Special Measures in 20 minutes

Welcome to data laws presentation on special measures. In 20 minutes, this webinar is going to look in brief but statutory powers for special measures. What was special measures are and how they could be used to advance your case for your witness or your defendant, and what we're going to cover equally applies to prosecutors and defense lawyers. Some of it might be of use to police station representatives as well. So first thing where to find the law. Most of the legislation is to be found under section 16 to 38 of the Youth Justice in Criminal Evidence Act 1999. It's been amended quite a bit, so if you pick up a copy of the act, make sure that it's up to date. If you're lucky enough to have access to Westlaw, then you'll find up to date copy of the statute. Likewise, Criminal Law Week Rule 18 of the criminal procedurals governs the actual application for making special measures. There's a bit of case law, but it doesn't really take matters much further. The advocates gateway, which is a really useful resource on anybody doing their vulnerable witness training at the moment, will be directed to that website if they haven't already been directed to it, it contains all sorts of useful stuff as we'll see in a bit. There's also the Youth Justice Legal Centre, which is an excellent website and gives all sorts of useful information about dealing with young people, the majority of whom where the witness or defendant will be vulnerable and therefore will benefit from special measures. Experience shows that the police rarely tell the prosecution what special measures will be required, although when a witness statement has taken the reverse of that statement, specifically asks about special measures. It's also the case that defense A listers don't always appreciate the wealth of special measures available on the fact that their clients are vulnerable in many situations, particularly with stresses of Troy giving evidence. So we're going to look at what special measures conducive for you. Let's start by looking at the criminal practice direction. If you have listening to this webinar after the first of October, there'll be some new rule was in force, but it's not going to substantially change what we're looking at today. You go to the criminal practice direction. Part one general matters three D you'll find a Siris of headings dealing with vulnerable people in the courts. The first, the most important point is that vulnerable people are entitled to be treated in a manner that means that they can participate in a trial or any other criminal proceedings on an equal footing to those without any vulnerabilities. Whether that be by giving evidence or having the proceedings explained to them or some other methods, such as court Familiarization, the court must take all reasonable steps. That's the phrasing to ensure that a vulnerable person is able to participate. And that means right up there upset, identifying what that person's communication needs might be, and then encouraging and facilitating their attendance and participation. Three e deals with ground rules hearings, three F deals with intermediaries and three GE deal specifically with vulnerable defendants. It's worth you reading those few paragraphs just to get a better feel for what could be done for witnesses and defendants here who is eligible next and why what anybody, in essence, whose evidence will be improved if the court thinks that by making adjustments in order to assist their communication participation. So let's say, for example, a witness suffers from a condition that's going to make it hard for them to communicate on equal terms, perhaps their death. Perhaps there without speech. Perhaps they have language or communication difficulties. Perhaps they have cognitive or learning disabilities. For example, statistics suggest that over 60% of all youths appearing in the Youth corps have language and communication difficulties. It's no surprise that many witnesses and defendants have difficulties that prevent them taking part effectively in proceedings. That's why they're victims of crime or perpetrators of crime in the first place. Because of those vulnerabilities, four witnesses There are two main ways of accessing special measures. The first is under Section 16 of the Youth Justice in Criminal Evidence. Thanks on that day was with age or incapacity. If somebody's under 18 special measures are automatic is just a question of working out, which warm. If somebody's over 18 there needs to be an application under Section 16 or under. Section 17 in Section 17 is very wide ranging. Fear or distress on the part of the witness testifying section 16 17 excluded defendant because he doesn't fit the description of witness, but all was not lost because we're going to consider what he's entitled to in a bit. With Section 16 the test is pretty low. The person making the application needs to demonstrate The test in that section is met, but the court may must only consider that the evidence might be diminished by incapacity. Your age This section 17 The court simply is required to be satisfied that the quality of the evidence of the witness is likely to be diminished through fetal distress. If special measures aren't granted Section 17 to which you could look out lists the sort of factors to take into account a lot of this is actually common sense. Well, let's imagine we apply for special measures the court indicated going to be granted. We need to say what sort of special measure the listed at sections 23 to 30 common ones, which will all encounter in court, will be screens, a remote or live link video recorded evidence in chief and in the crown court removal wigs and gowns. They're not the only ones will come onto the railroad ones later. Be careful what you're asking for, because special measures sometimes conflict if you have someone with a hearing impediment will a remote link work bearing in mind? It's exactly that it's remote. If you got a defendant who lip reads and you put the witness behind a screen, his ability to follow the evidence is going to be impaired. So you need to make sure that the special measure proposed matches. There's also common sense, which is a little used common former special measures. Sometimes they might not be a special measure listed by statute, but it's obvious that some adjustment needs to be made to the court proceedings or to the advocates means of communicating so the witness can take part. When we look at some examples of good and bad practice in a bit, let's imagine your defending and you want special measures for the defendant. Well, technically, he's not a Whitney. So what we've just looked at doesn't deploy. Don't There's a common law right for special measures for a defendant, one common one into militaries. Strictly speaking, Section 33 b A intermediaries is not yet in force, but the court has a common law power. You look at the case of OPI Amore recently, Rashid on the citations on your slide. You see the court says that the defendant has granted an intermediary and there is no right to intimate jury may only be granted that intermediary forgiving for the period of the trial of giving evidence that says the courts when the maximum strain impacts. And that's when the skills of somebody experienced in communication is needed for the rest of the trial the court can manage. The court can explain what's happening and breakdown matters into bite size chunks for the defendant to follow. Unfortunately, some intermediaries won't work on the basis there only retained for giving evidence that either do the whole child or not at all. That presents a real difficulty. But the practice direction suggests that where no intermediary can be found or where there's no funding or indeed its implicit that where the intermediary will only work on their terms of attending the whole trial. Then there'll be a trial. But the judge will be responsible for effectively playing the part of the intermediary in the Magistrates court. That role might fall to a legal adviser. Many of them have not had the training for this role, and it may for two years and advocate looking after that defendant all witnesses interests to ensure that the legal adviser does play the role effectively. The defendant can also have a live link. It might end up having both. In certain cases, let's say, for example, our defendant is a co accused is it is late teens. He's an adult. He has communications speech difficulties. He's got dyslexia. He's got the spaccia. He can't process information readily. He's charged with co accused who is a much older, much more sophisticated criminal who's been threatening him during the course of the proceedings. You know, but trial that that defendant is going to be badly affected by the intimidation. Andi. He's also going to struggle to take part in the trial because of the difficulties in communicating and understanding. And so an application for a live ling andan intermediary make sense where somebody is going to use a live link. The practice direction envisages that they should be allowed to have a practice session so that they're familiar with the live ling. On the day of the hearing, the witness service will do this for defense witnesses. They'll do it for prosecution witnesses, But there's a gap in the system because experience shows. They generally refused to do this for defendants, claiming that their budget doesn't cover it. I'm not having the good will to do it of their own accord. What about some less well known special measures? Well, under Section 44 45 46 of the Youth Justice in criminal evidence that we've got a collection of water known as reporting restrictions and directions. We're not special measures in the sense they affect your giving evidence. But they may well facilitate someone's attendance and participation at trial if that person is assured that the details are not going to be broadcast by the media. Section 44 covers the identity of a young suspect or defendant once a criminal investigation begins. So right to the beginning of procedure, Sections 45 45 a cover those under 18 involved in criminal proceedings that both the witnesses on the defendant, a witness under 18 can be given anonymity for life. The defendant, however, has anonymity. Until 18 he could make an application, albeit through the high Court, for anonymity thereafter. But the reality is that the press can publish his details once he turns 18. If no application is made. Section 46 is not much overlooked. It's a reporting direction. The court can make a reporting direction for a witness if they think that it is likely to assist or improve the quality of the evidence the witness is going to give or improve their cooperation. Let's say, for example, your alibi witness is a person who is having an affair. They don't want their spouse to find out about the affair. They don't want to come to court and give evidence because their whereabouts might come to light on. The spouse might find out the reporting restriction or direction could be applied for in those circumstances because knowing that they're going to be effectively anonymous means that they're more likely to cooperate. The Sexual Offenses Amendment Act contains a long list of offenses where the victim or complainant is entitled to anonymity. Evidence could be given in private, for example, private sexual photographs. It's unlikely that the witness will want to see those photographs on click share with the public gallery full so clear in the public gallery is the first step forward. The evidence in private is a little use special measure, but valuable video recorded cross exam. That's a pilot project in three crown courts around the country. You get a daily fee under the Advocates Grad fees scheme in the admissibility of evidence bracket for that and then communication AIDS body maps, anatomical dolls, post it notes stuck around the room with a time scale for what's going to happen in court today. To reassure the defendant, you need to give thought to what sort of special measures going to need. And if you need communication AIDS bearing in mind, the court will probably do absolutely nothing at all to assist you. It generally falls to the advocate to turn up with these sorts of things unless there's an intermediary and the intermediaries dealing with it. So if you want the witness to use communication aids, you'll need to make an application for special measures. For that, you'll need to tell the court what communication aids you have in mind, and you'll probably end up having to sort them out yourself. There are, of course, reporting restrictions under Section four and Section 11 of the contempt of Court Act as well. For example, black Well, we've already looked at the fact that there is another special measure called common sense. And if you go to the advocates gateway, you'll find no end of examples of good and bad practice throughout the 18 to kids. The address. Various vulnerabilities that also have used to civil and family practitioners. For example, Justin Communication use of language breaking down questions into very short sentences. No type questions. Those questions that end, isn't it? Because nobody knows if the answer is yes or no, it's bound, prompting on reliable answer. Post it notes with a breakdown of what's going to happen. A trial. In one example, a necktie was used so the witness could see that the time ticking away and knew that there was going to be a break coming very quickly, perhaps sitting the witness in a different seat to that traditionally used in court. Easy read leaflets, which were available for the Ministry of Justice. Those or combination of words and cartoons giving a person breaks court Familiarization all those sorts of things, Um, or there's no rules here. It's a question of what will work for the witness on the day. If you've got a young defendant who's likely to suffer from abuse or intimidation coming into court than the practice direction indicates that the court should take steps to protect them from that intimidation and to beef up security, perhaps allowing them to enter the court from a different exit than that normally used by the defendants. So having a good idea of what we want now, how do we actually get it? Well, download the form from Part 18 of the criminal procedurals from the Ministry of Justice Criminal Procedural Web site. There's loads of forms there. There's rarely any need to draft an application from scratch. You just download the form and fill it in. When do you want to apply? Well, you should apply as soon as possible. Criminal Procedural three envisages that applications for special measures should be made on the first day. The police should have done the work but failed to. But sometimes it's obvious that it's going to be a case for special measures if it can't be done on the first occasion and criminal procedure Will was 3.2 B and 3.93 suggested ought to be done Day one. Then you need to apply within the directions given standard directions normally give 28 days for the application drafted serving on the court, serving on your opponent, including any co accused append Any evidence that you want to rely upon, although there's no requirement for evidence in this situation and then ask the court to list for the application. Very mind that when you make these applications, the judge may know nothing of the case at all, and it may be necessary to furnish them with some background. Sometimes attaching the M G five in the Magistrates Court helps in the Crown Court. Of course, with the DCs system, the judge will have access to all the papers. The court may want to ground rules hearing, and it's envisaged in the criminal practice direction that wherever there were communication difficulties or witnesses who are young, there will be a ground rules hearing what sort of things that were going to do here? Well, the party with a vulnerable witness needs to complete the standard ground was hearing form. Most courts make these available. You can Google Ground rules, hearing a swell in the formal come up completed as fully as you can serve it on everybody and sure, the court has a copy in the Magistrates Court. A district judge often undertakes the ground draws. Hearing in the Crown Court, uploaded to DCs, the opponents auto at their bits because when it comes in front of the judge, he or she expects everybody to have done their work. You may find that you've got to draft the questions in time for the ground rules hearing the intermediary should attend. And so it's a good use of that hearing to sit down with the intermediary and go through your proposed questions. It may be that you're seeking a direction that a vulnerable person not be cross examined on parts of the case. You might be seeking a direction that a party be relieved of its duty cross exam in a multi hander. The judge may limit the topics per adv occurred so that a witness is not cross examined on the same issues by each of the advocate. There may be restrictions on what questions can be pork, for example. It can't be put to a witness that they're lying. These forms take a long time to complete. If you do that, your properly, don't expect the fault form to be a tick box. Expect that if you're dealing with an intermediary as well, it may take a couple of hours to complete that form on. Prepare your questions. The judge will give the directions for ground rules. It needs to be the try, and advocates attending on the judge will expect those directions to be complied with so that the case is ready to start. But the appointed time on the appointed day. What happens when you recall unawares? For example, the defendant turns up to cool, and nobody realizes that his hearings deteriorated since the matter was set down for trial. In a real life example, the court tried the induction loop, but it hasn't been charged up the usher, saying that they only charged the induction loop if they know someone is going to need it. The antiquated 19 seventies hearing aid was produced, but it didn't work. It was Converse, Um, and it was degrading for the defendant to wear it. Raising your voice or shouting gives the impression of anger, and that's intimidating. Too many witnesses. Simple solution. Instead of people standing in the normal positions in cool, everybody sits in very close range, so that the defendant can hear everything necessary, stick the defendant on the front row with counsel or stick him in the witness box between the council and judge, and the witness could give evidence from somewhere else. So when it turned, it transpires that the witnesses vulnerable and nobody's picked it up. You have to make do amend. Sometimes the needs are not apparent until now, because it's the stress of the proceedings that have bought them to the front again is common sense you're gonna have to make to amend. If you know that the defendant or witness suffers from a particular condition, you could Google. There's an awful lot of free information out there on the Internet. There's lots of charities, for example, Vista for people who have visual impairment action on hearing loss for people with hearing difficulties, the National Autistic Society mind to do very useful leaflets on post traumatic stress disorder on law on the memory. All of those will give an indication of how best to communicate the advocates tool kits will really help, giving tips on how to do things and what not to do. They're no substitute for actually sitting down with the person concerned and talking to them and getting a feel for the difficulties, and you'll have to ask them what works with them. Don't be embarrassed and hedge round it. Be direct explained that you can see they have this difficulty, and how can we work together to ensure that they can take part in the proceedings? Effectively beware stereotypes as well. For example, there's a myth that blowing people have better hearing. It's exactly that it's a myth coming to the end, protecting vulnerable people generally, whoever they are. They have rights under Article three and Article eight of the European Convention on Human Rights, Right not to be subject to degrading treatment and not being able to participate because of the vulnerability would take that box on the right to respect for privacy. In other words, the right to be treated as equally in court. Special measures only work if the advocates identify those and then deploy them. The criminal practice direction and Grenell practice Rule three make it plain that vulnerable people are entitled to be protected on, entitled to have their proceedings regulated so that they can take part on that. Ultimately, is the function of the judge or the legal voice, you will often encounter resistance in the Magistrates court. You need to use the practice direction on the criminal procedurals to get your point across. Looking after vulnerable people is just part of common decency. There's very little point resisting a special measures application because it's late. The comfortable witness is one easier to cross examine a witness who's been granted special measures has less reason not to turn up. That means that if they've been granted special measures and they don't turn up, there's a stronger argument that any application for in a German should be resisted because everything's been done to facilitate the attendance of the witness. Lastly, this is a subject that's becoming more and more important with the vulnerable witness training be rolled out. This webinar is one tiny step on your way to that training if you haven't already done it. If you look now, but the problem question, you'll get a chance to flex your muscles with this issue, reading the problem question and working through it. Plus listening to this webinar will give you one hour CPD. Thank you for listening