#10380 - Special Measures - BPC Criminal Litigation (formerly BPTC) 2024/2025

SPECIAL MEASURES

SPECIAL MEASURES (ss16 - 33 YJCEA 1999)

• eligibility overview

  • automatically eligible (unless opt out)

    • all Ws under 18 (except Ds)

      • can be dis-applied if special measures unlikely to maximise quality of evidence

      • child can opt out, provided would not diminish quality of evidence

      • general rule: video EIC + live link evidence

    • adult Cs of sex offences / offences of trafficking for exploitation

    • any W in case involving homicide / offence involving firearm or knife

  • NOT automatically eligible (must apply)

    • vulnerable Ws affected by mental physical impairment (YJCEA s16(2))

      • applicant must:

        • provide court with material establishing W:

1. has 'disorder / disability of the mind; (MHA 1983); OR

2. has significant impairment of intelligence + social functioning; OR

3. has physical disability / disorder

   • satisfy court quality of evidence would be diminished by W's condition

   • court will consider W's wishes

   • Ws in fear / distress in connection with testifying (YJCEA s17(1))

     • court must

       • be satisfied qualify of evidence would be diminished by fear / distress, taking into account some / all following factors:

1. nature + circumstances of offence

2. W's age

3. if relevant, socio-cultural background, ethnicity, domestic + employment circumstances, religious beliefs, political opinions

4. behaviour towards W by D, D's family / associates, other person likely to be D or W

   • take into account W's views

   • application must give details of grounds + attach supporting evidence

   • may hold voir dire to determined eligibility

   • Ds under 18

• available measures

1. screening W from D (YJCEA 1999 s23)

2. evidence by live link (YJCEA 1999 s24)

   • Ws other than D (s51 CJA)

     • live link = CCTV link / any tech with that effect e.g. internet, video conference

     • direction can be given if in interests of efficient or effective admin of justice (s51(4) CJA 2003) - in deciding court must consider:

       1. availability of W

       2. need for W to attend in person

       3. importance of W's evidence to proceedings

       4. views of W

       5. suitability of facilities from where W will give evidence

       6. whether direction might inhibit party from effectively testing W's evidence (s51(6), (7))

     • judge can direct jury 'as thinks necessary to ensure jury gives same weight to evidence' as if it had been given live (s54 CJA 2003)

   • the D (s33A YCJEA)

     • court - on application by D - may direct D's evidence to be given via live link

     • live link = any tech that enables D to see and hear a person in court room AND to be seen and heard by the jury (if is one), any co-D, legal reps, interpreter + any person appointed by court to assist D

     • direction can be given if:

   1. in interests of justice

-----AND-----

2. either:

1. if D under 18:

   • ability to participate effectively as W giving oral evidence is compromised by his 'level of intellectual ability or social functioning'; and

   • giving evidence by live link would allow him to participate more effectively as W, whether by improving quality of evidence or otherwise (s33A(4))

------OR------

2. if D 18+:

   • unable to participate effectively in proceedings as W giving oral evidence because has a mental disorder (under MHA 1983 OR a 'significant impairment of intelligence and social function'; and

   • giving evidence by live link would allow him to participate more effectively as W, whether by improving quality of evidence or otherwise (s33A(5))

3. order removal of wigs + gowns whilst W gives evidence (YJCEA 1999 s26)

4. giving evidence in private (sex cases / cases where fear W being intimidated) (YJCEA 1999 s25)

5. video recording of EIC (YJCEA 1999 s27)

6. video recording of XX an re-X where EIC also recorded (YJCEA 1999 s28)

7. examination through an intermediary (young / incapacitated W) (YJCEA 1999 s29)

   • function = communicate:

1. to W, Qs put to W

2. to persons asking Qs to W, W's answers

3. explain Qs + As to enable them to be understood by W / person in Q

8. provision of aids to communication (young / incapacitated W) (YJCEA 1999 s29)

9. reporting directions

   • no matter relating to W to be published during W's lifetime, if likely to lead public to ID person as W in proceedings

10. W anonymity order

    • following conditions must be fulfilled:

1. proposed order necessary to:

   1. protect safety of W / another person; OR

   2. prevent any serious damage to property; OR

   3. prevent real harm to public interest (activities / safety of W)

   • in determining what = necessary, must have particular regard to any reasonable fear on part of W that - if W were IDd:

1. W / another person would suffer death / injury; OR

2. that there would be serious damage to property (s

2. having regard to all circumstances, effect of proposed order consistent with D receiving fair trial

3. importance of W's testimony is such that:

   1. in interests of justice W ought to testify; AND

   2. W would NOT testify if proposed order NOT made; OR

   3. real harm to public interest if W were to testify without proposed order (CJA 2009 s88)

4. even if (a) - (c) above satisfied, judge satisfied the trial will be fair (Mayers)

   • overriding responsibility of trial judge = ensure proceedings conducted fairly:

     • should consider at close of pros case AND at end of defence evidence whether - in light of the evidence as a whole - the case can safely be left to a properly directed jury (even though crucial incriminating evidence was given by anonymous Ws)

11. C anonymity sex offences

12. prohibition on XX by D of adult + child Cs in sex cases + child Cs in offences of violence, cruelty, kidnapping, false imprisonment, abduction

13. pre-trial depositions of children + young persons

• procedure for application for special measures

1. party must apply in writing not more than 14 days after NG plea (Crim PR r29.3)

1. applicant must explain:

   1. how W...