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Rape and Sexual Offences:          Chapter 6: Special Measures & Video Evidence 

Contents:

See: Special Measures

Introduction

The following paragraphs deal with those aspects of Part II Youth Justice and Criminal Evidence Act 1999, and of practice and procedure which are particularly relevant to the prosecution of rape and serious sexual offences.

Visually-recorded interviews with witnesses

Comprehensive guidance: Achieving Best Evidence in Criminal Proceedings - Guidance on interviewing victims and witnesses and guidance on using special measures - was issued in March 2011. It provides an invaluable source of information on all aspects of interviewing victims and witnesses and preparing them to give their best evidence in court. See:
http://www.justice.gov.uk/guidance/docs/achieving-best-evidence-criminal-proceedings.pdf

Following a visually-recorded interview the police should provide the prosecutor with a Record of Visual Interview (ROVI), to use for charging and case management purposes. A full transcript will only be required when a not guilty plea is entered. The CPS will be responsible for obtaining the transcript where there is statutory provision for the playing the video as evidence in chief. The police will be responsible where there is no statutory provision.

Quality of visually recorded interview

Whilst visually recorded interviews are frequently used as evidence in criminal trials they are, for the police, primarily an important investigative tool. This dual purpose can result in recordings that are too long to be played in court. Whilst in some cases the length may be due to poor interviewing technique it may, in others, be entirely justified.

Prosecutors viewing the video as part of the review process should be alert to any technical issues. Poor sound quality may have resulted from the copying process and a fresh copy may solve the problem. Sometimes sound quality can be enhanced.

Where the sound quality is especially poor subtitles may be added. However, it is important to ensure that they can be readily removed since the leave of the court is likely to be required before the jury can view the recording with subtitles. (By analogy with R v Welstead [1996] 1 Cr App R 59- the judge will have a discretion whether to allow the jury to follow the video recording by reference to the transcript in front of them).

If the picture quality is poor it might it be possible to enhance it or re-arrange the configuration/ layout of the screen image to give more prominence to the face of the witness.

Prosecutor to view visually recorded interviews

It is essential that prosecutors watch witnesses' interviews for the purposes of the charging decision or, following use of the threshold test, before they apply the full code test. This is necessary even when a transcript is available or where the video interview has been superseded by a full section 9 statement. Otherwise the prosecutor will not be in a position to review the case properly and will be ill-equipped to apply the disclosure test.

The fact that the prosecutor has viewed the interview must be recorded on CMS together with comments on the quality and admissibility of the evidence. Any technical issues such as high camera angles or poor picture and sound quality must also be recorded and the information fed back to the police so that lessons are learned for future interviews.

Editing visually recorded interviews

The recording is likely to have more impact with the court if it is not unnecessarily lengthy. It is essential that prosecutors, in consultation with counsel, ensure that interviews are edited so that they are an acceptable length. Inadmissible and irrelevant evidence (including sensitive information that does not form part of the case) should be edited out.

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Intermediaries

The use of intermediaries, established by section 29 of the Youth Justice and Criminal Evidence Act 1999, is to assist vulnerable witnesses to give their best evidence.

The potential use of an intermediary should be considered as part of the broader consideration of special measures. The provision of an intermediary must be available to all eligible witnesses, subject to the court's discretion in deciding whether to make a special measures direction. The approval of appointment by the court may be retrospective. The absence of an intermediary at the police interview does not preclude the use of an intermediary at trial.

The phased roll-out of the national Intermediary Scheme commenced in October 2007. The roll-out will be complete by April 2008.

To support the phased roll-out of the scheme, guidance concerning the Intermediary special measure has been published at:

http://frontline.cjsonline.gov.uk/_includes/downloads/guidance/victims-and-witnesses/Intermediary_Procedural_Guidance_Manual.pdf

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Application for special measures direction

In reviewing the video evidence and in making application for a Special Measures direction, the prosecutor may need to consider the following:

The HMIC/HMCPSI Joint Thematic Inspection of the Investigation and Prosecution of Rape Offences 2006 highlighted a widely held view among practitioners that evidence given in the courtroom (particularly in the case of adult victims) has the greatest impact on the jury. Prosecutors may need to carefully consider whether to apply to the court to admit the recording as evidence in chief, or indeed whether to apply for the use of the live link. The views of the witness will be crucial to the decision. The age and vulnerability of the witness, and the quality of the video-recorded interview (in terms of both technical quality and content) will also be important factors.

When obtaining the views of the witness, it is essential that the prosecutor is satisfied that those views are based upon full and accurate information. To this end, prosecutors must engage with the investigating officer and local Witness Care Unit to ensure that the witness is made aware of all of the special measures that are available, and their respective advantages and disadvantages.

NSPCC research shows that many child witnesses are afraid of being seen by the defendant over the live link. When seeking the witness' views on the use of special measures, prosecutors should ensure that the witness understands that the defendant will be able to see him/her on the court monitor. It may be that the use of screens is in fact more appropriate. It may be that the screen in the courtroom can be partially covered to prevent the defendant from seeing the witness.

Where appropriate, arrangements should be made to build an individual 'witness profile'. This is information regarding the capacity and requirements of the witness (provided typically by carers, social workers, and medical staff). The profile will include information on cognitive and linguistic ability, range of behaviours and emotional state. The profile will inform any decision to apply for special measures and, in particular, may indicate that the use of an intermediary (s29 Youth Justice and Criminal Evidence Act 1999) at court may be appropriate (where available).

Special Measures meeting with witness

The HMIC/HMCPSI Joint Thematic Inspection of the Investigation and Prosecution of Rape Offences 2006 found that prosecutors were very rarely meeting with the witness and the police to inform decisions on any special measures to be sought. It is important that the prosecutor, and where possible, the trial advocate, meets with the witness at a special measures meeting at the earliest opportunity. Otherwise, applications for special measures directions will be based merely on the initial assessment of the witness' needs carried out by the police. A full record must be maintained of matters discussed at the meeting, and there must be no discussion as to the evidence in the case.

An early special measures discussion between the police and prosecutor should take place in every case.

Court familiarisation visit

Similarly, the prosecutor must ensure that the victim is offered a pre-court familiarisation visit. The 2006 Inspection report found that such visits were not undertaken systematically, and yet Home Office research ('Are Special Measures Working, January 2006') shows that of the non-statutory measures available, the court familiarisation visit is the most effective.

 

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