Rape and Sexual Offences - Chapter 10: Supporting complainants in Court

• Special Measures
  • Section 25(4)(a) YJCEA 1999
  • Special Measures meeting
• Intermediaries
• Ground Rules hearings (GRHs)
• Pre-trial therapy
• Complainants who withdraw support for the prosecution

Special Measures

Under sections 23 - 30 Youth Justice and Criminal Evidence Act 1999 (YJCEA) a range of special measures are available to support reluctant or vulnerable witnesses to give their best evidence and reduce the stress and anxiety associated with the trial process. Prosecutors should refer to the Special Measures legal guidance and also the comprehensive guidance issued by the MoJ in Achieving Best Evidence in Criminal Proceedings.

The use of special measures to support complainants of sexual offences should be discussed at the early consultation stage to ensure appropriate support is planned for and available to the witness. This is most often required to assist with communication difficulties, where an appropriately skilled intermediary should be involved as early as possible in the interview process.

There should be no automatic assumption that pre-recorded evidence-in-chief is the most appropriate method of recording the complainant’s account. The available special measures should be explained to complainants by the police and their preferences sought.

In due course early identification of vulnerable witnesses eligible for section 28 pre-recording of cross examination will be essential.

Section 25(4)(a) YJCEA 1999

A special measures direction to clear the public gallery for witnesses in sexual offences cases has the potential to provide significant assistance to complainants who feel intimidated by the prospect of giving evidence about highly sensitive matters in court in the presence of the defendant’s supporters and/or members of the public. The provision is not extensively used in England and Wales and prosecutors should ensure that complainants are made aware of this option when special measures are discussed.

Special measures meeting

When a decision has been taken as to whether a special measures application will be made the prosecutor should ask the police to ascertain whether the complainant/witness would like to meet the prosecutor. 

The purpose of such a meeting is to build trust and confidence and to enable the prosecutor to reassure the complainant/witness that their needs will be taken into account. Wherever possible the CPS prosecutor will ensure that the advocate who will be conducting the trial attends the meeting between the prosecutor and complainant/witness.

Intermediaries

Intermediaries are communication specialists. They are independent of all parties in criminal proceedings and owe a duty to the court. Prosecutors should refer to the Intermediary section of the CPS special measures legal guidance

In view of the critical importance of the complainant’s ABE interview in RASSO cases prosecutors should work with the police at an early stage to ensure that the instruction of an intermediary is considered at the outset of the investigation where this is appropriate.

The CPS should ensure intermediaries are considered for use at court in every case involving a child witness and maintain a written record on CMS of the decision, particularly of the rationale where a decision is taken not to use an intermediary in these cases.

The age presumption that intermediaries should be used for all child witnesses under 11 was removed from the Criminal Practice Directions by Criminal Practice Directions 2015 Amendment No. 1 EWCA Crim 97, which came into force on 4 April 2016.

For additional guidance see :

‘Achieving Best Evidence in Child Sexual Abuse Cases – A Joint Inspection’ December 2014 and the Criminal Practice Directions section 3F and the Advocates Gateway Toolkit 16 - Intermediaries step by step.

Where the intermediary is appointed after charge, guidance on the tasks and issues that registered intermediaries have to consider between CPS referral and trial can be found at Criminal Practice Directions Annex C

Ground Rules hearings (GRHs)

Ground Rules hearings are intended to ensure the effective participation of vulnerable defendants  or witnesses in the trial process, which includes the court giving directions for the appropriate treatment and questioning of vulnerable defendants or witnesses.

Ground rules hearings take place in all cases where an intermediary is involved and in all cases where there are young witnesses or witnesses with communication difficulties.

The Criminal Procedure Rules 2020 provide detailed guidance on ground rules hearings (Rule 3.9).

In cases where a witness is young or otherwise vulnerable the judge may impose restrictions on the advocate “putting his case” where there is a risk of a witness failing to understand, becoming distressed or agreeing with leading questions.

In Lubemba [2014] EWCA Crim 2064 the Court of Appeal stated  that there was a need for radical departure from traditional advocacy and that the advocate must adapt to the needs of the witness rather than the other way around. The Court of Appeal made a number of recommendations, which  included ground rules hearings in every case, save in exceptional circumstances. The Appeal court also stated that it would be reasonable to ask the Defence advocate to reduce questions to writing.

The Practice Directions have adopted this approach and clearly state that the traditional advocacy is no longer acceptable where the witness is vulnerable or young.

The judge may impose restrictions on the advocate “putting his case” where there is a risk of a witness failing to understand, becoming distressed or agreeing with leading questions. Prosecutors should therefore highlight cases where the witness has communication difficulties within their instructions to counsel.

Pre-trial therapy

The best interests of the vulnerable or intimidated witness or complainant are the paramount considerations in decisions about the provision of therapy before trial. The decision to have counselling or therapy rep trial is not one for the CPS or Police to make but is a decision to be taken by the witness, the parents or those responsible for their care.

The current guidance on pre-trial therapy is in the process of being updated and is subject to a public consultation which can be accessed here.

In advance of publication of the revised guidance, prosecutors are reminded of the key principles to be applied when a victim of crime has had or is having therapy.    

The well-being of the complainant determines access to therapy

• The well-being of the complainant should determine decision making about pre-trial therapy.
• The provision of therapy should not be delayed when this would have an adverse impact on the health and well-being of the complainant.
• It is for the therapist with their client to make the decision about proceeding with therapy prior to a trial not the police or prosecutors.
• It is important that no complainant is discouraged from accessing pre therapy where it is needed.

Reasonable lines of enquiry and pre-trial therapy notes

• The CPIA 1996 and CPIA Code of Practice impose an obligation on the police to pursue all reasonable lines of enquiry, irrespective of whether they point towards or away from the suspect. Reasonable lines of enquiry may include enquiries as to the existence of material in the hands of a third party such as providers of therapy.
• Reasonable lines of enquiry will be discussed with the police at the early investigative advice stage. Prosecutors should not ask police to pursue speculative enquiries and police should not seek access to therapy notes simply because a victim has received therapy.
• In R v Alibhai [2004] EWCA Crim 681, the Court of Appeal held that before material is obtained from a third party, there must be suspicion on the part of the investigator, disclosure officer or prosecutor that the material or information might be disclosable. Therefore, before obtaining third party material it must be concluded that the third party not only has potentially relevant material but that the material is not neutral or damaging to the defendant but damaging to the prosecution or of assistance to the defendants.
• When advising police prosecutors should carefully consider the legal basis upon which it might be appropriate to seek access to therapy records. Particular consideration should be given to what, if any, information is available which provides grounds for a suspicion that material held by the therapist is likely to satisfy the disclosure test.
• More assistance can be found in Chapter 5 of the Disclosure Manual.

Disclosure of therapy notes to the defence

• Material generated as a result of therapy must only be disclosed by the prosecutor to the defence in criminal proceedings if it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.
• In determining whether to disclose material generated as a result of therapy the prosecutor must take into account the complainant’s right to privacy in accordance with Article 8 of the European Convention on Human Rights and this will usually mean that the prosecutor is satisfied that the complainant consents to the disclosure of material (see section on consent below).
• Only in exceptional cases will the CPS seek to obtain material held by the therapist against the wishes of the complainant by way of a court order.

Using therapy notes as part of the prosecution case

• It is possible that a review of therapy records will reveal material which is helpful to the prosecution case (e.g. evidence of a first disclosure in a non-recent case of sexual abuse). If the prosecutor intends to use notes as evidence he/she should inform the complainant of his intention and seek their consent.

Consent of the complainant

• Because disclosure of records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to:
  • gain access to the records; and
  • enable disclosure, where appropriate, to take place.
• Prosecutors must satisfy themselves that consent to disclose the therapy notes has been obtained by the police from the person to whom the notes refer before any disclosure of material to the defence takes place.
• When obtaining consent, the complainant or witness should be informed why the request is being made and what might happen to the record. The complainant or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.

Complainants who withdraw support for the prosecution

In circumstances where a complainant of rape withdraws support for the prosecution it will be necessary to consider whether to  request a witness summons and compel the witness to attend. The approach to be followed and the requirement for consultation between the police and the CPS are set out in the Rape Protocol at section 14 and in detail in the Domestic Abuse legal guidance under Retractions and Withdrawals by Complainants. 

As a result of receiving any withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges of, for example, witness intimidation, are appropriate.

If the reason for a complainant or witness's withdrawal is based on fear or intimidation, the prosecutor needs to have such evidence brought to their attention. This will allow appropriate decisions to be made about any applications under section 116 (2)(e) Criminal Justice Act 2003.

If a rape specialist prosecutor has considered whether it is possible to proceed without the complainant, and decided that it is but that it would not be right to do so in the particular circumstances, the case will be discontinued. These cases will be rare and should be marked as discontinued in the public interest.