Special Measures
Updated 27/03/08
Principle
"Special Measures" are available to assist vulnerable and intimidated witnesses to give their best evidence in criminal proceedings. The special measures apply to prosecution and defence witnesses, but not the defendant. Special measures are available to defence witnesses in the youth court.
Guidance
Guidance is contained in "Achieving Best Evidence in Criminal Proceedings", which is also on the Infonet.
Introduction
Many witnesses experience stress and fear during the police investigation of a crime and the process of attending and giving evidence to a court. Stress affects the quantity and quality of communication with witnesses of all ages. Also, certain witnesses have particular difficulties attending court and giving evidence due to their age or personal circumstances, or because of their particular needs or their fear of intimidation.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "Special Measures". All special measures are subject to the discretion of the court. Different presumptions apply to different categories of witness.
Special measures
The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include:
- Screens, (available for all vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant, [Section 23];
- live link, (available for all vulnerable and intimidated witnesses): the live link will enable the witness to give evidence during the trial from outside the court through a televised link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court, [Section 24];
- evidence given in private, (available for all vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) will be considered in cases involving sexual offences or intimidation, [Section 25];
- removal of wigs and gowns, (available for all vulnerable and intimidated witnesses at the Crown Court): removal of wigs and gowns by judges and barristers, [Section 26];
- a video-recorded interview, (available for all vulnerable witnesses in the Crown Court, but only for complainants in serious sexual offences if an intimidated witness): a video-recorded interview with the vulnerable witness before the trial may be admitted by the court as the witness's evidence-in-chief. The court can exclude a recording if there is insufficient information about where it was made, or if the recording contains serious violations of the rules of evidence. [Section 27];
- video-recorded cross examination, (not yet in force): video-recorded cross-examination is also considered admissible if the witness has already been permitted to give their evidence-in-chief on video prior to the court case. As with evidence-in-chief, the recording can be excluded if any rules have not been complied with, [Section 28];
- examination of the witness through an intermediary, (full availability for vulnerable witnesses with effect from 31/03/08): an intermediary may be appointed by the court to assist the witness to give their evidence at court. This measure is only available to vulnerable witnesses, [Section 29];
- aids to communication, (available for vulnerable witnesses): aids to communication will be permitted to enable the witness to give best evidence whether through a communicator or interpreter, or through a communication aid or technique, provided that the communication can be independently verified and understood by the court. This measure is only available to vulnerable witnesses, [Section 30].
It is important to note that the implementation of these special measures is a phased one. Some of the special measures are still awaiting implementation. The linked chart provides details of the status of the phased implementation.
In addition to special measures, the YJCEA 1999 also contains the following provisions intended to enable vulnerable or intimidated witnesses to give their best evidence:
- mandatory protection of witness from cross-examination by the accused in person: an exception has been created which prohibits the unrepresented defendant from cross-examining vulnerable child and adult victims in certain classes of cases involving sexual offences [Sections 34 and 35];
- discretionary protection of witness from cross-examination by the accused in person: in other types of offence, the court has a discretion to prohibit an unrepresented defendant from cross-examining the victim in person, [Section 36];
- restrictions on evidence and questions about complainant's sexual behaviour: the Act restricts the circumstances in which the defence can bring evidence about the sexual behaviour of a complainant in cases of rape and other sexual offences, [Section 41];
- reporting restrictions: the Act provides for restrictions on the reporting by the media of information likely to lead to the identification of children under 18 and certain adult witnesses in criminal proceedings, [Sections 44 to 46].
In addition to the special measures listed above, prosecutors should consider whether the witness would benefit from arrangements such as having regular breaks while giving their evidence. Such arrangements should be identified when considering whether to apply for special measures directions.
Special measures for most vulnerable or intimidated witnesses can be authorised only if they are likely to improve the quality of a witness's evidence. The single exception to this general rule is that this requirement is not applicable to children "in need of special protection", (see below). "Quality" encompasses coherence, completeness and accuracy in the case of vulnerable witnesses. "Coherence" in this sense means that the witness is able to address the questions put and give answers that can be understood, but as separate answers and when taken together as a complete statement of the witness's evidence.
Eligibility for special measures
Sections 16 and 17 YJCEA 1999 define the witnesses who are eligible for special measures.
Vulnerable witnesses are defined by Section 16 YJCEA 1999. Children are defined as vulnerable by reason of their age, [Section 16(1)(a)(i)]. Other vulnerable witnesses include:
- witnesses who have a mental disorder as detailed under the Mental Health Act 1983, [Section 16(2)(a)(i)] (mental disorder is defined in Section 1(2) of the Mental Health Act 1983);
- witnesses significantly impaired in relation to intelligence and social functioning, [Section 16(2)(a)(ii)] (learning disabled witnesses); and
- physically disabled witnesses, [Section 16(2)(b)].
Intimidated witnesses are defined by the YJCEA 1999 as those suffering from fear or distress in relation to testifying in the case, [Section 17(1)]. Complainants in sexual assault cases are intimidated witnesses, [Section 17(4)]. Victims of domestic violence, racially motivated crime and repeat victimisation, the families of homicide victims, witnesses who self-neglect/self-harm or who are elderly and frail are also intimidated witnesses.
Sections 21 and 22 YJCEA 1999 detail some special provisions for child witnesses under the age of 17. The provisions create presumptions that apply to different categories of child witnesses and concern how they will give their evidence.
The provisions state:
- where there is a child witness in a sexual case involving violence, abduction or neglect, the child witness is deemed to be "in need of special protection". In such cases, the court does not have to consider whether the special measure(s) will improve the quality of the evidence; this will be assumed to be the case;
- all child witnesses in need of special protection will have the video recording of their evidence admitted as evidence-in-chief, unless this is excluded by the court on the basis that to admit the video recording would not be in the interests of justice;
- child witnesses in cases of violence will normally be cross-examined via the live-link;
- for all other child witnesses, there will be a presumption that evidence-in-chief will be given by video-recording, if one has been made, and that cross-examination will be via the live-link. However, the court must be satisfied that this will improve the quality of the evidence.
Sections 21 and 22 YJCEA 1999 also concern witnesses over 17 years of age. The following must be noted:
- if a court makes a special measures direction in respect of a child witness who is eligible on grounds of youth only and the witness turns 17 before beginning to give evidence, the direction no longer has effect. If such a witness turns 17 after beginning to give evidence, the special measures direction continues to apply, (Section 21(9) YJCEA 1999);
- if a witness is under 17 when evidence-in-chief or cross-examination (when available) is video-recorded before the trial but has since turned 17, the video-recording is still capable of being used as evidence;
- a witness who is over 17 at the beginning of the trial but who made a video-recording as their evidence-in-chief when they were under 17, is eligible for special measures in the same way that they would be if they were under 17, and the same presumptions apply to them.
In cases involving children, prosecutors must be alert to the case of R v Camberwell Youth Court and Others [2005] UKHL 4. The House of Lords 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.
While the legislation distinguishes between vulnerable and intimidated witnesses in respect of the criteria for their eligibility for special measures, it must be recognised that:
- some witnesses may be vulnerable as well as intimidated;
- others may be vulnerable but not subject to intimidation;
- others may not be vulnerable but may be subject to possible intimidation.
It is important not to attempt to categorise witnesses too rigidly.
A witness may be eligible for special measures, but the measures will not be automatically available at the trial. The prosecutor must make an application to the court for special measures. The application must be made within set timescales (see below). The court will decide which, if any, of the special measures will be available to the witness.
The Crown Court has some limited inherent powers to make measures available to assist witnesses who do not qualify as eligible or who need special measures for reason other than age, incapacity fear or distress. These powers pre-date the 1999 Act and are untouched by it.
Early special measures discussions with the Police
An early special measures discussion is an opportunity for the police officer to inform the prosecutor of the needs of the prosecution witnesses who may be considered to be vulnerable or intimidated, (paragraph 5.7 of "The Code of Practice for Victims of Crime" states that the police must take all reasonable steps to identify vulnerable or intimidated victims).
The police officer and prosecutor should discuss, in particular, the eligibility of the witnesses to benefit from special measures, and the witness's views about special measures. The police officer should include such information on a MG2 form. This information will form the basis of the special measures application.
Police officers and prosecutors must not assume that a witness will want special measures - some witnesses may prefer to give evidence without special measures. The prosecutor must know which measure(s) the witness wants before making the decision to apply to the court.
It is important that the police officer and the prosecutor have early special measures discussions in order to ensure that applications for special measures are made in a timely and effective manner.
Following the early special measures discussion with the CPS prosecutor, the police officer should inform the witness of the decisions made by the CPS prosecutor concerning applications for special measures.
The police officer should also ask the witness whether, if they are required to give evidence in the case, they wish to meet with the CPS prosecutor to discuss matters relating to the special measures decisions. A witness may not wish to have such a meeting and their wishes must be respected.
See "Early Special Measures Meetings between the Police and the Crown Prosecution Service and Meetings between the Crown Prosecution Service and Vulnerable and Intimidated Witnesses: Practice Guidance" for further details.
Special measures meetings between the CPS prosecutor and the witness
There will be cases in which the witness requests a meeting with the CPS prosecutor to discuss the decisions made concerning special measures.
Where the meeting is held prior to the CPS prosecutor applying to the court for the special measures direction, the purpose of the meeting may be to confirm the views of the witness as to which of the special measures should be applied for.
Where the meeting is held after the CPS prosecutor has applied for a special measures direction, the purpose of the meeting may be to inform the witness of the binding effect of the court's direction.
The evidence should not be discussed at the meeting. If an issue arises in relation to the evidence, then this should be discussed with the police and, if necessary, a further witness statement should be taken or, if appropriate, a pre-trial witness interview should be considered, (see separate guidance).
See "Early Special Measures Meetings between the Police and the Crown Prosecution Service and Meetings between the Crown Prosecution Service and Vulnerable and Intimidated Witnesses: Practice Guidance" for further details.
Special measures directions
Judges and magistrates have to strike a balance under Article 6 of the European Convention on Human Rights between protecting the defendant's rights to a fair trial, and ensuring that witnesses who give evidence in the case are enabled to do so the best of their ability.
The YJCEA 1999 created an expectation that the court will be concerned that witnesses are enabled to give their best evidence and imposes an obligation on judges and magistrates to raise of their own motion the question of whether special measures should be used if the party has not applied for them, (Section 19(1)).
Prosecutors must note that, with regard to intimidated witnesses, the 1999 Act lists a number of factors that the court must, or should, take into account when assessing whether the witness qualifies for any of the special measures. The factors include:
- the nature and alleged circumstances of the offence;
- the age of the witness;
- the social and cultural background and ethnic origins of the witness;
- any religious beliefs or political opinions of the witness;
- the domestic and employment circumstances of the witness; and
- any behaviour towards the witness on the part of the accused, their family or associates, or any other witness or co-accused (this may be particularly relevant in case of domestic violence).
Information relating to intimidation may be potentially prejudicial to a defendant, but must be made known to a court if it is relevant to the making of a special measures direction (even if, as is likely, it is inadmissible as proof of the offence to be tried).
When deciding eligibility, the court must consider the witnesses' own views about the need for special measures. The court must also take into account all the circumstances of the case and whether or not the special measure(s) are likely to inhibit the evidence being effectively tested by any part to the proceedings, (Section 19(3) YJCEA 1999).
Special measures directions should be made as soon as possible in cases in which there are vulnerable or intimidated witnesses. The special measures direction will provide certainty for the witness as to how they will give their evidence. Special measures directions can be made at a pre-trial hearing, before the beginning of the trial or before a "Newton" hearing to which witnesses are called to settle the factual basis upon which sentence will be passed or on an appeal. New directions are needed for a retrial
Binding directions
Special measures directions are binding until the end of the trial, although courts can alter or discharge a direction if it seems to be in the interests of justice to do so, (Section 20 YJCEA 1999).
The prosecution or the defence can apply for the direction to be altered or discharged (or the court may do so of its own motion), but must show that there has been a significant change of circumstances since the court made the direction or since an application for it to be altered was last made. The court must state in open court its reason for giving, altering or discharging a special measures direction or refusing an application, so that it is clear to all involved what decision has been made and why.
Witness Care Units
There should be a locally agreed process in place to ensure that the relevant Witness Care Unit is informed of the applications made for special measures, as well as the direction made by the court.
Procedure
Rules 29 - 31 of the Criminal Procedure Rules concern special measures, (Rule 29 concerns applications for special measures directions; Rule 30 concerns live links; Rule 31 concerns cross-examination).
An application for special measures directions must be submitted to the court officer within set timescales. The application form is linked to this text. The timescales are:
Youth Court
Timescale: Within 28 days of the date on which the defendant first appears or is brought before the court in connection with the offence.
Magistrates' Court
Timescale: Within 14 days of the defendant indicating his intention to plead not guilty to any charge brought against him and in relation to which a special measures direction may be sought.
Crown Court
Timescale: Within 28 days of:
(i) the committal of the defendant; or
(ii) the consent to the preferment of a bill of indictment in relation to the case; or
(iii) the service of a notice of transfer under section 51 of the Criminal Justice Act 1991 [236]; or
(iv) where a person is sent for trial under section 51 of the Crime and Disorder Act 1998 [ 237], the service of copies of the documents containing the evidence on which the charge or charges are based under paragraph 1 of Schedule 3 to that Act; or
(v) the service of a Notice of Appeal from a decision of a youth court or a Magistrates' court.
It is important that applications for special measures directions are made at an early stage in the proceedings, in order to achieve as much certainty as possible about how the witness will give evidence. However, it must be noted that a witness's eligibility for special measures may change over a period of time. Also, a witness's views as to special measures may also change.
In the Crown Court, it is preferable for issues relating to special measures to be dealt with at the plea and case management hearing (PCMH). It is essential that prosecutors attending the PCMH have up to date information from and about the witness, as the Judge may ask for additional information about the witness with regard to their eligibility for special measures.
In the Magistrates' court and the youth court, issues relating to special measures should be dealt with at the pre-trial review (PTR). Prosecutors attending the PTR must be prepared to supply to the magistrates all relevant information regarding the vulnerable and intimidated witnesses subject to the applications for special measures directions. The magistrates may need to transfer a trial to another court in their petty sessional division in order to take advantage of live link if no such facilities are available in their court.
If it is necessary to make an application for an extension of time, Rule 29.2 of the Criminal Procedure Rules applies. Rule 29.2 states that an application may be made in writing for the period of 14 days or, as the case may be, 28 days, to be extended. The application may be made either before or after that period has expired. The application must be accompanied by a statement setting out the reasons why the application was not made within the set period. A copy of the application and the statement must be sent to all parties. The application for an extension of time will be determined by the court without a hearing, unless directed otherwise. The court officer will notify all parties of the court's decision.
Rule 29.1 of the Criminal Procedure Rules states that an application for a special measures direction must be made in writing. However, it is worth noting that Rule 29.3 makes provision for an application for a special measures direction to be made orally at trial.
Additional information
Further information
Further information concerning the use of special measures is contained in "Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Using Special Measures".
Information relating to child witnesses is described in Chapter 2, to vulnerable witnesses in Chapter 3, and to intimidated adult witnesses in Chapter 4. Advice on the legal rules and good practice concerning the use of special measures at trial are dealt with in detail in Chapters 5 and 6.
It is recommended that prosecutors view the NSPCC's videos "A Case for Balance - demonstrating good practice when children are witnesses" (1997) and "A Case for Special Measures" (2003).
Competence and capacity to be sworn
All people are competent to act as witnesses unless they cannot understand questions asked of them in court, or cannot answer them in a way that can be understood with, if necessary, the assistance of special measures, (Section 52 YJCEA 1999).
A person who has been judged not be competent to give evidence may not appear as a witness in criminal proceedings and cannot, therefore, be eligible for special measures.
When the court assesses the witness's competence, it must take into account any special measure it could grant. This is to avoid a potential witness being judged not be competent if the use of special measures would make them competent.
Refreshing the memory of the witness whose evidence in chief is video-recorded
Witnesses are entitled to see a copy of their statement before giving evidence. Where the investigative interview of the witness has been video-recorded, the recording is often used to refresh the witness's memory before the trial.
It is CPS policy that a video-recorded interview may be shown to the witness before the trial for the purpose of refreshing memory, unless the video has been ruled inadmissible.
The issues involved in planning for refreshment of a witness's memory will be raised at the PCMH. If memory refreshment is to proceed, the PCMH will allow a decision to be made as to how the witness should be supported during the process, and the implications for the supporter's role in any subsequent trial. A decision must be made as to who is best placed to support the witness while their memory is refreshed.
It is the responsibility of the police to arrange for prosecution witnesses to view their video-recorded interviews. They should consult the prosecution about where this should take place and who should be present. The police must keep a record of anything said at the viewing.
The purpose of watching the video before trial must be explained to the witness, and their views taken into account. The witness must be informed of any editing to the video. This will avoid the witness being surprised, suspicious or confused when the recording does not match precisely their recollection of the interview.
The time interval between showing the video for the purpose of memory refreshment and actually giving evidence should take account of the witness's needs and concentration span. Minimising delay should be balanced against the difficulty experienced by some witnesses in concentrating through two viewings on the same day.
Prosecutors should note that many child witnesses may prefer to watch the video at least a day before the trial. This allows the child witness to prepare for the trial and reduce the stress of giving evidence. It is recommended that the first viewing of the video-recording should not be on the morning of the trial, in order to avoid the child having to view the recording twice in one day.
If the witness loses concentration or becomes distressed during the viewing, a break will be necessary.
"The Code of Practice for Victims of Crime"
Paragraph 7.8 of the Code states "where a victim is to be called as a witness in criminal proceedings in respect of relevant criminal conduct, has been identified a potentially vulnerable or intimidated, the CPS must have systems in place to assist prosecutors in considering whether to make an application to the court for a special measures direction".
"The Prosecutor's Pledge"
The following Pledge commitments are of relevance when considering special measures:
- "take into account the impact on the victim or their family when making a charging decision";
- "address the specific needs of a victim and where justified seek to protect their identity by making an appropriate application to the court".
CMS
It is essential that the correct CMS flags are applied to the case to identify whether the witness is vulnerable and/or intimidated.
Relevant links
"Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Using Special Measures"
Special Measures chart
"The Code of Practice for Victims of Crime"
"Early Special Measures Meetings between the Police and the Crown Prosecution Service and Meetings between the Crown Prosecution Service and Vulnerable or Intimidated Witnesses: Practice Guidance"
Guidance concerning Pre-trial witness interviews
"Action dispels fear: A best practice guide for tackling witness intimidation"