‘It doesn’t happen … and I’ve never thought it was necessary for it to happen’
| Author | Samantha Fairclough |
| Published date | 01 July 2017 |
| Date | 01 July 2017 |
| DOI | http://doi.org/10.1177/1365712716658892 |
| Subject Matter | Articles |
Article
‘It doesn’t happen …and
I’ve never thought it was
necessary for it to happen’:
Barriers to vulnerable
defendants giving evidence by
live link in Crown Court trials
Samantha Fairclough
University of Birmingham, UK
Abstract
Witnesses and defendants are able to give evidence by live link provided that they meet the
vulnerability criteria set out in the Youth Justice and Criminal Evidence Act (1999). The vul-
nerability criteria include, in brief, the defendant or witness being young and/or suffering from a
physical, mental or learning disability. Findings from interviews undertaken with 18 criminal
practitioners indicate that, even when a defendant is sufficiently vulnerable to qualify for the use
of live link, the provision is rarely invoked. Drawing on this data, this article identifies a series of
barriers which contribute heavily to the inaccessibility of the live link provision to vulnerable
defendants giving evidence in their trials.
Keywords
Crown Court, live link, legal profession, special measures, vulnerable defendant
Introduction
The availability of special measures under the Youth Justice and Criminal Evidence Act 1999 (YJCEA),
designed to assist the vulnerable to give evidence, remains far more advanced for non-defendants than
for defendants. Vulnerable non-defendant witnesses can have their evidence prerecorded; give it from
behind a screen, via live link or with the court cleared of the public; they can benefit from the removal of
wigs and gowns; and can seek the assistance of an intermediary and/or communication aids (YJCEA, ss
23–30). The provision for live link is the only special measure which is available to defendants by statute
Corresponding author:
Samantha Fairclough, Law School, University of Birmingham, Edgbaston Campus, Birmingham, B15 2TT, UK.
E-mail: s.fairclough@bham.ac.uk
The International Journalof
Evidence & Proof
2017, Vol. 21(3) 209–229
ªThe Author(s) 2016
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DOI: 10.1177/1365712716658892
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(YJCEA, s. 33A) that is in force.
1
Its existence is viewed as a progressive step towards improving the
support available to vulnerable defendants (Jacobson and Talbot, 2009: 15, 50; Wigzell et al., 201 5: 6).
In this article I argue that the step taken is actually rather a faltering one. I present an insight into the
operation of the law, derived from 18 interviews with members of the legal profession. This data
reveals that even defendants who are sufficiently vulnerable to qualify for the live link may face
various other barriers to its use in practice. It is argued that these barriers serve to inhibit applications
being made for, and ultimately limit the use of, the live link by vulnerable defendants giving evidence
in their trials.
Legal background and context
The live link provision enables live evidence to be obtained from a witness from outside of the court-
room while still being seen and heard by the judge, jury and legal representatives in court (YJCEA, s.
24(8)). The provision was initially in troduced for children giving evidenc e for the prosecution
2
in
response to difficulties encountered eliciting their evidence at trial (see Interdepartmental Working
Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System,
1998; Pigot, 1989). Such difficulties may result from a combination of the child’s inherent vulnerability,
the oral nature of criminal proceedings (Ellison, 2001), the various rules of criminal evidence
3
and the
presence of the accused. Permitting evidence to be given remotely sought to minimise these difficulties
by removing the witness from court and so making them feel more at ease. The 1999 Act extended the
availability of this provision, and other special measures (see YJCEA, ss 23–30), to all non-defendant
witnesses. Thus, as well as being available to children, the live link provision is now available to adult
witnesses, including those for the defence, whose quality of evidence is likely to be diminished as a
result of their vulnerability or fear/distress relating to testifying (YJCEA, ss 16 and 17). The defendant
was explicitly excluded from the Act’s scope until the insertion of s. 33A in 2006.
4
This permitted the
use of the live link for vulnerable defendant witnesses when giving evidence.
Prior to the enactment of the defendant provision for live link, there had been both academic (for
example, see Birch, 2000; Doak, 2005a; Hoyano, 2001) and judicial
5
criticism regarding the limited
support to vulnerable defendant witnesses relative to that available to vulnerable non-defendant wit-
nesses. For example, Curen, the now Deputy CEO of the charity Respond, whic h aims to support
individuals with learning disabilities,
6
argued that ‘a person’s vulnerability should not be ignored when
they become a defendant’ (Curen, 2005: 4). He drew an analogy to their exclusion from special measures
being akin to a denying a disabled defendant access to court via a wheelchair ramp, merely for being the
defendant (Curen, 2005: 4). Interestingly, Burton et al. highlighted evidence that practitioners were
approaching the question of special measures on the basis of a ‘parity principle’. This meant that they
were disinclined to invoke measures for vulnerable non-defendants when comparable support was not
also available to vulnerable defendants, due to a perceived fairness issue relating to the equality of arms
(see Burton et al., 2006: 397–406).
1. Coroners andJustice Act (2009), s. 104 inserteds. 33BA and s. 33BB into the YJCEAfor vulnerable defendants to giveevidence
through an intermediary. These provisionsare not yet in force (though intermediaries are availableto vulnerable defendants on a
limited basis via the common law,see: C v Sevenoaks Youth Court [2009] EWHC 3088; Cooper and Wurtzel (2013)).
2. Criminal Justice Act 1988, s. 32 (although its use was limited to cases involving violent, cruel or sexual offences).
3. The rules of evidence relating to child witnesses are referred to by Spencer as the ‘adversarial package’. See: Spencer and Lamb
(2012: 9–16).
4. As inserted by Police and Justice Act 2006, s. 47, which came into force 15 January 2007 (see www.legislation.gov.uk/uksi/
2006/3364/article/2/made).
5. See also: R (on the application of DPP) vRedbridge Youth Court [2001] EWHC Admin 209; RvWaltham Forest Youth Court
[2004] EWHC 715 (Admin); RvCamberwell Green Youth Court [2005] UKHL 4.
6. See: http://www.respond.org.uk/who-we-are/.
210 The International Journal of Evidence & Proof 21(3)
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