Over use of special measures

Do we make it too easy for dishonest witnesses to lie?

When a matter comes for trial the procedure is for the prosecution to call their evidence and prove that the defendant is guilty of the offence(s) against him. In ye olden days, the prosecution would call witnesses who could say, “I saw X do Y” and would then use this to build the case against the defendant. The accuser would give evidence before the judge, jury and defendant – the defendant would face his accuser and the accuser would face the accused.

I’ve always thought that this is a good idea – in my opinion it’s much harder to lie to the face of somebody who knows you to be a liar than it is to lie to somebody with no knowledge of the facts. Don’t believe me? Go have an affair, send your wife the photos of your liaison and then deny it to her face and see if she can see through your lies – go on, I double dare you and we all know you can’t get out of a double dare!

Also, assessing a witness’s credibility requires the magistrates or jury to observe the witness so they can look out for any signs that person may not be being honest - this is why the case of a Muslim woman giving evidence while wearing a full face veil caused the courts so much consternation last year. If a witness is being dishonest, I’d suggest they may be more likely to show such signs when being observed by the person about whom they are lying.

In the Crown Court, you also have the additional consideration that members of the jury will see the witness being given special protection and think that the defendant must be quite a serious criminal if witnesses need to be hidden from him. This is clearly a real concern since I note that the Judicial College has set out a warning that judges should give to jurors about not allowing these special protections to reflect badly on the defendant:

“W gave evidence [insert as appropriate … from behind a screen/by video link/in a

recorded interview]. At the start of the case I explained that evidence can be given in

various ways and I now remind you that you must treat all evidence in exactly the

same way, regardless of how it is given. The fact that W gave evidence in this

way/these ways has no reflection on D, and you must not let it affect your judgment

of him or of W’s evidence.”

Crown Court Bench Book, volume 1, page 3-20

Let’s taken a moment to look at the exceptions, which were introduced by the Blair government in 1999. The exceptions allow witnesses to give evidence from behind a screen so the defendant cannot see them, on a TV link from another room or building or in a pre-recorded format. The exceptions are known in practice as “special measures” and are available for two groups. First there are those who are vulnerable due to age or incapacity, such as those with a mental disorder. The second group are witnesses whose grounds for special measures rely on fear or distress. To allow special measures, the court must find that the quality of the witness’s evidence is likely to be diminished by reason of fear or distress on the part of the witness in connexion with testifying in the proceedings.

On the face of it these are sensible exceptions that address particular needs but in practice I have found that they are now interpreted far more widely than was ever intended when they were introduced.

I have no problem with exceptions being made for witnesses who are young or otherwise vulnerable – that seems eminently sensible and I am not going to address those any further in this post beyond mentioning the fact that no special measures are allowed to the defendant no matter how mentally ill or young her or she may be.

Turning to the question of exceptions in cases of fear or distress; these I think are far too widely drafted and too loosely handled for my liking. Here’s an example, I attended a trial a few months ago in which the Crown sought special reasons for a woman who had witnessed the aftermath of a car crash. She was not present for the crash. She did not know any of the people involved in the crash and none of them knew her. Aside from exchanging a few words about a mobile telephone the witness had no contact with the defendant (although it’s worth mentioning that the defendant denies being the person she spoke to). There is no violence in either the incident or the defendant’s past. In short, there was no reason for any person of reasonable firmness (I admit that’s not the test) to be in fear of the defendant or distressed about giving evidence against him.

The magistrates rightly refused the application for special measures when I represented the defendant at the first trial listing. For unrelated reasons that trial could not proceed so was put off to another day when the defendant was represented by Counsel. On that occasion, the Crown raised special measures again but this time the trial court allowed them – same facts, same application from the Crown but a different result.

My experience is that special measures are taken for granted. The Crown often seem surprised and aggrieved if anybody challenges an application for special measures. Courts often seem equally put out by such challenges. More often than not I see these applications go through on the nod with no challenge at all. I really think that this risks the fairness of the trial, after all special measures are designed to make life easier for the witness, but they cannot be applied to the defendant. So you have one side able to take advantage of something that is designed to make their evidence better but which is deliberately withheld from the defendant.

The test for finding a witness eligible for special measures if set out in section 17(1) of the Youth Justice and Criminal Evidence Act 1999, which states:

“For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this subsection if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.”

Subsection 2 sets out various points the court should take into account:

“In determining whether a witness falls within subsection (1) the court must take into account, in particular—

(a) the nature and alleged circumstances of the offence to which the proceedings relate;

(b) the age of the witness;

(c) such of the following matters as appear to the court to be relevant, namely—

(i) the social and cultural background and ethnic origins of the witness,

(ii) the domestic and employment circumstances of the witness, and

(iii) any religious beliefs or political opinions of the witness;

(d) any behaviour towards the witness on the part of—

(i) the accused,

(ii) members of the family or associates of the accused, or

(iii) any other person who is likely to be an accused or a witness in the proceedings.”

Subsection 3 tells us that the views of the witness should be considered. In my experience the views of the witness are often the only thing considered. Subsection 4 tells us that in respect of complainants in sexual offences special measures are automatic unless the witness opts out.

So, in effect we have a test that is “will special measures improve the quality of the evidence given by the witness?” We also have a list of factors the court should consider when answering that question. What we rarely have is real consideration of those factors in court.

In the case I described above, the magistrates refused the application initially because none of the reasons set out in subsection 2 were made out aside from the witness being “young” but nonetheless an adult. I am left wondering then how the trial court could possibly have reached a different conclusion except by deciding that the witness’s views trump all else. Equally, that can only be the reasoning of the Crown Court judge today.

Special measures play an important role in ensuring that vulnerable members of the community are able to get justice and give the best possible evidence. Frequently, they are used in cases where I cannot believe anybody in Parliament intended them to be used when they passed the Act. I have no doubt that they have given dishonest witnesses an easier ride in court and led to them being believed when they should not have been.

The justice system should be about achieving justice through the fair application of the law. It is not a fair application of the law for the courts to nod through applications by the Crown without any serious consideration of the issues. Nor is it right that defence solicitors fail to strongly challenge improperly made and ill-conceived applications when they are made.