Special measures resources

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  • CJS Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures
  • Home Office Measures to assist vulnerable or intimidated witnesses in the criminal justice system. Published by Home Office Communication Directorate 2002
  • CPS Provision of therapy for vulnerable or intimidated adult witnesses prior to a criminal trial - Practice guidance
  • Home Office Achieving the Best Evidence in Criminal Proceedings: Guidance for Vulnerable and Intimidated Witnesses, Including Children.
  • Ministry of Justice Circular 2010/09 special measures are now available to all courts in England and Wales - except for section 28 Youth Justice and Criminal Evidence Act 1999 on video recording cross-examination and re-examination.


Contents

Intermediary procedural guidance manual

Intermediary procedural guidance manual
Procedural guidelines on the intermediary provision (section 29) of the Youth Justice and Criminal Evidence Act 1999. This manual is intended to help criminal justice practitioners who are involved in criminal proceedings featuring an intermediary. It replaces the earlier guidance pack entitled ‘Guidelines for Practitioners on the Piloting of the Intermediary Provision of the Youth Justice and Criminal Evidence Act 1999: Sept 2004 (Edition 1)’. The manual contains guidance about the intermediary role, how they fit into criminal proceedings and how to obtain an intermediary.

C v Sevenoaks Youth Court (03 November 2009)

C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) (03 November 2009) This was an application inter alia for judicial review of the Youth Court to revoke an earlier decision purporting to authorise the appointment of an intermediary. Held: The decision to revoke the earlier decision to appoint an intermediary quashed. So, that is enough then to bring the earlier decision back into life again.

“16.….there is no statutory power permitting the appointment of an intermediary for a defendant, but there may be some procedural power in the Criminal Procedure Rules. Criminal Procedure Rule 1.1 sets out the overriding objective to deal with criminal cases justly, which includes at (c) recognising the rights of a defendant, particularly under Article 6 of the European Convention on Human Rights. Furthermore, the court's case management powers at Rule 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.”

"17. In my judgment, when trying a young child, and most particularly a child such as "C" who is only 12 with learning and behavioural difficulties, notwithstanding the absence of any express statutory power, the Youth Court has a duty under its inherent powers and under the Criminal Procedure Rules to take such steps as are necessary to ensure that he has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial. He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story as his proof of evidence is drawn up; it may be that he needs help to speak to his lawyers, let alone to the court; he will need help to follow the case as it proceeds; he would need help to decide whether to question the cadet whom he is alleged to have attacked; whether to accept his identification or to attack his credibility; he will need to decide what line to take with his co-defendant, "P", depending on the evidence he gives; he will need particular help to decide if he is to give evidence, and if so he will need help to do so. It is in the highest degree unlikely that this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and to help him, both during the trial itself and in preparation for it. In short, he needs an intermediary. Furthermore, if an intermediary is to be effective, "C" must know the intermediary and have confidence in him or her. Such trust will not be established if their first meeting is on the morning of the trial. Moreover, the court will have to adopt its procedures to ensure that the hearing is fair to "C" by using simple language, by taking breaks, by taking any and all such steps as are necessary. Experienced justices sitting in Youth Courts are well able to ensure the fairness of the proceedings.

18. I conclude that there is nothing in the Waltham Justice case, whether it be rightly or wrongly decided, which prevents the court from appointing an intermediary for a defendant pursuant to its common law powers..."

Special Measures for Vulnerable and Intimidated Witnesses

Special Measures under Part II of the Youth Justice and Criminal Evidence Act 1999 This document provides a very helpful breakdown of the act with flowcharts to assist in understanding of the very complex matters contained in the act.

CJS:Witness Walkthrough Support for witnesses: Some frequently asked questions about support for witnesses and help with giving evidence.

Vulnerable witnesses can now be protected through a range of "special measures" designed to better facilitate the giving of evidence in court. Measures range from screens shielding witnesses from defendant’s right through to more simple measures such as the removal of wigs.

Victims and Witnesses online resource for practitioners: Including Vulnerable and intimidated witnesses practice guides

Child witnesses

A witness aged under-17 at the time of hearing is automatically considered to be vulnerable under section 16(1)(a) of the Youth Justice and Criminal Evidence 1999 Act. Section 21 of the 1999 Act makes special provisions for child witnesses. Under this section a primary rule provides that in the case of a child witness, the court will normally direct that:

  • a video recorded interview will be admitted as the child's evidence in chief; and
  • any other evidence will be given by live link.

However, under section 21(5) where a child witnesses is also a 'child witness in need of special protection' (defined by section 21(1)(b)) the maximising evidence test does not apply. So for child witnesses in need of special protection it is virtually automatic that a special measures direction will be granted for a video recording to be admitted as evidence in chief (subject to the interests of justice tests in section 27 of the 1999 Act) and any other evidence to be given via live link.

Crimereduction.gov.uk

Criminal procedure rules: special measures directions

  • Form of application for a special measures direction under s.19 Youth Justice and Criminal Evidence Act 1999 (Criminal Procedure Rules, r 29.1(1), (2)) Form of application
  • Notice of application for leave to use television link where witness is outside the United Kingdom, under s. 32(1)(A) Criminal Justice Act 1988 (Criminal Procedure Rules, r 30.1(3)) Notice of application

Special measures for witnesses for ASBO applications

Section 143: Special measures for witnesses in proceedings for anti-social behaviour orders etc

Section 143 Serious Organised Crime and Police Act 2005 amends the Crime and Disorder Act 1998 by inserting a new section 1I. Subsection (2) of new section 1I makes provision for special measures directions, as set out in Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999, to be made in proceedings relating to anti-social behaviour orders. These proceedings are listed in subsection (1). They are proceedings in a magistrates' court on application for an anti-social behaviour order, proceedings in a magistrates' court or Crown Court on application for an anti-social behaviour order following conviction, and proceedings in a magistrates' court on application for an interim anti-social behaviour order. At present special measures directions under the Youth Justice and Criminal Evidence Act apply to vulnerable and intimidated witnesses in the context of criminal proceedings only.

Subsection (4) of new section 1I provides for the appropriate rules of court to apply, subject to any modification provided for by the rules.

Subsection (5) of new section 1I applies sections 47 - Section 49 and 51 of the Youth Justice and Criminal Evidence Act 1999. These sections relate to restrictions on reporting special measures directions and associated offences.

What are the special measures?

  • Screens - to ensure that the witness does not see the defendant
  • Live link - allowing a witness to give evidence from outside the courtroom
  • Evidence in private - clearing the court of most people (legal representatives and certain others must be allowed to stay)
  • Removal of wigs and gowns - by judges, advocates etc. (only applicable in the Crown Court)
  • Video recorded evidence in chief - allowing an interview with the witness, which has been video recorded before the trial, to be shown as the witness' evidence in chief
  • Intermediaries - allowing an approved intermediary to help a witness communicate with the police, legal representatives and the court

Crown Court guidance to advocates

1. Vulnerable or intimidated witnesses (including children)

2. Witnesses other than the defendant will be eligible for "special measures" to help them give evidence in criminal proceedings under the Youth Justice and Criminal Evidence Act 1999 if:

  • they are under 17; or
  • they suffer from a mental disorder, or a significant impairment of intelligence and social functioning (includes learning disability) or have a physical disability or suffer from a physical disorder that the court considers may diminish the quality of their evidence;
  • they are in fear or distress in connection with testifying in the proceedings so that the quality of their evidence is likely to be diminished [victims of sexual offences are presumed eligible unless they decline – section 17(4)].

The court may grant special measures either on application by a party or of the court's own motion.

3. Special considerations apply to child witnesses (section 21), with a near mandatory statutory regime for child witnesses "in need of special protection" – defined as sexual offences and offences involving the use or threat of violence (including neglect and abduction). These child witnesses benefit from the following presumptions: Evidence in chief will be provided through a video recording (if one exists);

  • Supplementary evidence and cross-examination will be given by live link;
  • In the event of a video recording being ruled inadmissible or partly inadmissible, evidence in chief will be given by live link.

The effect of this is that the court, either on application or of its own motion, is required at a preliminary stage to make the necessary orders for child witnesses in need of special protection.

In the case of all other child witnesses, the statutory presumption is that video evidence in chief and live link will maximise the quality of the child's evidence and that a direction to that effect should be made UNLESS the presumption is displaced. It will be for the party calling the witness in such a case to satisfy the court why the presumption does not apply.

4. The decision made at the preliminary stage is reviewable under section 20(2) and/or section 24(2) and (3).

The House of Lords in D, R (on the application of) v Camberwell Green Youth Court (2003) EWHC 227 (Admin) (04 February 2003) held that the presumption for children in need of special protection did not breach Articles 6 or 14 of the European Convention of Human Rights. It also clearly stated that the norm for child witnesses giving evidence was by video evidence in chief (where one has been recorded) and live link for cross-examination. This applies equally to child witnesses for the prosecution and Defence. Prosecuting Counsel should be alert for any child witnesses for the Defence where no application for live link has been made. Where this is the case, it should be brought to the court's attention for the Judge to make a live link direction if necessary.

5. Advocates should be familiar with this judgement to ensure that cases involving child witnesses (especially those "in need of special protection") are dealt with in accordance with the legislation and that the court has taken the appropriate action.

6. Advocates should ensure that details of all special measures applications are noted on the PDH questionnaire.

7. Advocates should also be alert to the possibility that witnesses may become eligible for special measures at any stage of the proceedings. In such situations, it may be necessary to make application to the court out of time (the Rules of Court specify that applications must be made within 28 days of committal/sending for trial, with provision for late/out of time applications).

8. Advocates are reminded that a special measures direction can only be discharged or varied if there has been a material change in circumstances.

9. In some cases, the advocate may be expected to attend an early special measures meeting, at which the police and the CPS will discuss which special measures should be applied for in relation to a vulnerable or intimidated witness.

10. Additionally, and wherever practicable, the advocate will be expected to attend any subsequent meeting held by the CPS with the witness where special measures will be discussed. [See the Practice Guide: Early Special Measures Meetings and Meetings Between the Crown Prosecution Service and Vulnerable or Intimidated Witnesses.]

11. Where there is video recorded evidence, the Crown Prosecution Service will not release video tapes without a written undertaking from the defence to comply with the undertaking contained in Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children [2002], or an undertaking to like effect.

12. Advocates should ensure that inappropriate cross-examination of a vulnerable or intimidated witness by an unrepresented defendant does not take place (sections 34-40 Youth Justice and Criminal Evidence Act 1999) and should challenge overly complex, repetitive or aggressive cross-examination by the defence advocate.

13. In all cases involving a child victim or witness, or a vulnerable or intimidated victim, the advocate is instructed to use best endeavours to fix an early trial date and to resist attempts to delay the listing of the case.

14. Advocates should be aware that section 46 Youth Justice and Criminal Evidence Act, 1999 (reporting restrictions for adults) came into force on the 7th October 2004 and should consider such applications were appropriate.

15. In a case where a prosecution child witness has received pre-trial therapy, the advocate should be aware of the Practice Guidance: Provision of Therapy for Child Witnesses Prior to a Criminal Trial.

16. In a case where a prosecution vulnerable or intimidated adult witness has received pre-trial therapy, the advocate should be aware of the Practice Guidance: Provision of Therapy for Vulnerable or Intimidated Witnesses Prior to a Criminal Trial.

Other guides

Important cases

Statutory Instruments

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