Special measures for victims and witnesses

Work with offenders looks at the latest report from the Victims’ Commissioner.

Dame Vera Baird was appointed Victims' Commissioner for England and Wales in June 2019, but you might be forgiven for thinking that she had been in post for much longer. She is putting all the skills and know-how she learnt throughout a long and successful career as a barrister, MP, government minister (she was Solicitor General for England and Wales between 2007-2010) and Police and Crime Commissioner to excellent use in her new role, much of which is centred around ensuring that government improves the experience of victims of crime at every stage of the criminal justice system. It is a rare month that goes by without any report or initiative from the Victims’ Commissioner’s office.

Last week she published  a new literature review into “Special Measures” – the additional support given to vulnerable and intimidated victims and witnesses in order to help them give evidence in court proceedings. The literature review is the first step in a comprehensive investigation into special measures, which have received scant attention despite being an integral part of the criminal justice system for over 20 years.

The term “special measures” covers a range of initiatives including giving evidence behind a screen or through a remote video link or the use of registered intermediaries. Many people haven’t heard of registered intermediaries who are often described as a hidden cog in the wheels of justice. A relatively new profession, they work with the police and courts as communication specialists to ensure adults with communication difficulties or very young children give the best evidence possible to police and in court. They are forbidden from telling people what to say or from taking sides. They may help courts to interpret an eye-blink machine, or encourage police officers to use post-it notes to help people put events into the order they happened, or suggest paper gingerbread men as a prop for a very young child to provide evidence in a sexual abuse case, giving them a way to show just where they were touched. As impartial specialists, registered intermediaries make sure everyone has a voice in our justice system, whatever their age, health or communication difficulties.

Findings

There is a consensus that special measures have greatly improved the process of giving evidence for many victims and witnesses, with some saying they would not have given evidence without these provisions. However, there is very limited research available to answer a number of key questions such as:

• How well are vulnerability and intimidation identified by the police, prosecutors and judges?
• What is the quality of the end-to-end process of preparing vulnerable or intimidated witnesses for court?
• Are victims and witnesses part of the decision-making process on what special measures will work for them?
• How many people who need special measures aren’t receiving them?

It soon becomes evident why we do not have the answers to these core questions – there are no centrally collected statistics on the use of special measures in England and Wales. What research is available focuses almost exclusively on Crown Court trials. It appears that screens are frequently used for adult witnesses in sex offence cases, but there is a prevailing view among criminal practitioners, and indeed some witnesses, that evidence given by video is less impactful on jurors and is therefore avoided. This presumption has never been tested by research.

The findings suggest that defence witnesses are less well supported than prosecution witnesses despite, in theory, being equally eligible for special measures.

One special measure that has received particular support from CJS professionals is ‘Section 28’ (pre-recorded cross-examination) which, when piloted, has been found to lessen the wait for children (so improving their recall) and lessen the length of the cross-examination. It was perceived by judges to relieve the distress and trauma to witnesses, although there was less consensus about whether it produced better evidence.

Intermediaries are also widely endorsed as an intervention which greatly improves the quality of evidence elicited from vulnerable witnesses, both because of their expertise in relation to the formation of advocates’ questions, and also because of their recommendations around the most effective combinations of special measures to invoke.

It is perhaps unsurprising that the overall conclusion is that there is very little up-to-date robust evidence on the effectiveness (or not) of special measures. You will not be surprised to hear that Dame Vera is aiming to fill this gap with the programme of original research over the next 12 months. We will report on her findings here in due course.