The consequences of unenthusiastic criminal justice reform: A special measures case study
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| DOI | 10.1177/1748895819848804 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895819848804
Criminology & Criminal Justice
2021, Vol. 21(2) 151 –168
© The Author(s) 2019
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DOI: 10.1177/1748895819848804
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The consequences of
unenthusiastic criminal
justice reform: A special
measures case study
Samantha Fairclough
University of Birmingham, UK
Abstract
This article explores the consequences of unenthusiastic criminal justice reform through the case
study of special measures provision in England and Wales. These measures provide assistance to
vulnerable people giving evidence in criminal trials. For witnesses other than the accused, the law’s
development followed a standard process: public concern; governmental inquiries; legislation; and
a period of inception to prepare for its implementation. The development of special measures
for the accused did not follow this same pattern. Instead, it was gradual, ad hoc and somewhat
reluctant. This article argues that the way and the context in which special measures developed
for the accused has had a negative impact on the extent to which they are embedded within
the criminal justice system. This, in turn, has negatively affected their uptake in practice. It is
concluded that the way in which the law is reformed is important to its success in practice.
Keywords
Criminal justice reform, defendants, fair trials, special measures, vulnerability, witnesses
Introduction
Special measures provide adjustments to the traditional way of giving evidence in crimi-
nal trials (Youth Justice and Criminal Evidence Act ((YJCEA)) 1999). They were enacted
in response to two related sets of concerns: the system’s ability to convict those who
offend against vulnerable groups and the humane treatment of such vulnerable individu-
als within the criminal justice system (Home Office, 1998; Pigot, 1989). The adaptations
Corresponding author:
Samantha Fairclough, Birmingham Law School, University of Birmingham, Edgbaston, Birmingham, B15 2TT,
UK.
Email: s.fairclough@bham.ac.uk
848804CRJ0010.1177/1748895819848804Criminology & Criminal JusticeFairclough
research-article2019
Article
152 Criminology & Criminal Justice 21(2)
special measures provide include permitting a witness to give evidence from behind a
screen (s. 23); via the live link from a room outside of the courtroom (s. 24); with the
assistance of an intermediary (s. 29) or communication aids (s. 30); or via pre-recorded
testimony to the jury in the witness’ absence (s. 27 and s. 28). They are statutorily avail-
able to witnesses who are vulnerable (young or with a mental, physical or learning dis-
ability) or intimidated (in fear or distress in connection with testifying), whose quality of
evidence would otherwise be diminished (see s. 16 and s. 17).
The accused was initially excluded from the provision of special measures (Home
Office, 1998: para. 3.28; YJCEA 1999, s. 16). The law has since developed on the
basis of concerns about equality and Article 6 European Convention on Human
Rights (ECHR) fair trial rights such as the accused’s ability to effectively participate
as a witness (Fairclough, 2018a). This means that the accused can now access a
range of special measures provisions to assist them to give evidence in their defence
should they choose to testify. Insights from a small-scale empirical study into crimi-
nal practitioners’ experiences of special measures use in the Crown Court indicate
that the uptake of special measures in practice is far greater for non-accused wit-
nesses than for the accused (see Fairclough, 2018b). While some of this disparity is
a natural result of the more limited provision to the accused (Fairclough, 2018a,
2018b) it is argued that alone this does not sufficiently explain the notable disparity
of uptake in practice.
This article explores the potential relevance of the way – and the enthusiasm with
which – the provision of special measures has developed for accused and non-accused
witnesses on the success of the law in practice. References to success should be under-
stood to mean its implementation and uptake by those who are vulnerable or intimi-
dated and in need of assistance. The success of the law in practice is important in light
of Fuller’s (1969: 81) principle of congruity. This is one of his eight ‘principles of
legality’, which requires that there is congruence between the law as announced and its
actual administration. Given that the expansion of special measures to the accused is
rooted in concerns for equality and Article 6 fair trial rights, their accessibility and use
in practice is vital to ensure that these standards are upheld. Understanding the role that
the law’s development may have had on its use in practice, therefore, can help us to
better foster the principle of congruity and protect the accused from unfairness and
discrimination.
The article begins with an examination of the way in which the law developed for
non-accused witnesses and how it has become embedded in practice. This followed
what one might consider the ‘typical’ pattern of criminal justice law reform. The sec-
ond section of the article compares this to the way the provision of special measures
to the accused has developed. The main body of this article then focuses on the legal
and broader reaching consequences of the unenthusiastic expansion of special meas-
ures to the accused. This latter part draws on insights from interviews with 13 crimi-
nal practitioners on the operation and use of special measures in Crown Court trials.
It is concluded that the reluctance with which the law developed for the accused has
negatively affected its clarity and implementation in practice, leaving vulnerable
defendants less able to secure special measures assistance to give a good quality
account in their defence.
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