Vulnerable and intimidated witnesses overlooked for legal protections while giving evidence

Read the full special measures report. 

Some victims, including those of the most serious sexual offences such as rape, are at risk of coming face-to-face with defendants because courts are not set up to deliver the protections the law provides for them while giving evidence.

A new report by the Victims’ Commissioner, Dame Vera Baird QC, and published today (19 May 2021), examines the provision of protections for vulnerable and intimidated victims, known as ‘special measures.’ The Commissioner found the current system is not working as well as it could with victims and witnesses falling through the gaps and not being offered appropriate special measures.

This situation has been exacerbated as courts deal with the challenge of social distancing and comes as the newly passed Domestic Abuse Act extends special measures to all domestic abuse victims, greatly increasing the numbers likely to be entitled to help.

With a growing court backlog and long victim delays, Dame Vera also reiterated her calls for intimidated witnesses to be able to have all their evidence videoed at an early stage and kept for a future trial as vulnerable witnesses are able to do now (Section 28).

Dame Vera Baird says: “Special measures are not a ‘nice to have’ but are essential provisions for many witnesses and for the criminal justice system. Giving evidence to a court can be a worrying and, for some, traumatising experience. Special measures were introduced to make this easier for witnesses and to avoid unnecessary stress and distress. Some witnesses will not be able to give evidence at all without this help but not all victims and witnesses are getting the protections they need. And this is a major problem for the criminal justice system which needs to secure all the available evidence on both sides of a case.”

The Victims’ Commissioner found there was a cumbersome process for assessing witness need and securing special measures; a reliance on some measures and minimal use of others, so actual choice is limited; poorer provision in the magistrates’ court, which lags behind the Crown Court; and an absence of data to monitor how well the process is working.

The majority of magistrates and district judges surveyed (53%) and a quarter of Crown Court judges felt that witness’ needs were only being identified some of the time before they reached court. The Commissioner found inconsistent assessment processes across forces and no single agency with overall responsibility for coordination. This can lead to troubles with the identification of needs and even the issue being overlooked as the case is passed along, with some vulnerable or intimidated victims appearing in court without appropriate special measures as a result.

Dame Vera says: “My review found unreliable processes for identifying witnesses needs. Some are not assessed as needing help when, to professionals further down the line, it is obvious that they do. We need one organisation to coordinate information across the criminal justice agencies and to take responsibility for assessing need. That should be the police-run witness care units which need to be better resourced and fully staffed to take on this responsibility.”

The report recommends an expansion in the provision of Section 28 as soon as practically possible. Presently, this law is only used to allow vulnerable witnesses to pre-record their evidence and cross examination, but the Section covers intimidated witnesses too. Using it to the full would mean that hundreds of complainants of sexual crimes could give their evidence and cross-examination on video at an early stage so that their testimony would be fully secured. At the trial the two videos would be played to the jury. In that way, the witnesses would not face long delays before their case comes to court.

Dame Vera says: “I am calling for all victims of sexual crimes to be allowed to give evidence and be cross-examined by video, at an early stage while their memory is fresh. Then they are free to take therapy if they need it and to get on with their lives since the video evidence would be their evidence in court. With some crimes from last year unlikely to reach court before 2022 or later, this could spare thousands of potentially traumatised victims a long and anxious wait.”

The report recommends HMCTS ensure separate entrances to court buildings for all vulnerable or intimidated witnesses. This is currently dependent on the individual court and its working culture. The report also found that remote evidence centres were significantly under-used. These centres allow witnesses to give their evidence without ever attending court.

Dame Vera says: “We have heard from criminal justice professionals in this research and hear from victim support services day-by-day how fearful witnesses are of coming face-to-face with the defendant and their supporters. It can deter them from attending at all or undermine the confidence of their testimony. This is an area which needs urgent attention, which it is not getting.”

There is widespread agreement amongst professionals that special measures achieve their purpose. However, it remains difficult to find out how often these measures are used due to a lack of centralised data. This raises concerns about their appropriate usage, equal access to these measures and current systems for monitoring and learning about what works in supporting victims of crime.

Dame Vera says: “Special measures are a success story of the criminal justice system. Many people who would not have been able to give their evidence have been enabled to do so because of these brilliant but simple devices. Many more witnesses have been saved from unnecessary stress. And the courts have functioned more effectively as a consequence. Much has been achieved but there is much more to be done.

Special measures should be granted to everyone who needs them and that requires improving needs assessments. The full range of measures should be available to ensure tailored support. The advantages of S.28 have persuaded the government to fit the equipment in every Crown Court and it needs to be used as the default option for all intimidated witnesses as well as its current use for the vulnerable.

None of these recommendations is costly, indeed fuller use of remote evidence centres and S.28 will increase the dividend on that investment. At a time when record numbers of victims of crime, including rape, are withdrawing from prosecutions, I hope this report and its recommendations help set an agenda for the next phase of special measures – one which makes navigating the court experience easier for more and more witnesses.”

Editors notes

• The review is called ‘Next steps for special measures: a review of the provision of special measures to vulnerable and intimidated witnesses.’
• The review explores the current provision of special measures, from the initial assessment of witnesses’ needs all the way to trial. Drawing on testimony from criminal justice professionals and victim support services, it outlines victims’ and witness’ wider experiences of court and special measures, including during Covid, and makes recommendations on how to improve the provision of special measures and address barriers to access.

Special measures

• Special measures are a series of provisions that help vulnerable and intimidated witnesses to give their best evidence in court and help to relieve some of the stress and anxiety associated with giving evidence. These measures can include screens to shield them from the defendant; giving their evidence by television link either from a separate room at the court building or using remote evidence centres allowing evidence to be pre-recorded; and using trained communications specialists to help witnesses while giving evidence. Under the Victims Code, all witnesses have the right to have their needs assessed by a police officer and the Witness Care Unit, a unit within the police force. Witnesses must also be asked for their views about which measure they would prefer.

Vulnerable and intimidated witnesses

• Vulnerable witnesses are defined by legislation as all children under the age of 18 and any witness whose quality of evidence is likely to be diminished because they have a mental or physical disorder or disability, including impairments to cognitive and/or social functioning.
• Intimidated witnesses are defined as those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences automatically fall into this category unless they wish to opt out. The new Domestic Abuse Act puts all domestic abuse victims into the intimidated category too and witnesses to certain offences involving guns and knives are also in that category.

Section 28

• Section 28 of the Youth Justice and Criminal Evidence Act 1999 enables the recording of evidence and cross-examination prior to trial, subject to judicial discretion. Where the judge directs, s.28 allows vulnerable victims and witnesses to have their cross-examination video-recorded before the full trial, away from the court room. This evidence is then played during the live trial, which, in most cases, means the vulnerable person does not need to attend in person. The s.28 recording is completed close to the time of offence through an expedited timetable, aiding memory recall and to reduce the distress experienced by some witnesses when giving evidence to a full courtroom at trial. Both the defence and prosecution lawyers are present in court during the pre-recording, as well as the judge and the defendant. Pre-recorded cross examination does not impact a defendant’s right to a fair trial.