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Special Measures

Introduction

Many witnesses experience stress and fear during the investigation of a crime and 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. In such circumstances, where witnesses are considered to be vulnerable or intimidated, "special measures" can improve the quality of their experience by helping them to give their "best evidence".

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What are special measures?

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".

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 and are subject to the discretion of the court.

Paragraph 2.21, Part B, of the Code of Practice for Victims of Crime (the Victims' Code) requires prosecutors to give early consideration to making a Special Measures application to the court, taking into account any views expressed by the victim. (See the Code of Practice for Victims of Crime: CPS Legal Guidance.)

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Eligibility for special measures

A vulnerable or intimidated witness will be eligible for special measures under sections 16 to 33 of the YJCEA.

Vulnerable

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.

Some disabilities are obvious, some are hidden. Witnesses may have a combination of disabilities. They may not wish to disclose the fact that they have a disability during initial and subsequent needs assessments. Different witnesses on the autistic spectrum may have very different needs.

Intimidated

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.

Serious Crime

Victims of the most serious crime, as set out in the Victim's Code, might also be regarded as intimidated. This includes close relatives bereaved by criminal conduct, victims of domestic violence, hate crime, terrorism, sexual offences, human trafficking, attempted murder, kidnap and false imprisonment, arson with intent to endanger life and wounding or causing gross bodily harm with intent.

Sexual Offences

Section 101 of the Coroners and Justice Act 2009 inserted a new section 22A into the YJCEA making special provision for adult complainants in sexual offence trials in the Crown Court. The section provides, on application by a party to the proceedings, for the automatic admissibility of a video-recorded statement as evidence in chief under section 27 of the YJCEA, unless this would not be in the interests of justice or would not maximise the quality of the complainant's evidence.

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 witness's evidence before granting an application.

The Advocate's Gateway provides practical guidance on vulnerable witnesses and defendants, including a range of toolkits providing general good practice guidance when preparing for trial in cases involving a witness or defendant who is vulnerable or with communication needs. The CPS has supported the development of the Advocate's Gateway and continues to work with criminal justice system colleagues to develop additional toolkits.

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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, (s23 YJCEA);
  • 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, (s24 YJCEA);
  • 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, (s25 YJCEA);
  • removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court), (s26 YJCEA);
  • 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 complainant's evidence, (s27 YJCEA). (Section 103 of the Coroners and Justice Act 2009 relaxes the restrictions on a witness giving additional evidence in chief after the witness's 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, (s29 YJCEA);
  • 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, (s30 YJCEA).

The use of communication aids is a special measure which is intended to help vulnerable witnesses who need to use a "device" to communicate. This can include computers, voice synthesisers, symbol boards and books. The case of R v Watts [2010] EWCA Crim 1824 is a leading example of the use of this special measure, which was granted in combination with a number of other special measures to enable non-verbal witnesses with severe communication needs to give evidence.

Video-recorded cross examination (section 28) is not yet in force. However, this measure is being tested at three Crown Court centres and the outcome of the pilot will inform national implementation.

A combination of special measures may be appropriate. For example, if a witness who is to give evidence by live link wishes, screens can be used to shield the live link screen from the defendant and the public, as would occur if screens were being used for a witness giving evidence in the court room. (Paragraph 29A.2 Criminal Practice Directions.)

In addition to special measures, the YJCEA also contains the following provisions intended to enable vulnerable or intimidated witnesses to give their best evidence:

  • Section 34 of the YJCEA prohibits the cross-examination in person by defendants of complainants in sexual cases.
  • Section 35 of the YJCEA prohibits the cross-examination in person by unrepresented defendants of certain "protected witnesses" (child complainants and other child witnesses)
  • Section 36 of the YJCEA permits the court to make an order prohibiting the cross-examination in person by a defendant of a witness where the prohibitions in sections 34 and 35 do not apply (such as for certain categories of intimidated witnesses)
  • Section 46 of the YJCEA enables courts to make a reporting direction in relation to adult witnesses which prohibits any matter relating to the witness to be included in any publication during the lifetime of the witness if it is likely to lead members of the public to identify the individual as a witness in criminal proceedings.

Prosecutors must be sensitive to the worries that LGBT people may have about the possible consequences for them and often for their families, and for the way in which they conduct their lives if knowledge of their sexual orientation or gender identity becomes known or more widely known than the person wishes. Special measures, and the use of reporting restrictions, may assist in alleviating these concerns.

Rules 29-31 of the Criminal Procedure Rules concern special measures (Rule 29 concerns special measures directions; Rule 30 concerns live links; Rule 31 concerns cross-examination).

Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice. The witness does not have to be a special "category" of witness (for instance vulnerable or intimidated as defined by the YJCEA). Live links will be particularly helpful for witnesses with limited availability, such as professional witnesses, or those with mobility issues who do not qualify for live links under the "special measures" provisions of the YJCEA. It may also assist in cases involving police officers who have to travel some distance to a Crown Court. Further information about s51 live links is at Annex A.

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Children and young people

Child witnesses under the age of 18 will automatically be eligible for special measures by virtue of section 16 of the YJCEA.

A complainant of a relevant offence (sexual offence, offence under section 1 of the Protection of Children Act 1978, offence under section 160 of the Criminal Justice Act 1998, offence under section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004) whose age is uncertain will be presumed to be under the age of 18 where there are reasons to believe that person is under the age of 18. Therefore, a person to whom this presumption applies will be eligible for special measures under section 16 of the YJCEA.

It is vital that special measures are explained clearly to child witnesses and their parents/carers to ensure that they are able to express an informed view about the measures available before any application is made to the court.

Prosecutors should be aware that where the child is very young, the issue of competence may arise at trial (see legal guidance on Competence and Compellability).

For all child witnesses there is a presumption that they will give their evidence in chief by recorded interview and any further evidence by live link unless the court is satisfied that this will not improve the quality of the child's evidence.

A child witness may "opt out" of giving their evidence by either recorded interview or by live link or both, subject to the agreement of the court. If the child witness opts out, there is a presumption that they will give their evidence in court from behind a screen. If the child witness does 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.

Where a video interview is made before a child witness's 18th birthday, the witness is eligible for recorded evidence in chief and live link special measures directions after his/her 18th birthday.

Ideally, no application for special measures should be made before the child witness has attended a court visit and seen the measures in practice. It is not always possible to conduct such a visit in the limited time before an application has to be made. Prosecutors should, therefore, be alert to the possible need to apply to vary a measure already granted once the visit has taken place.

NSPCC research shows that many child witnesses are afraid of being seen by the defendant over the live link. When seeking the witness's 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 screen in the courtroom can be partially covered to prevent the defendant from seeing the witness. It is important that the witness makes an informed choice about how to give evidence.

Advocates who deal with cases involving children should have watched the videos "A Case for Balance" and "A Case for Special Measures". These are videos produced by the NSPCC and the Bar Council that describe how special measures can be used to help witnesses give evidence. Every CPS Area should ensure it has access to this content.

See legal guidance about Safeguarding children as victims and witnesses.

See also the Judicial College Bench Checklist: young witness cases on the judiciary website.

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Intermediaries

The Equal Treatment Bench Book provides that assessment by an intermediary should be considered if the person seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to say so to a questioner in a position of authority. Studies suggest that the majority of young witnesses, across all ages, fall into one or other or both categories (Paragraph 46, Chapter 5, Equal Treatment Bench Book 2013).

Section 18 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 limits the availability of intermediaries to witnesses eligible for special measures on the grounds of age or incapacity, under Section 16 of the YJCEA.

The court may approve the appointment of an intermediary retrospectively when one is used during the statement taking phase or video recorded interview.

What is an Intermediary?

An intermediary facilitates communication between the police, prosecution and defence legal teams and/or the court and a witness to ensure that the communication process is as complete, coherent and accurate as possible. The intermediary is impartial and neutral and their duty is to the court.

An intermediary is not a witness and, therefore, should not be witness summonsed to attend court. Any request for an intermediary to attend court as a witness should be vigorously opposed. However, it may be necessary in limited circumstances to call an intermediary as a prosecution witness, for example where a witness has died prior to trial and the intermediary is called to give evidence in connection with their earlier assessment of the witness. In such cases, the intermediary should be paid in accordance with the current rates of remuneration for Registered Intermediaries, and not as an ordinary witness.

An intermediary is not an expert witness. If evidence of competence or, in cases involving sexual offences, the capacity to consent is required, an appropriate expert should be commissioned to provide the necessary information. An intermediary is not an interpreter or an appropriate adult.

An example of a case in which an intermediary was used to assist a vulnerable witness in giving evidence is available at Annex B.

What is a Registered Intermediary (RI)?

A Registered Intermediary (RI) is someone who has been recruited, trained and accredited by the MoJ. RIs are security cleared by the MoJ and must comply with a code of practice and a code of ethics, which are overseen by the MoJ.

Detailed guidance in relation to intermediaries and their use can be found in the Registered Intermediary Procedural Guidance Manual.

Registered Intermediaries (RIs) for child witnesses

RIs must be considered for use at court in every case involving a child witness and the prosecutor must make a record of the decision. Reasons for not using a RI must be specifically recorded.

Prosecutors should be aware that the age presumption for RIs to be used for all child witnesses under 11 has been removed.

Instead the decision must be made on an individual basis and an assessment by a RI should be considered for witnesses under 18 who seem liable to misunderstand questions or to express difficulty expressing answers, including those who seem unlikely to be able to recognise a problematic question (such as one which is misleading or not readily understood) or those who may be reluctant to tell a questioner in a position of authority that they do not understand. (CPD I General matters 3F.25: Intermediaries, which came into force on 4 April 2016).

Engagement of a Registered Intermediary (RI)

The potential need for a RI should be identified as early as possible. This should, ideally, be done by the police officer during the course of the investigation with the RI being engaged prior to the witness being interviewed. However, it is still possible to engage a RI later in the process if it is considered that the quality of evidence from a witness can be improved at court. If communication issue/s are identified or raised post-charge, the CPS is responsible for ensuring that a RI is engaged.

In light of the scarcity of RIs, the appropriateness of assessment must be decided with care to ensure their availability for those witnesses and defendants who are most in need.

Once the possible need for a RI has been identified, the Witness Intermediary Service (WIS) should be contacted. The WIS is operated on behalf of the Ministry of Justice (MoJ) by the National Crime Agency (NCA) through its Specialist Operations Centre. The Specialist Operations Centre may be contacted on 0845 000 5463 or by email at wit@nca.x.gsi.gov.uk. The WIS is responsible for matching a RI with the necessary skills to communicate with the individual needs of a witness. A request to the WIS for a RI needs to be made as early as possible. RIs require a minimum of 15 working days to complete a full assessment and finalise their report to make meaningful recommendations to the court.

The WIS will deal with late requests up to 10 working days before a trial but the likelihood that they will be able to match an intermediary and witness in that time is significantly reduced.

Please see Annex C for a full list of all the tasks and issues that RIs have to consider between referral by the CPS and trial.

Engagement of a Registered Intermediary by the Police

Police officers have a responsibility to identify that there is a difficulty communicating directly with a witness. Before proceeding to the evidential interview of the witness, the investigating officer should hold an Early Special Measures Discussion with the CPS to agree the form of the statement to be taken and which special measures are appropriate, including any intermediary provision needed to assist during the interview and at the trial.

If it is decided to use a RI, it is the responsibility of the police to contact the WIS to arrange the appointment of the RI. The cost of the RI during the investigative stage must be met by the police (see Annex D).

Engagement of a Registered Intermediary (RI) by the CPS

Where the need for a RI is identified post charge, the reviewing prosecutor should hold an Early Special Measures Discussion with the investigating officer. The discussion about the engagement of a RI should include an agreement as to who will inform the RI of the case issues and who will broker the contact between the RI and the witness. These matters should be decided on an individual case basis. The reviewing prosecutor should always be prepared to discuss case issues with the RI. If it is decided to use a RI post charge, it is the responsibility of the CPS to contact the WIS to arrange the appointment of the RI.

Where a RI is used during the investigation, the prosecutor should be supplied with a copy of the 'Request for Service' form submitted by the police to the WIS as well as the subsequent Letter of Engagement (LoE) between the police and the RI. The information contained in these documents will assist with the completion of the 'Request for Service' form and the special measures application form. Information about the 'Request for Service' form and guidance on how to complete it is provided at Annex E.

In accordance with the Registered Intermediary Procedural Guidance Manual, the prosecutor bears the responsibility for consulting with the RI regarding the case listing and the likely or fixed date of the case, to ensure that they remain available. The prosecutor must inform the RI as soon as trial dates are known. A completed 'Request for Service' form from the CPS is required for the RI to hold the trial dates in their diary. A failure to consult (particularly if a 'Request for Service' has not been signed) or a delay in informing the RI of the trial date may result in the RI being unavailable. If the RI who conducted the original assessment is unavailable for trial, a new RI will need to be found by the WIS and will need to conduct an assessment of the witness prior to trial. Given the scarcity of RIs this may result in the trial having to proceed without a RI as it is unlikely that the WIS will be able to match a new RI at short notice. This clearly does not afford the best service to the witness and, as a minimum, causes additional and unnecessary delay.

Annex F sets out a flow chart in respect of the engagement process.

The CPS will meet the costs incurred by the intermediary's attendance at court, and preparation and presentation of evidence at court. The rates of remunerations for RIs, including cancellation fees, can be found at Annex G. Following completion of the agreed work the RI will submit an invoice directly to the Area using the details recorded on the 'Request for Service' form. The Area should process the invoice in the same way as other invoices are processed and within the nationally set 30 day time limit or late fees will apply.

What is an Unregistered Intermediary?

An unregistered intermediary is an intermediary who is not recruited, trained and accredited by MoJ. Other than being impartial and owing a duty to the court, unregistered intermediaries have no obligation to comply with the MoJ code of practice and ethics or the guidance in the RI procedural guidance manual.

Unregistered intermediaries are intermediaries who can be engaged by either for prosecution witnesses or defendants. They are not bound by the agreed fee structures for RIs and are able to charge whatever rate and expenses they choose.

Engagement of Unregistered Intermediaries

The police and the CPS should not normally use unregistered intermediaries for the reasons and concerns set out in the judicial review case against MoJ of R (OP) v Cheltenham MC and Others [2014] EWHC 1944 (Admin) and because of cost concerns as the agreed fee structures are only in place for RIs.

However, due to the scarcity of registered intermediaries, and only when all avenues to engage a registered intermediary have been exhausted and the case cannot be reasonably delayed any further, prosecutors should contact the WIS and ask for advice and a recommendation for an unregistered intermediary. The Prosecutor should seek permission from their ABM to make local arrangements for payment to be authorised. The Prosecutor should also record reasons for engaging an unregistered intermediary.

Intermediary's assessment and report

Once an intermediary (whether registered or unregistered) has been engaged, the intermediary will meet the vulnerable witness and carry out an assessment. The assessment must take place in the presence of a responsible third party. The intermediary must make a note of what happened in the assessment. The note is disclosable.

The purpose of the assessment is for the intermediary to determine whether they are able to (1) establish rapport with the witness, (2) facilitate communication to a satisfactory level and (3) improve the quality (completeness, accuracy, coherence) of the witness's evidence during the police interview and subsequently at trial, if required. The intermediary's assessment may form the basis of the report to the court.

The report prepared by the intermediary will include an assessment of the witness and information about, for example, possible approaches to questioning that would assist the witness to give evidence. It may be necessary to edit the report.

Intermediaries - preparation for trial

Once the need for an intermediary has been identified and the intermediary has been instructed, it is not for the reviewing prosecutor or the trial advocate to decide that the intermediary is not required, unless circumstances have changed considerably.

Ground Rules Hearings to discuss and establish how vulnerable witnesses will be enabled to give their best evidence are good practice in any case with a witness who is vulnerable or who has a communication need. In cases where an intermediary is engaged, Ground Rules Hearings are essential. For further information see "Case review and management" below.

The content of the intermediary's report should be considered by the CPS prosecutor and the advocate instructed for the trial. Any objections to the proposed ground rules should be raised before the day of the trial. Questioning of the witness must take account of their needs, as detailed in the intermediary's report. The intermediary's report must not be exhibited or read to the jury.

Where a deaf intermediary is engaged the communications dynamic may differ as the intermediary may work with a personal Sign Language Interpreter (SLI) and the court may appoint its own SLI. In addition, the intermediary may need to put questions posed by the Court or Counsel directly to the witness, rather than intervene only if the witness does not understand the question. Such arrangements should be determined at the Ground Rules Hearing.

Special Measures applications in relation to Intermediaries

An application to use an intermediary should be made at the same time as applications for any other special measures to assist the witness. The applications may include seeking retrospective approval for the use of an intermediary during a video-recorded interview when an application is being made for the recording to be admitted as the witness's evidence in chief. As with all special measures applications, the CPS should notify the Witness Care Unit (WCU) that an application is being made so that the Witness Care Officer can inform the witness. The outcome of the application to use an intermediary must be notified to the witness and the intermediary. A copy of the court order should be sent to the WCU, the Witness Service and the intermediary.

Prosecutors should seek a fixed date for the trial, as securing the attendance of an intermediary may be more difficult where a case is placed in a warned list. The intermediary should be warned to attend court on the day they will be required only. The prosecutor should be aware that cancellations within 24 hours of the court date will entitle the intermediary to a cancellation fee.

Intermediaries for defendants

Under the YJCEA, a defendant was not considered eligible for the intermediary special measure. However, following the judicial review case of R (OP) v Cheltenham MC and Others [2014] EWHC 1944 (Admin, which was brought against MoJ, it was found that MoJ should reconsider eligibility of defendants and carefully consider whether there should be equal provision for prosecution witnesses and defendants.

Section 104 of the Coroners and Justice Act 2009 (not yet implemented) will allow for certain vulnerable accused to give oral evidence at trial with the assistance of an intermediary. Until s.104 of the Coroners and Justice Act 2009 is implemented, there is no statutory framework for allowing the use of an intermediary for a defendant. In the interim, the practice has developed in the Crown Court whereby judges, exercising their inherent jurisdiction to ensure that the accused has a fair trial, have granted applications by the defence to allow the defendant to be assisted by an intermediary during the evidence and, in many cases, throughout their trial. Prosecutors should note that s.104 of the Coroners and Justice Act 2009 allows only for the provision of an intermediary for a defendant's oral evidence giving and not the duration of the trial. However, the judgment in C v Sevenoaks [2009] EWHC 3088 (Admin) provides authority for the court to appoint an intermediary to support a defendant's oral evidence giving throughout the court process, including during trial.

The Advocate's Gateway has produced a toolkit on the effective participation of young defendants.

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Case review and management

It is essential that the witness's needs are identified and considered at the charging stage and throughout the life of a case. It may be necessary to refer the witness to a specialist support service at an early stage.

Pre charge activity

Prosecutors should:

  • check that the reverse of form MG11 and related MG2 have been completed and use this to consider the needs of the witness;
  • follow up with police, and escalate to senior police managers as necessary to request the submission of the MG2 if it has not been provided;
  • in the absence of a MG2, make further enquiries of the police about the witness's needs, and gather information about the witness's needs and eligibility for special measures from the content of the case and support services. Consider whether it is possible to identify information about the witness's needs from their statement or the ABE transcript;
  • watch witness's interviews and record this activity on CMS, together with comments about the quality and admissibility of the evidence, (a full transcript will only be required when a not guilty plea is entered);
  • take account of all the information available regarding witness needs and fully endorse the form MG3 to reflect this.

Preparing and managing the case

With regard to the needs of witnesses, prosecutors should:

  • hold special measures discussions with the police as necessary;
  • coordinate any special measures meetings with the witness;
  • liaise with the Witness Care Unit and with specialist support services e.g. Independent Domestic Violence Advisors (IDVAs) and Independent Sexual Violence Advisors (ISVAs) about the outcome of any special measures applications and pre-court familiarisation visits, and ensure that the victim is updated on progress;
  • address any witness concerns;
  • prepare special measures applications - prosecutors should make an oral application for special measures at the first hearing, particularly in the magistrates' court, where most applications are expected to be made orally (see "Making the Application" below).

It is CPS policy that a visually recorded interview may be shown to the witness before the trial for the purpose of refreshing memory, unless the DVD has been ruled inadmissible. How and when this takes place should be decided on a case by case basis, with the overriding aim of enabling the witness to give best evidence. Watching the DVD can be distressing and best practice is to arrange for the witness to view it prior to the trial, not on the day of the trial. Information about refreshing the memory of a witness whose evidence is visually recorded is at Annex G.

Ground rules hearings

In any case with a witness who is vulnerable or who has a communication need, it is good practice to discuss and establish how to enable the witness to give their best evidence by agreeing ground rules in advance. In an intermediary case, such a hearing is essential.

The ground rules hearing must be attended by the intermediary (where engaged), the CPS prosecutor, the magistrates/judge and the trial advocates.

The ground rules hearing should address:

  • management of questioning about third part disclosure;
  • restrictions about the witness's previous sexual history;
  • avoiding repetitive questioning, particularly in multi defendant cases;
  • control of comment, stereotypes and insulting vocabulary;
  • management of questions accusing the witness of lying;
  • time limits on cross examination.

In cases where an intermediary has been engaged ground rules hearings should address:

  • the most effective way to question the witness and use of vocabulary;
  • how the intermediary should signal that s/he wishes to intervene (eg a hand signal or verbally);
  • how the intermediary should indicate that a break is required;
  • whether visual aids or other communication resources should be used.

The points above are not exhaustive. The issues to be discussed will depend upon the individual circumstances of the case and will be decided upon by the magistrates/judge. The decision(s) will be binding on all parties.

For further information see the Advocate's Gateway toolkit on ground rules hearings.

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Special measures discussions with the police

Where a witness meets the criteria of sections 16 or 17 YJCEA, there should be a smooth flow of information from the police officer to the prosecutor about the witness's needs, their eligibility for special measures and the most appropriate special measure(s) for them. The exchange of information with the police regarding special measures should begin as early as possible, before the plea is entered.

The circumstances of the case will determine the format of the provision of information about the witness's needs to the prosecutor. In some cases, for example a case involving a complainant of rape, the police officer and the prosecutor should arrange a telephone conversation or meeting to discuss the witness's needs. In other cases, it will be appropriate for the witness's needs to be communicated to the prosecutor by way of the routine submission of correspondence and adequately completed MG forms, or during regular dialogue between the police officer and the prosecutor about case issues.

The Director's Guidance on Charging: Guidance to Police Officers and Crown Prosecutors issued by the Director of Public Prosecution under s.27A of the Police and Criminal Evidence Act 1984 states that consultations between police and prosecutors will take place in the most serious, sensitive and complex cases, including:

  • Any case involving a death;
  • Rape and serious sexual offences;
  • Child abuse;
  • Large scale or long term fraud;
  • Cases with substantial or complex video or audio key evidence;
  • Cases expected to take substantially longer than 90 minutes in consultation.

Prosecutors should also consider early discussions with the police regarding special measures in cases of domestic violence and hate crime. Where the case is likely to be contested, prosecutors should always consider the option of discussing with the police officer the witness's needs and their eligibility for special measures.

Special Measures information from the police

The police should provide information about:

  • the ability of the witness to give evidence;
  • whether the witness may have other support needs for which referrals may need to be made;
  • the basis upon which the witness is eligible for one or more of the special measures (consideration will need to be given as to whether any expert evidence will be required in order to establish eligibility);
  • which of the special measures will be required to assist the particular witness and how the court is to be satisfied of the matters that it must consider under sections 19(2) and 19(3) of the 1999 Act;
  • the views of the witness as to which of the special measures should be applied for;
  • the appropriate individuals, such as an intermediary, to attend any subsequent meetings between the prosecutor and the witness; and
  • whether the witness is receiving therapy.

The police officer should also provide the prosecutor with copies of any Victim Personal Statements made by the victim. Victims are entitled to say whether they would like to read their VPS aloud in court or whether they would like it read aloud or played (if recorded) for them. The VPS and information about the victim's preference should be relayed to the court at the first hearing by the CPS advocate.

Where there is a disagreement concerning applications for special measures, the final decision rests with the CPS prosecutor.

When should the prosecutor and police officer discuss the witness's eligibility for special measures?

There are no strict rules as to when the police officer and prosecutor should discuss the witness's eligibility for special measures, but it is preferable that these discussions take place as early as possible. The effective flow of information between the police officer and prosecutor, for example the timely submission of a properly completed MG2 form, may remove the need for a formal face to face meeting and/or a telephone call. The option of discussing the witness's eligibility for special measures should, however, be considered by both the officer in the case and the prosecutor. The need for an initial, or further, special measures discussion should also be kept under regular review.

If the police and prosecutor discuss special measures prior to the witness being interviewed, it is likely that the conversation will be by way of a telephone call.

If the special measures discussion takes place after the witness has been interviewed, the police officer or prosecutor may consider that an expert witness or intermediary should be involved in the discussion. The expert may be able to provide information concerning a particular disability. The intermediary may provide particular information relating to the communication needs of the witness.

Recording meetings

It is important that a record is kept of discussions and decisions made concerning special measures. The police officer must record their discussion with the prosecutor. If the special measures discussion relates to a case for which a file has been created on CMS, the prosecutor must record on CMS the discussion and outcome.

Following the discussion between the police officer and the prosecutor, the officer should inform the witness of the decisions made by the prosecutor concerning applications for special measures. The officer should ask the witness whether, if they are required to give evidence in the case, they wish to meet the prosecutor to discuss matters relating to the special measures decisions. If the witness does wish to meet the prosecutor, the officer should record this information on the MG3 and submit it to the CPS.

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Special measures meetings with witnesses

There may be cases in which the witness requests a meeting with the prosecutor to discuss the decisions made regarding special measures. The police should offer such meetings to vulnerable and intimidated witnesses. ISVAs, IDVAs or other specialist support services may also request a special measures meeting for the witness.

The purpose of the meeting is not to discuss the evidence in the case, but to reassure witnesses that their needs will be taken into account and thereby help build up their trust and confidence. In considering whether to hold a special measures meeting with a witnesses prosecutors should consider the likely benefits of doing so. For example, mitigating the risk of retraction in cases of domestic violence or rape, through providing reassurance that the victim's needs will be taken into account, or addressing concerns regarding the safety of the victim.

Special measures meetings:

  • establish a link between the CPS and the witness;
  • allow the prosecutor to supply information to the witness;
  • provide an opportunity for the witness to explain their concerns about giving evidence and ask questions about special measures;
  • may reassure the witness that their needs will be taken into account;
  • may reduce any reluctance to attend court/give evidence;
  • improve the prosecutor's understanding of the witness's view of special measures; and
  • improve the trial process, as prosecutors apply for the special measures that will best meet the witness's needs.

Criteria to help prosecutors decide when a special measures meeting would be useful are outlined below. The first criteria in determining whether to hold a special measures meeting is whether a witness or support service has requested such a meeting. Prosecutors should aim to meet these requests wherever possible.

Victims and witnesses in cases of rape and serious sexual assault, child abuse, human trafficking, female genital mutilation, hate crime, domestic violence, stalking and bereaved families are likely to benefit from the additional support offered by a special measures meeting with a prosecutor. Prosecutors should therefore consider organising special measures meetings at an early stage in these cases. The table below sets out factors to consider when considering organising special measures meetings with witnesses. A combination of factors may be present which would make special measures meetings more or less desirable.

When should the meeting with the witness take place?

Meetings of the prosecutor and witness to discuss special measures will be held after the prosecutor has made an initial decision to proceed with the prosecution.

It is preferable for the meeting with the witness to be held before an application for special measures is made to the court. This will allow the prosecutor to confirm the views of the witness as to which of the special measures should be applied for. The prosecutor is then able to make a fully informed application to the court.

When considering when to hold a meeting with a witness, prosecutors must note the following:

  • the meeting should be held after the defendant has been charged;
  • the meeting should not take place until the witness has made a statement, or further statement following the prosecutor's discussions with the police officer; and
  • the tighter timescales in the magistrates' and youth courts mean that meetings with witnesses will need to be held as soon as possible after the entry of a not guilty plea.

In certain cases, it may only be possible to meet with the witness after an application for special measures has been made to the court. 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. This meeting may be timed to coincide with the pre-court familiarisation visit. The meeting would permit the witness to see and be reassured by the special measures available, such as the live link room.

Consideration Higher desirability of meeting Lower desirability of meeting
Seriousness of the Offence:
Serious offence
Minor offence

Yes


Yes
Victim's injuries (including psychological):
Serious injuries
Minor injuries or no injuries

Yes


Yes
Use of a weapon Yes
Any subsequent threats by the defendant
Victim is particularly vulnerable or exploited
e.g. Pregnant victims of domestic violence, victims of child sexual exploitation, victims of human trafficking, victims in gangs, individuals with mental health issues or learning disabilities, individuals on the autistic spectrum.
Yes
Any on-going relationship with defendant
e.g. family, partner, carer, "false friend"
Yes
Whether there is any likelihood of recurrence Yes
Threat to health and/or safety of the victim or any other person involved Yes

Who should attend the meeting with the witness?

Prosecutors must consider each case individually, and the needs and wishes of the witnesses, particularly with regards to having a supporter present, must be taken into account. The final decision as to who will attend the meeting rests with the prosecutor, after appropriate discussion and liaison with those concerned.

Prosecutors must aim to provide the maximum possible continuity for the witness and consideration must be given to, where possible, the witness meeting the same members of the prosecution team throughout the trial process.

It is recommended that the number of attendees is limited to the witness and a maximum of four others. The following individuals might attend:

  • the CPS reviewing lawyer;
  • the trial advocate;
  • counsel;
  • the paralegal officer;
  • the police officer /the officer who has had contact with the witness;
  • a relative, carer or supporter of the witness, such as an IDVA; and,
  • a Registered Intermediary, or interpreter as required.

Wherever possible, the prosecutor should ensure that the advocate who will be conducting the trial attends the meeting between the prosecutor and the witness.

If the witness wishes a legal representative to attend the meeting, this should usually be permitted. It will be the responsibility of the witness to make the arrangements for the attendance and payment of the legal representative.

The CPS will pay reasonable expenses and allowances incurred by the witness attending the meeting (other than any legal representative of the witness), in accordance with the Crown Prosecution Service (Witnesses' etc. Allowances) Regulations 1988.

What should be discussed at the meeting?

Prosecutors must be alert to the case of R v Momodou and R v Limani [2005] EWCA Crim 177. Prosecutors must not under any circumstances train or coach the witness, or ask questions that may taint the witness's evidence. Providing a prosecutor's discussion with a witness does not influence or affect the nature or content of the witness's evidence, or give rise to a perception that it may have done so, there should be no risk of coaching having taken place.

Prosecutors should invite questions from the witness. It is better for the prosecutor to explain if they cannot answer a question rather than emphasise restrictions on what can be discussed. If the witness wishes to discuss an evidential matter, the prosecutor must explain that the witness must discuss his or her evidence with the police. The prosecutor must arrange for this to happen.

Prosecutors must consider each case on an individual basis but an explanation to the witness of the following should be included in the discussion:

  • the purposes of the meeting;
  • the prosecutor's role;
  • if appropriate, the provisions contained in sections 34 to 36 of the YJCEA;
  • although a relative, carer or supporter has attended the meeting, such a person will not necessarily be permitted to sit in the witness box with the witness; and
  • of court procedure and the roles of the various parties in the trial, if the witness asks and if the meeting does not coincide with the pre-court familiarisation visit.

Where the meeting takes place before the application for special measures is made to the court, the prosecutor should:

  • explain the special measures identified in discussions with the police;
  • discuss the special measures identified and check that they are appropriate for an application for a special measures direction;
  • seek the witness's views on which special measures they want;
  • explain that the defendant's legal representatives have a duty to promote the best interests of the defendant, and may contest the use of special measures; and
  • explain that the court will make the final decision as to what special measures will be made available to the witness at the trial.

Where the meeting takes place after the application to the court for special measures is made, prosecutors must:

  • inform the witness of the outcome of the special measures application;
  • explain the binding effect of the court's direction.

Where the prosecutor has decided not to apply for any special measures or to apply for special measure that differ from those preferred by the witness, an explanation must be given of the reasons for that decision. The prosecutor must take into account any views expressed by, or on behalf of, the witness and, if appropriate, reconsider the decision.

Keeping a record of the meeting

It is essential that a written record is kept of what is discussed with the witness at the meeting. The written record may avoid the prosecutor being called as a witness at the trial and, in the event of being called will provide an aide-memoire. Annex H provides details of what information should be recorded.

The meeting attendees, with the exception of the witness, should be asked to sign the record of the meeting.

Change in needs or circumstances of the witness

The needs or circumstances of a witness may, indeed often will, change from the reporting of the crime to the court hearing. The prosecutor should ask the witness to contact the Witness Care Unit or, where appropriate, their single point of contact, if their needs or circumstances change in a way that might affect the decision not to apply for special measures or the special measures already applied for. If it is necessary to make an application or a further application to the court for special measures, the prosecutor should do so as soon as possible (see section 20 of the YJCEA).

Following the meeting, prosecutors must:

  • inform the Witness Care Unit of the outcome of the meeting;
  • notify the defence that a meeting has taken place; and
  • send a copy of the relevant MG forms to the defence, unless they contain sensitive material.

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Making the Application

Applications for special measures should be made in accordance with Part 29 of the Criminal Procedure Rules. It is expected that applications for special measures will be made orally in the first instance in the magistrates' court in line with Transforming Summary Justice and under Part 29.5 of the Criminal Procedure Rules.

Written applications should not be "badged" with the CPS logo as it is not a CPS form but is one prescribed by the relevant Practice Direction.

In preparing applications for special measures, prosecutors should ensure that they draw upon all of the information available to them at the time and use it to explain:

  • why the measure(s) is being sought;
  • how it will enable best evidence, and;
  • any views expressed by the witness.

The court will need to be informed of the specific views of the witness when determining who should accompany the witness if s/he gives evidence by live link. Section 102 of the Coroners and Justice Act 2009 amends section 24 of the YJCEA so that when the court directs a live link special measure it can also direct that a person specified by the court (witness supporter) can accompany the witness when (s)he is giving evidence. This may be an Independent Sexual Violence Advisor (ISVA) or Independent Domestic Violence Advisor (IDVA). In making such a direction the court must have regard to the wishes of the witness.

Prosecutors must consider the content of the MG2 before making an application for special measures and must follow up with the police to request the submission of the MG2 if it has not been provided. Prosecutors must avoid making applications without the MG2. However, in the absence of the MG2 and where it is anticipated that the submission of the form will delay the court proceedings, prosecutors should consider using other information (for example, details included in the witness statement/ABE transcript, medical information about the witness's vulnerability, information from the Witness Care Unit, an Independent Sexual Violence Advisor (ISVA) or Independent Domestic Violence Advisor (IDVA) or to support the application for special measures.

There is no requirement for a witness statement (MG11) to accompany a special measures application form. Additional MG11s should not be requested from the police in order to address shortcomings with the quality of the form MG2. Prosecutors should not delay making applications for special measures based on a misunderstanding that a witness statement must support the request. Prosecutors should, in exceptional cases only, request the police to provide an additional MG11 to support an application for special measures. This practice should be limited to where the needs of the witness have changed over the course of time.

The application should be made as soon as reasonably practicable and in the magistrates' court at first hearing where a not guilty plea is anticipated. In any event applications should be made 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. Under Part 29.5 of the Criminal Procedure Rules, the time limit can be extended upon application to the court providing an explanation is given. Out of time applications should be avoided. Further information is at Annex I.

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 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 applications made to the court for special measures, as well as the direction made by the court, so that they in turn can notify the witness. The Criminal Procedure Rules direct that the witness must be informed of the court's decision as soon as reasonably practicable and have explained to him/her the arrangements that as a result will be made for them to give evidence.

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Further information

Further information concerning the use of special measures is contained in:

Further legal guidance to which prosecutors may refer in specific cases:

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Annex A: Evidence by live link under s51 Criminal Justice Act 2003

Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.

Section 51 was piloted in five Crown Court centres and was restricted to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 extended live links to all witnesses in all cases for all criminal offences in all courts and came into force on 26 April 2010. The witness does not have to be a special "category" of witness (for instance vulnerable or intimidated as defined by the YJCEA).

Live links will be particularly helpful for witnesses with limited availability, such as professional witnesses, or those with mobility issues who do not qualify for live links under the "special measures" provisions of the YJCEA. It may also assist in cases involving police officers who have to travel some distance to a Crown Court (in rural areas, for example).

It is for prosecutors to decide whether an application for a live link is appropriate, taking into account all the circumstances of the case. The legislation allows for evidence to be given by live link from any suitable facility and is not limited to those in a court building. If the link is from somewhere other than a court building prosecutors should factor in sufficient time for the requisite IT equipment to be installed.

"Live link" is defined in section 56(2) and will usually mean a closed circuit television link, but could apply to any secure technology with the same effect such as video conferencing facilities or the internet.

A court may only authorise the use of a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of a live link - for example, a witness may be able to give evidence from a court in a different part of the United Kingdom rather than have to travel to the trial court (subsection (4)[a]).

Section 51(6) sets out the matters that the court must consider when deciding whether to authorise the use of a live link (subsection (6). These are:

  • the availability of the witness;
  • the need for the witness to attend in person;
  • the importance of the witness's evidence to the proceedings;
  • the views of the witness;
  • the suitability of the facilities at the place where the witness would give evidence through a live link;
  • whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.

Section 52 provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so.

An application for a direction to be rescinded can only be made if there has been a material change in circumstances since the decision was made. For example, a direction might be rescinded where problems with the live link technology arise after a direction has been given.

Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.

Applications for live links should be made orally in the first instance in the magistrates' court, in line with Transforming Summary Justice, or in writing to the court in accordance with Part 29 of The Criminal Procedure Rules. The application should not be "badged" with the CPS logo as it is not a CPS form but is one prescribed by the relevant Practice Direction. Click here to download the form from the Ministry of Justice.

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.

Applications made by the defence for one of their witnesses (other than the defendant) to give evidence through a live link should include the name, address and date of birth of the witness or as many of those details as are known to the accused when the application is made.

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Annex B: Intermediary case study

The defendant, John, attended A&E with his 2 year old son, Tom. Tom was found to have numerous injuries, including a broken leg. Tom was also found to have a healing fracture, which was a few weeks' old. John gave an implausible account of how Tom had come to be injured.

The only witness was Jane, John's wife. Jane had a learning disability and difficulties with understanding and expressing herself.

Jane initially supported John's account, but on hearing of his arrest, informed the police that John had lost his temper because Tom was crying and had physically assaulted Tom. Jane also catalogued a history of violence towards Tom, and that John had also been violent to her and their other children in the past.

John admitted the assault, but denied that he had intended to cause serious injury to Tom.

The only evidence that could be called to prove John's intent was that of Jane. An intermediary was instructed, who advised that it would be possible for Jane to give evidence in court via live links, with the assistance of an intermediary to enable effective communication and enable her to give her best evidence.

Specific recommendations made by the intermediary to assist Jane in court included:

  • A pre-trial visit with the intermediary and a practice at using the live link
  • The intermediary to be allowed to alert the court to possible misunderstandings and help rephrase questions
  • Advocates and judge to introduce themselves in person
  • Breaks at 30 minutes intervals
  • Avoiding idioms and ambiguous language
  • Short questions
  • Single questions
  • Introducing a change of topic whilst questioning to avoid confusion
  • Always using names; not "he", "she" etc.
  • Understanding that she has difficulty explaining "when" something happened so questions must be linked to specific events like birthdays.

An application for special measures for Jane was successful. Jane was able to give evidence by live link with the assistance of the intermediary.

John was convicted and sentenced to 14 years imprisonment.

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Annex C: Tasks to be done by a Registered Intermediary (RI) between referral from the CPS and trial

NB All these tasks below are required so that an RI is able to do work to an accepted standard in order to comply with their Code of Ethics and Code of Practice.

These tasks to be completed in the 15 day recommended minimum (longer than 15 days is preferable if at all possible)

Tasks to be completed by an RI:

  • Accepts referral from matching service
    Issues to be taken into consideration:
    • The database held by the matching service (Making the most of Working with an Intermediary 2014 Toolkit - section 2.2 http://lexiconlimited.co.uk/) sorts on: 1. Skills of the RI verses the needs of the witness; 2. Geographical area; and 3. Availability of RIs.
  • Contacts CPS representative
    Issues to be taken into consideration:
    • It is not always possible to contact the CPS representative on the day, due to reviewing lawyer, paralegal being in court etc.
  • Contacts OIC to arrange assessment of the witness
    Issues to be taken into consideration:
    • As above, the OIC may be on rest days or involved in other cases and is unable to get back to the RI.
  • Obtains background information about the witness, e.g. from a school, social worker or medical personnel
    Issues to be taken into consideration:
    • As above.
  • Carries out an assessment of witness communication skills and needs
    Issues to be taken into consideration:
    • (It is necessary for a responsible 3rd party to be present during the assessment).
  • Watches the ABE interview/s
    Issues to be taken into consideration:
    • This is normally done at a police station.
  • Analyses assessment findings
  • Writes Court report
    Issues to be taken into consideration:
    • CPS to apply for special measures for the use of an RI
    • CPS to circulate RI report to judge, prosecution and defence barristers
    • In order to be of value it is necessary for the barristers to have sight of the RI report in a timely manner so they can consider the recommendations made by the RI.
  • Prepares any materials that will ensure the witness is able to give best evidence
  • Attends a contested hearing, if this occurs, regarding the use of an RI at trial
  • Attends court familiarisation visit including practise of live link facility if needed
    Issues to be taken into consideration:
    • The practise of use of the live link is often arranged by the RI. Also see reference about need for this practise. (Criminal Practice Directions 2015 18B. Also Code of Practise for Victims of Crime 2013 section 1.22)
  • Attends Ground Rules Hearing (GRH)
    Issues to be taken into consideration:
    • "desirable before the day of the witness's testimony, where possible, giving advocates more time to adapt their questions and ensuring the witness can be prepared on the basis of agreed special measures" (Equal Treatment Bench Book 2013 Section 57 on page 59)
    • A late referral often necessitates a GRH on the day of the trial which is poor practise. (Ground Rules Hearing toolkit. http://lexiconlimited.co.uk/)
  • Attends memory refreshing with witness
    Issues to be taken into consideration:
    • See reference to use of an RI (Criminal Practice Directions 2015 Section 18C).
  • Acts as an RI at trial

It must be remember that, like all the other court personnel, the RI has other time commitments/constraints, e.g. doing other intermediary work full time or the RI may, in addition to RI work, have a part time or even full time job.

Download here a copy of the Tasks to be done by a Registered Intermediary (RI) between referral from the CPS and trial.

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Annex D: Cost Split between the Police and CPS

The police are responsible for the costs of the investigation. Where an intermediary is to be used, the following costs will be met by the police:

a. the use of the intermediary to assist the witness in interviews/making statements and in subsequent enquiries, regardless of what stage proceedings might have reached;

b. the preparation of any reports that support the witness interview/statement taking process;

c. where a new witness comes to light post-charge and an intermediary assessment is needed before the witness is interviewed, the cost of the report and the use of the intermediary to assist the witness in interviews/making statements;

d. the preparation of a report by an intermediary to justify termination of an investigation.

The CPS is responsible for the presentation of evidence in court. Where an intermediary is to be used, the following costs will be met by the CPS:

a. intermediary attendance at a pre-trial witness interview (in accordance with the Guidance about Pre-trial Witness Interviews);

b. intermediary attendance at a pre-court familiarisation visit with a vulnerable witness, because this is part of the preparation for the presentation of evidence in court;

c. intermediary reports that set out the witness's communication abilities and weaknesses for use in court;

d. intermediary attendance at all court hearings and preparation by the intermediary for the presentation of evidence at court;

e. intermediary attendance at a Direct Communication with Victim meeting.

Responsibility for any other potential intermediary costs should be agreed locally by the police and CPS on a case by case basis before the intermediary is commissioned to do the work. A record should be kept and the intermediary informed so that the appropriate organisation can pay the invoice.

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Annex E: Completion of a Request for Service form & guidance for completion

Following a not guilty plea being entered, a "Request for Service" form must be completed, at the earliest possible opportunity, in respect of the intermediary's involvement with the vulnerable witness required to give evidence at the trial.

The early completion of the Request for Service form will ensure that the details of the intermediary to be used at trial are available for inclusion within the special measures application form. The CPS requestor should quote the Letter of Engagement (LoE) matching number allocated during the investigation stage to allow the Witness Intermediary Service (WIS) to identify the existing case details. The WIS will carry forward the necessary details from the investigation stage to the work involving the CPS. The WIS will, wherever possible, provide the same intermediary.

When completing the Request for Service form, it is not necessary for the prosecutor to repeat the detail provided by the police in connection with the original engagement of an intermediary.

It is preferable for the investigating officer to complete the information about the vulnerable person and their requirements, as the officer will have a detailed knowledge of the witness.

The Specialist Operations Centre has prepared helpful guidance about the completion of a Request for Service form.

Download a Request for Service, and use the guidance to help you complete it.

The completed Request for Service form should be e-mailed to soc@nca.x.gsi.gov.uk.

The completion of the form confirms that the CPS will meet the cost of the intermediary for the trial and any preparation required in advance of the trial. Therefore, the prosecutor who completes the Request for Service form should obtain agreement from the budget holder before submitting the form (in practice this will be the ABM or DCP).

Where an intermediary was used during the investigative stage, a new matching service number will be provided because it is a different "End-User" (i.e CPS not Police) making the request.

If an intermediary has not previously been appointed, the CPS prosecutor should complete the Request for Service form as detailed above, and forward the document to the investigating officer to complete the details in relation to the vulnerable person and their requirements. The investigating officer should then submit the completed form directly to the WIS. Where expediency is required, for example getting an intermediary for a trial at short notice, it may be necessary for the CPS to complete the form. The completed form should be e-mailed to soc@nca.x.gsi.gov.uk.

Areas should ensure that they have processes in place to highlight the involvement of an intermediary on a case file and to provide clarity on whose responsibility it will be to complete the relevant sections of the Request for Service, as well as obtaining the necessary budgetary authority.

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Annex F: Flow chart about the process to engage an intermediary

You can download a copy of the Intermediary engagement and payment process overview flow chart from this website.

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Annex G: Witness Expenses: Rates of Remuneration for Registered Intermediary

Effective from 01 June 2016

This leaflet gives the current rates and upper limits of allowances payable by the Crown Prosecution Service to Intermediiaries required to provide services for a prosecution witness. These rates are reviewed from time to time and the amounts in force when you attend court will be applied to your claim.

Fees

The current rates payable to intermediaries are standard rates applied by most criminal justice agenceis and set out in a Mininstry of Justice (MoJ) document entitled Rates of Reummerations for Registerd Intermediaries (RIs) with which you should be familiar. Please note that the travel and subsistence allowances paid by CPS are their own, not those in the MoJ document.

In summary the rates are:

  • Standard rate professional fee - per hour £37.60
  • Attendance at court - trail - 3 hour minimum £112.80
  • Attendance at court - non-trial - 2 hour minum £75.20
  • Additional payment per 15 minutes pr [part thereof £9.40

Cancellation fee:

  • Cancellation fee when cancelling a booking after 10am on teh day before it is due to begin (i.e. a sum equal to the 3 hours at teh standard professional rate) £112.80

Travel time

£16.00 per hour or £4.00 per full (or part there of) quarter hour.

Travel costs

£0.45p per mile - car

£0.238p per mile - motorcycle

£0.062p per mile - bicycle

All public transport expenses to be reimbursed. Taxis or flight travel should only be used with prior agreement.

Minimum attendance fees

There is a minimum attendance fee of 2 hours at the professional fee rate of £36.00 per hour for the conduct of an assessment and police interview.

There is a minimum attendance fee of 3 hours at the professional fee rate of £36.00 per hour for attendance at court.

Unsocial Hours Rate

An unsocial hours rate is also payable of £52.00 an hour or £13.00 per full quarter hour on a public holiday (at any time of day - public holidays in England and Wales only); or on a Saturday or a Sunday (at any time of day); or on Monday to Friday (0000 to 0630 hrs and 1930 to 2359 hrs). Travel fees are paid at the normal rate during this time.

This rate is only applicable for meetings and assessments and does not cover report writing or administration.

Day subsistence

This applies to an absence from home or work for more than 5 hours or a balance of time of more then 5 hours beyond a complete period of 24 hours during which night subsistence is paid. It can only be claimed if a standard rate professional fee is not applicable at the time.

Flat rates of daily subsistence are:

  • over 5 hours and up to 8 hours - £4.25
  • over 8 hours - £9.30

Overnight Subsistence

  • &£100.00 per night (including breakfast) - if overnight stays are required, the hotel limit is within the M25 boundary, Birmingham, Leeds, Liverpool, Manchester and Newcastle upon Tyne.
  • £80.00 per night (including breakfast) outside the M25 boundary. An overnight subsistence is also payable of £26.00 (per 24 hours).

Where the CPS is the End-User, Registered Intermediaries (RIs) should ask the CPS to use its hotel booking facility to make arrangements for their overnight accommodation if it is required.

All instances where overnight accommodation is required must be justifiable and must be approved in advance by the End-User engaging the RI. Retrospective and unapproved claims for accommodation will not be approved.

Intermediary's Employer's Rate

In some cases the Registered Intermediary will not claim a fee themselves but their employer will be paid a compensatory payment. In these cases the Registered Intermediary will indicate on the Request-for-Service / Letter of Engagement who will be making a claim for expenses. Different rates for employers apply and these are shown below:

  • The employer may claim any additional costs incurred for replacement cover e.g. locum up to a daily maximum limit of £250.00.
  • If the employer does not incur any additional costs including overheads then they can claim a flat daily rate fee of £100.00 per day.

The Registered Intermediary can claim actual travel expenses i.e. public transport tickets and day subsistence in these cases.

Cancellation fees applicable

A cancellation fee of 3 hrs at the standard professional fee rate of £36.00 per hour will be charged if a confirmed appointment is cancelled with insufficient notice less than 24 hrs or on a Friday for work to be conducted on the following Monday. Additionally, the Registered Intermediary will be entitled to claim any non-refundable travel and subsistence costs that they may have incurred.

In addition to the standard cancellation fee, there are other instances that apply for specific circumstances related to a Registered Intermediary working for the CPS and HMCTS (on behalf of a defendant).

Short-notice cancellations for engagements as a Registered Intermediary with the CPS - warned to attend

Where Registered Intermediaries (RIs) are engaged to conduct work for the CPS and are warned to attend for certain dates for court cases (asked to "pencil in" dates), cancellation of these dates at very short notice can, in effect, preclude them from being offered the opportunity to be offered similar, alternative work as an RI by the matching service.

As such, in instances where this occurs, a RI may claim a cancellation fee for each consecutive day where he / she is warned to attend and is cancelled but this is limited to three hours at the professional rate (3 hours @ £36.00 per hour = £108.00) per day. This fee can only be claimed where less than 3 working days' notice is given to the RI. In addition, the costs of any pre-paid, non-refundable travel and subsistence costs can also be claimed for by the RI.

In relation to RIs claiming the cancellation fee, this is based on the premise that they have suffered a loss as a result of the cancellation. It follows that if they are employed and able to return to their employment on the days not needed at court, the CPS would not be expected to pay the cancellation fee for the days concerned.

Short-notice cancellations for engagements as a Registered Intermediary with the CPS - in attendance

Where Registered Intermediaries (RIs) are engaged to conduct work for the CPS and are in attendance and the case concludes or is cancelled in advance of the anticipated end-date, i.e. change of plea by the defendant, a RI may claim a cancellation fee for each consecutive day where he / she is booked to attend court and is cancelled but this is limited to three hours at the professional rate (3 hours @ £36.00 per hour = £108.00) per day and this fee can only be claimed where less than 3 working days' notice is given to the RI. This means that the fourth or subsequent day will generally not attract a cancellation fee. In addition, the costs of any pre-paid, non-refundable travel and subsistence costs can also be claimed for by the RI.

Short-notice cancellations for engagements as a Registered Intermediary working for HMCTS on behalf of a defendant

Where Registered Intermediaries (RIs) are engaged to conduct work by HMCTS on behalf of a defendant and are warned to attend for certain dates for court cases (asked to "pencil in" dates), cancellation of these dates at very short notice can, in effect, preclude them from being offered the opportunity to be offered similar, alternative work as an RI by the matching service.

As such, a RI may claim a cancellation fee in the following instances:

  • Where an appointment for a Registered Intermediary is cancelled at less than 24 hrs notice (or on a Friday for work to be conducted on the following Monday), he / she is entitled to claim 3 hours at the hourly rate of £36.00, i.e. a total of £108.00, plus any non-refundable travel and subsistence costs they may have incurred.
  • Where an appointment for a Registered Intermediary is made for a period of 5 days or more, and then is subsequently cancelled, he / she would be entitled to claim for 3 days at a rate of 3 hours per day at the hourly rate of £36.00, i.e. a total of £108.00 x 3 = £324.00, plus any non-refundable travel and subsistence costs they may have incurred.

This is of particular reference to adequately recompense RIs that are self-employed, or who have taken unpaid leave to conduct this work, and whom have accepted prolonged work packages, forgoing other work opportunities, only for these to be cancelled at short notice.

In relation to RIs claiming the cancellation fee, this is based on the premise that they have suffered a loss as a result of the cancellation. It follows that if they are employed and able to return to their employment on the days not needed at court, HMCS would not be expected to pay the cancellation fee for the days concerned.

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Annex H: Refreshing the memory of a witness whose evidence is visually recorded

Witnesses are entitled to see a copy of their statement - written or otherwise - before giving evidence.

The issues involved in planning for refreshment of a witness's memory will be raised at the Plea and Case Management Hearing (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 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 DVD before trial must be explained to the witness, and their views taken into account. The witness must be informed of any editing of the DVD. 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 DVD 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 young witnesses may prefer to watch the DVD at least a day before the trial. This allows the young witness to prepare for the trial and reduce the stress of giving evidence. It is recommended that the first viewing of the recording should not be on the morning of the trial, in order to avoid the young witness having to view the recording twice in one day.

The Judicial College Bench Checklist: Young witness cases (January 2012) recommends that if a young witness watches their DVD at a different time from the jury then the young witness should be sworn immediately before cross-examination and then asked if he/she has watched the DVD and if its contents are true.

See also: legal guidance about Witness Statements and Memory Refreshing.

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Annex I: Record keeping - Special Measures meetings between prosecutors and witnesses

A member of CPS staff, other than the prosecutor, must attend the meeting with the witness and undertake the role of note-taker. The note-taker must record the following information:

  • the name of the defendant;
  • the location of the Crown/magistrates'/youth court;
  • the CPS case reference number;
  • the name of the witness;
  • the names of the meeting attendees (CPS staff, the witness and the police officer. If other people attend the meeting, their relationship to the witness must be recorded);
  • the venue of the meeting (together with an indication of whether the meeting coincides with a pre-court familiarisation visit);
  • the time the meeting started and ended;
  • details of the preliminary matters explained to the witness:
    • the purpose of the meeting;
    • the role of the prosecutor;
    • no discussion of evidential matters;
  • discussion concerning special measures;
  • explanation of court procedure;
  • decisions reached; and
  • action to be taken, if necessary.

The note must be signed and dated by all of the meeting attendees, with the exception of the witness.

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Annex J: Timescales for the submission to the court officer, of the application for special measures

Application to the youth court: within 28 days of the date on which the defendant first appears or is brought before the court in connection with the offence.

Application to a magistrates' court: within 14 days of the defendant indicating their intention to plead not guilty to any charge brought against them and in relation to which a special measures direction may be sought.

Application to the Crown Court: within 28 days of

  1. the committal of the defendant, or
  2. the consent to the preferment of a bill of indictment in relation to the case, or
  3. the service of a notice of transfer under section 52 of the Criminal Justice Act 1991, or
  4. where a person is sent for trial under section 51 of the Crime and Disorder Act 1998, the service of copies of the documents containing the evidence on which the charge or charges are based under paragraph I of Schedule 3 of that Act, or the service of a Notice of Appeal from a decision of a youth court or a magistrates' court.

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