Special Measures
- Principle
- Eligibility for special measures
- Child witnesses
- Special measures explained
- Matters to consider before applying for speacial measures
- Making the application
- Refreshing the memory of a witness whose evidence is visually recorded
- CMS
- Further information
Principle
"Special Measures" are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Special measures apply to prosecution and defence witnesses, but not to the defendant.
Many witnesses experience stress and fear during the investigation of a crime and subsequently when attending court and giving evidence. Stress can affect the quantity and quality of communication with, and by, witnesses of all ages. Some witnesses may have particular difficulties attending court and giving evidence due to their age, personal circumstances, fear of intimidation or because of their particular needs.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA) 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" and are subject to the discretion of the court.
Eligibility for special measures
Vulnerable witnesses are defined by section 16 YJCEA as:
- All child witnesses (under 18); and
- Any witness whose quality of evidence is likely to be diminished because they:
- are suffering from a mental disorder (as defined by the Mental Health Act 1983);
- have a significant impairment of intelligence and social functioning; or
- have a physical disability or are suffering from a physical disorder.
Intimidated witnesses are defined by section 17 YJCEA as those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences are defined by section 17(4) as automatically falling into this category unless they wish to opt out.
Witnesses to certain offences involving guns and knives are similarly defined as automatically falling into this category unless they wish to opt out.
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/or frail might also be regarded as intimidated.
Being eligible for special measures does not mean that the court will automatically grant them. The court has to satisfy itself that the special measure or combination of special measures is likely to maximise the quality of the witnesss evidence before granting an application.
While the legislation distinguishes between vulnerable and intimidated witnesses in respect of the criteria for their eligibility for special measures, it is important to remember that:
- some witnesses may be vulnerable as well as intimidated;
- other witnesses may be vulnerable but not subject to intimidation;
- and others may not be vulnerable but may be subject to intimidation.
It is important not to attempt to categorise witnesses too rigidly.
Child witnesses
The original distinction between child witnesses in need of special protection and children giving evidence in all other types of cases no longer applies (section 101 of the Coroners and Justice Act 2009 amending section 21 of YJCEA). The effect of this change is to place all child witnesses in the same position regardless of offence.
For all child witnesses there is a presumption that they will give their evidence in chief by video recorded interview and any further evidence by live link unless the court is satisfied that this will not improve the quality of the childs evidence.
However a child witness may opt out of giving their evidence by either video recorded interview or by live link or both, subject to the agreement of the court. If the child witness opts out then there is a presumption that they will give their evidence in court from behind a screen. Should the child witness not wish to use a screen they may also be allowed to opt out of using it, again subject to the agreement of the court.
In deciding whether or not to agree to the wish of the child witness the court must be satisfied that the quality of the childs evidence will not be diminished.
Where a video recorded interview is made before a child witnesss 18th birthday, the witness is eligible for video recorded evidence in chief and live link special measures directions after his/her 18th birthday.
Special measures explained
The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include:
- screens (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant;
- live link (available for vulnerable and intimidated witnesses): a live link enables 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;
- evidence given in private, (available for some 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) in cases involving sexual offences or intimidation by someone other than the accused;
- removal of wigs and gowns, (available for vulnerable and intimidated witnesses at the Crown Court): removal of wigs and gowns by judges and barristers;
- video-recorded interview, (available for vulnerable and intimidated witnesses): a video-recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness's evidence-in-chief. For adult complainants in sexual offence trials in the Crown Court a video recorded interview will be automatically admissible upon application unless this would not be in the interests of justice or would not maximise the quality of the complainants evidence. Section 103 of the Coroners and Justice Act 2009 relaxes the restrictions on a witness giving additional evidence in chief after the witnesss video-recorded interview has been admitted.
- examination of the witness through an intermediary (available for vulnerable witnesses): an intermediary may be appointed by the court to assist the witness to give their evidence at court. They can also provide communication assistance in the investigation stage approval for admission of evidence so taken is then sought retrospectively. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence;
- aids to communication, (available for vulnerable witnesses): aids to communication may be permitted to enable a 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.
Video-recorded cross examination (section 28) is not yet in force.
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: a prohibition on an unrepresented defendant from cross-examining vulnerable child and adult victims in certain classes of cases involving sexual offences;
- 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;
- 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;
- reporting restrictions: the Act provides for restrictions on the reporting by the media of information likely to lead to the identification of certain adult witnesses in criminal proceedings.
In addition to the statutory special measures listed above, prosecutors should consider whether the witness would benefit from more informal arrangements such as pre trial visits and having regular breaks while giving their evidence.
Matters to consider before applying for special measures
A witness may be eligible for special measures but the measures will not be automatically available at trial and the prosecutor must make an application to the court.
Before making the application the prosecutor must have sufficient information about the witness and the wishes of the witness, particularly whether the witness actually wants to give evidence using special measures - some witnesses may prefer to give evidence without special measures.
The court will need to be told about any views expressed by the witness generally, and the specific views of the witness when determining who should accompany the witness if s/he gives evidence by live link.
With regard to intimidated witnesses, the YJCEA 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 cases of domestic violence).
An early special measures discussion between the police and the prosecutor is an opportunity to discuss the needs of a vulnerable or intimidated witness. See "Early special measures discussions between the police and the Crown Prosecution Service: Practice Guidance" for further details.
There may be cases in which the witness requests a meeting with the prosecutor to discuss the decisions made concerning special measures.
Where the meeting is held prior to the prosecutor applying to the court for the special measures direction, this is a good opportunity 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 application for a special measures direction has been granted, the purpose of the meeting will be to inform the witness of the special measures granted and the binding effect of the court's direction.
See "Special measures meetings between the Crown Prosecution Service and witnesses: Practice Guidance" for further details.
Making the application
The application must be made within set timescales. The court will decide which, if any, of the special measures will be available for the witness.
Applications for special measures should be made in writing to the court and in accordance with Parts 2 and 29 of the Criminal Procedure Rules 2011. The application form should not be badged with the CPS logo as it is not a CPS form but is one prescribed by the relevant Practice Direction.
The application should be made as soon as reasonably practicable, and in any event not more than 28 days after the defendant pleads not guilty in a magistrates' court or 14 days after the defendant pleads not guilty in the Crown Court. The application must be served on the court and the defence. The time limit can be extended upon application to the court providing an explanation is given.
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.
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 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.
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, so that they in turn can notify the witness.
Refreshing the memory of a witness whose evidence is visually recorded
Witnesses are entitled to see a copy of their statement before giving evidence.
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. How, when and where this is done should be decided upon on a case by case basis, with the overriding aim being to enable the witness to give their best evidence in court in particular when being cross-examined.
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, for example, 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.
CMS
It is essential that the correct CMS flags are applied to the case to identify whether the witness is vulnerable and/or intimidated. CPS staff should apply the relevant snooker balls on CMS when data inputting cases involving vulnerable and/or intimidated victims and witnesses. The same functionality is also available to Witness Care Unit staff who are using WMS to manage their cases.
It is important both CPS and WCU staff ensure that they flag the status of vulnerable and/or intimidated victims and witnesses, so that victims and witnesses are provided with the necessary support and information.
Further information
Further information concerning the use of special measures is contained in:
