Monitoring Success, Accounting for Failure: The Outcome of Prosecutors' Applications for Special Measures Directions under the Youth Justice and Criminal Evidence Act 1999
| Author | Paul Roberts,Sheelagh Judge,Debbie Cooper |
| DOI | 10.1350/ijep.2005.9.4.269 |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| Subject Matter | Article |
Monitoring success,
accounting for failure:
The outcome of prosecutors’
applications for special measures
directions under the Youth Justice
and Criminal Evidence Act 1999
By Paul Roberts*
Professor of Criminal Jurisprudence, University of Nottingham
Debbie Cooper and
PhD Candidate, University of Nottingham School of Law
Sheelagh Judge
Crown Prosecution Service & Special Professor, University of
Nottingham
Abstract This article presents and discusses new empirical data derived from
CPS Monitoring of the implementation of special measures for vulnerable and
intimidated witnesses (VIWs) pursuant to Part II of the Youth Justice and Criminal
Evidence Act 1999. VIW Monitoring was a major undertaking, covering all CPS
prosecutions in England and Wales for an entire calendar year. Its results are
fully reported elsewhere. Here, we concentrate on one segment of VIW Monitoring
data, reporting the outcomes of prosecutors’ applications for special measures.
Most such applications succeed, but a small minority is rejected, and the
characteristics and reasons for these judicial refusals were recorded as part of
the Monitoring process. By examining and reflecting upon the circumstances of
abortive applications, no less than in contemplating the broader pattern of
success which emerges from VIW Monitoring, we may hope to gain a better
appreciation of the existing arrangements for securing special measures for
vulnerable and intimidated witnesses, and to assess the scope, if any, for further
refinements of policy or practice.
*
Email: Paul.Roberts@nottingham.ac.uk. We are grateful to Louise Ellison, John Jackson, and
Jenny McEwan for comments and suggestions on a previous draft.
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(2005) 9 E&P 269–290
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OUTCOME OF PROSECUTORS’ APPLICATIONS FOR SPECIAL MEASURES DIRECTIONS
Legislative background
P art II of the Youth Justice and Criminal Evidence (YJCE) Act 1999, which
received Royal Assent on 27 July 1999, establishes the eligibility of various
categories of vulnerable and intimidated witnesses (VIWs) for ‘special
measures’ to assist them to testify more effectively in criminal proceedings in England
and Wales. The 1999 Act builds on previous legislative initiatives to help child
witnesses required to testify in relation to certain designated offences through the
provision of live TV link1 and the admissibility at trial of video-recorded disclosure
interviews in lieu of evidence-in-chief.2 Part II of the YJCE Act 1999 extends an enlarged
roster of special measures to all children under 17 years old at the time of trial,3 and
makes entirely novel provision for adult witnesses with a disability likely to impair
their courtroom performance or who experience threats or intimidation with similar
evidentiary implications.4
The full list of statutory special measures now includes: screens (s. 23); live TV link (s.
24); exclusion of members of the public from the courtroom (s. 25); removal of the
judge’s and barristers’ wigs and gowns (s. 26); pre-recorded evidence-in-chief (s. 27);
pre-recorded cross-examination (s. 28); questioning through an intermediary (s. 29)
and artificial communication aids, such as a sign-board or voice synthesiser (s. 30).5
On application by a party or of its own motion, the court is obliged to determine the
eligibility of any witness for assistance by special measures, and then, for those
witnesses deemed either vulnerable6 or intimidated,7 to make a special measures
direction (SMD) for appropriate arrangements to be made.8 Precise eligibility varies
for different classes of VIW, and certain designated categories of witness benefit
from presumptions in their favour. Generally speaking, children testifying in relation
to offences of sex or violence deemed ‘in need of special protection’9 receive greatest
assistance, whilst intimidated adults are limited to those special measures which,
1 Criminal Justice Act 1988, s. 32.
2 Criminal Justice Act 1988, s. 32A, inserted by the Criminal Justice Act 1991.
3 Or, in relation to the admissibility of pre-recorded interviews, under 17 years old when the
video was made: YJCE Act 1999, s. 22.
4 See, generally, Diane Birch and Roger Leng, Blackstone’s Guide to the Youth Justice & Criminal
Evidence Act 1999 (Blackstone: Oxford, 2000); Paul Roberts and Adrian Zuckerman, Criminal
Evidence (OUP: Oxford, 2004), § 6.6.
5 YJCE Act 1999, ss. 18(1)(a) and 23–30.
6 ‘Vulnerable’ witnesses are those under 17 years old (known operationally as ‘child’ witnesses)
and those suffering from ‘mental disorder’, ‘significant impairment of intelligence and social
functioning’, or ‘physical disability or … disorder’ likely to diminish the quality of the witness’s
evidence: YJCE Act 1999, s. 16.
7 Statutorily defined as those witnesses experiencing ‘fear or distress’ likely to diminish the
quality of the witness’s evidence: YJCE Act 1999, s. 17.
8 YJCE Act 1999, s. 19.
9 YJCE Act 1999, s. 21(1)(b).
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OUTCOME OF PROSECUTORS’ APPLICATIONS FOR SPECIAL MEASURES DIRECTIONS
in the view of the court, would be ‘likely to maximise so far as practicable the quality’
of their evidence.10
As if the legislation were not already complicated enough, Part II of the 1999 Act was
subject to a phased, and as it transpired drawn-out and only partly consummated,
implementation schedule. A significant tranche of special measures was introduced
into the Crown Court on 24 July 2002, with notable exceptions in relation to video-
recorded evidence in particular.11 Until June 2004, by contrast, the menu of special
measures available to children in the magistrates’ courts and youth courts broadly
corresponded to the pre-1999 Act position, whilst adaptations of traditional trial
procedure in favour of adult VIWs were even more limited in scope. At the time of
writing, the full range of measures is still in the process of being introduced in
piecemeal fashion.12 Screens and the possibility of giving evidence in private were
extended to all VIWs testifying in magistrates’ courts proceedings from 3 June 2004.
After 3 October 2005 live TV link, which hitherto has been restricted to child witnesses
‘in need of special protection’, will be made available to all VIWs in summary trials.
Whether s. 27 video-recorded examination-in-chief will be extended beyond the pre-
1999 position in magistrates’ courts remains to be determined, however. The eligibility
of intimidated adult witnesses for video-recorded examination-in-chief has been
piloted in two Crown Court centres since summer 2004, and is currently being
evaluated.
Meanwhile, s. 29 intermediaries and s. 30 communication aids have also been
undergoing evaluation pilots, both in the Crown Court and in the magistrates’
courts. Communication aids which could be accessed in the Crown Court after 24
July 2002 became available to vulnerable witnesses, adults and children alike,
testifying in summary proceedings from 3 June 2004. Intermediaries remain subject
to an expanding programme of pilots, though initial feedback seems promising and
national roll-out is currently planned for 2006–07.13 Section 28 pre-recorded cross-
examination, on the other hand, suffered an altogether different fate. Following a
period of criticism and further discussion, the Home Office decided that s. 28 will not
be commenced in its existing form.14 Questions of whether to permit video-recorded
10 YJCE Act 1999, s. 19(2)(b)(i).
11 In addition to those discussed below, an important limitation is that s. 27 video-recorded
evidence-in-chief has not been made generally available to s. 17 intimidated (as opposed to
vulnerable) adults testifying in the Crown Court. Pilot evaluations have been under way since
the summer of 2004, and are due to be reviewed after September 2005.
12 Now see Home Office Circular 39/2005, The Implementation of ‘Speaking Up for Justice’, Appendix
1.
13 Ibid.
14 See Debbie Cooper, ‘Pigot Unfulfilled: Video-recorded Cross-Examination under section 28 of
the Youth Justice and Criminal Evidence Act 1999’ [2005] Crim LR 456.
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OUTCOME OF PROSECUTORS’ APPLICATIONS FOR SPECIAL MEASURES DIRECTIONS
pre-trial cross-examination, and if so how, have instead been consolidated into a
wide-ranging consultation on the future of children’s evidence.15
Special measures for VIWs are a key dimension of the British government’s
commitment to placing victims and witnesses at the heart of the criminal justice
process.16 Without witnesses prepared to come forward and testify in court there is
often insufficient evidence to establish the offender’s guilt beyond reasonable doubt,
and without evidence sufficient to prove guilt there can be no justice. This stark
pragmatic constraint on the possibility of successful prosecution is pithily
encapsulated in the title of the CPS’s national drive to improve witness care,
consultation, and preparation for trial: No Witness, No Justice.17 Successful
implementation of special measures for VIWs is integral to an evolving programme
of victim and witness-centred operational initiatives, and by extension to the
practical realisation of the policy commitment underpinning them. These objectives
in turn imply the need for ongoing monitoring and evaluation of current and future
practice.
VIW Monitoring by the CPS
The impact of criminal procedure reform requires careful monitoring from the outset,
in order...
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