Special measures for vulnerable witnesses

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Amy is a 14-year-old witness in a trial for an alleged assault against her by an adult relative. She has expressed intense anxiety about being in the defendant’s presence, fearing further intimidation. Additionally, Amy has a moderate hearing impairment that makes conventional questioning difficult. Her mother worries that testifying in a formal courtroom could provoke severe distress. The prosecutor believes Amy’s testimony is pivotal to the case, given the lack of other eyewitness accounts.


Which of the following special measures is most appropriate to ensure Amy can comfortably and effectively present her evidence while preserving the defendant’s right to a fair trial?

Introduction

Vulnerable witnesses hold a significant place in the United Kingdom's criminal justice system. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) establishes a comprehensive legal framework for special measures that support these witnesses in delivering their evidence effectively. These provisions are key in both magistrates' courts and Crown Courts, aiming to improve the quality of witness testimony while safeguarding the defendant's right to a fair trial. A thorough understanding of the YJCEA's special measures is necessary for students preparing for the SQE1 FLK2 exam, as it covers important aspects of criminal procedure and evidentiary law.

Legal Framework for Special Measures

The Youth Justice and Criminal Evidence Act 1999

The YJCEA serves as the basis for the provision of special measures in England and Wales. It outlines specific criteria for witness eligibility and details the array of accommodations available to facilitate effective participation in legal proceedings.

Eligibility Criteria

Under the YJCEA, witnesses may be deemed eligible for special measures if they fall into one of the following categories:

  1. Vulnerable Witnesses (Section 16):

    • Children and Young People: Witnesses under the age of 18 automatically qualify.
    • Individuals with Impairments: Those who suffer from mental disorders, challenges in mental capacity or social functioning, or physical disabilities.
  2. Intimidated Witnesses (Section 17):

    • Witnesses whose testimony quality is likely to be diminished due to fear or distress about testifying.

Courts assess each witness's circumstances, considering factors such as the nature of the offence, the witness's relationship to the accused, and any expressed concerns.

Application Process

The court must determine that the special measure(s) would improve the quality of the witness's evidence. Factors influencing this decision include:

  • The witness's views and preferences.
  • The potential impact on the fairness of the trial.
  • Any previous statements or behaviors indicating the witness's comfort level.

Applications for special measures can be made by the prosecution or defense, but ultimately, the court exercises discretion in granting them.

Special Measures in Detail

Special measures provided under the YJCEA are designed to address specific needs of vulnerable or intimidated witnesses. Let's examine these measures and how they function within the trial process.

Screens (Section 23)

Screens are physical barriers placed in the courtroom to prevent the witness from seeing the defendant, thus reducing anxiety and the potential for intimidation.

Hypothetical Scenario: Picture a young witness who must testify against an adult accused of assaulting them. The mere presence of the defendant in the witness's line of sight could be overwhelming. By using screens, the court allows the witness to give evidence without direct visual contact, creating a more secure environment.

Live Link (Section 24)

A live link enables the witness to give evidence from a location outside the courtroom, often a separate room within the court building or, in some cases, a remote location.

Example: In cases involving severe trauma, a witness may find the courtroom atmosphere distressing. Utilizing a live link allows them to testify in a more comfortable setting, which can improve the clarity and reliability of their evidence.

Evidence Given in Private (Section 25)

For certain offences, particularly those of a sexual nature or involving intimidation, the court may order that members of the public be excluded during the witness's testimony.

This measure aims to protect the witness from additional stress caused by public scrutiny, ensuring they can speak openly without fear of exposure.

Removal of Wigs and Gowns (Section 26)

The formal attire worn by judges and barristers can be intimidating, especially for young or vulnerable witnesses. The court may direct legal professionals to remove wigs and gowns to create a less formal atmosphere.

Video-Recorded Evidence-in-Chief (Section 27)

Witnesses may have their initial interviews video-recorded, which can then be presented as their evidence-in-chief during the trial.

Case Reference: In R v Lubemba [2014] EWCA Crim 2064, the court emphasized the importance of accommodating the needs of young and vulnerable witnesses, endorsing the use of video-recorded evidence to reduce the stress of giving live testimony.

Video-Recorded Cross-Examination and Re-Examination (Section 28)

This provision allows for the cross-examination and re-examination of the witness to be video-recorded before the trial, preventing the need for the witness to attend court during the proceedings.

Practical Application: This measure is particularly beneficial in cases where delays to the trial might negatively impact a witness's well-being or where recalling traumatic events multiple times could cause undue harm.

Intermediaries (Section 29)

Intermediaries assist witnesses who have communication difficulties, ensuring they understand the questions posed and can express their answers effectively.

Illustrative Example: A witness with a speech impairment might struggle to convey their account clearly. An intermediary can facilitate communication between the witness and the court, bridging gaps that might otherwise hinder the administration of justice.

Aids to Communication (Section 30)

The court may permit the use of devices or aids, such as symbol boards or assistance from communication experts, to support witnesses in conveying their evidence.

Procedural Distinctions Between Magistrates' and Crown Courts

While the special measures provisions apply in both magistrates' courts and Crown Courts, procedural details can influence their implementation.

Magistrates' Courts

  • Simplicity and Speed: Magistrates' courts handle less serious offences and typically aim for expedited proceedings.
  • Resource Limitations: There may be constraints on the availability of certain special measures, such as advanced technological equipment.
  • Less Formal Atmosphere: The comparatively informal setting can benefit vulnerable witnesses, reducing the need for some measures.

Crown Courts

  • Formality and Complexity: Crown Courts deal with more serious offences, necessitating a formal approach.
  • Greater Resources: Better facilities allow for a broader application of special measures, including remote live links from distant locations.
  • Jury Considerations: Measures must balance the witness's needs with the potential impact on the jury's perceptions.

Interplay with Fair Trial Rights

Ensuring the defendant's right to a fair trial, as protected under Article 6 of the European Convention on Human Rights, is fundamental when implementing special measures.

Balancing Competing Interests

  • Witness Facilitation vs. Defence Rights: Special measures should not obstruct the defence's ability to challenge evidence.
  • Transparency: The court must maintain openness, ensuring that any accommodations do not create unfair prejudice against the defendant.

Case Law: In R v Camberwell Green Youth Court [2005] UKHL 4, the House of Lords held that the use of special measures does not inherently violate the defendant's fair trial rights, provided proper procedures are followed.

Judicial Discretion and Oversight

Courts bear the responsibility of evaluating applications for special measures, considering both the witness's needs and the integrity of the trial process.

Challenges and Emerging Developments

Current Challenges

  1. Consistency in Application: Variations in judicial practice can lead to inconsistent use of special measures across different courts.
  2. Resource Allocation: Limited funding and access to technology may hinder the provision of certain accommodations, particularly in magistrates' courts.
  3. Awareness and Training: Ensuring that legal practitioners and court staff are adequately trained to implement special measures effectively.

Technological Advancements

The increasing use of technology in court proceedings has broadened the scope of available special measures.

  • Remote Testimony: The pandemic accelerated the acceptance of remote testimony, allowing witnesses to participate from secure locations.
  • Digital Communication Aids: Innovative tools are being developed to assist witnesses with specific communication needs.

Expanding Recognition of Vulnerabilities

There is growing awareness of the diverse range of vulnerabilities witnesses may experience.

  • Neurodiversity: Recognizing conditions such as autism spectrum disorder calls for tailored approaches to witness support.
  • Cultural Sensitivities: Addressing language barriers and cultural factors ensures that all witnesses have equitable access to justice.

Incorporating Special Measures into Trial Procedure

Understanding how special measures interact with standard trial procedures is fundamental for legal practitioners.

Pre-Trial Considerations

  • Early Identification: Prompt assessment of witness needs allows for timely applications and appropriate planning.
  • Collaboration: Prosecutors, defence lawyers, and the court must work together to accommodate special measures without unnecessary delays.

Impact on Evidence Assessment

  • Jury Instructions: Judges may need to provide directions to the jury on how to consider evidence presented through special measures.
  • Credibility Evaluations: The mode of testimony should not adversely affect perceptions of the witness's reliability.

Conclusion

The complex interaction between special measures for vulnerable witnesses and the rights of the defendant forms a challenging area within UK criminal procedure. Provisions under the YJCEA, such as live links, intermediaries, and pre-recorded evidence, work together to improve the quality of witness testimony while upholding fair trial principles.

For instance, employing both a live link (Section 24) and an intermediary (Section 29) for a child witness not only facilitates effective communication but also minimizes the emotional impact of testifying. This approach demonstrates how special measures can coexist with the defendant's rights, a balance highlighted in cases like R v Camberwell Green Youth Court [2005] UKHL 4.

Legal practitioners must handle these provisions carefully, ensuring that applications for special measures are supported by evidence and aligned with procedural requirements. The court's discretion plays an important role in tailoring accommodations to each witness's needs, emphasizing the necessity for meticulous preparation and advocacy.

Understanding the technical details of special measures is essential for SQE1 FLK2 exam candidates, as it encompasses critical aspects of criminal law and procedure. Proficiency in these concepts not only contributes to exam success but also prepares future solicitors to contribute meaningfully to the pursuit of justice within the criminal courts.

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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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Senior Associate at Trilegal