Trial procedure in magistrates' court and Crown Court - Special measures for vulnerable witnesses

Learning Outcomes

This article outlines the framework for special measures available to vulnerable and intimidated witnesses in magistrates' and Crown Court trials under the Youth Justice and Criminal Evidence Act 1999 (YJCEA). After reading this, you will understand the eligibility criteria for witnesses, the different types of special measures available (such as screens, live links, and intermediaries), the procedure for applying for these measures, and the court's role in balancing the witness's needs with the defendant's right to a fair trial. This knowledge is essential for advising clients and addressing trial procedure questions in the SQE1 assessment.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures relating to special measures for witnesses. Your revision should focus on:

  • The legislative framework, primarily the Youth Justice and Criminal Evidence Act 1999 (YJCEA).
  • Eligibility criteria for vulnerable witnesses (s 16 YJCEA) and intimidated witnesses (s 17 YJCEA).
  • The types of special measures available (ss 23-30 YJCEA).
  • The procedure for applying for and granting special measures directions (s 19 YJCEA).
  • The court's duty to consider the impact on the quality of evidence and fairness to the defendant.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which Act primarily governs special measures for witnesses in England and Wales?
    1. Police and Criminal Evidence Act 1984
    2. Criminal Justice Act 2003
    3. Youth Justice and Criminal Evidence Act 1999
    4. Bail Act 1976

  2. True or False? A witness who is merely distressed about testifying automatically qualifies as an intimidated witness under s 17 YJCEA 1999.

  3. Which special measure involves a witness giving evidence from a location outside the courtroom via a video connection?

Introduction

The criminal justice system in England and Wales recognises that some witnesses may require assistance to give their best evidence due to age, vulnerability, or intimidation. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) provides a range of 'special measures' designed to facilitate testimony from such witnesses in both magistrates' courts and the Crown Court. Understanding these measures, the criteria for eligibility, and the application procedures is essential for criminal practice. For SQE1, you need to be able to identify when special measures may be applicable and understand their implications for trial procedure and the fairness of proceedings.

Eligibility for Special Measures

The YJCEA 1999 sets out specific categories of witnesses who may be eligible for special measures. Eligibility is determined by the court based on statutory criteria.

Vulnerable Witnesses (s 16 YJCEA 1999)

A witness is eligible if they are deemed vulnerable. This category includes:

  • Age: All witnesses under the age of 18 at the time of the hearing automatically qualify.
  • Impairment: Witnesses whose quality of evidence is likely to be diminished due to:
    • a mental disorder (as defined by the Mental Health Act 1983);
    • a significant impairment of intelligence and social functioning; or
    • a physical disability or disorder.

Key Term: Vulnerable Witness A witness eligible for special measures primarily due to age (under 18) or a physical or mental condition likely to diminish the quality of their evidence (s 16 YJCEA 1999).

Intimidated Witnesses (s 17 YJCEA 1999)

A witness is eligible if the court determines their quality of evidence is likely to be diminished due to fear or distress associated with testifying. The court must consider factors such as:

  • The nature and circumstances of the offence.
  • The witness's age.
  • The witness's social and cultural background and ethnic origins.
  • The witness's domestic and employment circumstances.
  • Any behavior towards the witness by the accused, their family or associates, or any other person likely to be an accused or witness in the proceedings.

Certain witnesses are automatically presumed to be intimidated unless they state otherwise or evidence suggests the contrary. This includes complainants in sexual offence cases and witnesses in cases involving guns or knives (s 17(4) YJCEA 1999).

Key Term: Intimidated Witness A witness eligible for special measures because their quality of evidence is likely to be diminished by fear or distress in connection with testifying (s 17 YJCEA 1999).

Applying for and Granting Special Measures

Either the prosecution or the defence can apply for a special measures direction, or the court can raise the issue itself.

The Special Measures Direction (s 19 YJCEA 1999)

The court must decide whether a witness is eligible and whether granting the specific measure(s) applied for would likely improve the quality of their evidence (s 19(2) YJCEA 1999). The court considers:

  • The witness's views (though these are not determinative).
  • Whether the measure(s) might inhibit effective testing of the witness's evidence by the parties.

Key Term: Special Measures Direction A direction given by the court under s 19 YJCEA 1999 specifying the special measures that are to apply to a witness's evidence.

Court Discretion and Fair Trial

The court has discretion in deciding which, if any, special measures to grant. This decision must balance the need to facilitate the witness's evidence with the defendant's fundamental right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). Measures should not prejudice the defendant in the eyes of the magistrates or jury.

Worked Example 1.1

Scenario: A 15-year-old witness (W) is due to give evidence in the Crown Court against a defendant (D) charged with robbery. W is extremely anxious about seeing D in court. The prosecution applies for W to give evidence via live link. D's solicitor objects, arguing it infringes D's right to confront his accuser directly.

Question: How should the judge approach this application?

Answer: The judge must consider the requirements under s 19 YJCEA 1999. W is eligible for special measures due to age (s 16). The judge must determine if using a live link is likely to improve the quality of W's evidence, considering W's anxiety. The judge must also weigh D's fair trial rights (Art 6 ECHR), including the right to confrontation, against the need to facilitate W's testimony. The judge might grant the live link if satisfied it improves evidence quality without unduly prejudicing D, possibly ensuring D can still see and hear W clearly.

Types of Special Measures Available

The YJCEA 1999 provides a range of measures:

Screens (s 23)

Screens placed around the witness box prevent the witness from seeing the defendant, and sometimes the public gallery, while still being visible to the judge/magistrates, jury (in Crown Court), and legal representatives.

Live Link (s 24)

The witness gives evidence from outside the courtroom (eg, another room in the court building or a remote location) via a video link. This allows the witness to testify without being physically present in the potentially intimidating courtroom environment.

Key Term: Live Link A special measure allowing a witness to give evidence via a video connection from a location outside the courtroom (s 24 YJCEA 1999).

Evidence Given in Private (s 25)

For certain specified offences (eg, sexual offences, offences involving intimidation), the court can exclude members of the public (but not the press, unless separately ordered) while the witness testifies.

Removal of Wigs and Gowns (s 26)

In the Crown Court, the judge and barristers may be directed to remove their wigs and gowns to create a less formal and potentially less intimidating setting for the witness.

Video Recorded Evidence-in-Chief (s 27)

An earlier video-recorded interview with the witness (eg, their initial police interview) can be admitted as their main evidence (evidence-in-chief). The witness must still attend trial for cross-examination, which usually occurs via live link for eligible witnesses.

Video Recorded Cross-Examination or Re-Examination (s 28)

This allows for the cross-examination and re-examination of a witness to be video-recorded before the trial. This measure aims to reduce the stress of live cross-examination during the trial itself. Section 28 is complex to implement and requires specific court directions.

Examination through an Intermediary (s 29)

If a witness has significant communication difficulties (eg, due to age, disability, or disorder), the court can appoint an intermediary to help them understand questions and communicate their answers. The intermediary facilitates communication; they do not give evidence themselves.

Key Term: Intermediary A person appointed by the court to facilitate communication with a witness who has significant difficulty understanding questions or expressing answers (s 29 YJCEA 1999).

Aids to Communication (s 30)

The court can allow the witness to use communication aids, such as symbol boards, speech synthesizers, or other devices, where necessary to enable them to give their evidence effectively.

Worked Example 1.2

Scenario: An 8-year-old child needs to give evidence about witnessing a serious assault. The child has difficulty understanding complex questions and expressing themselves clearly under stress.

Question: What special measures might the prosecution apply for, and what factors will the court consider?

Answer: The prosecution might apply for several measures. The child is automatically eligible (s 16). Potential measures include:

  • Video Recorded Evidence-in-Chief (s 27): Using their police interview as primary evidence.
  • Live Link (s 24): For cross-examination, to avoid the courtroom environment.
  • Intermediary (s 29): To assist with communication during questioning.
  • Removal of Wigs and Gowns (s 26): If in Crown Court, to make the setting less formal. The court will consider if these measures improve evidence quality (s 19) and balance this with the defendant's fair trial rights. The child's views might be sought if appropriate.

Procedural Considerations

Magistrates' Court vs Crown Court

The eligibility criteria and types of special measures are the same for both courts. However, practical implementation might differ. Crown Courts generally have more advanced facilities for live links and video recording. Magistrates may need to make specific arrangements or use simpler measures like screens more frequently if resources are limited. The fundamental principles of improving evidence quality and ensuring fairness apply equally in both settings.

Defendant's Rights

The use of special measures must not prejudice the defendant unfairly. Judges give directions to juries (in the Crown Court) explaining that special measures are used to help the witness give their best evidence and should not be held against the defendant. The defence must still have an adequate opportunity to test the witness's evidence through cross-examination, even if conducted via live link or with an intermediary present.

Revocation or Variation

A special measures direction can be varied or discharged by the court if circumstances change, either on application by a party or on the court's own initiative (s 20 YJCEA 1999).

Exam Warning

Be careful not to confuse witness competence (the legal ability to give evidence) with eligibility for special measures. A witness may be competent but still require special measures to give their best evidence due to vulnerability or fear. Special measures facilitate testimony from competent witnesses; they do not make an incompetent witness competent.

Key Point Checklist

This article has covered the following key knowledge points:

  • Special measures aim to help vulnerable or intimidated witnesses give their best evidence in criminal trials.
  • The primary legislation is the Youth Justice and Criminal Evidence Act 1999 (YJCEA).
  • Eligibility depends on the witness being vulnerable (under 18 or having a relevant impairment - s 16) or intimidated (fear or distress diminishing evidence quality - s 17).
  • Types of measures include screens, live links, evidence in private, removal of wigs/gowns, video-recorded evidence, intermediaries, and communication aids (ss 23-30).
  • The court must grant a special measures direction if the witness is eligible and the measure(s) would likely improve evidence quality (s 19).
  • The court must balance the witness's needs with the defendant's right to a fair trial (Art 6 ECHR).
  • Procedures apply in both magistrates' courts and the Crown Court, though practical implementation may vary.

Key Terms and Concepts

  • Vulnerable Witness
  • Intimidated Witness
  • Special Measures Direction
  • Live Link
  • Intermediary
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