for example: number of defendants; whether the defendant is to give evidence or just have assistance in the dock during the prosecution evidence; whether there is agreement<\/a> or not as to the necessity for the intermediary. In our case the need for an intermediary was raised pre-trial but the substantive argument developed during the course of the trial. The Judge, in order to ensure a fair trial for our defendant, allowed the intermediary to be in the dock. That helped counsel as the intermediary could note on what occasions the defendant had difficulty understanding<\/a> and we could assist him later in conference about<\/a> those parts of the evidence. Before the defendant gave evidence (but after defendants 1 to 4 had given evidence) the role of the intermediary was canvassed further with counsel and the Judge ruled on how he would direct the jury. Interestingly our defence experts were interposed during the course of the defendant\u2019s evidence but the learned Judge had made a statement to the jury before he gave his evidence. The intermediary was able to clarify the meaning of words or to reassure the defendant about issues as they arose. A brief reference was made to the jury as to the presence of the intermediary in the dock. In our case the intermediary was not present for the jury selection, opening speech and initial witnesses that did not affect our defendant.<\/p>\n\n\n\n (4) What further instruction (if any) was needed in the summing up? The learned trial Judge directed the jury that the defendant had been allowed the assistance of an intermediary in case there was any difficulty in him understanding the questions asked and the case put against him by the prosecution or other defendants. The jury were told that the extent of any impairment of his understanding was a Madde<\/a> of dispute and that it was a matter for them whether he had real difficulties. The intermediary was allowed in case there were difficulties.<\/p>\n\n\n\n The choice of whether or not to call a defendant to give evidence is sometimes a difficult one to make. In some cases it may be that medical evidence for a vulnerable person would be sufficient to avoid any adverse inference from not giving evidence. However, there may be times when counsel\u2019s experience is such that they believe that the calling of a defendant is essential. The use of an intermediary is a course of action which can help that vulnerable defendant to feel more relaxed because he knows there is someone who can intervene if he has difficulty understanding a question. The intermediary assists counsel because in a case of a poor memory the defendant will forget what he needs to tell counsel by the time of the next break in the case. He can indicate to the intermediary immediately who can make a note of the point and inform counsel. Special measures for witnesses have been available for some time (prosecution and defence witnesses) and now there is the availability of at least this special measure for vulnerable defendants. As mentioned above, the statutory framework is not yet implemented. There is much to be done, partly to ensure there will be sufficient registered intermediaries available. Hopefully all those defendants that require an intermediary will be able to have one. It will be important to be aware of the possibility as soon as practicable. Trying to match a registered intermediary that is local to the relevant court will be important in keeping<\/a> down costs. The longer the time it takes<\/a> to obtain the funding for an intermediary the harder it may be to find an appropriate intermediary who is sufficiently local.<\/p>\n\n\n\n GILLIAN FROST (Barrister, Ronald Fletcher Baker LLP)<\/em><\/p>\n\n\n\n Gillian Frost taraf\u0131ndan kaleme al\u0131nan benzer bir makale Criminal Bar Quarterly dergisinde yay\u0131nlanm\u0131\u015ft\u0131r.<\/p>\n\n\n\n (Please note: This article was originally published on our previous website and is provided for general information purposes only. While it reflects the legal position at the time of writing, the law may have changed since publication. For up-to-date advice tailored to your circumstances, please contact<\/a> our team<\/a>.)<\/em><\/p>","protected":false},"author":11,"featured_media":0,"parent":0,"menu_order":0,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":""},"categories":[],"tags":[],"class_list":["post-9300","knowledge-base","type-knowledge-base","status-publish","format-standard","hentry"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\tKanun<\/h4>\n\n\n\n
B\u00f6l\u00fcm 33BA San\u0131\u011f\u0131n arac\u0131 vas\u0131tas\u0131yla sorgulanmas\u0131<\/p>\n\n\n\n\n
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Ne yaz\u0131k ki bu de\u011fi\u015fiklik hen\u00fcz y\u00fcr\u00fcrl\u00fc\u011fe girmemi\u015ftir ve halen \u00f6nemli miktarda haz\u0131rl\u0131k \u00e7al\u0131\u015fmas\u0131 yap\u0131lmas\u0131 gerekti\u011finden s.104 i\u00e7in bir uygulama tarihinin hen\u00fcz verilmedi\u011fi anla\u015f\u0131lmaktad\u0131r.<\/p>\n\n\n\nBizim Davam\u0131z<\/h4>\n\n\n\n
Pratik Ad\u0131mlar<\/h4>\n\n\n\n
(3) BA\u015eVURU<\/p>\n\n\n\nSonu\u00e7<\/h4>\n\n\n\n