Special Measures

• Introduction
• What are Special Measures?
• Eligibility for Special Measures
• Special Measures explained
• Children and young people
• Disabled People
• Intermediaries
• Case review and management
• Special Measures discussions with the police
• Special Measures meetings with witnesses
• Making the application
• Further information
• Annexes:
  • A. Evidence by live link under S51 Criminal Justice Act 2003
  • B. Intermediary case studies
  • C. Tasks to be done by a Registered Intermediary (RI) between referral from the CPS and trial
  • D. Cost split between police and CPS for RIs
  • E. Completion of a Request for Service form & guidance for paying RI invoices
  • F. Flow chart about process to engage an intermediary 
  • G. Witness Intermediary Scheme – Rates of Remuneration for Registered Intermediaries
  • H. Refreshing the memory of a witness whose evidence is visually recorded
  • I. Timescales for the submission to the court officer, of the application for 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".

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 2.20, 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).

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 – as amended by section 98(2) of the Coroners Act 2009 to substitute 17 for 18); and
• Any witness whose quality of evidence is likely to be diminished because they:
  • are suffering from a mental disorder (as defined by section 1(2) of the Mental Health Act 1983 and amended into a single definition by section 1(2) of the Mental Health Act 2007 – see the Mental Health legal guidance);
  • have a significant impairment of intelligence and social functioning; or
  • have a physical disability or are suffering from a physical disorder.

While some disabilities are obvious, some are hidden. Witnesses may also have a combination of disabilities. They may not wish to disclose the fact that they have a disability during initial and subsequent needs assessments. Further prosecutors should be aware that the need for special measures may widely vary from one individual to another, for example different witnesses on the autistic spectrum may have very different needs from each other.

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 grievous 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 visual 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.

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 visual 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);
• visual recorded interview (available for vulnerable and intimidated witnesses): a visual 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 visual 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 visual recorded interview has been admitted);
• pre-trial visual recorded cross-examination or re-examination a visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court. This can only be applied for where there has been a s27 direction for a visual recorded interview to be admitted as evidence and when a victim or a witness meets the vulnerable criteria. A visual recorded examination 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, (s28 YJCEA).
• examination of the witness through an intermediary (only 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 (only 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).

Prosecutors should make witnesses aware that while they can choose what special measures they would like the application to be made to the court for, granting special measure applications is a judicial decision (See Special Measure Test).

Combination special measures applications

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 visual link.

If a witness who is to give examination evidence by live link does not wish to be seen by the defendant, an application can be made for screens to be used to shield the live link screen from the defendant, but it depends on each individual court centre as to whether the request could be accommodated or not.

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 screens in the courtroom.

To prevent a defendant viewing a visual recorded interview, an early special measures application could be made to stop the defence showing it to the defendant, but it would have to be timely and may not be granted by the court.

More information on special measures

Prosecutors should note it is just as important to discuss and apply for special measures for vulnerable or intimidated witnesses as it is victims. Witnesses may equally feel anxious and experience distress giving evidence because it may be very harrowing to recall the incident they witnessed.

Screens

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 and barristers and, in some courts, the public gallery.

Live Links (including Remote Link Sites)

Witnesses giving evidence via a live visual link outside the courtroom (either from within the 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 courtroom, possibly including the defendant. Unless the court can accommodate a combination application of screening 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).

For other witnesses who do not qualify as vulnerable or intimidated, 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 (See the Live Links legal guidance and the Witnesses outside of the UK – video link legal guidance).

Evidence given in Private

The public gallery can be cleared in very exceptional cases so that members of the public and the press are excluded from the court. The principle of open justice is established by Article 6(1) ECHR, which guarantees the general right to a public hearing. Prosecutors should manage the expectations of witnesses, as clearing the public gallery will only be granted if there are highly sensitive issues and in very exceptional cases (See Hearings in Private (‘In Camera’) legal guidance).

Removal of Wigs and Gowns

This measure is judges and barristers removing their wigs and gowns in the Crown Court to make the proceedings seem less intimidating. Prosecutors should be aware that survey feedback shows a high number of victims and witnesses would like to be offered this special measure. 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.

Visual Recorded Interview

The police visual recorded interview that happens before the trial is edited (with agreement of the judge and counsel), and admitted by the court as the witness’s examination-in-chief evidence. 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) has been successfully piloted in the three Crown Court sites of Liverpool, Leeds and Kingston-Upon-Thames. It is a Ministry of Justice (MoJ) initiative as the last special measure to be implemented from the YJCEA 1999. The MoJ evaluation report and announcement made in September 2016 committing to national roll-out can be found here.

‘Wave one’ of the national implementation for all ‘vulnerable’ witnesses (s16 YJCEA) was commenced on 3 June 2019 in Bradford, Carlisle, Chester, Durham, Mold and Sheffield Crown Courts.

A pilot for ‘intimidated’ witnesses (limited to s17.4 YJCEA) was also commenced in the three existing pilot sites of Liverpool, Leeds and Kingston-Upon-Thames. The pilot is specifically for complainants of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences. The full Commencement Order can be found here.

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.

Prosecutors should also be aware of the Court of Appeal case of R v PMH [2018] EWCA Crim 2452, which outlined areas of best practice for pre-recorded cross-examination:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. If any written directions are provided to the jury the judge should include with the standard special measures 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 [2018] 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. Prosecutors are reminded that intermediaries should not just be considered for children and young people but also for deaf witnesses or witnesses with physical disabilities, mental illnesses, autism, learning disabilities or difficulties, dementia, personality disorders, acquired brain injuries. There is no blanket age requirement because each case should be assessed on its own circumstances and merits.

Communication aids

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.

Other provisions to enable best 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 of the YJCEA prohibits a defendant charged with a sexual offence from personally cross-examining the complainant.
• Section 35 of the YJCEA prohibits unrepresented defendants from personally cross-examining certain "protected witnesses" (child complainants and other child witnesses).
• Section 36 of the 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).
• 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 to members of the public identifying the individual as a witness in criminal proceedings (See the Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings legal guidance).

Protecting LGBT+ people

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 likely that a 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 (s.46 YJCEA) to improve the level of cooperation and quality of their evidence, may assist in alleviating these concerns (See the Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings legal guidance).

The Special Measures Test

Rule 18 and 22 of the Criminal Procedure Rules concerns special measures (Rule 18.8-18.13 concerns special measures directions; Rules 18.23-18.26 concern live links; Rule 22.7 concerns cross-examination and special measures for witnesses).

The litmus test of the special measures regime appears in s.19(2), which requires the court to consider which measures will 'maximise the quality of the evidence'. For witnesses under 18, it is presumed that the test in s.19(2) is satisfied by playing their visual recorded interviews with the police as their evidence-in-chief, and by cross-examination via live link (s.21(2)). In certain circumstances this presumption can be displaced. In all other cases, s.19(2) makes it clear that the measures should be tailored to the needs of the individual witness and defendant, and CrimPD I, para. 3D.2, and CrimPD V, paras. 18A.1 and 18A.2, now encourage flexibility in devising a combination of appropriate special measures.

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 1988, 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 visual 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 but this is only if the court can accommodate it (see combination of special measures section). It is very 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.

The Inns of Court College of Advocacy (ICCA) "Advocacy and the Vulnerable" training, is also being delivered to all CPS Areas.

See legal guidance about Safeguarding children as victims and witnesses.

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

Under 10's 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 in order 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 and was revised in July 2018.

Disabled People

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 on a daily basis. 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 a failure by criminal justice agencies to identify an incident as a potential disability hate crime, inaccessible courtrooms, witness waiting areas or an absence of sign language interpreters.

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; and
• 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 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 will 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 perpetrator may receive a more lenient sentence than is appropriate.

Reasonable Adjustments

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 s6(1) of the Act, prosecutors should be aware that they may be entitled to reasonable adjustments under s20 of the Act 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 UNCRPD.

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; and/or
• adjustments in cross-examination (This will usually be recommendations from the assistance of having a Registered Intermediary engaged to support a witness, and can include, regular breaks or making sure advocates use words the witness understands in asking their questions).

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 (Chapter 2, Paragraph 97, Equal Treatment Bench Book 2018).

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 visual 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 an 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 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.

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 an 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 mcis@nca.gov.uk. 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 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 an 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 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 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 and pay RI invoices 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 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.

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 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, can be found at Annex G and guidance on how CPS staff should process invoices for payment can be found at Annex E. 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 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 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 visual 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 an intermediary. However the judicial review case of R (OP) v Cheltenham MC and Others [2014] 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 of the 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 [2009] 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 [2019] 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. Only in a very rare case will an intermediary be required for the duration of the trial.

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 (CPD I General matters 3F.12 and 3F.13, which were issued on 26 July 2018 and came into force on 1 October 2018).

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

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 an 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/CMO2 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 visual 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. The police will usually arrange to view the DVD with the witness during the week before the trial. For more information about refreshing the memory of a witness whose evidence is visually recorded, please see Annex H the Witness Statement and Memory Refreshing legal guidance.

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 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 GRH 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 above); and
• any recommendations made by the intermediary in their report or at the hearing.

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

• the most effective way to question the witness and use of vocabulary;
• how the intermediary should signal that s/he wishes 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.

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 complaint 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 visual 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. The VPS should be treated as a live document and updated throughout the journey of a case as the full psychological, emotional and physical impacts on the victim develop and become more apparent.

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/CMO2 and submit it to the CPS.

Special Measures meetings with witnesses

This section is currently under review.

Making the Application

Applications for special measures should be made in accordance with Part 18 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 18.3 and 18.10 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. The form for the special measures application in line with CrimPR 18.3 and 18.10 can be found here.

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) 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. Only in exceptional cases should prosecutors 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 18.5 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.

Further information

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 of 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.
• Youth Justice and Criminal Evidence Act 1999: Special Measures Implementation (England and Wales) (chart).
• 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.

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

• Safeguarding children as Victims and Witnesses
• Child Sexual Abuse
• Domestic Abuse
• Rape and Sexual Offences
• Human Trafficking, Smuggling and Slavery
• Female Genital Mutilation
• Stalking and Harassment
• Racist and Religious Crime
• Prosecuting cases of Homophobic and Transphobic Crime
• Prosecuting cases of Disability Hate Crime
• Prosecuting crimes against Older People
• Victims and Witnesses with Mental Health Issues and/or Learning Disabilities
• Reporting Restrictions

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.

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.

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:
  • "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 115 & 119, Equal Treatment Bench Book 2018)
• 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 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.

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.

Annex E: 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 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.

Before drafting a Request for Service the reviewing lawyer should ensure that the instruction of Registered Intermediary 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.

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.

Section 1 of the Request for Service must be completed fully so the Registered  Intermediary 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 Registered Intermediary, either the reviewing lawyer or paralegal officer with management of the case. 

The completed Request for Service form should be e-mailed to mcis@nca.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 mcis@nca.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.

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.

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.

Annex G: Witness Intermediary Scheme: Rates of Remuneration for Registered Intermediaries

Rate Card effective from 29 March 2021

Registered Intermediaries (RIs) are self-employed communication specialists working under the framework of the Ministry of Justice (MoJ) Witness Intermediary Scheme (WIS). This document sets out the rates of remuneration as agreed by the WIS Remuneration Board (Ministry of Justice, Crown Prosecution Service, National Police Chiefs’ Council).

Fees

Core hourly rate: £39.92 per hour or £9.98 per full quarter hour.

Unsocial hours rate: £57.32 or £14.33 per full quarter hour.

Minimum daily attendance fee: £119.76

Cancellation fee: £119.76

Hourly travel time rate: £17.32 or £4.33 per full quarter hour.

Expenses

Receipts for all expenses should be retained and attached with the invoice when submitted for payment.

1. Where it has not been possible to book accommodation via the end-user, accommodation costs per night, including breakfast, are not to exceed:
   1.  £115 within the M25.
   2. £100 in Birmingham, Liverpool, Leeds, Manchester & Newcastle.
   3. £80 for the rest of England and Wales.
2.  Subsistence costs should be billed at the following rates:

1. Day subsistence: up to £4.25 for 5-8 hours; or up to £9.30 for more than 8 hours.
2. 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

3. Travel costs should be billed at the following rates:

1. Public transport costs in standard class will be reimbursed in full on presentation of the receipt or ticket.
2. Travel by aeroplane or taxi will not be reimbursed unless approved in writing with the end-user in advance.
3. 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.
4. 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.

Annex: Explanatory notes

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.

Please note:

• If more than three hours are worked in a day, each hour should be billed in full and this fee does not apply.
• This fee cannot be claimed more than once per day.
• 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 cannot be applied to this fee.

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.

Cancellation fees

The cancellation fee reimburses the RI for the loss of earnings and incentivises responsible use of the scheme by end users. This fee applies:

1. If a confirmed appointment/hearing is cancelled within 24 hours (excluding the weekend).
2. 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 £119.76 applies to each day booked to be in court, up to a maximum of three days i.e. £359.28).
3. If a case concludes or is cancelled before the anticipated end-date, the RI can apply the £119.76 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. Please follow this link to view this guidance.

Accommodation expenses

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.

Subsistence

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 on this card.

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 Trial Preparation Hearing (PTPH). If memory refreshment is to proceed, the PTPH 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.

Annex I: 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.