‘Could do better’: Report on the use of special measures in sexual offences cases
| Date | 01 February 2021 |
| DOI | 10.1177/1748895819840396 |
| Author | Catherine White,Rabiya Majeed-Ariss,Alice Brockway,Kate Cook |
| Published date | 01 February 2021 |
| Subject Matter | Articles |
840396CRJ0010.1177/1748895819840396Criminology & Criminal JusticeMajeed-Ariss et al.
research-article2019
Article
Criminology & Criminal Justice
2021, Vol. 21(1) 89 –106
‘Could do better’: Report
© The Author(s) 2019
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on the use of special
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measures in sexual
offences cases
Rabiya Majeed-Ariss
Manchester University Hospitals NHS Foundation Trust, UK
University of Leeds, School of Healthcare, UK
Alice Brockway
Manchester University Hospitals NHS Foundation Trust, UK
Kate Cook
Manchester Metropolitan University, UK
Catherine White
Manchester University Hospitals NHS Foundation Trust, UK
Abstract
This article reports on research into the use of ‘special measures’ in sexual offence cases. It
begins by outlining the background: considering the perennial problem of attrition within the
criminal justice system; explaining why special measures are considered important; and outlining
the rules surrounding their use. The next step is to explain the research and then the discussion
turns to the results so far. This study surveyed 61 sexual offence complainants on how they
had decided to give evidence in court and what influenced this decision. This is the first time
a team has evaluated special measures including the remote live link, from the point of view of
the complainants. The complainants’ descriptions of their choices were analysed to identify key
themes, which are presented here. The results highlight that there are some problems with the
practical implementation of these measures, particularly given the views of the complainants.
Corresponding author:
Catherine White, Clinical Director, Saint Mary’s Sexual Assault Referral Centre, York Place, Oxford Road,
Manchester, M13 9WL, UK.
Email: Cath.White@mft.nhs.uk
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Criminology & Criminal Justice 21(1)
Keywords
Complainant visibility, live link evidence, sexual offences, special measures
Introduction
The Saint Mary’s Sexual Assault Referral Centre (SARC) in Manchester was the first of its
kind in the country and remains at the forefront in developing ways of working with those
reporting sexual offences. Since 2016 the Saint Mary’s SARC has had a remote live link,
which allows complainants to give their evidence from the familiar surroundings of the
Centre, rather than having to go to court. This study started out with the aim of evaluating
the usefulness of this live link. However, the research team realized that it made more sense
to consider the range of special measures and this article provides an early insight into the
results. The team have been somewhat surprised to discover differences between the legal
rules on special measures and what actually gets offered to complainants heading for court.
The study therefore reveals some issues with the implementation of special measures
locally. These concern the ways that decisions about special measures are made; refusal of
the use of a combination of special measures and limitations on the circumstances whereby
a support worker can be present, while evidence is given.
The article begins by introducing the rules on special measures, considering the rea-
sons for their development and the long-term problem of attrition in this type of prosecu-
tion. Following on, the existing research into special measures is reviewed, showing that
this is a novel study, in terms of scope and method. The discussion moves on to outline
the work of the Saint Mary’s SARC and the way the staff there have facilitated this piece
of research. The research method is presented next, followed by the results to date. The
sample considered here looks at the views of 61 complainants in sexual offences cases
with regards to special measures and at the choices they made, when going to court.
Their words are used to illustrate the themes coming from the work to date: visibility; in
the courtroom; use of live links; and other influences. Finally, some conclusions and
notes of future research aims are recorded.
Background
Sexual offences are very serious crimes, which cause distress and harm to those victim-
ized, some of which can be lifelong (Jones and Cook, 2008). These crimes deserve the
best responses from the Criminal Justice System (CJS), but there are ongoing and persis-
tent concerns about a number of aspects of the CJS response and, in particular, about the
conviction rates (Cook, 2011). The most recently published set of statistics show that
36,655 rapes of females and 4531 rapes of males were reported to the police and recorded
as crimes, during the year ended March 2017 (ONS, 2018). Ministry of Justice statistics
suggest that only 1128 convictions for rape were achieved in the year to December 2017
(UK Government, 2017). Clearly these reported figures do not relate to the same data-
sets. Nevertheless, they give a very poor account of the performance of the CJS in con-
victing accused rapists and show the ongoing issue of attrition in rape cases very starkly.
At present a very small minority of reported rape cases results in conviction. There are
Majeed-Ariss et al.
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many factors that contribute to this and the remainder of this article focuses on just one
aspect of the cases that get as far as court (acknowledging that many drop out long before
that point) (Cook, 2011).
It is not uncommon for complainants in criminal cases and particularly in sexual
offence cases, to experience anxiety and fear during the investigation of a crime and in
particular, when attending court and giving evidence. Stress can affect the quantity and
quality of complainant communication. Some complainants may have particular difficul-
ties attending court and/or giving evidence due to their personal circumstances or par-
ticular needs. In such cases, where complainants are considered to be vulnerable or
intimidated, the court considers it crucial to improve the quality of their experience to
help them give their ‘best evidence’.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced a series of
provisions that can be used to facilitate the gathering and giving of evidence by vulner-
able and intimidated witnesses; these measures are collectively known as ‘special meas-
ures’. Special measures are known to relieve some of the stress associated with giving
evidence and thereby help witnesses give their best evidence in court. While there has
been consideration given to extending special measures to the defendant (Fairclough,
2018) currently special measures apply only to prosecution and defence witnesses and
are subject to the discretion of the court (YJCEA ss. 16–33). Under YJCEA s. 17(4),
there is automatic eligibility for special measures where the witness is a complainant of
a sexual offence, unless the complainant has informed the court that they do not wish to
be eligible.
YJCEA ss. 23–30 provide details of the special measures which may be used by com-
plainants of sexual offences (current rules can also be found at Crown Prosecution
Service, 2017):
•• Video- recorded interviews may be admitted by the court as the complainant’s
evidence-in-chief in sexual offences trials in the Crown Court. Video-recorded
cross-examination and re-examination are also possible (YJCEA s. 27).
•• Pre-recording of cross-examination and re-examination of the complainant will
be done via the live link from the court room to the complainant suite and the
examination will be recorded (YJCEA s. 28). The judge and legal representatives
must be able to see and hear the complainant’s examination and communicate
with the person in whose presence the recording is being made. The accused must
also be able to see and hear the examination and to communicate with his legal
representative. That said, it is possible for the complainant to be screened if
required.
•• Screens are available to shield the complainant from the defendant and the public
gallery while they are in the courtroom. Although these were available before the
Act, the literature suggests that they were not often used (Hamlyn et al., 2004).
YJCEA s. 23 states that the screen must not prevent the complainant from seeing
and being seen by the judge, the jury, legal representatives acting in the proceed-
ings and any interpreters appointed. Giving evidence through the use of screens is
particularly useful where complainants are distressed by the prospect of being
seen by the defendant or of having to see the defendant again.
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Criminology & Criminal Justice 21(1)
•• Removing wigs and gowns only applies to proceedings in the Crown Court
(YJCEA s. 26). This special measure is more likely to be used in cases which
involve children giving evidence. An impact of removing the wigs and gowns is
that it produces a less formal situation.
•• Giving evidence in private, excluding members of the public, is another special
measure in cases of sexual offences. However, individuals who should not be
excluded from the courtroom include the accused, legal representatives acting in the
proceedings and any interpreters required to assist complainants (YJCEA s. 25).
•• Communications aids enable a complainant to give best evidence whether through
a communicator or interpreter (YJCEA s. 30).
•• Registered intermediaries facilitate as complete and accurate two-way communi-
cation between the vulnerable complainant and the other participants in the legal
process as possible (...
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