Vulnerable Victims & Witnesses | Special Measures Explained
Sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999 allow children and vulnerable adults who are victims or witnesses to be examined ‘in Chief’, or under ‘Cross Examination’, before a Trial commences and for a video recording of that examination to be
Helen Holder outlines the special measures which can be adopted by a Trial Judge.
The Relevant Law
The Youth Justice and Criminal Evidence Act 1999 (‘the Act’) provides:
Section 27 Video recorded evidence in chief.
‘(1) A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness.
(2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.
(3) In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
(4) Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if—
(a) it appears to the court that—
(i) the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and
(ii) the parties to the proceedings have not agreed that there is no need for the witness to be so available; or
(b) any requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court.’
Section 28 Video recorded cross-examination or re-examination.
‘(1) Where a special measures direction provides for a video recording to be admitted under section 27 as evidence in chief of the witness, the direction may also provide—
(a ) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and
(b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.
(2) Such a recording must be made in the presence of such persons as [F1Criminal Procedure Rules] or the direction may provide and in the absence of the accused, but in circumstances in which—
(a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and
(b) the accused is able to see and hear any such examination and to communicate with any legal representative acting for him.’
Who may be a Vulnerable Victim or Witness?
An individual who satisfies at least one of the following criteria is likely to be deemed a child or a vulnerable adult:
- a child under the age of 18;
- someone suffering from a mental or physical disorder, or having a disability or impairment that is likely to affect their evidence;
- someone whose evidence is likely to be affected by their fear or distress at giving evidence in the proceedings;
- a complainant in domestic violence offences;
- a complainant s in sexual offences; and
- a witness in specified gun and knife crimes.
The Act applies to the vulnerable victims and witnesses of both the Prosecution and the Defence but not the Defendant.
As stated above, children are automatically deemed as vulnerable. Where an adult is deemed vulnerable, an Application can be made to the court for an Order implementing ‘Special Measures’.
When considering an Application seeking Special Measures, a Judge will, inter alia, have regard to the extent to which a child or vulnerable adult will be assisted in giving ‘best’ evidence and be relieved of some of the accompanying stress, worry and trauma, if at all possible, whilst doing so.
At a Hearing:
- the child or vulnerable adult is placed in a room in which there is a camera
- the camera is live streamed to the Court in which, inter alia, the Defendant and counsel, Prosecuting counsel and the Judge are present
- there will be no Jury for a Preliminary Hearing of this nature
- the Judge will request that the recording starts when appropriate
- the Judge will commence formalities such as by asking the child or vulnerable adult to confirm their details
- thereafter, the child or vulnerable adult will be formally sworn in
- the evidence will be formally taken, whereafter the recording is stopped
- The recording(s) will be shown when appropriate at the Trial at a time when the victim or witness does not have to be present
Right to a Fair Trial | Special Measures
In accordance with Article 6 of Human Rights Act 1998, any person charged with a criminal offence has the right to a fair trial and is presumed innocent until proven guilty. The granting of any ‘Special Measures’ does not impact an individual’s fair trial, nor does it impact on the presumption of innocence.
How Can We Help You?
Any proceedings involving the granting of ‘Special Measures’ under the Act will, undoubtedly, be complex and require professional expertise.
In so far as a Defendant is concerned, the implementation of ‘Special Measures’ does not mean that your right to a fair Trial is unfairly prejudiced, but it will certainly involve the requirement for specialist knowledge.
If you are, or anticipate, facing Court proceedings in respect of any criminal allegation, including those involving vulnerable victims or witnesses, it is essential that you seek immediate expert advice.
Our team is highly experienced at assisting clients facing issues of the nature explained above and will be pleased to assist and guide you. Kangs has been highly awarded by both leading legal directories Chambers UK and The Legal 500 for many years with founder and senior partner, Hamraj Kang, named as a ‘Star Individual’ by Chambers UK for the last seven consecutive years. Other members of the team also feature regularly in both directories.
We welcome enquiries by telephone or e-mail and provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video conferencing.