Using Hawkins's Surround, Field, and Frames Concepts to Understand the Complexities of Special Measures Decision Making in Crown Court Trials
| Author | Samantha Fairclough |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1111/jols.12100 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 3, SEPTEMBER 2018
ISSN: 0263-323X, pp. 457±85
Using Hawkins's Surround, Field, and Frames Concepts to
Understand the Complexities of Special Measures Decision
Making in Crown Court Trials
Samantha Fairclough*
Adjustments to criminal trial processes, called special measures, are
available to vulnerable and/or intimidated witnesses giving evidence.
Findings from interviews with 13 criminal practitioners suggest that
there are notable variations in the uptake of special measures between
prosecution witnesses, defence witnesses, and the accused in Crown
Court trials. These extend beyond any inequality in their legal provi-
sion. This article uses Keith Hawkins's conceptual framework of
surround, field, and frames as a heuristic device to understand this
differential uptake. The framework delineates the various factors ±
including the socio-political, organizational, and attitudinal ± which
can influence decision-making practices in relation to special
measures. In doing so, this article demonstrates two things. First, that
changing the legal provision is unlikely to effect much change in
practice, absent specific complementary changes to the field. Second,
that Hawkins's framework has potential as an explanatory device in
decision-making contexts outside his own health and safety setting.
457
*Birmingham Law School, University of Birmingham, Edgbaston,
Birmingham B15 2TT, England.
s.fairclough@bham.ac.uk
With special thanks to Richard Young for invaluable feedback on earlier drafts of this
article. Further thanks to Gavin Byrne, Keith Hawkins, Fiona de Londras, Erika Rackley,
the anonymous reviewers, and attendees at the Advocate's Gateway Conference 2017 and
Cardiff Law School's staff seminar series. Any errors remain those of my own. This work
was funded by the ESRC [1367263].
ß2018 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University Law School
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, provided the original work is properly cited.
INTRODUCTION
The special measures scheme enacted by the Youth Justice and Criminal
Evidence Act 1999 (YJCEA) provides a series of adjustments to the
traditional way of testifying in criminal trials.
1
The aim of this provision is to
enable vulnerable and/or intimidated witnesses to give their `best evidence'
2
in court. In statutory terms, this means to improve the evidence's quality
with regard to its completeness, coherence, and accuracy.
3
Traditionally, the
`adversarial package'
4
± the combination of rules requiring a witness to give
evidence orally, in open court, in the presence of the defendant ± had erected
often insurmountable barriers to hearing evidence from children and other
vulnerable witnesses
5
in criminal proceedings. This impeded the system's
ability to convict those who offend against these groups.
6
Special measures enable the vulnerable and/or intimidated to give
evidence from behind a screen (out of sight of the dock and public gallery);
via a live link (from a room outside the courtroom); and/or with the
assistance of an intermediary (a specialist communication expert).
7
Under
the YJCEA, vulnerable witnesses include those who are young (under 18) or
with a mental health problem or learning disability.
8
Intimidated witnesses,
including complainants of sexual offences, are those in fear or distress in
connection with testifying in the proceedings.
9
Vulnerable and/or intimidated witnesses, including the accused, can
secure special measures. However, there are some differences in the legal
provision of them to the accused when compared to that for non-accused
witnesses. The first difference is the source of legal authority for special
measures. The accused was initially excluded from the statutory special
measures regime.
10
The provision of special measures to them has been
458
1 For the full history of special measures provision, see R. Marchant, `Special
Measures' in Vulnerable People and the Criminal Justice System, eds. P. Cooper
and H. Norton (2017) 333.
2 Home Office, Speaking up for Justice: Report of the Interdepartmental Working
Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal
Justice System (1998) para. 1.7.
3 Youth Justice and Criminal Evidence Act 1999 (YJCEA), s. 16(5).
4 J. Spencer and M. Lamb (eds.), Children and Cross-Examination: Time to Change
the Rules? (2012) 1.
5 J. Spencer, `Child Witnesses and Cross-examination at Trial: Must it Continue?'
(2011) 3 Archbold Rev. 7.
6 A. Sanders et al., Victims with Learning Disabilities: Negotiating the Criminal
Justice System (1997) 39, at 57; NSPCC, Child Abuse Trends in England and Wales
1983±1987 (1989); Lord Pigot, Report of the Advisory Group on Video Evidence
(1989).
7 This is not a complete list of the special measures provision: see YJCEA, op. cit., n.
3, ss. 23±30.
8 id., ss. 16 and 33A.
9 id., s. 17.
10 id., ss. 16 and 17.
ß2018 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University Law School
To continue reading
Request your trial