Vulnerable and intimidated defendants: The forgotten participant

Dr Samantha Fairclough, University of Birmingham, UK.

Vulnerable and intimidated non-defendant witnesses (for the prosecution and defence) are able to access a comprehensive statutory scheme of special measures to assist them to give their ‘best evidence’ in criminal trials. This provision falls under the Youth Justice and Criminal Evidence Act (YJCEA) 1999 s.16-30 and permits eligible witnesses to give evidence from behind a screen, via live link, in private, with the assistance of an intermediary (a communication specialist) or communication aids, to pre-record their evidence ahead of trial, and/or for the removal of wigs and gowns in the courtroom.

Vulnerable witnesses are those who are under 18 at the time of the trial, or adults with a physical disability or disorder, a mental disorder (as per the Mental Health Act 1983), or an otherwise ‘significant impairment of intelligence and social functioning’ (YJCEA, s.16). Intimidated witnesses are those who are ‘in fear or distress in connection with testifying in the proceedings’, taking into account the nature and alleged circumstances of the offence to which the proceedings relate, the witness’ age, their social and cultural background, and the behaviour of the accused or their supporters towards the witness (YJCEA, s.17).

If a witness falls within one or more of the above categories, then they are eligible for special measures if the quality of their evidence is otherwise at risk of diminution, and the use of a special measure(s) is thought to abate this risk. Evidence quality is defined in reference to its completeness, coherence and accuracy (YJCEA, s.16(5)). Complainants of sexual offences and those relating to slavery or human trafficking, as well as all child witnesses (under 18) are automatically entitled to special measures support.

My research criticises the YJCEA special measures provision on several grounds. The predominant ground is its exclusion of  vulnerable and intimidated defendants from eligibility for special measures. The basis for this was the Speaking up for Justice Report (1998), in which just one paragraph of the 273-page report justified the accused’s exclusion. It stated that:

(1) Vulnerable suspects in the police station are already privy to safeguards

(2) The accused is the beneficiary of other safeguards in the proceedings to ensure a fair trial (such as legal representation and their non-compellability)

(3) The special measures are designed to shield vulnerable or intimidated witnessed from defendants and so would not be useful to defendants themselves.

My research highlights that these reasons do not stand up to scrutiny (Fairclough 2018a). It is unclear how the provision of, for example, an appropriate adult in the police station negates the need for support to a vulnerable defendant during the trial. This is notwithstanding the issues identified with regard to the implementation of the appropriate adult scheme (see Dehaghani 2016). If anything, the identification of an additional need at the investigative stage should pave the way to increased support at trial, not support its denial.

It is also puzzling as to how the fair trial safeguards the report references—the provision of legal representation and the defendant’s non-compellability—help a vulnerable or intimidated defendant who wishes to give evidence in their defence (as is their legal right) and who has significant communication difficulties. A legal representative is not trained to facilitate the communication of a vulnerable individual, and nor is it their job to do so. If a defendant chooses to testify, they do so alone in the witness box, and all a defence advocate can do is object to particular lines of questioning on legal grounds. This is far inferior to the support that could be additionally provided through the use of special measures.

With regards to the final point made in the Speaking up for Justice Report, the special measures available under the YJCEA do far more than shield a vulnerable or intimidated witness from the accused. The intermediary and communication aids facilitate clear and accurate communication. Provisions for video-linked evidence enable witnesses with anxiety disorders or ADHD to give evidence from a less overwhelming room outside of the courtroom. The use of screens shields witnesses from the public gallery and thus limits the number of people they can see and be seen by, which again support anxious witnesses or those in fear or distress to testify effectively. All of these benefits are equally applicable to the accused.

The legal position has shifted since the enactment of YJCEA. The accused is now privy to some special measures provision, but these are limited and scattered across various legal sources (Fairclough 2020). Defendants can give evidence by live link as per YJCEA, s33A (inserted by the Police and Justice Act 2006) if their ability to participate in the proceedings as a witness is (at minimum) compromised by their level of intellectual ability or social functioning, or due to a mental disorder as per the Mental Health Act 1983. This is a much higher hurdle than that for non-defendant witnesses, and particularly regarding children who are automatically entitled to special measures unless they are the accused.

Vulnerable defendants can also give evidence with the assistance of an intermediary. The legal authority stems from the common law, despite a late but still dormant insertion into the YJCEA (via the Coroners and Justice Act 2010) for intermediary provision to the accused. The provision of intermediaries to the accused is plagued with issues. They cannot access the MOJ scheme of Registered Intermediaries, and so support comes from ‘non-registered intermediaries’. The support of individual intermediaries for vulnerable defendants is to be applauded, but it must also be noted that the dual-scheme of intermediaries is criticised due to general issues around sub-par training and quality (see Cooper and Wurtzel 2013).

Vulnerable defendants can also give evidence from behind a screen as per R v Waltham Forest Youth Court [2003] EWHC 715 (Admin) and the Criminal Practice Directions and Criminal Procedure Rules permit the removal of wigs and gowns and use of communication aids where it is deemed necessary.

While there is now some limited provision of special measures to the accused, it is still inferior to that which is available to all other vulnerable or intimidated witnesses in the trial. This means that vulnerable and intimidated defendants are often left without the support they require to give evidence of good quality in their defence should they choose to do so. This violates the principle of procedural equality on which the provision of special measures was developed—it leaves vulnerable defendants at a disadvantage compared with their non-vulnerable counterparts (Fairclough, 2018a). It also risks violating the principle of humane treatment.

The picture is bleaker when we look at insights from practice. As part of my doctorate, I conducted a small-scale empirical study with criminal practitioners to get their experiences of the use of special measures in Crown Court trials. My findings indicates that despite the relatively new legal availability of special measures for the accused, the provisions are seldom used in practice (Fairclough 2018b). Interviews with a small sample of criminal practitioners revealed that some were still unaware of the extent of the provision to the accused. For others, there were issues around the adequate identification of vulnerability, as well as perceptions that the special measures were ‘for’ witnesses, which prevented their consideration for the accused. Some criminal barristers also highlighted their concerns that jurors would find the use of some measures, such as live link and screens, odd because the defendant had already been present in court for the duration of the trial. This led some barristers to avoid their use for defendants; for fear that otherwise jurors would have negative views of the defendant and find their actions confusing.

The prevalence of vulnerability among those on trial in England and Wales (see Bradley 2009) indicates that something needs to be done about the provision of support to such individuals. This should come both in the form of legal changes – to eradicate the inequalities in the provision of special measures to vulnerable defendants vis-à-vis vulnerable witnesses and to provide access to a comprehensive intermediary scheme. In addition, work needs to be done with those working within the criminal justice system—namely defence solicitors, barristers, and judges—to ensure that vulnerability is recognised among defendants, and that special measures are given due attention and implemented to assist defendants who need them.

References

Lord Bradley, The Bradley Report: Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System (Department of Health 2009).

Cooper, P and Wurtzel, D. ‘A Day Late and a Dollar Short: In Search of an Intermediary Scheme for Vulnerable Defendants in England and Wales’ [2013] Criminal Law Review 4

Dehaghani, R. ‘He’s just not that vulnerable: Exploring the Implementation of the Appropriate Adult Safeguard in Police Custody’ (2016) 55(4) Howard Journal of Crime and Justice 396

Fairclough, S. ‘Speaking up for Injustice: Reconsidering the provision of special measures through the lens of equality’ [2018a] Criminal Law Review 4.

Fairclough, S. ‘Using Hawkins’ Surround, Field and Frames Concepts to Understand the Complexities of Special Measures Decision Making in Crown Court Trials’ (2018b) 45(3) Journal of Law and Society 457

Fairclough, S. ‘The consequences of unenthusiastic criminal justice reform: A special measures case study’ (2019) Criminology and Criminal Justice (online first).

Home Office, Speaking up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office 1998).

R v Waltham Forest Youth Court [2004] EWHC 715 (Admin)