- Witness competence
- Eligibility for Special Measures
- Special measures available
- Other provisions to enable best evidence
- Making an application
- Ground Rules Hearings
- Witness memory refreshing
- Information for prosecutors about groups of vulnerable and intimidated witnesses
- Further information regarding the use of special measures
- Annex A – Intermediaries
Many witnesses experience stress and fear during the investigation of a crime and when attending court and giving evidence. Stress and fear can affect the quantity and quality of communication with, and by, witnesses of all ages. 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 by alleviating some of that stress. The measures are collectively known as "special measures".
The Code of Practice for Victims of Crime (the Victims' Code) states at paragraph 4.12 "the judge or magistrate will decide whether special measures should be granted following a request from the prosecutor. The Witness Care Unit will tell you the judge’s or magistrates’ decision (see Right 8) and Her Majesty’s Courts and Tribunals Service court staff will ensure that any special measures granted are available for you at court."
The purpose of this guidance is to assist prosecutors to understand their role in considering and applying for special measures. It does so by setting out:
- the responsibilities of the prosecutor
- the provisions governing eligibility for special measures
- what special measures are available and considerations which apply to some of them
- what information the police should provide and how a special measures discussion with the police should take place
- further information about the role of the prosecutor including making the application, familiarisation meetings and ground rules hearings
- information about specific groups of vulnerable and intimidated witnesses
- information about intermediaries
Pre-charge prosecutor responsibilities
- request an MG2 from the police and escalate this if it is not received, where the information provided by the police suggests that special measures should be considered for a witness (although an MG2 should have been received with the case file at the outset). If appropriate, request the police to refer the witness to a specialist support service
- where an MG2 has been received, check it has been fully completed and whether any other information is necessary and use this to consider the needs of the witness
- where possible and appropriate, discuss special measures with the police prior to the witness’ evidence being obtained
- record in pre-charge advice and/or the charging decision the assessment of the witness and the special measures they require
Post-charge prosecutor responsibilities
- address any witness concerns
- prepare special measures applications, noting that prosecutors should make oral applications 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’ in this guidance) and where section 28 YJCEA is applicable the prosecutor must notify the court and defence at the first hearing
- 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 measure’s applications, pre-court familiarisation visits, and ensure that the victim/witness is updated on progress
- hold special measures discussions with the police, where necessary to ensure sufficient information has been gathered to make the most appropriate and best possible application for the witness
- hold meetings with victims to discuss special measures in appropriate cases
- ensure, where appropriate, that an intermediary is appointed prior to PTPH and their dates to avoid are obtained
- ensure effective ground rules hearings take place where an intermediary has been granted for court proceedings
- ensure the witness is shown their statement/video recorded interview before the trial for the purpose of refreshing their memory unless it has been ruled inadmissible
Special Measures information from police
The police should provide the following information:
- the ability of the witness to give evidence
- whether the witness may have other support needs for which referrals may need to be made or already has a named supporter they wish to be present at court
- 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 to establish eligibility)
- which of the special measures will be required to assist the witness and how the court is to be satisfied of the matters that it must consider under section 19 (2) and 19(3) YJCEA
- 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
- if the victim has supplied a Victim Personal Statement (VPS) and where they have 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. For more information refer to the Joint Agency Guide to the Victim Personal Statement.
Where there is a disagreement concerning applications for special measures, the final decision rests with the CPS prosecutor.
Special Measures discussions with the police
There are no strict rules as to when the police officer and prosecutor should discuss the witness' eligibility for special measures, but it is preferable that these discussions take place as early as possible and potentially pre-charge. Where a witness meets the criteria of sections 16 and/or 17 YJCEA, there should be a smooth and early flow of information from the police officer to the prosecutor about the witness' needs, their eligibility for special measures and the most appropriate special measure(s) for them. The circumstances of the case will determine the format of the provision of information about the witness' needs to the prosecutor. In some cases, for example a case involving a complaint of rape, the police 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 during regular dialogue between the police officer and the prosecutor about case issues.
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 information relating to the communication needs of the witness.
Annex 6 of the Director's Guidance on Charging (DG6) lists specific case types where the provision of early advice is strongly recommended. Annex 6 paragraph 2 of DG6 confirms that even where early advice may not be required the police should contact the CPS to discuss referral arrangements where witnesses require the support of intermediaries or are eligible for special measures under section 28 YJCEA. Prosecutors should also consider early discussions with the police regarding special measures in cases of domestic abuse and hate crime.
It is important that police and prosecutors keep a record of discussions and decisions made concerning special measures. Following the discussion, the police should inform the witness of the decisions made by the prosecutor. In some Areas there will be the option of further discussion with the prosecutor.
Section 53(1) YJCEA states "at every stage in criminal proceedings all persons are (whatever their age) competent to give evidence." However, section 53(3) YJCEA states that a person is deemed not competent to give evidence if it appears to the court that they are unable to understand questions put to them as a witness and give answers which can be understood. The judge or magistrates will decide if a witness is competent. This is specific to each witness and there must be no presumptions or preconceptions in assessing a witness as an individual. The question of competence must be decided before the witness is sworn or starts to give evidence. Special measures may be critical to ensure a witness who might otherwise not be competent to give evidence, is able to do so. Section 54 YJCEA sets out the procedure to be followed when determining the competence of a witness. In summary:
- the competence of a witness can be raised by a party to the proceedings or by the court of its own motion
- if raised, the party calling the witness must satisfy the court on the balance of probabilities that the witness is competent
- the court must treat the witness as having the benefit of any special measures directions which the court has given or proposes to give in relation to the witness
- the determination of competence must be in the absence of the jury
- expert evidence may be given
- any questioning of the witness will be conducted by the court in the presence of the parties
Being eligible for special measures does not mean that the court will automatically grant them. The court must satisfy itself that the special measure or a combination of special measures is likely to maximise the quality of the witness's evidence before granting an application.
Vulnerable witnesses (section 16 YJCEA)
- Is the witness under 18 at the time when the special measures determination falls to be made (or was under 18 when the application was made)?
If yes, the primary rule is they give evidence by pre-recorded video interview and are cross-examined by live link (section 21(3) YJCEA, subject to 21(4) YJCEA). This includes witnesses who were under 18 at the time of the recording but have since turned 18: section 22 YJCEA. Those witnesses who are under 18 at the time of the recording and at the time of proceedings could be considered for pre-trial recorded cross examination (section 28 YJCEA).
- Does the witness suffer from a mental disorder within the meaning of the Mental Health Act 1983, or otherwise have a significant impairment of intelligence and social functioning, or have a physical disability or is suffering from a physical disorder? If so, the quality of evidence given by the witness is likely to be diminished as a result?
If yes, the witness is eligible for the special measures in sections 23 to 30 YJCEA.
Intimidated witnesses (section 17 YJCEA)
Is the witness a victim in:
- A sexual offence or an offence under section 1 or 2 of the Modern Slavery Act 2015?
If yes, the victim is eligible (unless they wish otherwise) for the special measures in sections 23 to 28 YJCEA. For sexual offences victims, their video recorded evidence is automatically admissible (unless not in the interests of justice or would not maximise the quality of the evidence): section 22A YJCEA.
Is the witness a victim in:
- An allegation of domestic abuse?
If yes, the victim is eligible (unless they wish otherwise) for the special measures in sections 23 to 26 YJCEA [and sections 27 and 28 YJCEA, but only when rolled out]. See the Domestic Abuse prosecution guidance for further information.
Is the witness involved in proceedings (whether as a victim or not)
- Concerning a violent offence defined in Schedule 1A YJCEA?
If yes, the victim is eligible (unless they wish otherwise) for the special measures in sections 23 to 26 YJCEA.
In respect of any other witness, if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings, they are eligible for the special measures in sections 23 to 27 YJCEA.
Witnesses may feel in fear or distress due to:
- the nature and circumstances of the offence
- the age of the witness
- the social and cultural background and ethnic origins of the witness
- the domestic and employment circumstances of the witness
- any religious beliefs or political opinions of the witness
They may also feel intimidated due to the behaviour towards the witness by the defendant, or by members or associates of the defendant or by any other person who may be a witness in the proceedings.
In respect of an eligible witness, the court must determine which special measures (or combination of them) would in its opinion be likely to improve the quality of evidence given by the witness; determine which would maximize the quality of the evidence; and give a direction for those measures to apply (section 19 YJCEA).
The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include:
- screens (section 23 YJCEA)
- live link (section 24 YJCEA) which can in some circumstances include live link for witnesses outside of the UK
- evidence given in private (section 25 YJCEA)
- removal of wigs and gowns by judges and barristers (section 26 YJCEA)
- Video Recorded Interview (section 27 YJCEA)
- pre-trial recorded cross-examination (section 28 YJCEA)
- intermediaries (section 29 YJCEA)
- aids to communication (section 30 YJCEA)
A combination of special measures may be appropriate. For example, a vulnerable witness may be assisted with their communication by an intermediary as well as giving evidence from behind a screen or via a live video link. Special measures should be tailored to the needs of the individual witness.
It is very important for prosecutors to make victims and witnesses aware that if they choose to give evidence via a live link either within the court building or from a remote link site, or if pre-recorded evidence is used (either for examination-in-chief or cross-examination and re-examination), the defendant will be able to see and watch the evidence when it is played on the television screens in the courtroom unless an additional application for shielding screens has been made and granted.
More information on types of special measure
Screens will be placed either around the witness box or around the dock to prevent the witness from having to see the defendant and the defendant from seeing the witness – the witness will still be seen by others in the court including the judge, jury, lawyers, barristers, interpreter, intermediary and, in some courts, the public gallery.
Live Links (including Remote Link Sites)
Witnesses giving evidence via a live video link outside the courtroom (either from within the court centre, from another court centre or from a remote location) generally only see the judge and the lawyer asking questions. On occasion, witnesses may see other people in the court room. Unless the court can also screen the defendant, it is likely that the defendant will be able to see the witness on the screens in the court. See the Remote Link Sites Protocol.
Witnesses not eligible for special measures may still be able to give evidence by live link: see the Live Link prosecution guidance. This may be helpful, for example, for witnesses with limited availability, such as professional witnesses, those with mobility issues, and witnesses overseas or those who would otherwise have to travel some distance to the trial court.
Particular considerations arise in respect of arranging a live link for a witness outside the UK – see the Live Links prosecution guidance for details of this.
Evidence given in private
A direction may be given by the court, under section 25 YJCEA, for people who do not legally need to be present to be excluded from the courtroom when a witness is giving evidence and when the proceedings relate to a sexual offence, human trafficking, domestic abuse, or reasonable grounds for witness intimidation. This special measure is available regardless of whether the witness chooses to enter the courtroom to give evidence or does it entirely by video link.
However, it should be noted that under this section the court can allow one named representative from a news gathering or reporting organisation to be present in the proceedings, to ensure the principles of open justice remain and Article 6 ECHR rights are not infringed.
Removal of Wigs and Gowns
This measure is when judges and barristers remove their wigs and gowns in the Crown Court to make the proceedings seem less intimidating. It should be carefully considered if it has the potential to improve the quality of evidence from the witness, particularly for children and vulnerable adults.
Video Recorded Interview
The police video recorded interview becomes the witness’s examination-in-chief evidence. Where necessary, this is edited as agreed by prosecution and defence counsel. At trial a live link or screen can be used when the witness is cross-examined by the defence.
Pre-trial visual recorded cross-examination (“Section 28”)
Pre-recorded cross-examination (section 28 YJCEA) for all vulnerable witnesses (section 16 YJCEA) and intimidated witness (limited to section 17(4) YJCEA victims of a sexual offence or modern slavery offence who are victims in proceedings relating to that offence, or that offence and any other offences) is available in all Crown Courts throughout England and Wales.
Prosecutors should note that section 28 YJCEA pre-trial recorded cross-examination and re-examination is only available to vulnerable witnesses aged under 18 at the time the special measures application is made to the court. In R v A  EWCA Crim 988, the vulnerable victim was 16 years old at the time of providing a video recorded evidence but 18 years old by the stage the case had reached charge and court and a special measures application was made. The court ruled it was incorrect to allow section 28 YJCEA evidence where the victim was 18 years or older at the time of that application.
Prosecutors must follow the guidance in the section 28 Criminal Practice Direction and the Joint National Protocol between the NPCC and the CPS for Section 28.
CrimPD V paragraph 18E.5 makes clear that witnesses to whom section 28 YJCEA applies should be identified promptly by the police.
A decision whether to grant this special measure will be decided by the court. The Judge will bear in mind all the circumstances of the case, including any views expressed by the witness (CrimPD V, paragraph 18.E18). The Judge should also have regard to whether the direction will in fact materially advance the date for cross-examination and re-examination. This includes consideration of when the section 28 recording and the trial are likely to occur. This in turn will depend, amongst other things, on any waiting list to use the recording equipment, the likely length of the section 28 hearing and the availability of the Judge, the advocates, the witness, and a suitable courtroom (CrimPD V, paragraph 18E.19). The Judge should also consider any delay (CrimPD V, paragraph 18E.20).
Prosecutors must be robust in:
- making submissions for an early section 28 hearing date. Where a proper application is being made, informed by the views of the witness, every opportunity to secure an early recording should be explored and pursued; and
- resisting arguments that the passage of time necessarily equates to delay
The Practice Direction identifies delay as a relevant factor, but it is not a determinative one. There are other strong relevant factors to put before the court, including:
- reduction in stress by giving evidence earlier in the process
- removing uncertainty about the day and time for the witness’ attendance at the time identified for a trial
- removing the prospect of giving evidence later, if the trial is vacated
- removing the prospect of giving evidence a second time, for instance in the event of a hung jury, or an appeal to the Crown Court
As the Practice Direction makes clear, even if there has been delay and/or difficulties in arranging a prompt pre-recording, the legal question for the court is whether the special measure in question is likely to maximise the quality of the witness’ evidence. This test emphasises the importance of the views of the witness.
Prosecutors should also be aware of the Court of Appeal case of R v PMH  EWCA Crim 2452, which outlined areas of best practice for pre-recorded cross-examination for vulnerable child witnesses:
- at the ground rules hearing the judge should discuss with the advocates how and when any limitations on questioning will be explained to the jury
- if this has not happened, or there have been any changes, the judge should discuss with the advocates how any limitations on questioning will be explained to the jury before the recording of the cross examination is played
- the judge can give the jury the standard direction on special measures with a direction on the limitations that the judge has imposed on cross-examination and the reasons for them before the cross examination is played
- the judge should consider if it is necessary to have a further discussion with the advocates before their closing submissions and the summing-up on the limitations imposed and any areas where those limitations have had a material effect. In this way the advocates will know the areas upon which they can address the jury
- in the summing-up the judge should remind the jury of the limitations imposed and any areas identified where they have had a material effect upon the questions asked
- if any written directions are provided to the jury the judge should include with the standard special measure’s direction a general direction that limitations have been imposed on the cross-examination.
Best practice was further clarified in the case of R v YGM  EWCA Crim 2458, where the judge agreed to give a direction pointing out to the jury that counsel was not allowed to cross-examine the witness in the same way as he would cross examine another witness, but counsel was not allowed to make further comment in his closing speech:
“We believe that the following is best practice in a case involving cross examination of a vulnerable witness. First, the identification of any limitations on cross-examination should take place at an early stage. We assume that this will occur at the ground rules hearing where the judge will discuss with the advocates the nature and extent of the limitations imposed and whether they are simply as to style or also relate to content. Before the witness is cross examined, it is best practice, (as recommended by the Judicial College) that as well as giving the standard special measures direction, the trial judge also directs the jury in general terms that limitations have been placed on the defence advocate. If any specific issues of content have been identified that the cross examiner cannot explore, the judge may wish to direct the jury about them after the cross examination is completed. On any view, the judge should direct the jury about them in the summing-up. Finally, we should add that every advocate (and trial judge) is expected to ensure that they are up to date with current best practice in the treatment of vulnerable witnesses.”
Examination of the witness through an intermediary
Intermediaries play an invaluable role in facilitating communication at police interviews and at court. Intermediaries should not just be considered for children and young people but also for adult witnesses with physical disabilities, mental illnesses, autism, learning disabilities or difficulties, dementia, personality disorders, acquired brain injuries. There are no fixed indicators as to the age or conditions which make an intermediary appropriate; each case should be assessed on its own circumstances and merits.
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. Their duty is to the court.
An intermediary is not a witness and, therefore, should not be 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.
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 most young witnesses, across all ages, fall into one or other or both categories.
The court may approve the appointment of an intermediary retrospectively when one is used during the statement taking phase or video recorded interview.
For further information regarding intermediaries including how to engage an intermediary, what to expect from an intermediary and costs implication, please see Annex A to this guidance.
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. R v Watts  EWCA Crim 1824 is a leading example of the use of this special measure, which was granted in combination with several other special measures, to enable non-verbal witnesses with severe communication needs, to give evidence.
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 YJCEA prohibits a defendant charged with a sexual offence from personally cross-examining the victim
- Section 35 YJCEA prohibits unrepresented defendants from personally cross-examining certain "protected witnesses" (child victims and other child witnesses)
- Section 36 YJCEA permits the court to make an order prohibiting the defendant from personally cross-examining a witness where the prohibitions in sections 34 and 35 do not apply (such as for certain categories of intimidated witnesses – most plainly of application in domestic abuse cases)
- Section 46 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 to members of the public identifying the individual as a witness in criminal proceedings
Applications for special measures should be made in accordance with Part 18 of the Criminal Procedure Rules. Prosecutors can make an oral application in the first instance at the magistrates’ court in line with Transforming Summary Justice if the court gives permission (CrimPR 18.6).
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. A form to apply for the special measures must be completed application in line with CrimPR 18.4 and 18.10.
In preparing applications for special measures, prosecutors should ensure that they draw upon all 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
- 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 they give evidence by live link. Section 24 YJCEA states 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 they give 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.
There is no requirement for a witness statement to accompany a special measures application form. Additional statements should not be requested from the police to address shortcomings with the quality of the form MG2. Only in exceptional cases should prosecutor’s request the police to provide an additional statement 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 20 business days after the defendant pleads not guilty in a magistrates' court or 10 business days after the defendant pleads not guilty in the Crown Court (CrimPR 18.4). The application must be served on the court and the defence. Under CrimPR 18.6, the time limit can be extended upon application to the court providing an explanation is given. Out of time applications should be avoided but are possible under CrimPR 18.6(a).
Special measures directions are binding until the end of the trial, although courts can alter or discharge a direction if it is 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 material 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 YJCEA 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 them the arrangements that as a result will be made for them to give evidence.
Where an application for an intermediary has been granted in a case, the court will require a Ground Rules Hearing.
The ground rules hearing must be attended by the intermediary (where engaged), the magistrates/judge, and the trial advocates.
The ground rules hearing should address:
- management of questioning about third party disclosure
- restrictions on questions about the witness's previous sexual history
- avoiding repetitive questioning, particularly in multi defendant cases (Prosecutors should note in section 28 cases that cross-examination will be agreed with the Judge at the Ground Rules Hearing stage)
- control of comment, stereotypes, and insulting vocabulary
- management of questions accusing the witness of lying
- time limits on cross-examination (especially for children and vulnerable adults – prosecutors should note this will routinely happen in section 28 cases)
- whether any reasonable adjustments are required (please see the reasonable adjustment section in this guidance)
- any recommendations made by the intermediary in their report or at the hearing
In cases where an intermediary has been engaged, the ground rules hearings should also address:
- the most effective way to question the witness and use of vocabulary
- how the intermediary should signal that they wish to intervene (e.g. 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.
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 it 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. A decision must be made as to who is best placed to support the witness while their memory is refreshed. Watching the video recorded interview 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. The police will usually arrange to view the video recorded interview with the witness (and their intermediary if one has been engaged for proceedings) during the week before the trial. The time interval between showing the video recorded interview for the purpose of memory refreshing and 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 video recorded interview 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.
The Equal Treatment Bench Book, Chapter 2 recommends that if a young witness watches their video recorded interview at a different time from the jury, then the young witness should be sworn immediately before cross-examination and then asked if they have watched the video recorded interview and if its contents are true.
The purpose of watching the video recorded interview before trial must be explained to the witness, and their views considered. The witness must be informed of any editing of the video recorded interview. This will avoid the witness being surprised, suspicious or confused when the recording does not precisely match their recollection of the interview.
It is the responsibility of the police to arrange for prosecution witnesses to view their video recorded interview. The police 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.
Prosecutors must be sensitive to the anxieties that LGBT+ people may have about the possible consequences for them and often for their families if they are outed in court. Prosecutors should carefully consider the impact on LGBT+ witnesses and how their lives may be affected if knowledge of their sexual orientation or gender identity becomes known or more widely known than the person wishes.
It is possible that an LGBT+ person may withdraw support for a prosecution if their sexual orientation or gender identity will be revealed, so special measures, and the use of reporting restrictions (section 26 YJCEA) to improve the level of cooperation and quality of their evidence, may assist in alleviating these concerns.
Children and young people
It is vital that special measures are explained clearly to child witnesses and their parents/carers to ensure that they can express an informed view about the measures available before any application is made to the court.
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 or section 28 YJCEA 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.
Ideally, an application for special measures should be made after 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 must 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 them on the court monitor. It may be that the screen in the courtroom can be covered to prevent the defendant from seeing the witness. It is very important that the witness makes an informed choice about how to give evidence.
The Inns of Court College of Advocacy (ICCA) "Advocacy and the Vulnerable" training, has been delivered to all CPS Areas and is available to prosecutors via the Central Legal Training Team.
For further information see Safeguarding Children as Victims and Witnesses prosecution guidance and the Equal Treatment Benchbook on the judiciary website.
Under 10s protocol
The Young Witness Initiative is a protocol between the police, Crown Prosecution Service (CPS) and Her Majesty's Courts and Tribunals Service (HMCTS) to fast-track cases involving a witness who is under the age of 10. The aim is to bring these cases to trial much more quickly to give the child witness the best chance of remembering the incident and to make the criminal justice process less stressful for them. The protocol only applies to cases charged on or after 1 April 2015.
The use of the term ‘vulnerable’
The CPS is aware that disabled people are regularly labelled as "vulnerable". This labelling has been repeatedly criticised by disabled people and others and is not in line with the social model of disability. Prosecutors should understand that use of this label can give the message that disabled people are inherently "weak" or "dependent" as individuals and as a group, when in fact it is physical barriers and social attitudes that create inaccessible, unsafe, and therefore vulnerable situations for disabled people.
Moreover, the belief that disabled people are vulnerable may be disabling in itself and can lead to decisions and actions that adversely affect disabled people's independence, safety, and security. Crucially in the context of the criminal justice system, this attitude can undermine their perceived competence, credibility, and reliability as a witness and therefore their access to justice.
Prosecutors must avoid the use of the term "vulnerable" where possible and avoid any use of the term which may suggest disabled people are inherently weak or dependent.
The term 'vulnerable' however is sometimes unavoidable in the context of criminal proceedings, due to the wording of the law and relevant Sentencing Guidelines. For example, if prosecutors do not use the term in court, they may be unable to properly explain that an offence is aggravated because of a victim's "vulnerability” and should attract an increased sentence. This would in turn disadvantage the disabled victim, as the offender may receive a more lenient sentence than is appropriate.
The CPS understands the social model of disability to mean that the prejudice, discrimination, and social exclusion experienced by many disabled people is not the inevitable result of their impairments or medical conditions, but rather stems from specific barriers they experience daily. These barriers can be environmental (inaccessible buildings and services), attitudinal (stereotyping, prejudice, and discrimination), and organisational (inflexible policies, practices, and procedures).
Using the social model helps us to dismantle or reduce the effects of those barriers that are within our power and improve the safety and security of disabled people.
Reporting a crime, giving a statement, and being called to give evidence in court can be very daunting experiences for anyone. Prosecutors should recognise that disabled people can experience specific barriers in this regard. These can include inaccessible courtrooms, witness waiting areas or an absence of sign language interpreters. While some disabilities are visible, some are hidden. Some witnesses may have a combination of disabilities.
Prosecutors must avoid incorrect judgments being made about disabled people's reliability or credibility as a witness giving evidence in court. Such judgments may lead to an incorrect charging decision or could undermine the potential success of a prosecution.
Prosecutors will therefore:
- not make assumptions about a disabled victim's reliability or credibility, and challenge others who do so
- ensure that disabled people are aware of the support that is available to them to give their best evidence
- be more likely to prosecute cases where disability is a factor, including disability hate crimes where there is sufficient evidence to do so
- be mindful that language is important and only use the term 'vulnerable' in relation to disabled people when it is appropriate in the context of the law and facts of the case
- recognise that the stereotype-based belief that a disabled person is 'vulnerable' forms the backdrop of disability hate crime and crimes against disabled people and can even be a motivating factor in crimes committed against them
The Equality Act 2010 places a duty on public authorities and service providers to make reasonable adjustments to the way they do things, if it puts disabled people at a disadvantage.
Under the Equality Act 2010 where a victim, witness or defendant meets the definition of disability, as set out in section 6(1) Equality Act 2010, prosecutors should be aware that they may be entitled to reasonable adjustments under section 20 Equality Act 2010 and have a duty to bring it to the attention of the court.
Prosecutors should also be aware that reasonable adjustments may need to be made by the court in order to realise the right to access justice under Article 6 ECHR (incorporated through the Human Rights Act 1998) and Article 13 of the United Nations Convention on the Rights of Persons with Disabilities.
The United Nations Convention of the Rights of People with Disabilities Article 13 states:
"Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages."
The CJJI (Criminal Justice Joint Inspection) thematic on the handling of disability hate crime in 2018 found:
"… that the police and prosecutors were still not considering sufficiently the needs of the victims, particularly with regard to whether they needed reasonable adjustments to give evidence effectively… There were 52 cases in the file sample where a reasonable adjustment could have improved the effectiveness of how the victim gave their evidence."
Reasonable adjustments will best be identified in consultation with the witness. There is no set list of options as each solution will arise from the needs of the witness. However, prosecutors should be aware the range of reasonable adjustments could include:
- access to the court building
- forms available in large print
- guidance in audio and easy read
- hearing enhancement systems available in court
- ground rules hearing
- length of interviews or giving evidence sessions adjusted
- adjustments in cross-examination (this will usually be recommendations from the assistance of having a Registered Intermediary engaged to support a witness, access to section 28 YJCEA pre-recorded cross-examination and can include regular breaks or making sure advocates use words the witness understands in asking their questions)
Further information concerning the use of special measures is contained in:
- Achieving Best Evidence in Criminal Proceedings; Guidance on interviewing victims and witnesses, and guidance on using special measures. This guidance is advisory and does not constitute a legally enforceable code of conduct. Significant departures from the guidance may have to be justified in court if relied upon by the defence to challenge part or all the evidence of the witness
- 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 with communication needs.
- Criminal Procedure Rules
- 'Registered Intermediaries in action' - Messages for the CJS from the Witness Intermediary Scheme SmartSite. (December 2011, Ministry of Justice and NSPCC)
- Detailed guidance in relation to intermediaries and their use can be found in the Registered Intermediary Procedural Guidance Manual
What is a Registered Intermediary (RI)?
A Registered Intermediary (RI) is someone who has been recruited, trained, and accredited by the Ministry of Justice (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.
The decision whether to use an RI 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. (Criminal Practice Directions 2023 paragraph 6.2)
Engagement of a Registered Intermediary (RI)
The potential need for an RI should be identified as early as possible. This should, ideally, be done by the police officer during the investigation with the RI being engaged prior to the witness being interviewed. If it is decided to use an RI, it is the responsibility of the police to contact the Witness Intermediary Service (WIS) to arrange the appointment of the RI. The cost of the RI during the investigative stage must be met by the police. It is still possible to engage an 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 an RI is engaged.
Once the possible need for an RI has been identified, the WIS should be contacted. The WIS is operated on behalf of the MoJ by the National Crime Agency (NCA) through its Specialist Operations Centre. The WIS is responsible for matching an RI with the necessary skills to assess and cater for the individual needs of a witness. A request to the WIS for an 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 below for a full list of all the tasks and issues that RIs must consider between referral by the CPS and trial.
Engagement of a Registered Intermediary (RI) by the CPS
Where the need for an 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 an 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 an RI post charge, it is the responsibility of the CPS to contact the WIS to arrange the appointment of the RI.
Where an RI is used during the investigation, the prosecutor should be supplied with the ‘Request for Service’ form submitted by the police to the WIS and the ‘Short Report’ prepared by the RI to assist the police officer conducting the interview with the vulnerable witness. The information contained in these documents will assist with the completion of the CPS ‘Request for Service’ form post-charge sent to the WIS and the special measures application sent to the court Information about the 'Request for Service' form and guidance on how to complete it and pay RI invoices is provided below.
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, including a revised report to the court on the witness’s needs This delay may result in the trial having to proceed without an 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.
The engagement process
Please note all emails must be sent via secure email.
Step 1 – Marching Service Process
- Identify the new end user or experience end-user.
- The end-user should email their request for service details to the Matching Service including the budget and payment details.
- The Matching Service will identify and contact a potential Intermediary to establish availability and suitability.
- The Matching Service will produce and send via secure email the combined Letter of Engagement/Request for Service to the potential Intermediary for consideration.
Step 2 – Offer and Acceptance
- The Intermediary receives and considers the end-users offer (letter of engagement and request for service.
- The Intermediary declines the offence from the end -user – please return to step 1, number 3. for the Matching Service to identify and contact another potential Intermediary.
- The Intermediary accepts the offer from the end user – move to step 3.
Step 3 – Engagement and Payment process
- intermediary and end-user to agree plan and timetable
- if engaged by the police, then the force must sign off the payment and make the payment
- if engaged by the CPS, then the Area must sign off payment and CPS Finance make the payment
- if engaged by the courts, then the courts must sign off payment and the defence make the payment.
- if engaged by the defence, the defence make the payment.
- if engaged by others, the other organisation make the payment.
You can download a copy of the Intermediary engagement and payment process overview flow chart from this website.
The CPS will meet the costs incurred by the intermediary's attendance at court (including if they are needed to be present at a pre-trial visit), and any preparation and presentation of evidence at court including an initial assessment if one was not done for the police interview. The rates of remunerations for RIs, including cancellation fees, and guidance on how CPS staff should process invoices for payment can be found below. 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 a Non-registered Intermediary?
A non-registered intermediary is an intermediary who is not recruited, trained, and accredited by MoJ. Other than being impartial and owing a duty to the court, non-registered intermediaries have no obligation to comply with the MoJ code of practice and ethics or the guidance in the RI procedural guidance manual.
Non-registered intermediaries are intermediaries who can be engaged either for prosecution witnesses, defendants, or defence witnesses. They are not bound by the agreed fee structures for RIs and are able to charge whatever rate and expenses they choose.
Engagement of Non-registered Intermediaries
The police and the CPS should not normally use non-registered intermediaries for the reasons and concerns set out in the judicial review case against MoJ of R (OP) v Cheltenham MC and Others  EWHC 1944 (Admin) and because of cost concerns as the agreed fee structures are only in place for RIs.
Only when all avenues to engage a RI have been exhausted and the case cannot be reasonably delayed any further, prosecutors should explore options for non-registered intermediaries. 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 a non-registered intermediary.
Intermediary's assessment and report
Once an intermediary (whether registered or non-registered) 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, who is not involved in the case. The intermediary must make a note of what happened in the assessment. The note may be disclosable in proceedings and will be assessed on a case-by-case basis.
The purpose of the assessment is for the intermediary to determine whether they can (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.
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 witnesses will be enabled to give their best evidence are good practice in any case with a witness who has a communication need. In cases where an intermediary is engaged, Ground Rules Hearings are essential, and the RI must be warned to attend.
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 and any section 28 hearing, 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 5 working days 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 an intermediary. However the judicial review case of R (OP) v Cheltenham MC and Others  EWHC 1944 (Admin), found that the MoJ should reconsider eligibility of defendants and carefully consider whether there should be equal provision for prosecution witnesses and defendants.
Section 104 Coroners and Justice Act 2009 (not yet implemented) will allow certain vulnerable defendants to give oral evidence at trial with the assistance of an intermediary. Until section 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 their evidence and, in many cases, throughout their trial. Prosecutors should note that section 104 of the Coroners and Justice Act 2009 allows only for the provision of an intermediary during a defendant's oral evidence and not for the duration of the trial.
While the judgment in C v Sevenoaks  EWHC 3088 (Admin) provides authority for the court to appoint an intermediary to support a defendant throughout the trial process, the case of R v Biddle  EWCA Crim 86 held that ultimately it is for the trial judge to decide, having considered all the material, whether and to what extent an intermediary is necessary.
There is also merit in an application to appoint a support worker or other companion who can provide assistance when it has not been necessary to appoint an intermediary, as a defendant may still benefit from some additional support to understand proceedings (Criminal Practice Directions 2023 paragraph 6.2.5).
The Advocate's Gateway has produced a toolkit on the effective participation of young defendants.
Tasks to be done by a Registered Intermediary (RI) between referral from the CPS and trial
All these tasks below are required so that an RI can do work to an accepted standard 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) 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, or section 28 cross examination hearing 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 practice.
- Attends Ground Rules Hearing (GRH)
Issues to be taken into consideration:
- "Ground rules hearings provide an opportunity to plan any adaptations to questioning and/or the conduct of the hearing that may be necessary to facilitate the evidence of a vulnerable person. They should take place in the presence of the trial judge or magistrates, advocates and any intermediary who has been appointed. Ground rules hearings should usually be held as early as possible and, if at all possible, before the day of the hearing." (Chapter 2, Paragraphs 139 and 143, Equal Treatment Bench Book)
- 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 or at the section 28 pre-recorded examination hearing.
It must be remembered 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.
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:
- The use of the intermediary to assist the witness in interviews/making statements (including victim personal statements), and in subsequent enquiries, regardless of what stage proceedings might have reached.
- The preparation of any reports that support the witness interview/statement taking process
- 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.
- 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:
- Intermediary attendance at a pre-trial witness interview (in accordance with the Guidance about Pre-trial Witness Interviews).
- Initial rapport building meeting and witness’s needs’ assessment (if not already completed in the police stage).
- Intermediary report(s) that set out the witness's communication abilities and needs for use in court.
- 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.
- Intermediary attendance at all court hearings and preparation by the intermediary for the presentation of evidence at court.
- Intermediary attendance at a Victim Communication and Liaison Meeting or Familiarisation Meeting with the prosecution team.
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.
Completion of a Request for Service form & guidance for paying RI invoices
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 measure’s application form. 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.
Before drafting a Request for Service, the reviewing lawyer or paralegal should ensure that the instruction of RI has been authorised by those on branch with the necessary financial delegation. If unsure who that individual is, the Area Finance Manager should be contacted.
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.
Download a Request for Service and use the guidance to help you complete it.
Section 1 of the Request for Service must be completed fully so the RI is clear to whom and where they should submit their invoice once the service has been provided, as well as details of whom they should contact with any queries.
Section 2 of the Request for Service should detail those instructing the RI, either the reviewing lawyer or paralegal officer with management of the case.
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, PBM, OBM, SOBM 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 submit the completed form directly to the WIS.
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.
The CPS follows the Government's "Better Payments Practice Code "and has a target to pay suppliers promptly. As individuals who provide a service Registered Intermediaries should expect to be paid promptly and within the agreed payment terms of 30 days.
As a public sector organisation, the CPS is also bound by the Late Payment of Commercial Debts (Interest) Act 1988. This Act provides a right for Registered Intermediaries to claim a late payment fee.
Witness Intermediary Scheme: Rates of Remuneration for Registered Intermediaries
Rate Card effective from 6 April 2023
RIs are self-employed communication specialists working under the framework of the MoJ Witness Intermediary Scheme (WIS). This document sets out the rates of remuneration as agreed by the WIS Remuneration Board (MOJ, CPS, National Police Chiefs’ Council).
Core hourly rate: £42.64 per hour or £10.66 per full quarter hour.
Unsocial hours rate: £61.08 or £15.27 per full quarter hour.
Minimum daily attendance fee: £127.92
Cancellation fee: £127.92
Hourly travel time rate: £18.48 or £4.62 per full quarter hour.
Receipts for all expenses should be retained and attached with the invoice when submitted for payment.
Where it has not been possible to book accommodation via the end-user, accommodation costs per night, including breakfast, are not to exceed:
- £115 within the M25.
- £100 in Birmingham, Liverpool, Leeds, Manchester & Newcastle.
- £80 for the rest of England and Wales.
Subsistence costs should be billed at the following rates:
- Day subsistence: up to £4.25 for 5-8 hours; or up to £9.30 for more than 8 hours.
- Overnight subsistence: up to £26 will be reimbursed on presentation of receipt(s) (applicable to stays in hotel accommodation and to stays with friends and relatives
Travel costs should be billed at the following rates:
- Public transport costs in standard class will be reimbursed in full on presentation of the receipt or ticket.
- Travel by aeroplane or taxi will not be reimbursed unless approved in writing with the end-user in advance.
- Travel by car, motorcycle or bicycle can be billed at the following rates: £0.45 per mile for car; £0.24 per mile for motorcycle; £0.20 per mile for bicycle.
- Parking charges up to £15 will be reimbursed on presentation of the ticket (or screenshot for online parking apps). Where it is known that parking charges will exceed £15, prior authorisation must be obtained from the end-user.
The minimum daily attendance fee
In circumstances where an RI would end up billing less than three hours in a day for an appointment arranged by an end-user, they may instead claim the minimum daily attendance fee. This fee was introduced to prevent RIs earning unacceptably low amounts: for example, travelling a long distance for an assessment that only lasts one hour.
- If more than three hours are worked in a day, each hour should be billed in full and this fee does not apply.
- The minimum attendance fee can be claimed up to a maximum of twice within a calendar day, limited to once in the morning and once in the afternoon.
- This fee is only applicable to appointments arranged directly by the end-user. It cannot be claimed for activities such as report writing or administration work.
Unsocial hours rates
The unsocial hours rates are applicable for meetings and assessments, but do not cover report writing or administration unless this work has been agreed in a pre-trial meeting and can only be completed in unsocial hours (e.g. late re-writing of questions to be put at cross-examination on the next working day).
Unsocial hours include all public holidays in England and Wales, Saturdays and Sundays, and work between 19:30 and midnight and midnight to 06:30 on Monday to Friday.
Unsocial hours rates cannot be claimed for time spent travelling. Travel time in all hours must be billed according to the hourly travel time rate, as set out above.
Payment via third parties
RIs are self-employed professionals who enter into an arrangement with the end-user (i.e. the police or CPS) when they accept a Request for Service. Invoices via third parties will not be paid.
The cancellation fee reimburses the RI for the loss of earnings and incentivises responsible use of the scheme by end users. This fee applies:
- If a confirmed appointment/hearing is cancelled at any point on the calendar day before it was scheduled (excluding the weekend).
- If a ‘pencilled in’ trial (or section 28 cross-examination) is cancelled before it has started with less than five days’ notice (cancellation fee of £127.92 applies to each day booked to be in court, up to a maximum of three days i.e. £383.76).
- If a case concludes or is cancelled before the anticipated end-date, the RI can apply the £127.92 cancellation fee for up to three days that were booked to attend court but subsequently not needed.
If there is more than one appointment cancelled in one day, the RI may charge more than one cancellation fee. Where there is more than one witness in a case, the RI may charge a cancellation fee for the first witness plus one hour for each additional witness.
Late payment fees
Guidance on the fees applicable to the late payment of invoices is set out on GOV.UK.
All instances where overnight accommodation is required must be approved in advance by the end-user.
Where such accommodation is agreed, in the first instance RIs should ask end-users to use their centralised hotel booking arrangements. If this is not possible, RIs can book accommodation themselves and claim the actual cost incurred up to the agreed limits set out on the rate card, providing the receipts to the end-user along with the invoice. All accommodation required for CPS assignments must be pre-authorised by the CPS.
If a trial runs late or is cancelled and the RI has to pay late booking or cancellation fees for accommodation, these costs will be reimbursed by the end-user on presentation of a receipt.
Overnight subsistence can be paid for each 24-hour period where an RI stays in hotel accommodation or with friends and/or relatives.
Day subsistence can only be paid if the RI is not being paid the standard rate or minimum attendance fee for the same time.
Under no circumstances can overnight and day subsistence be paid during the same 24-hour period.
Instances where RIs are called as a prosecution witness by the CPS
RIs appearing in these circumstances will not be deemed as ordinary witnesses but are classified as RIs summoned to court for that purpose. RIs should invoice the CPS in line with this rate card. If the RI is called as a witness to a crime, independent and separate of their role as an RI, they will be reimbursed as a standard witness.
Rates for RIs undertaking additional MoJ-funded duties
RIs undertaking additional MoJ-funded duties within the WIS (e.g. accredited RIs, inc. regional coordinators) are subject to the rates of remuneration as set out.