The University of Nottingham and Nottingham Trent University have co-published a report suggesting the special measures can be improved upon in terms of the support for vulnerable witnesses they provide in the family and criminal courts.

The report examines the impact of the ‘special measures’ introduced following the introduction of a Bill proposed by the then Justice Secretary Robert Buckland that received its second reading in the House of Commons in April 2020.

Mr Buckland’s idea was to provide all domestic abuse victims with additional reassurance when giving evidence in criminal proceedings by allowing them to, for example, give their evidence from behind a screen or by video.  As he said before the second reading:

“I know from my own experience of the legal system appearing as a witness can be a daunting experience. We need to ensure that victims can give their best evidence in court. The Bill provides that special measures are automatically available to victims of domestic abuse in criminal courts.”

Within this context a vulnerable witness is defined as a victim or a witness who:

• May suffer from fear or distress due to giving evidence
• Has a mental disorder or learning difficulties
• Is under 18 years of age
• Is a victim of domestic abuse, sexual crime, stalking or human trafficking
• Could suffer harm because of giving evidence

What are the special measures for vulnerable witnesses?

There are several ways the court can improve its support for vulnerable witnesses, some of which will be put in place before the trial and others during the trial.  These are:

• Having a ‘supporter’, a relative, friend, support worker or other designated adult you would like to be with you while you are giving evidence.

• Allowing you to give evidence via a TV screen rather than in person as a recording (‘Evidence by Commissioner’) or via live link.

• Giving evidence by prior statement which would be given to the police and then read or played during the trial if the judge allows the statement to be used in evidence.

• The option of a ‘closed court’, i.e. at the judge’s discretion the courtroom will be closed to members of the public while you are giving evidence.

What potential improvements does the report suggest could be made?

First and foremost, the cross-examination study published by the University of Nottingham and Nottingham Trent University calls for the courts to make better use of technology and training to improve support for vulnerable witnesses.  The report also claims delays to trials cause additional distress for vulnerable and intimidated witnesses.

The research initially set out to ascertain whether new approaches to cross-examination have been successful in putting witnesses at greater ease following the move away from the traditional advocacy model.  Researchers observed 40 jury trials involving vulnerable witnesses, interviewed judges, lawyers and intermediaries and examined a range of court transcripts.

They found that there is most definitely an appetite to improve the cross-examination process for witnesses to increase the likelihood of providing a fair trial.  However, poor technology was impacting the quality of witness recordings and pre-recorded cross-examination was leading to additional delays when a higher quality output was required.  In some cases, it even led to postponements as the recording had failed altogether.

The report also considers the effect of the special measures for vulnerable witnesses. 

Its recommendation is that the requirements to be classed as a vulnerable witness need to be simplified to make these measures available to everyone who needs them.  It also requests better preparation for witnesses, greater clarity over exactly what giving evidence will entail and the opportunity to practice giving their evidence in the relevant medium.

More specifically the report suggests all a vulnerable witness’s evidence should be recorded at once before the trial.

With regards to training, the researchers recommend vulnerable witness training should be part of the judicial training syllabus and, eventually, mandatory for advocates.

Many of Westgate Chambers’ barristers are vulnerable witness trained.  If you have a family or criminal case involving a vulnerable or intimidated witness and would like to discuss how you can ensure they receive the highest level of support while they give evidence, please contact us today.