Are special measures for
vulnerable and intimidated
Evidence from the criminal
Home Office Online Report 01/06
The views expressed in this report are those of the authors, not necessarily those of the Home Office
(nor do they reflect Government policy).
Are special measures for vulnerable and
intimidated witnesses working?
Evidence from the criminal justice agencies
Online Report 01/06
In 1998 the Home Office published Speaking up for Justice – the report of the
Interdepartmental Working Group on the Treatment of Vulnerable and Intimidated Witnesses
in the criminal justice system. The 78 recommendations made by this report were intended to
improve the way that vulnerable or intimidated witnesses were dealt with by the criminal
justice system and help them give best evidence in criminal proceedings. Those measures
that required legislation were included in Part II of the Youth Justice and Criminal Evidence
The research described in this report considers to what extent the new provisions have been
implemented by the criminal justice agencies and how they are operating at a practical level.
It also examines whether they have improved the identification and support of vulnerable and
intimidated witnesses and helped them to give best evidence. The research reported here is
the companion to a national survey of vulnerable and intimidated witnesses (VIWs), which
was published in June 2004. It involved interviews with representatives from the police, CPS,
courts and Witness Service; the tracking of a sample of prosecution cases; and screening
interviews with witnesses in indictable or triable-either-way prosecuted cases to assess
whether VIWs were correctly identified. The authors have shown that, while the treatment of
vulnerable and intimidated witnesses has improved, implementation of the measures has
been inconsistent and, as a result, the measures have not achieved all they were intended to.
This report provides invaluable lessons and good practice information to assist in the
development of criminal justice policy and improve the support provided to VIWs by the
police, the courts and other criminal justice agencies.
Dr Lawrence Singer
Research, Development and Statistics
Office for Criminal Justice Reform
We would like to express our sincere thanks to the criminal justice agencies and individuals
that took part in this piece of research. Their co-operation and assistance was essential to
conducting this evaluation. We are also extremely grateful for the support provided by the
Staff at LJM
BMRB Social Research
David Brown (for comments on report)
Warwick Maynard (for comments on report)
Michael Wrigglesworth (CPS – for comments on report)
Louise Moore (for comments on report).
Dr Mandy Burton is Lecturer in Law, Leicester University; Roger Evans is Professor of Socio-
Legal Studies and Director of the School of Law, Liverpool John Moores University; and
Andrew Sanders is Professor of Criminal Law and Criminology and Head of the School of
Law, University of Manchester.
Executive summary vi
1 Introduction 1
Background: the nature of the problem 1
The Speaking up for Justice analysis 3
The Speaking up for Justice reforms 4
The research 7
2 Methods 10
Agency surveys 10
Practitioner interviews 11
Estimating VIW numbers 12
Case file tracking 14
Court observations 15
3 Estimate of the proportion of VIWs 17
The ‘official’ number of VIWs 17
The characteristics of VIWs: the main sample 17
Self-identification as VIWs – estimate from the BMRB screening interviews 19
4 The identification of VIWS 24
The nature of the problem 24
Agency identification in general 24
Police effectiveness in identification 25
The Crown Prosecution Service 26
System level identification and inter-agency liaison 31
The hierarchy of identification 32
5 Pre-trial support and decision-making 38
Early strategy meetings (ESMs) 41
Police meetings with, and provision of information to, VIWs 42
CPS meetings with VIWs 43
Prosecution decisions 44
Prosecutions for witness intimidation 46
Listing special measures cases 48
6 The use and effectiveness of special measures 50
Applications for special measures 50
Video recorded evidence-in-chief 53
Removal of wigs and gowns 58
Evidence in private 59
Aids to communication/interpreters/intermediaries 59
The effectiveness of the measures 59
Problems that Speaking up for Justice has not solved 63
7 Conclusion 66
Process and outcome measures 67
Final comments 71
Appendix 1: Youth Justice and Criminal Evidence Act 1999: special 73
measures implementation (England & Wales)
Appendix 2: Letter to victims 74
List of tables
2.1 Response to agency surveys 11
2.2 Number of practitioner interviews conducted 12
2.3 (a) and (b) Response rate and reasons for unsuccessful screening 13
2.4 Number of cases observed in Phase 2 16
3.1 Proportion of VIWs in main case sample 17
3.2 Principal types of VIW in the main samples 18
3.3 Main sample: Sex of VIW victims and witnesses 19
3.4 Phase 1 and 2 identification of type (b) and (c) VIWs from 20
3.5 VIWs who felt intimidated 20
3.6 Intimidation by sex (Phase 1) 21
3.7 Intimidation by sex (Phase 2) 21
3.8 Estimates of total percentages of possible VIWs combining 21
agency and screening data from Phase 2
3.9 The ‘gap’ between official and screening interview 22
6.1 Number of police respondents who perceived measures to 60
support VIWs as effective/ineffective
6.2 Number of CPS respondents who perceived measures to 61
support VIWs as effective/ineffective
6.3 Number of Courts’ respondents who perceived measures to 61
support VIWs as effective/ineffective
6.4 Number of Witness Service respondents who perceived 62
measures to support VIWs as effective/ineffective
6.5 The views of CJS agencies on the impact of the Speaking 63
up for Justice reforms on VIWs
6.6 Facilities for VIWs offered by the WS 65
3.1 Categories of vulnerability or risk of intimidation (self- 18
The report Speaking up for Justice (Home Office, 1998) made 78 recommendations to
improve the treatment of vulnerable and intimidated witnesses (VIWs) within the criminal
justice system and to enable them to give best evidence in criminal proceedings. Some of
these recommendations required administrative action and some legislation. The Youth
Justice and Criminal Evidence Act (YJCE) 1999 contained a range of special measures
designed to assist VIWs, which were mostly implemented in the Crown Court in July 2002.
This report outlines the results of evaluative research which examined the effectiveness of
criminal justice agencies in implementing the administrative and special measures. It should
be considered in conjunction with the results of a related research project consisting of
satisfaction surveys with VIWs (Hamlyn et al., 2004a and Hamlyn et al., 2004b).
The research was conducted in two phases: Phase 1 before special measures were
introduced in 2000/01 and Phase 2 afterwards in 2003/04. Methods of data collection
• national surveys of the police, CPS, Crown Court Witness Service and Crown Courts;
• practitioners interviews in four selected areas – to ascertain what agencies said about their
implementation of the measures;
• random samples of 500 prosecution witnesses in each area to estimate agency identified
• telephone screening interviews with a sample of prosecution witnesses to estimate ‘self-
identified’ VIWs that had not been ‘officially’ identified;
• 191 prosecution cases tracked through the decision-making process; and
• 26 contested cases observed in court – to see what agencies did when implementing the
Estimates of the proportion of VIWs
• The proportion of agency identified VIWs was nine per cent which is within the seven to
ten per cent range estimated by Speaking Up For Justice.
• Around 45 per cent of the witness sample self-identified as potentially VIW during
telephone screening interviews.
• When added to those eliminated as ‘categorical’ VIWs, the total proportion of all witnesses
in the samples who were possibly VIW was 54 per cent. In practice decision-makers apply a
three-stage test: 1) Is the witness potentially vulnerable/intimidated? If yes: 2) Is this likely to
affect their willingness or capacity to give ‘best evidence’ in court, and to cause them undue
stress in or before court? If yes: 3) What type of support or assistance will be most likely to
alleviate these difficulties?
• Applying this test the researchers found that, on a very conservative estimate, 24 per cent
of witnesses were probably VIW. The gap between this and the official estimate (between
seven to ten per cent) was considerable.
The identification of VIWs
• Early identification by the police and the CPS is vital but the police continued to have
difficulty in identifying VIWs, particularly those with learning disabilities, mental disorders or
those who are intimidated.
• The CPS rarely identified witnesses as VIW if they had not been identified by the police,
even those that were categorically VIW.
• Many VIWs were identified for the first time by the Witness Service (WS) when they
arrived at court, which was often too late for them to benefit from measures. WS staff were
often the focal point for information sharing in courts and they were particularly effective in
courts with VIW officers.
• There was a hierarchy of identification, whereby some categories of VIW (particularly
children and victims of sexual offences) were more likely to be identified as VIW than others.
Pre-trial support and decision-making
• The police are usually the first agency to provide VIWs with information about the
measures available to them and ascertaining their views. They often did not flag up the
vulnerability of witnesses to other agencies, thus preventing them from making their own
• Pre-court visits were potentially the most useful of the non-statutory measures available
but were often not offered to VIWs. They would alleviate many of the problems uncovered in
this research e.g. non-identification, pre-judgment of VIW needs, and inaccurate information
from the police about special measures.
• Video recordings were made of only a minority of VIW interviews, even with child
witnesses. This may have been in part because some magistrates’ courts did not have the
facilities to use videos as evidence during the Phase 2 fieldwork.
• Police and CPS working in the areas included in this research claimed that they held
strategy meetings but no examples of such meetings were found in any of the VIW cases
• CPS prosecutors rarely met VIWs, and made little use of recorded interviews with VIWs in
• In general, much police and CPS decision-making was focused on special measures.
Cases where an application was not thought appropriate were not treated as VIW cases even
though issues such as bail and fixed listing could be important.
The use and effectiveness of special measures
• In many cases the CPS applied for special measures at a late stage, including on the day
of the trial. This was accepted practice in relation to measures such as screens, clearing the
public gallery and the removal of wigs and gowns. This ignored the value to VIWs of knowing
what will happen in court well in advance of the hearing.
• The CPS did not make applications for some prosecution witnesses because defendants
were also VIW and they sought parity of treatment. If special measures were available to
defendants this problem would not arise.
• Judges generally granted applications, and trial judges very rarely disagreed with
decisions made in earlier stages of their cases.
• Video recorded evidence and the live television link (CCTV) were highly regarded by
practitioners and VIWs who used them. Some practitioners had reservations about televised
evidence because they thought it was less convincing than ‘live’ evidence. There is no
research evidence to indicate that acquittals are more likely using these methods, however.
• Screens were less highly regarded by most agencies. However, for VIWs themselves
there were advantages – screens shield VIWs from the defendant’s view whereas CCTV does
• Other special measures were used infrequently because CJS agencies made assumptions
about their applicability rather than utilising the three-stage test.
• Overall, the agencies believed that VIWs were, and felt, better assisted now than prior to
the YJCE Act and this finding is consistent with the BMRB Social Research data. Nonetheless
both studies showed that there is a significant unmet need.
• Of the ten process and outcome measures set out in Chapter 1 of this report, practice was
found to work poorly for five, well for two and variable for three.
• Some areas of practice were identified as capable of improvement without radical change,
some require significant cultural change and others require major legislative and structural
• Greater use could be made of the WS as it was, in many ways, the CJS agency that
• The focus of policy and practice tended to be the courts, as successful court cases are the
ultimate objective of most criminal justice processes. This research has shown that effort
must now be directed at the investigation and pre-trial processes as much as at court
processes, for more of these court cases to be successful.
This chapter begins by setting out the background to the government’s initiative on vulnerable
and intimidated witnesses, its objectives and its main features. This initiative consists of
various legislative changes introduced by the Youth Justice and Criminal Evidence Act 1999
including special measures for these witnesses, and the accompanying Home Office (2002)
guidance on best practice for the various criminal justice agencies. The chapter then explains
the objectives of the research being reported here that sought to evaluate this initiative, and
how the research was conducted. Finally, it identifies some key process and outcome
measures that, in the final chapter, are used to evaluate the impact of the initiative.
Background: the nature of the problem
It has become a cliché to observe that the criminal justice system (CJS) takes little heed of
the needs and concerns of victims and witnesses. Decisions to prosecute are made by
enforcement agencies (generally the police and Crown Prosecution Service (CPS)); 1
prosecutions are continued (or not) on the basis of prosecution assessments of the public
interest (of which the victims’ interests form only part) and the likelihood of success. Similarly,
the way in which the prosecution is conducted is shaped by the needs of the defence and
prosecution to each secure the best evidence it can to support its side of the case. In the
meantime the government is under constant pressure to help secure higher detection and
conviction rates, whilst simultaneously avoiding the miscarriages of justice that beset the CJS
in the last part of the 20th century. This puts pressure on the police and CPS to secure as
many convictions or, at least, as few acquittals, as possible. Given all these competing
considerations, it is little surprise that the interests and needs of victims and witnesses have
traditionally been neglected.
The Anglo-American common law system poses particular problems for victims and
witnesses. Common law systems are adversarial and rely far more than do inquisitional
systems (such as are common in Europe) on the provision of oral evidence in prosecutions.
Not only do witnesses generally have to give evidence orally, which can be an ordeal for
many people, but – inevitably in an adversarial system – this can be challenged by the side
against whom evidence is being given. Challenge, in the form of cross-examination, can be
robust, making the giving of evidence even more of an ordeal in many cases. In civil law
systems, by contrast, much evidence is given to examining magistrates in private and much
questioning in court is done by judges, all of which is less traumatic for sensitive witnesses
than are adversarial processes.
The problem lies not just in court. Since 1986, when the CPS was established, the police and
CPS have needed to anticipate how witnesses will cope with examination and cross-
examination in court. This is so they could prosecute only those cases in which there was a
good chance of success. Thus they were often reluctant to prosecute cases that relied on
witnesses who they thought would ‘perform’ badly. Sometimes the police tested the resolve of
these witnesses, often the victims of sexual offences, by being as brutal to the victims in the
police station as defence lawyers were likely to be in court. In these respects, police and
prosecutors were often perceived to be on the side of the defence (admittedly not the usual
accusation against the police) rather than being neutral or on the side of the victim. In
general, when cases were prosecuted, little support was given to victims and witnesses by
police, CPS or the courts; and when cases were not prosecuted, many victims felt that
agencies were prioritising the ‘figures’ and conservation of resources over their desire to at
least make alleged offenders answer the allegations made against them.2
Nevertheless, from the early 1970s on – concern for victims and witnesses was gradually
entering the public domain in the UK and elsewhere. Victim Support gradually grew into what
It is usually possible, in principle, for victims to prosecute privately but, in practice, it is very difficult and expensive
and so is very rare.
For a good discussion of the problems in the 1980s see Shapland (1985).
is now a multi-million pound Non-Governmental Organisation (NGO) giving support and
specialised services to thousands of victims every year. Its more recent off-shoot, the Witness
Service, again began small (in major Crown Court centres) but now has a presence in all
Crown and magistrates’ courts in England and Wales. In addition to the services these
organisations provide, they have been effective in policy-making and lobbying to improve their
clients’ situations. Much of the consciousness of the needs and desires of witnesses and
victims that led to the measures evaluated by the research reported here is a product of the
work of these organisations (Rock, 1990; 2004).
It was recognised relatively early on that some groups were particularly badly treated and/or
were particularly vulnerable to the pressures outlined above. Victims of sexual offences, who
often felt stigmatised by simply having their ordeals made public, frequently had their traumas
compounded by being cross-examined about their sexual habits. Thus, in 1976 legislation
was passed that aimed to restrict questioning that “does not advance the cause of justice but
in effect puts the woman on trial” (Heilbron, 1975). This legislation3 did not improve the
situation as much as had been hoped (see, for example, Harris and Grace, 1999; Temkin,
2000). Therefore, the Youth Justice and Criminal Evidence Act (YJCE Act) also included
provisions that sought to restrict that type of questioning further. 4
The next group recognised as having special needs was children (Morgan and Zedner, 1992;
Spencer and Flin, 1993). Special measures to assist children in giving accurate evidence
whilst reducing the stress on them, such as the facility to give pre-recorded evidence and to
give evidence via CCTV, were introduced over several years from 1988 onwards.5 In addition,
children had traditionally not been seen as being reliable witnesses. Lawyers and judges had
so greatly mistrusted children as providers of evidence that, until 1988, judges had to warn
juries to be wary of relying on their evidence if it was uncorroborated. In the meantime, the
police were being urged to recognise the special needs and concerns of children at an early
stage of the investigation, which was in any case essential if their evidence was to be video
recorded whilst the facts were still fresh in their minds. The Home Office introduced a
memorandum of good practice for video recorded interviews with child witnesses. The
underlying philosophy was that, so far as possible, children should be allowed to tell their own
story. This is the ‘achieving best evidence’ (ABE) approach (see Home Office/Department of
Health, 1992, and the evaluation of this by Davies et al., 1995).
People with learning disabilities and mental disorders were generally regarded by courts and
other agencies as cautiously as were children. Once children began to be treated differently
and with more respect, the next obvious question was how these other vulnerable groups
should be treated. Research in the mid-1990s showed that people with learning disabilities
(and, by extrapolation, mental disorders) were particularly vulnerable to crime, particularly
vulnerable to the stresses of giving evidence in court, treated with little credibility by criminal
justice agencies (including courts in many instances), and unlikely to benefit from the types of
measure introduced for children (Sanders et al., 1997). It has come to be recognised that
some similar problems exist for people with physical disabilities too. Disabled children were
identified as a particularly vulnerable group, in terms of both being more likely to be abused
and being less likely to have their needs accommodated by the legal system (Morris, 1999).
Finally, awareness has increased of the intimidation of witnesses. The capacity of organised
crime groups to intimidate witnesses has long been known. Of equal concern is the less
organised intimidation to which many more victims and witnesses are subject, particularly
where domestic violence is concerned – in itself a type of crime that has only been taken
seriously in the criminal justice system in the last ten years or so. It became apparent that
many of the measures introduced to help other vulnerable groups could help intimidated
witnesses too (see generally, Maynard, 1994; Fyfe and McKay, 2000; Tarling et al., 2000).
Sexual Offences Act 1976.
These provisions are the subject of a separate research study (see Kelly et al. Section 41 – An Evaluation of New
Legislation Limiting Sexual History Evidence in Rape Trials (forthcoming) Home Office).
Reforms were introduced by the Criminal Justice Acts 1988 and 1991.
The Speaking up for Justice analysis
Soon after its election in 1997, the new government made a commitment to provide greater
support and assistance for victims in trials of sexual offences and for vulnerable and
intimidated witnesses (VIWs) generally. It therefore established an inter-departmental working
group to undertake a wide-ranging review. The report Speaking up for Justice was the result.
This endorsed the arguments of Sanders et al. (1997) that many of the reforms introduced in
the 1980s and 1990s for children could be equally applicable to these other vulnerable
groups. Not only would this help secure convictions and reduce the stress of giving evidence,
but also this would encourage vulnerable witnesses to report offences and to give evidence
(Home Office, 1998, p.1).
Estimating the numbers of VIWs
It was estimated in Speaking up for Justice that two to three per cent of all adult prosecution
witnesses would be intimidated, and that five to seven per cent would be vulnerable in other
ways; thus it was believed that seven to ten per cent of all adult prosecution witnesses would
be VIWs. It was also estimated that between five and ten times these numbers might be
involved in police interviews (Home Office, 1998, p.97). Previous research suggests that the
vast majority of vulnerable witnesses are victims (Sanders et al., 1997).
However, these estimates were based on figures provided by criminal justice agencies, the
police in particular. The police play a critical role in the early identification of VIWs, as virtually
all cases originate with the police investigation of a crime (albeit often following report of the
crime by the victim or a civilian witness). The police are likely to have more difficulty in
identifying some categories of vulnerable or intimidated witness than others. While the
identification is categorical in the case of children and victims of rape or other serious sexual
offences, the police have difficulties identifying those with mild learning difficulties (Sanders et
al., 1997). By extension they are likely to have the same problem with mild mental disorders,
and, perhaps, mild physical disabilities and some intimidation. Thus it cannot be assumed, as
Speaking up for Justice did, that police estimates are accurate.
Gudjonsson et al. (1993), in research for the Royal Commission on Criminal Justice, used a
screening interview in order to estimate the difference between the proportion of suspects that
the police identified as vulnerable and the ‘real’ proportion (as identified by the researchers). It
was found that the police identified vulnerable suspects in four per cent of cases whereas the
independent estimate was between 15 and 20 per cent. Assuming that there are similar
issues with the identification of vulnerable witnesses, it was expected that the ‘official’
estimate of VIWs would also be a significant underestimate. Therefore, the approach used in
the research of Gudjonsson et al. was adapted for the purposes of the current research to
provide an estimate of the number of vulnerable and intimidated witnesses that was
independent of ‘official’ identifications. The methodology is discussed further in Chapter 2,
and estimates from the screening interviews are contrasted with ‘official’ estimates in Chapter
Vulnerability and risk of intimidation
Once it was accepted that a substantial body of witnesses and potential witnesses are
vulnerable or intimidated, and that special support should be provided to them, the next
questions are: what type of support and on what basis?
Speaking up for Justice identified three models on which to found the basis of support (Home
Office, 1998). First, there is the categorical approach, by which specified categories e.g.
‘mentally disordered’ and ‘learning disabled’ – are defined as eligible. The advantage of this is
that people know in advance where they stand, agencies can predict what will happen, and
the numbers eligible can be estimated beforehand and kept within bounds. The disadvantage
is its rigidity. It creates artificial cut-offs between those who are, and those who are not,
‘vulnerable’. In reality, vulnerability is a spectrum, ranging from situational vulnerability
(relating to only one type of situation, such as speaking in public or confronting the offender)
to general vulnerability, and from mild vulnerability (that might be, for example, catered for by
pre-trial familiarisation with the court or by giving evidence on a CCTV link) to severe
vulnerability (that might, for example, only be catered for by speaking through an intermediary
or that cannot be catered for in any proceedings). Even within the relatively limited category of
‘learning disabled’, the spectrum of vulnerability is very wide, and the types of problem vary
immensely, leading to the need for a variety of solutions (Sanders et al., 1997).
The second approach is to assess whether a witness has one or more specified
characteristics, such as communication difficulties, or trauma as a result of the crime. The
advantages and disadvantages of this approach are the flip side of those of the categorical
approach – its open-endedness allows for flexibility and inclusiveness, but could lead to
delays, uncertainty and an ever-widening pool of eligible witnesses.
The third approach, which Speaking up for Justice recommended, and which the Government
adopted in the Youth Justice and Criminal Evidence Act 1999, is to combine the two. In other
words, for some groups there would be a presumption of vulnerability, while others have to
meet a threshold to be determined by a judge.
This means, in effect, that decision-makers have to apply a three-stage test:
1. Is the prospective witness potentially vulnerable/intimidated?
2. If yes: Is this vulnerability/intimidation likely to affect whether they will be willing to testify in
court, to affect their capacity to give their ‘best evidence’ in court (i.e. evidence that is
complete, coherent and accurate), and to cause them undue stress in or before court?
3. If yes: What type of support or assistance will be most likely to alleviate these difficulties?
Awareness of this three-stage test informs much of the evaluation of this initiative that is
presented in this report.
The Speaking up for Justice reforms
The report, which was accepted by the Government, made 78 recommendations to improve
the treatment of VIWs within the CJS and to enable them to give best evidence in criminal
Measures to assist VIWs
Special measures that required legislation were included in the YJCE Act 1999. Other forms
of assistance required administrative action and training. These measures cover the
investigation stage, pre-trial support, the trial and beyond. Note that, in this report, ‘measures’
is the global term that will be used to refer collectively to special measures and other forms of
assistance for VIWs, whenever it is necessary to refer collectively to both.
The special measures specified by the YJCE Act include:
• screens – to ensure that the witness does not see the defendant;
• video recorded evidence-in-chief – allowing an interview with the witness, which has been
video recorded before the trial, to be shown as the witness’s evidence-in-chief in court;
• live link – live television link (CCTV) or other arrangement allowing a witness to give
evidence from outside the courtroom;
• clearing the public gallery of the court – so that evidence can be given in private;
• removal of wigs and gowns in court;
• allowing the witness to use communication aids – e.g. alphabet board (vulnerable
• video recorded pre-trial cross-examination and re-examination – allowing a witness to be
cross-examined or re-examined before the trial about their evidence, and a video
recording of that cross-examination or re-examination to be shown at trial instead of the
witness being cross-examined or re-examined live at trial; and
• intermediaries – allowing an approved intermediary to help a witness communicate with
legal representatives and the court (vulnerable witnesses only).
In addition, other forms of assistance, which are not referred to as ‘special measures’,
• pre-court familiarisation visits;
• presence of a supporter in court;
• escorts to and from court;
• liaison officers;
• separate waiting areas; and
• use of pagers.
The majority of special measures set out in the YJCE Act were introduced in Crown Courts on
24 July 2002 for vulnerable witnesses. However, pre-trial video recorded cross-examination
and re-examination will not now go ahead but will be subject to a review. Examination through
an intermediary is the subject of a separate pilot project. With the exception of video recorded
evidence-in-chief, the same special measures have been implemented for intimidated
witnesses in the Crown Court as for vulnerable witnesses. Implementation in the magistrates’
courts in July 2002 was restricted to the use of live links and video recorded evidence-in-chief
for child witnesses in need of special protection. On 3 June 2004 roll out of special measures
in the magistrates’ courts continued with the introduction of screens, evidence in private and
communication aids. However, judges and magistrates have always had a common law
power to order the use of screens; they were so ordered, on this basis, in some VIW cases
not involving children in Crown Courts in particular in the 1990s (Sanders et al., 1997). So the
legislative introduction of screens into magistrates’ courts simply formalised the existing
position. Further measures are expected to be rolled out in 2005/06.6
Therefore, only the first six special measures listed above were included in the current
evaluation. These were all implemented in Crown Courts, but not in the magistrates’ courts,
during the field work periods. It is possible that the unavailability of some special measures in
general, and some special measures in magistrates’ courts, may have affected police and
CPS decision-making, although it should not have done so.
The CPS has introduced a national special measures monitoring form which should be used
by all CPS offices in order to monitor the use of special measures.7 However, this is of limited
value as it is not a VIW monitoring form – that is, it does not note the number of officially
identified VIW cases (where, for example, special measures are not sought). This represents
a lost opportunity. Were there such a form one could compare:
• the number or percentage of VIW cases in each area to assess how well different areas
identify VIWs; and
• the percentage of VIW cases in each area in which special measures were used to
assess how special measures are viewed and used in different areas.
Categories of VIW
Four categories of VIW are set out in the YJCE Act:
• people with learning disabilities or who are mentally disordered;
• people with a physical disability or disorder; and
• people suffering from fear or distress as a result of the crime (e.g. sexual offences,
domestic violence) or as a result of intimidation.
For a table showing implementation progress and plans, see Appendix 1.
This form was introduced for a 12-month period only and will shortly be the subject of a report by the CPS.
Other than where the witness is a child or a complainant in a sexual offence, violence or child
abduction and neglect case, the witness will only be eligible for special measures if the court
is satisfied that the quality of their evidence would otherwise be diminished if they were not
given access to one or more of the special measures that are available. In these
circumstances it is a matter of discretion on the part of the CPS whether to apply and on the
part of the judge or magistrate to whom application is made whether to grant it, although the
court can also make a special measures application of its own motion. In the case of children
it is further presumed that evidence which is pre-recorded will be admitted as evidence-in-
chief and that any further examination-in-chief and cross-examination will take place via
CCTV. Where a video recording of the child’s evidence has not been made, it is presumed
that a child witness’s evidence-in-chief will also be via live link. For child witnesses in need of
special protection (defined by section 21 of the YJCE Act) the provision of video evidence-in-
chief or live television links is near mandatory, and it is not necessary to demonstrate that
they would improve the quality of the witness’s evidence.8
It is important to examine these provisions in the context of the three-stage test mentioned
earlier. For some VIWs the police, CPS and courts need do little beyond answering the first
question. That is, if the victim is a child or victim of a sexual offence the answer to the first two
questions is ‘yes’, and there is a statutory presumption as to the measures to be applied.
However, it should be noted that these presumptions are all rebuttable and there is no
obligation on adult victims of sexual offences, for example, to avail themselves of special
measures. For other witnesses, it may not be obvious that a witness is potentially vulnerable.
If, on investigation in any one case, the police decide that the witness does, for example,
suffer from a mild learning disability they might need to discuss with the CPS whether this
disability is sufficiently serious to apply for measures (question 2) and, if so, what measures
(possibly, but not necessarily, including special measures) (question 3). Sometimes the issue
is not the mildness of the vulnerability but its seriousness. If, for example, the witness suffers
from a severe learning disability, the police and CPS may decide that only an intermediary
could enable evidence to be given effectively. The decision whether or not to call the witness
(which may determine whether or not to prosecute) could determine whether this reform is
implemented at the time of the case. The important point to note is that only when the first two
questions have been answered can this third question be tackled. In other words, accurate
identification of VIWs is the essential first step – and is the subject of Chapter 4.
Special measures and human rights
Added impetus was given to this government initiative by the increasing international
recognition that victims should be accorded rights to dignity and fair treatment in the CJS, and
that VIWs should be, as far as possible, put on a level playing field with other witnesses. In
other words the special help given to them should be seen as enabling them to give evidence
as effectively as any other witness and to minimise the trauma and stress of giving evidence.
Similarly, victims in general are seen as having rights with the same objectives. Thus, added
to the government’s own Victims Charter we now have an EU Framework Decision on the
rights of victims (discussed by Sanders, 2002). Indeed some writers argue that the rights of
victims should be put on a par with those of suspects and defendants and that, like suspects
and defendants, the most important rights of victims should be seen as ‘human rights’ (see,
for example, Ashworth, 1998).
This raises the question why it was decided to adjust the adversarial process in the way the
YJCE Act does (what Ellison (2001, Ch.1) calls an ‘accommodation’ approach), rather than
sweeping away the CJS’s adversarial focus and presentation of oral evidence. Arguably this
would be a far more effective way of dealing with the problems faced by VIWs.
The answer lies in the very fact of human rights – in this instance, for defendants. Under
Article 6, ECHR, defendants have the right, in particular, to a fair trial. This includes the right
to challenge evidence given against them. Some degree of adversarialism which adheres to a
principle of ‘equality of arms’ is necessary, and civil law systems are therefore finding
themselves obliged to move further towards common law systems just as arguments for
See Regina v. Camberwell Green Youth Court and others  EWHC 227 (Admin).
moving the latter further towards civil law systems are gaining ground. As we shall see, even
some of the limited Speaking up for Justice reforms are challengeable on human rights
grounds, although not yet successfully;9 and one of the YJCE Act changes to the law of
sexual offences that is not being evaluated here has been challenged in the courts on these
grounds with partial success. 10
It is notable that, although prosecution and defence witnesses who meet the criteria can apply
for special measures, defendants are not eligible. Arguably this is contrary to Article 6
(Hoyano, 2001). Another theme that will therefore emerge in this report, in Chapter 6, is
wariness on the part of prosecutors and courts. Some fear that if these reforms go much
further, they will be successfully challenged by the defence and some feel that even if the
defence do not win such challenges the situation is simply unfair.
The Home Office commissioned two related pieces of research into its initiative on VIWs:
1. to evaluate how well the special measures have been implemented throughout the
criminal justice system; and
2. to examine the level of satisfaction of VIWs with their experience of the CJS before and
after the implementation of special measures in Crown Courts.
The present report deals with the first of these aims. Research that addressed the second
aim has already been published (Hamlyn et al., 2004a and Hamlyn et al., 2004b).
The research reported here was conducted in two phases: before (Phase 1) and after (Phase
2) the implementation of special measures in Crown Courts. At the time that the research was
commissioned it was expected that implementation would start in the Crown Courts in
Autumn 2000. With that in mind Phase 1 of the research was designed to take place in a six-
month period from April 2000 and Phase 2 from Summer 2001. The gap between the phases
was to allow for a ‘bedding down’ period between the expected implementation date and the
start of the second phase of the research.
In the event, implementation in the Crown Courts did not commence until July 2002. So
although the timescale for Phase 1 appears to be over two years, in fact the Phase 1
research was designed to be completed in six months and Phase 2 in 12 months. In practice,
Phase 1 fieldwork was conducted from July 2001 until September 2002, with the majority of
the work concentrated in the first six months. Phase 2 fieldwork was conducted from April
2003 until May 2004.
Objectives of the research
The main aims of Phase 1 of the evaluation were to:
1. estimate the number of vulnerable and intimidated witnesses in various groups;
2. determine what measures were in place to assist the identification and support of
vulnerable witnesses prior to the implementation of special measures under the 1999 Act;
3. determine the extent to which relevant agencies had developed their practices in the light
of Speaking up for Justice.
One point in the Camberwell Green case, op cit, concerned the near-mandatory nature of some of the YJCE Act
provisions, which, the defence argued, contravened Article 6 rights to fair trial. The argument failed on the ground
that all courts have an inherent power to adjust proceedings in the interests of a fair trial – which would not be so if
the YJCE Act provisions were completely mandatory.
This is the change to the law on sexual history evidence. See Temkin (2003) and Birch (2003).
The main aims of Phase 2 were to:
1. estimate the number of vulnerable and intimidated witnesses in various groups;
2. establish whether the measures improved the identification of vulnerable and intimidated
3. establish the steps that agencies took to implement the special measures for
vulnerable or intimidated witnesses;
4. establish how special measures operate at a practical level and what problems have
been encountered in their implementation;
5. establish whether special measures led to an increase in the target groups identified and
determine how this is monitored; and
6. discuss what further measures may be needed to support vulnerable or intimidated
How the research was approached
One of the main aims of the research was to assess whether the intentions of the YJCE Act
and the accompanying best practice guidance issued by the Home Office had been achieved.
In order to do this key process and outcome measures were developed. Processes were
distinguished from outcomes because, although related, without properly embedded and
effective processes, desired outcomes are unlikely to be achieved. Conversely, where
outcomes are not achieved this is likely to be the result of the failure of appropriate
processes. Examples of processes in this instance are training to raise awareness of VIWs in
order to lead to improved identification and the introduction of early strategy meetings
between the police and the CPS. Therefore, assessing changes in processes and measuring
outcomes are different, if related, aspects of evaluative research. Identified below are some
key process and outcome measures of the agenda for change for VIWs. These form a
template for the evaluative aspect of the research.
1. Appropriate training for all agencies comprehensively deployed.
2. Deployment of guidance to enable better identification of VIWs.
3. Video suites for Achieving Best Evidence (ABE) interviews available and used
4. Implementation of VIW monitoring systems.
5. Good levels of VIW file completion and endorsement.
6. Accurate advice to witnesses about special measures.
7. Information-sharing, liaison and strategy meetings between the criminal justice
8. Increase in proportion of VIWs identified by the police.
9. Use, where appropriate, of special measures in court and other measures.
10. Increase in satisfaction of VIWs with the court process.
It is important to recognise the main limitation of both the research reported here and of the
associated research by BMRB Social Research (Hamlyn et al., 2004a). These are studies of
vulnerable and intimidated witnesses – not of vulnerable and intimidated victims. The point
being made here is not the legalistic one that not all victims are witnesses and vice versa. It is
that both studies only looked at cases that had been or were being prosecuted. Unlike the
earlier study by Sanders et al. (1997) of one category of VIW (the learning disabled) neither
study looked at the process leading up to the decision whether or not to prosecute. It is clear
from the work of Sanders et al. and others that cases in which there are VIWs are prosecuted
far less often, proportionately, than ‘normal’ cases. This is precisely because of the evidential
problems that the Speaking up for Justice measures are designed to deal with. It follows that
neither study can shed any light on how successful the Speaking up for Justice measures are
in this crucial respect.
Speaking up for Justice heralded a major set of reforms aimed at encouraging vulnerable and
intimidated witnesses to give evidence in court and to do so without the trauma and stress
that used to be all too common. The effectiveness of these reforms do require the police and
CPS, in particular, to be aware of the need to identify potential vulnerabilities and then to
evaluate them in each case. This is potentially a huge task, and, as demonstrated in this
report, requires a level of preparedness that asks a lot of the agencies in the criminal justice
system. The following chapter describes the methods used to evaluate how prepared the
agencies were and how effective they were in implementing the reforms.
This chapter describes how the national surveys of CJS agencies were carried out, and how
interviews with representatives from these agencies were conducted in four areas selected
for close study. It examines how an estimate of witnesses that were VIW, but that had not
been identified as such by the agencies, was made using a telephone screening interview
with randomly selected samples of 500 witnesses (the ‘main samples’) in each area. Finally
the chapter examines how the officially identified VIW cases in the main samples were
tracked through the decision-making process and how some of these, and some others, were
observed at court.
While the chapter is primarily concerned with describing the methods used, some of the
difficulties that the agencies had in identifying VIW cases for research purposes also suggest
substantive findings about the problems that they encounter in their day-to-day practices.
The police, CPS, Crown Court Witness Service and Crown Courts were surveyed. The
content of the surveys varied depending on each agency’s particular role.
Phase 1 surveys were conducted in 2000 and were designed to collect baseline information
before the implementation of the special measures under the 1999 Act. The original intention
was that these should be brief questionnaire surveys in pursuit of aims 2 and 3, i.e. to
determine what measures were in place to assist the identification and support of vulnerable
witnesses prior to the implementation of special measures under the 1999 Act and the extent
to which relevant agencies had developed their practices in the light of Speaking up for
Justice. The surveys were also used to try to determine those police and Crown Court areas
that have a high or low proportion of cases involving VIWs; and to distinguish those areas that
exemplify ‘best practice’ from those at a lesser stage in the development of their support for
VIWs. They also included a request for any relevant documentation, such as policy
statements or special project reports, and a request to identify or estimate the number of
cases involved. The agencies were asked to describe how far their policies and practices
have been developed as a result of Speaking up for Justice (Home Office, 1998).
The topics included in the surveys were:
• identifying vulnerable or intimidated witnesses;
• consulting vulnerable or intimidated witnesses about their needs;
• keeping witnesses’ needs under review at each stage in the process;
• supporting and assisting at the investigation and pre-trial stages;
• supporting and assisting VIWs to attend at court and reducing stress during and after trial;
• communication and co-operation between criminal justice agencies;
• reasons why cases fail;
• challenges posed by different types of witnesses and cases;
• training and services;
• challenges to implementing change; and
• effectiveness of special measures currently available.
The Phase 1 surveys were replicated in Phase 2, though with some revisions. In Phase 2 all
the questionnaires were concluded with two standard format questions. The first asked the
respondent to rate each individual special measure in terms of effectiveness. The second
asked whether, in the first instance, VIWs feel better supported after Speaking up for Justice,
and, in the second, whether they are better supported. Some changes were made which were
specific to the individual questionnaire. The Witness Service and CPS questionnaires were
very similar to the Phase 1 versions. There were additional questions in the police
questionnaire about liaison with other criminal justice agencies in relation to identification and
about gaps in training. A general question about how the police identified VIWs and a series
of questions about identification and protection for intimidated witnesses were removed. The
Phase 2 court questionnaire was substantially longer with additional questions about Plea
and Directions Hearings (PDH), prosecution applications for special measures, defence
responses and listing. As a consequence of these changes, many questions in the Phase 1
questionnaires were not directly comparable with those of Phase 2.
Table 2.1 shows that the response rates were generally good. In Phase 1 the agencies with
the highest response rates were the police and the CPS and in Phase 2 the highest response
rate was from the Crown Courts. For both phases, the agency with the lowest response rate
was the Witness Service (although the response rates were considered to be good for a
mailed questionnaire to a voluntary organisation).
Table 2.1: Response to agency surveys
CJS agency Total Response rate
surveyed Number %
Police 42 41 98
CPS 42 39 93
Witness Service 89 45 51
Crown Courts 15 12 80
Police 42 37 88
CPS 42 32 76
Witness Service 89 46 52
Crown Courts 16 15 94
Following the Phase 1 surveys, four police force areas were selected for more detailed study,
using a variety of criteria and in discussion with the Home Office’s VIW steering group. The
(a) the expected volume of VIW cases in the Crown Courts;
(b) a mix of urban and rural areas; and
(c) areas that the surveys suggested represented different stages in their development of best
Semi-structured interviews with a selection of practitioners in each area were carried out in
late 2000 and early 2001 for Phase 1 and in June and July 2003 for Phase 2. The aim of
these interviews was to enrich the data collected from the practitioner surveys by examining
in depth practitioners’ views on the key topics covered in the surveys. Interviews were
conducted with representatives from the police, the CPS, and Witness Service, and with court
officials and judges. Table 2.2 shows the number of interviews conducted.
Table 2.2: Number of practitioner interviews conducted
CJS agency Phase 1 Phase 2
Police 4 3
CPS 4 4
Witness Service 8 8
Court officials 10 12
Judges 8 8
The interviews were carried out either by the same interviewer in both phases, or under the
direct supervision of the original interviewer. The practitioners interviewed in Phases 1 and 2
were not necessarily the same individuals. In some areas there was continuity in
responsibility for VIWs, but in some instances personnel changes had been made and a
different person was interviewed in Phase 2. It is worth noting that, despite strenuous efforts,
the police force in one area was unable to nominate anyone with overall responsibility for
VIWs or anyone who could provide an overview of strategy, policy and practice in the force.
This suggests that this force was an example of one which was at a less advanced stage in
the implementation process.
Estimating VIW numbers
Chapter 1 suggested that the Speaking Up for Justice estimate that between five and seven
per cent of prosecution witnesses would be vulnerable, and that between two and three per
cent would be intimidated, was likely to be an underestimate. Since these estimates were
based on police estimates, it is likely that the police fail to identify significant numbers of
VIWs. It is important to discover whether this is so, for if the police fail to identify a VIW at an
early stage it is unlikely that the Speaking Up for Justice measures will be available to that
Again as stated in Chapter 1, it was decided to adapt the screening interview used by
Gudjonsson et al. (1993) to provide an estimate of the number of VIWs that was independent
of ‘official’ identifications. In Phase 1 the police in the four study areas were requested to
provide details of all victims and witnesses of indictable or triable-either-way offences, for
which suspects had been charged, over a time period sufficient to produce a total sample of
500 in each area. The samples were collected retrospectively to avoid any possibility of
accusations of witness interference in live cases. The samples were recruited randomly and
sequentially and in such a way that they would be representative of the typical mix of cases in
the study areas.
The police were asked to screen out those witnesses who were ‘categorically’ vulnerable (that
is, children and victims of serious sexual offences) and those that the police had already
identified as VIW. The remaining witnesses were sent a letter by the police, providing them
with information about the research and giving them a chance to opt out of the interview
(Appendix 2). The purpose of this was to comply with the requirements of the Data Protection
Act 1998 by ensuring that witnesses were given the opportunity to say if they did not want the
police to pass their details to the research team.
The police were then asked to provide details to the research team of all the remaining
witnesses. These details included:
• telephone number;
• number of witnesses involved in the ‘case’;
• point at which the case was ‘completed’ (discontinued by CPS; witness refuses/fails to
appear at court etc.);
• whether the case was dealt with in the magistrates’ court or Crown Court; and
• final outcome of the case.
The names and telephone numbers of the sample of witnesses from each police area were
then passed to BMRB, an independent survey research company, who conducted the
telephone-screening interview on behalf of the research team.
All four areas had great difficulty in meeting the deadlines set by the researchers. The main
reasons given for this were: (a) the information was not routinely collected or stored and could
not easily be retrieved; (b) staffing shortages; and (c) priority that had to be given to other
The final data sets provided by three of the four areas did not comply with the original request
in a number of significant respects including:
• missing telephone numbers;
• no information was provided about the number and characteristics of VIWs that had been
screened out; and
• results of the cases after completion at court were missing.
In view of these difficulties it was agreed that a different approach would be adopted for
Phase 2. A process was negotiated prior to the commencement of Phase 2 with
representatives from the CPS nationally and local representatives from the CPS and the
police. It was agreed that the sample of completed 500 witnesses in indictable/either-way
cases would be collected by the CPS in each of the four areas. In the event the CPS
attempted to collect the witness sample in only three areas; in the fourth, the police
assembled the sample with the assistance of the researchers. Even in the first three areas
the data collection processes differed substantially, and since these processes were also
used to assemble the sample of case files and witnesses to track through the decision-
making process, they will be discussed in detail below.
It had been agreed that BMRB would carry out screening interviews with 1,000 witnesses
from the original sample of 2,000. This was because it was estimated that around 50 per cent
of the original witnesses would either opt out or be screened out. The response rates and
reasons for unsuccessful screening interviews are shown in Tables 2.3 (a) and (b).
Table 2.3(a): Response rate
Phase 1 Phase 2
N % N %
Total sample to try 1,160 100 746 100
Number unobtainable/problem with number 231 20 101 14
Business numbers 0 0 32 4
Ineligible 26 2 23 3
Moved 61 5 29 4
Unknown at number 72 6 60 8
Under 17 years old 13 1 7 1
10+ unsuccessful calls 60 5 64 9
Interviews attempted 697 60 430 58
Table 2.3(b): Reasons for unsuccessful screening interviews
N % N %
Interviews attempted 697 100 430 100
Refused/abandoned during interview 125 18 57 13
Unavailable during fieldwork 36 5 54 13
Completed interviews 536 77 319 74
The screening interview included indicators of vulnerability or intimidation that corresponded
closely to the official criteria and categories. For example, respondents were asked whether
they had a physical disability, difficulty in communicating or being understood or had been
diagnosed as having a mental disorder or a learning disability. They were also asked, as an
indicator of intimidation, whether there was anything about the crime or the accused that
made them feel frightened or distressed about giving evidence in court. The interview asked
for basic demographic data such as age, sex, ethnic self-identification and employment
status, as well as asking about other indicators of potential vulnerability, such as whether they
were on disability benefits or whether they believed the crime to be racially motivated. The
screening interview also contained a question about difficulties in understanding or
communicating with people. The purpose of the screening interview was to determine
whether a significant number self-identified as VIW, despite not having been officially
identified as such. The results are presented in Chapter 3.
Case file tracking
The main difference in the research designs of Phases 1 and 2 is that the latter aimed to track
a sample of case files through the decision-making process. Case files may include more
than one witness. The main aim here was to evaluate how processes work and how decisions
were made in practice. In addition this should enable triangulation of the case file tracking
data against that from the practitioner interviews and the surveys in order to contrast what the
agencies said they did with what they actually did. The researchers aimed to track a sample
of around 50 case files in each area. They were aware that they might need to supplement
the ‘sample’ witness case files (main sample) with ‘non-sample’ witness case files
(supplementary sample) in order to achieve the target of 50 in each area. This is what
happened. It is here that the different methods used by different areas to assemble the
samples of 500 witnesses becomes relevant as this explains the difference between what
they set out to achieve and what they were able to achieve in practice. The difficulties that the
agencies had in assembling the 500 witness samples for the purposes of the research, and in
identifying which ones were VIW, reflected the difficulties that they had in their day to day
practice. This finding is discussed in more detail in Chapter 4.
Study area A
Four CPS offices were involved in assembling the main sample of 500 witnesses and in
identifying those in the sample that were VIWs. Twenty-nine individuals were identified as
VIWs by the CPS and two by the researcher (n=31). The case files for these individuals were
supplemented with an additional 24 non-sample case files. Of the 31 main sample case files,
however, only 20 could be located because the archiving system was in the process of being
updated. So the total case-tracking sample in Area A involved 44 case files. The 44 case files
referred to 71 individuals. One of the difficulties in locating VIW files is that different offices
used different systems for identifying VIW files, and some used no system at all. For example,
two offices claimed to use the national special measures monitoring form but whilst there was
a high level of compliance in one office by the staff, in the other office only one file was
identified as VIW using this system in a six-month period. In practice the researchers were
only able to achieve this number of VIW case files by going through some files themselves
and identifying them as VIW (e.g. by examining the offences involved).
Study area B
This was the area in which it was agreed that the police would take the lead in collecting the
initial data in contrast to the other areas where this responsibility lay with the CPS. Despite
numerous meetings with the police and CPS in order to set up the data collection, and a
three-month delay to the start date, it eventually became apparent that resource constraints
would make it impossible for the police to collect the details of 500 witnesses. As a result the
research team had to take a much more ‘hands on’ approach. Using the police charge
package, a member of the research team gradually collated the 500 witnesses, updating the
results as their cases were finalised. From this list, it was then necessary to form the VIW
sub-sample. This was completed in a number of ways. Firstly, all witnesses involved with
sexual offences were identified. It was then possible to use the charge package to locate all
youth files that involved child witnesses, as the details were entered on the system. However
it was not possible to tell from the system if there were any other vulnerable witnesses in
youth cases, or any VIWs in adult cases. The only way to do this was manually to look at
every file to see if there was any indication of special measures or vulnerable witnesses or to
ask the caseworkers for their views. This process produced 81 VIWs from the main sample of
500. But it was only possible to locate 44 files to form the case tracking sample. These 44
cases involved 70 individuals. There was no evidence of a CPS monitoring system in place
and the files were not flagged in any way to indicate that they were VIWs.
Study area C
The CPS assembled a main sample of 505 witnesses. Responsibility for identifying VIW files
for the research was initially shared by three lawyers and subsequently by the researcher as
well. This was done by manually looking through the files as the CPS monitoring system was
only used in Crown Court cases, and only when special measures had been applied for. Even
this system broke down when the administrator responsible for it left the CPS. The files
themselves were flagged with a ‘SM’ sticker but that was only apparent once one physically
had the file to hand. Thirty-three witnesses were identified as VIW, 17 by the CPS and 16 by
the researcher. The researchers were able to locate the case files for all 33, which involved
41 individuals. This was supplemented by a further 18 VIW case files (28 individuals) from
outside the 505 witness sample, making a total of 51 case files for the case tracking sample.
Study area D
The CPS initially had problems in assembling a sample of 500 witnesses and identifying
which were VIWs. The task was initially allocated to an administrator, who picked out files that
had the word V or VI written on their sleeve. It transpired that V corresponded to files where
there were victims and VI to those where Victim Impact Statements had been taken as
opposed to cases with VIWs. So, a number of files were looked at which had no VIWs,
although some did by accident happen to be cases with VIWs. Those cases which were not
VIWs were then discarded from the sample. After further discussions, it was agreed that the
CPS lawyer with responsibility for VIWs in that area would play a more active role in
identification. It became apparent that some of the files picked out by this lawyer had been
marked as DV on the sleeve and may not have been VIWs as she had misunderstood the
concept of ‘VIW’. The number of domestic violence cases in the magistrates’ court where
there was either no special measures available or non identification of the category of witness
who may be suffering from fear or distress as a result of the crime by any agency may thus
be over-pronounced in this sample, due to the procedure used for identification. The
researchers also went through the available cases in the sample and asked to look at any
cases where the offences were of a sexual nature or where there was a witness intimidation
charge. Eventually, a sample of 481 witnesses was produced, of which 37 were identified as
VIW, and these files were located. The 37 files involved 68 individuals. This was
supplemented by 15 VIW case files (30 individuals) outside the main sample, making a total
of 52 case files for tracking.
The next chapter (Table 3.1) summarises the number of witnesses in the main ‘500’ sample
that were identified by the agencies and the researchers as VIW. As discussed above not all
the files associated with these VIW witnesses could be located. In the subsequent chapters,
when cases in the case tracking exercise are referred to these may comprise one or more
individuals. Otherwise the tables that show the quantitative analysis of VIWs refer to
individuals not cases throughout.
In addition to tracking samples of cases using the case files, 26 cases were observed in full in
the four study sites in Phase 2 of the study. A small number of these were contested VIW
cases from the case-tracking exercise sample; however, the majority were cases from outside
the file sample. The number of cases observed in full was higher in some areas than others;
this was partly due to the high rate of cracked and ineffective trials (e.g. in areas B and C). 11
A ‘cracked’ trial is one where the defendant enters a late guilty plea (on the day of trial) or the case is dropped on
the day of trial; an ‘ineffective’ trial does not go ahead on the day anticipated due to other reasons. In area C
observers attended court on at least 12 occasions anticipating a trial with special measures where the defendant
either pleaded guilty or the case was adjourned.
In addition to the full observations, there were a small number of partial observations of trials
and some observations of pre-trial special measures applications. The court observations
were a valuable source of data on the operation of special measures in practice and enabled
data triangulation with the practitioner surveys and interviews. The observations also provided
an opportunity for case specific interviews with counsel and witnesses.
Court observations were supplemented with interviews with prosecution and defence counsel
in many of the cases, and occasionally by interviews with witnesses. Securing interviews with
witnesses whose cases were being observed was problematic. Witnesses could not be
interviewed prior to giving evidence because of concerns that they might wish to discuss the
evidence. Many witnesses, for understandable reasons, do not want to stay after they have
given evidence to be interviewed by a researcher. Witnesses were asked if they would be
willing to be interviewed at a subsequent time; however achieving co-operation post trial
encountered obstacles in terms of witnesses’ desire for closure. In total, six full interviews
were carried out and several other witnesses were spoken to briefly whilst at court. Whilst the
witness interview data from this study may not be representative of the experiences of all
witnesses, even in the sample of cases observed, it does give useful qualitative insights into
the experiences of some of the witnesses that can be matched against the more in-depth
study of VIW experiences carried out by BMRB (Hamlyn et al., 2004a).
Table 2.4: Number of cases observed in Phase 2
Area Number of contested cases observed
VIWs from case-tracking Other VIWs
A 2 8
B 0 2
C 2 5
D 0 7
The research used the data collection methods that were originally envisaged, with some
modifications. Some of the modifications came about through extension and refinement of the
research instruments (especially the questionnaires). However, most of the modifications
arose as a result of data collection difficulties encountered in the police and CPS offices
where the cases were processed. It is noteworthy, in particular, that in area B where the
researchers identified VIW cases – albeit using police data only – the sample of VIWs was
more than twice the size of that of the other areas, where the CPS did this for the research
team or jointly with it. This suggests that there were not only issues with data collection but
that the police and CPS continue to have difficulty in identifying VIWs.
3. Estimates of the proportion of VIWs
Chapter 1 briefly discussed estimates made in Speaking Up For Justice of the proportion of
VIWs in the CJS. These were, for adult prosecution witnesses, seven to ten per cent of the
total, and, for adult defence witnesses, four to seven per cent (Home Office, 1998, p.97). Due
to the findings of previous research, it was expected that these would be significant
underestimates, however. This chapter attempts to provide more reliable estimates, based on
the randomly selected main samples of 500 witnesses in each of the four study areas and the
telephone screening interviews that BMRB Social Research conducted on behalf of the
The ‘official’ number of VIWs
Table 3.1 shows the proportions of the main ‘500’ sample of witnesses that were identified as
VIW by the agencies or by the researchers using information provided by the agencies. The
figures are for Phase 2 only; as previously explained, in Phase 1 it was not possible to
estimate the proportion of the main case sample that the police identified as VIWs because
they had no means of identifying them and the research team did not have the resources to
do this for them.
Table 3.1: Proportion of VIWs in main case sample
Area Main Agency Additional Total VIWs % of main
sample identified researcher in main sample
VIWs identified VIWs sample identified as
A 500 29 (6%) 2 31 6
B 501 - 81 81 16
C 505 17 (3%) 16 33 7
D 481 26 (5%) 11 37 8
Total 1,987 72 110 182 9
The agency estimates of VIWs of three to six per cent are substantially lower than the seven
to ten per cent expected on the basis of the Speaking Up For Justice figures given above
(except for Area B where no agency identification of VIWs was provided). Given the
difficulties that the agencies had in identifying VIW cases, it is to be expected that their
estimates would be underestimates. When the agencies had problems identifying VIW case
files for the purposes of this research, this was normally because they were not externally
marked or flagged in any way, and case file management systems were not able to identify
VIW cases as a separate category. The issue of identification is discussed in detail in the next
chapter. Identification is not only a question of an agency’s or individual’s ability to identify
whether individual witnesses are vulnerable or intimidated, but also of the systems that are in
place to record and track VIW cases as they progress through the CJS. It is significant that, in
Area B, the estimate of VIWs is higher than in the other areas because here all identification
was carried out by the researcher, using police information, rather than by the CPS. The
research team had the resources to carry out a more thorough search for VIW cases (e.g. by
reading through case files) than agency staff had when engaged in their routine work.
The characteristics of VIWs: the main sample
The category of vulnerability could be identified for 176 of the 182 witnesses in the main
sample. The main categories, including overlapping categories, are shown in Table 3.2.
Table 3.2: Principal types of VIW in the main samples
Type of VIW* N %
a) Child: aged under 17 years 88 50
d) Intimidation: likely to suffer fear or distress about testifying 28 16
d) Victim of sexual offence (adult) 20 11
a) and d) Aged under 17 AND suffering fear/distress 14 8
a) and d) Aged under 17 AND victim of sexual offence 14 8
b) and c) Other: physical disability, witness with a mental 12 7
disorder, learning disability etc. (adult)
Total 176 100
* The letters a) – d) correspond with categories in the YJCE Act set out in Chapter 1
Two-thirds of witnesses who could be identified as VIW in the sample cases were children
(under 17 years) (116 of the 176 i.e. 66%). This supports the finding from the agency surveys
and practitioner interviews that agencies find this category of VIW the easiest to identify.
Twenty-four per cent of witnesses were identified as intimidated and a further 19 per cent as
complainants in a sexual offence. Both of these categories overlapped most frequently with
the under 17 years category.
The proportion of VIWs identified by the agencies as intimidated in the sample cases is
significantly lower than the proportion identified by Hamlyn et al. (2004a), which is shown in
Figure 3.1. The samples for the BMRB witness satisfaction surveys were recruited through
the Witness Service and involved witnesses who self-identified as VIW in cases that had
gone to trial rather than those who had been identified as VIW by the police or CPS at an
earlier stage in the process. The lower proportion of VIWs identified by the agencies in the
present research as intimidated is not surprising in the light of the findings of the agency
surveys and practitioner interviews. Respondents said that intimidation, particularly low level
intimidation, was not easy to identify. More surprising, however, is the finding that the
proportion who self-identified as intimidated in the present study (as discussed below) is
similar to that identified by the agencies, and lower than the proportion in the BMRB samples.
Figure 3.1 Categories of vulnerability or risk of intimidation (self-defined) (Hamlyn et al.,
Aged under 17
Limiting physical 13
illness/disability 14 Phase 1 Phase 2
Victim of sexual offence 15
Learning difficulty 7
0 5 10 15 20 25 30 35 40 45 50 55 60
The other feature of Table 3.2 worth noting is the relatively small proportion of witnesses
identified as mentally disordered or having a learning disability, either on its own or
overlapping with other categories. This reflects the difficulties that the agencies say they had
in identifying this type of vulnerability in its mild forms. It probably also reflects the fact that the
sample is a sample of prosecutions. Research by Sanders et al. (1997) found, not
surprisingly, that when victims and witnesses are even moderately affected by mental
disorder or learning disability (and certainly when it is severe), the police and courts are very
unwilling to ask those witnesses to testify. This led to many of these cases not being
prosecuted in the first place. The Speaking up for Justice reforms were designed, in part, to
facilitate the testimony of witnesses with these vulnerabilities. The low number of these
witnesses in this sample of prosecuted cases therefore indicates that the reforms have had
little, if any, success in this respect.
Table 3.3. shows that the VIWs in the sample were more likely to be female than male, and
were more likely to be victims (as distinct from non-victim witnesses) if they were female. This
is consistent with the fact that the VIWs were most likely to be children or women who were
victims of sexual offences or violence, including domestic violence.
Table 3.3: Main sample: Sex of VIW victims and witnesses
VIW Male % Female % Total
Victim 25 14 60 33 85
Witness 47 26 50 27 97
Total 72 40 110 60 182
It was not possible to compare the sex ratio for the VIW and non-VIW cases in the main
samples because neither the CPS nor the police routinely record the sex of witnesses, and
they were not able to provide this information for the purposes of the research. However, it
was possible to compare the VIW case sample sex ratio with that of the sample of witnesses
used in the BMRB Social Research Witness Satisfaction Survey (Hamlyn et al., 2004a). The
female:male ratio of 6:4 in the main sample was identical to that of BMRB in its Phase 2
sample (Table 1.1).
Self-identification as VIWs – estimate from the BMRB screening interviews
As discussed in Chapter 2, once the ‘officially’ identified VIW cases had been removed from
the main case sample, BMRB conducted a telephone screening interview with a random
sample of the remainder. This was in order to see whether a significant number self-identified
as VIW, despite not having been officially identified as such. The interview included indicators
of vulnerability or intimidation that corresponded closely to the official criteria and categories.
Table 3.4 shows the proportions of the BMRB screening interview sample which have
indicators of vulnerability that broadly correspond with categories (b) (adults suffering from a
mental disorder/learning disability) and (c) (adults with a physical disability or disorder) in the
A question about difficulties in understanding or communicating with people was included in
the screening interview because it was thought that communication difficulties are much more
prevalent than specific learning disabilities, and that these are likely to affect the ability of
witnesses to give best evidence. In retrospect it has become apparent that it would have been
useful to distinguish between oral and written communication difficulties in view of the
prevalence of functional illiteracy in the general population. A problem here is that it is
common for people with literacy problems to be highly skilled at disguising them as part of
their survival strategy. Some will therefore not readily admit to such problems in an interview.
The significance of illiteracy in this context is that police officers routinely write statements for
witnesses as part of the police investigation and then witnesses are asked to sign that the
statement is an accurate record. If cases come to trial, this may be some months later.
Witnesses are then cross-examined on the basis of their written statement which they have
usually been given to re-read immediately prior to giving evidence. If they have literacy
problems and are unable to read their own statement, then this can lead to them appearing to
be unreliable witnesses under cross-examination. This may have a significant impact on the
outcome of the trial. It is worth noting that one of the advantages of visually recorded
evidence-in-chief is that it should overcome these problems and the frequency of use of
Achieving Best Evidence (ABE) interviews and video evidence-in-chief in the sample cases is
discussed later in the report.
Table 3.4 shows that around 20 per cent of respondents to the screening interviews self-
identified as (b) or (c) type vulnerable witnesses. The percentage that self-identified as having
a physical disability (type c) was 14 per cent in Phase 1 and 11 per cent in Phase 2, while for
learning disabilities and mental disorder (type (b)) and communication problems the
percentage was eight per cent in Phase 1 and nine per cent in Phase 2. This triangulated with
other indicators: for example, whether they were on benefits such as disability benefit or in
receipt of disability living allowance. As has been seen above, this was a significantly higher
proportion than that identified by the police or CPS.
Table 3.4: Phase 1 and 2 identification of type (b) and (c) VIWs from screening
Phase 1 Phase 2
N % N %
Physical disability/long term health problem 73 14 36 11
Difficulties in understanding or communicating with people 19 4 9 3
Mental health problems 11 2 12 4
Learning disability 9 2 7 2
Total 112 21 64 20
Sample total 536 100 319 100
Respondents were also asked if there was anything about the crime or the accused which
made them feel frightened or distressed about giving evidence in court. This was to provide
an indication of their potential for intimidation. Table 3.5 shows that a slightly higher
proportion of respondents felt intimidated than appeared to have a physical or learning
disability or a mental disorder.
Table 3.5: VIWs who felt intimidated
Phase 1 Phase 2
N % N %
Yes 124 23 78 24
No 400 75 224 70
Don’t know 12 2 17 5
Total 536 100 319 100
Tables 3.6 and 3.7 show that there is an association in both phases between the sex of the
respondent and whether or not they are likely to feel intimidated. Women are more likely to
feel intimidated than men. It was not possible to check the relationship between type of
offence and fear of intimidation directly from the screening data as respondents were not
asked for any information about the case that they were involved in. However, it was
expected that because women are more likely to be victims of offences of domestic violence,
and experience a sense of intimidation or fear as a consequence, that this is significantly a
female issue. Women are, of course, also more likely than men to be victims of sexual
offences, and frequently to suffer fear and intimidation as a result. But sexual offences were
‘screened out’ of the BMRB sample, and it will be recalled that there were more women than
men in the ‘official’ VIW sample, reflecting the significant number of sexual offences in that
Table 3.6: Intimidation by sex (Phase 1)
Sex Distressed or frightened Total
Yes % No %
Male 53 18 244 82 297
Female 71 31 156 69 227
Total 124 24 400 76 524
statistically significant difference, p < .01
Table 3.7: Intimidation by sex (Phase 2)
Sex Distressed or frightened Total
Yes % No %
Male 32 19 129 80 161
Female 46 31 95 67 141
Total 78 26 224 74 302
statistically significant difference, p < .05
An approximate percentage of possible VIWs in the main samples as a whole, broken down
by type of VIW, can be calculated by combining the VIWs selected using police information
with the VIWs identified using the BMRB screening interviews. This is shown in Table 3.8.
Table 3.8: Estimates of total percentages of possible VIWs combining agency (N=1,987)
and screening data (N=319) from Phase 2
Agency/researcher Screening interview Totals
identification identification of VIWs (% of
of VIWs (% of sample) (% of sample) sample)
a. Child 6 - 6
b. Mental disorder or 1 6 7
c. Physical disability - 11 11
d. Fear and distress (incl. 2 25 27
Communication problems - 3 3
Totals 9 45 54
Table 3.8 is completely inclusive in that it ‘counts’ as potentially VIW all people who self-
assessed on the basis of the screening interviews. This included people with physical and
communication problems who may not actually be vulnerable in relation to court or have
difficulty giving evidence if provided with physical support or an interpreter, for example. The
estimate given in Table 3.8 that 54 per cent of all witnesses are possibly vulnerable or
intimidated is therefore not to be taken as a best guess of the level of vulnerability. It is an
estimate of possibly vulnerable people.
The matter of great concern highlighted by Table 3.8 is the gap between this unofficial
estimate produced as a result of the research and the ‘official’ estimates – whether from
Speaking up for Justice (7-10%: a ‘gap’ of between 44 and 47 percentage points), or
identification based on agency information (9%: a ‘gap’ of 45 percentage points – itself a
generous interpretation of ‘official’ estimates as these include more cases identified by
researchers than by the CPS). For, whilst not all of the 44 to 47 per cent in the ‘gap’ will be
VIWs, the police, CPS and courts will not know which are and which are not unless they are
identified as possible VIWs in the first place. In other words, to return to the three-stage test
set out in Chapter 1, CJS agencies cannot decide what measures, if any, are required for a
witness unless they first ascertain whether they are VIW and, if so, the nature of their
Table 3.8 illustrates another problem – that of the ‘characteristics’ model rejected by
Speaking up for Justice on the grounds that it is over-inclusive. It was therefore decided to
attempt to ascertain a more accurate figure of actual VIWs, as distinct from possible VIWs.12
The approach taken was as follows.
First, those with a physical disability (i.e. VIW type c) were asked if they could travel alone.
This was in order to arrive at some measure of the extent of their disability and the degree of
their independence that might be relevant to how they would manage in court. Of the 36 in
Phase 2, 19 (53%) said that it significantly affected their mobility. In other words, nearly half
might be excluded because the disability is relatively minor.
Second, all those who self-identified as VIW were asked whether they felt their problems
affected their ability to give good evidence in court. The interviews were conducted after the
completion of their cases so their responses were likely to be a reflection of their actual
experience rather than their expectations. On the other hand, since they had not been given
the opportunity to take advantage of special measures, they were not in a good position to
judge whether these would have enabled them to give better evidence. Only 20 per cent of
those with (b) and (c) type problems felt their testimony was adversely affected by these
problems, but 53 per cent of all those who felt intimidated believed they were so affected.
These responses are summarised in Table 3.9.
Table 3.9: The ‘gap’ between official and screening interview estimates
Agency Researcher Screening TOTAL ‘Gap’ between
ID ID of VIWs interview (%) official and
of VIWs (%) ID of unofficial
(%)a VIWs (%) estimates
Total % of sample 5 2 45 52 47
Excluding minor 5 2 40 47 42
Excluding all physical 5 2 34 41 36
Excluding VIWs who 5 2 17b 24 19
self-assess as not
This includes ‘official’ figures for areas A, C and D only, since in Area B no agency identification of VIWs was done
for the research team. However, cases from Area B are included in the BMRB totals as it was not possible to
disaggregate the Area B cases from the others in the BMRB screening sample.
Constitutes 4% from categories (b) and (c), and 13% from category (d).
Table 3.9 shows that even with very conservative assumptions – that people who feel
themselves not to be affected were rightly treated as not needing support – the total of VIWs
revealed in this research is 24 per cent of all prosecution witnesses. This is five times the
proportion identified in the current research by the CPS, and more than twice the proportion
identifiable from data in police files. It reveals a ‘gap’, in other words, between official
estimates (of, depending on the basis of those estimates, five to ten percentage points) and
the most conservative estimate from this piece of research (of 24%) of 14 to 19 percentage
This analysis is based on phase 2 data only. This is partly for simplicity, but also because we have no agency
estimates from phase 1. However, BMRB screening data produced in phase 1 is very similar to that of phase 2.
points. There is, in short, a very significant minority of prosecution witnesses that are VIW and
the CJS fails to identify more than half of that group as such.
The police and CPS continue to have difficulty in identifying and recording VIWs whether
using paper based or electronic systems. The gap between the ‘official’ estimates of VIWs
and ‘self-identified’ VIWs from the screening interviews is considerable. The meaning of this
quantitative data will be explored in the next chapter by examining the processes of
identification used by the criminal justice agencies.
4. The identification of VIWs
Chapter 3 showed that, even on the most conservative estimates, fewer than half of all VIWs
are identified as such by the CJS agencies. This chapter discusses the nature of the problem,
the difficulties that agencies have in identifying and monitoring VIWs, and then the ‘hierarchy
of identification’ that emerged from the data collected in the research.
The nature of the problem
Early identification of VIWs is a critical factor in what happens in cases as they progress
through the CJS. The police have the initial responsibility for identification during the
investigation of a crime. The CPS, Witness Service and courts are largely dependent on the
police to provide accurate and timely information. For, although they may also identify
witnesses as VIW at any stage in the process, they usually only see witnesses at later stages
of cases. This is when, and if, the case comes to court, and even then only if the witness
gives evidence in a contested case (and most cases are dealt with by way of a guilty plea).
Without seeing a witness, identification as a VIW depends on the written word. This nearly
always comes from, or is routed through, the police.
The identification of some types of VIWs ought to be easier than others. Children and the
victims of sexual offences ought to be relatively easy to identify because there are clear and
objective indicators (age or the nature of the offence). Other types of VIW do not have such
obvious indicators. For example, the use of medication or attendance at a day centre may be
indicators of mental disorder or learning disability. Equally, they may indicate other problems.
Accurate interpretation of indicators such as these depends on the training, knowledge and
experience of the professionals making these decisions. The identification of other types of
VIW might rely on self-identification as, for example, in cases of low or intermediate levels of
intimidation, where there may be no objective indicators.
The problem of identification also exists on several different levels. Initially it depends on the
judgments and decisions of individual professionals, most importantly the police. As this
research will demonstrate, in practice even the most apparently objective categorical
vulnerability, such as being a child under the age 17, may involve judgments about whether
they are old enough not to need the protection of a special measure. Once individual
professionals have made their decisions on identification, the next level is whether there are
systems in place in the agencies to ensure that this information is captured and acted upon.
The final level concerns work between the criminal justice agencies and the capacity of
individual decision-makers or agency systems to talk to each other. The issue of identification
is one for individuals, and for agency and inter-agency systems.
It is acknowledged that the early identification of some VIWs can be a difficult issue for the
police. It might be expected that the introduction of special measures and the accompanying
guidance (Home Office, 2001) and training would lead to a heightened awareness among
mainstream police officers of the different types of VIWs and the difficulties in identifying
some of them. This issue was addressed in the surveys, interviews, case tracking and court
observations. The following discussion draws on these data sets and the relationship
between them. Most crucially the research is not only concerned with what professionals say
they do but with what they actually do in practice.
Agency identification in general
Interviews with, and questionnaire responses from, police officers in both phases showed that
responsibility for the identification of VIWs lies with the investigating officer with the support,
where sought and/or appropriate, of individuals or units with special expertise. In Phase 1 just
under half of all police forces which responded to the research survey (18 out of 41) had
officers who were specifically trained to give advice and assistance to colleagues in the
identification of vulnerable or intimidated witnesses. By Phase 2, this had risen to 35 out of
the 37 which responded. Expertise focused on child witnesses (30 out of 37), victims of
domestic violence (34 out of 37) and victims of sexual offences (33 out of 37). Some forces
had specialist inspectors with responsibility for advising and assisting other officers in this
area, and one had a particular individual who had made it their mission to train as many
officers as possible and had devised their own training material. The paucity of reference to
other types of vulnerability in both phases is significant, as will be shown later, and as is
evident from the findings of Chapter 3.
Police effectiveness in identification
As expected, in both phases the police found it easiest to identify child witnesses. This was
because it was usually obvious from their ages and also because the provision of special
measures for child witnesses has existed since 1989. Thus, systems for the identification and
protection of child witnesses have been in place for some time. Fewer than half of Phase 2
respondents to the police survey said that they found victims of sexual offences and of
domestic violence relatively easy to identify (11 out of 37 and 9 out of 37 respectively). Large
numbers found VIWs with mental disorders or learning difficulties (34 out of 37), and those
fearing or experiencing intimidation (14 out of 37), difficult to identify. This was evident from
the case tracking exercise, where there were very few cases in these categories, and this
was also endorsed by the CPS, Witness Service and courts. Officers are heavily reliant on
self identification, particularly in the case of intimidation. Concealment may be deliberate or
unwitting and occurs for a variety of reasons. Some police respondents stated that the pride
of witnesses sometimes leads them to conceal their difficulties, a view endorsed by the
The police themselves said that officers generally concentrated on obvious cases, which are
readily identified, and rarely probe beneath the surface to seek less obvious ones. This was
reiterated by the CPS and Witness Service, whose questionnaire and interview responses
were broadly consistent with those of the police. It was also said by both police and CPS that
the police often fail to investigate why intimidated witnesses withdraw their complaints, and
are insufficiently proactive in such a situation.13
Around half of all forces rated themselves as not very effective (or worse) at identifying VIWs
in the Phase 1 survey, but in the Phase 2 survey this had dropped significantly to only around
a quarter. All but one of the forces believed that their ability to identify VIWs had improved
over the previous two years. Respondents said that there had been a considerable amount of
training (although there were varied degrees of belief in the effectiveness of this) and that
their policy had been reviewed and publicised to raise the awareness of officers of the issues
involved. As shall be seen, however, none of the other agencies – CPS, courts and Witness
Service – believed that much, if anything, had improved. Encouragement to identify had come
in some areas through amendment of the forms placed on the file. In certain cases, the back
of the witness form had been amended to include prompts about the witnesses’ needs and a
specific reminder to identify issues was included on the MG6 form.14
It has been noted in research on domestic violence that police and CPS should investigate the reasons for victims
seeking to withdraw their complaints, rather than simply accepting this, but they rarely do so: Hoyle (1998). Home
Office and CPS guidance was revised following that research, but initially appeared to make little difference (Hoyle
and Sanders, 2000). A recent report on the investigation and prosecution of domestic violence suggests progress
has been made, although some weaknesses in the management of victim withdrawal remain (HMCPSI and HMIC,
The form MG6 is a confidential document for internal use only for sharing information between the police and the
CPS. It contains details of medical, forensic and video evidence and of disclosure. It also invites the police to
consider a standard set of questions about the case including whether there are any vulnerable or intimidated
witnesses and whether a strategy meeting between the police and the CPS is required. This form has now been
replaced by the MG11 and MG2 forms.
The main reasons given in questionnaire responses and interviews for performing poorly on
• Insufficient training in the complexities of the legislation and official guidance.
• Insufficient training in identifying and interviewing VIWs. Training in the period since
Phase 1 was largely of the distance-learning type. 16 Both police and CPS respondents
were sceptical about the effectiveness of training. 17
• Insufficient resources and in particular lack of time with the witness.
• Lack of experience in the courts: many officers were not aware of the need for
appropriate evidence, and did not know that the use of leading questions might make an
interview inadmissible in court. This is something that judicial and court personnel also
remarked on. It was widely predicted when the CPS was established in the 1980s that a
by-product of removing police officers from active involvement in prosecutions would be
that they would no longer understand court processes and requirements.
• Other competing initiatives, such as the Street Crime Initiative, that were operating at the
time of the field work.
The Crown Prosecution Service
At the time of this research, the CPS only became involved in cases in which the police
decided to prosecute, except in those few cases where the police sought advice from them
prior to making that decision. Under the Criminal Justice Act 2003, the CPS will eventually
become responsible for the charge decision, although decisions will generally be taken by
both agencies working together.18 However, it will generally remain the case that the police
will only bring to the attention of the CPS cases that they wish to prosecute. Even when the
police do prosecute, unless there is video evidence or an Early Special Measures Meeting,
the CPS do not normally see witnesses and victims until the full court case, and only then if
the case is contested. Contested cases are a small minority of prosecuted cases. Many
preliminary hearings, and many weeks or months, may pass between the decision to
prosecute being taken (which may itself have been weeks or months after the offence
occurred) and the full court hearing. Thus, unless the police inform the CPS of vulnerabilities
or intimidation early in the case, CPS decisions may be taken in the early stages on the basis
– possibly incorrect – that victims and witnesses are not VIW. The Confidential Information
form (MG6) and Initial Remand Application Form (MG7) are the main formal means of
providing the CPS with information about the vulnerability or intimidation of a witness.
Communication between the police and CPS
Whilst communication between the police and CPS about the capabilities of the witnesses
and their needs is clearly crucial, it has always been an area where the level of police
performance has been a significant issue.19 CPS respondents in this study took the view that
the provision of information was patchy, depending on the type of case and the individual
In Phase 1, two-thirds of CPS Areas (26 out of 39) stated that the arrangements for the police
informing the CPS about vulnerable or intimidated witnesses were satisfactory. Nearly one-
third (n=12) stated the arrangements were unsatisfactory and one said they were very
unsatisfactory. Most of the respondents, including those who said the arrangements were
satisfactory, stated that the main problem was lack of consistency in the provision of
Although it should be noted that, in interview, one force claimed to be ‘nearly there’ as far as training was
concerned, it did not appear from the case tracking and other research to be significantly different in identification
performance to the other forces.
Police officers were given course materials to study without the backup of classroom learning and practical case
This echoes findings that early training on the memorandum of good practice (Home Office and Department of
Health, 1992) was not positively evaluated by recipients (see Westcott and Jones, 1997).
This was being phased in gradually through 2004 and 2005 to synchronise with the establishment in local areas of
Criminal Justice Units, which are designed to facilitate the police and CPS working together.
For example, studies of child witnesses show that the police did not always pass on information about the needs of
young witnesses (see Plotnikoff and Woolfson, 1995 and CPS Inspectorate, 1998).
information. In certain types of case, namely those involving child witnesses, the information
provided was said to be generally good. The information was also good in cases where
specialist officers were used, for example rape and domestic violence cases. However, the
provision of information by non-specialist police officers was said to be variable, some
operational officers being better, or more conscientious, than others.
Just under two-thirds (25 out of 39) stated that the needs of vulnerable or intimidated
witnesses in relation to prosecution decisions were passed “adequately” from the police to the
CPS. About a third (n=14) said that they were passed “inadequately”. It was clear that the
question on this had been interpreted in two ways. Some respondents thought that the
question referred to whether the police adequately conveyed information to the victim about
decisions taken by the CPS. In this regard it was noted that the police sometimes have
trouble understanding the difficulties that are faced by the CPS and so are not able
adequately to convey these problems to the victim. Most respondents thought the question
referred to the police keeping the CPS informed about the victim’s views in order to help the
CPS reach prosecution decisions. Again, respondents said that police performance varied
according to the individual police officer and that specialists were on the whole better at
keeping the CPS informed of the victim’s views.
The police were described as adopting a reactive, rather than a proactive, response to the
provision of information. Thus, where the CPS requested information then it was generally
provided, although not always in time for it to have input into decision-making. When
information was provided by the police in response to a request made by the CPS, the level
of detail was not always what the CPS would have liked.
An example was given of the non-proactive approach of the police in relation to the age of
adult witnesses and physical disabilities. These do not appear on the statements and
therefore unless it is specifically drawn to the prosecutor’s attention that witnesses are elderly
or disabled the prosecutor cannot make enquiries to establish whether they are vulnerable as
a result, and whether they need assistance at court. All the CPS personnel interviewed
identified elderly witnesses as a problematic category of potentially vulnerable witnesses.
One prosecutor remarked: “Some elderly witnesses slip through unidentified… If you know
that you are dealing with an elderly witness then you are on notice that they may be
physically frail and intellectually deteriorating”. The problem was endorsed by court
interviewees. As one listing officer put it “There is nothing on the face of the charge to reveal
their vulnerability. It just appears as an ordinary burglary or robbery charge. Even if court staff
had time to read through all the papers it wouldn’t help us because on the statement the
witness age just appears as ‘over 21’. Not every elderly witness will be vulnerable but some
are and we don’t have the resources to seek them out”.
Prosecutors were keen to stress the limitations of the full file in terms of identifying vulnerable
or intimidated witnesses that the police had not highlighted on the appropriate police forms.
They said that they could not use the witness statement to pick up problems that police
officers had not told them about on the MG6 form because the statement was written by the
police and concealed witness difficulties. This was a particular problem with witnesses who
were suffering from mild learning disabilities or required an interpreter at court. Thus,
prosecutors were sometimes ‘surprised’ to find they were dealing with witnesses who had
communication problems that they had not been told about by the police.
The Phase 2 survey results suggest that levels of CPS satisfaction with police arrangements
for informing them about VIWs appear to have declined slightly. Half (16 out of 32) of the
respondents to the Phase 2 survey said that the arrangements were “unsatisfactory”. Even
those who rated the arrangements as “satisfactory” (12 out of 32) mentioned a number of
continuing problems with police arrangements for informing them about VIWs. The most
frequent complaints remain lack of consistency and delays in provision of information. In
Phase 1, CPS respondents noted that the MG6 form was the main vehicle for informing them
about VIWs, but that use of the form was ‘patchy’. Respondents to the CPS survey in Phase
2 indicated that, even if adequately completed, the MG6 alone was unlikely to provide them
with sufficient information about VIWs.
Since implementation, a new form has been added to the Manual of Guidance for the
preparation, processing and submission of files, the MG2.20 Those CPS respondents who
mentioned the MG2 form had differing views about its likely impact. Some said that they
anticipated that introduction of the form would improve the arrangements for the police
informing the CPS about VIWs because it would concentrate the officer’s mind on VIW
issues. However, other respondents noted that the police either did not appear to be aware of
the MG2 form or were not yet using it. Respondents noted that even when the police
identified the witness as vulnerable or intimidated they did not always provide sufficient detail
for the CPS to make decisions about how to proceed. One particular problem that CPS
respondents mentioned was that they were not passed details of the witness’s views. The
MG2 form provides a section for the witness’s views as to why special measures are required
and the views of interested parties (e.g. carers). The police are also asked to provide details
of the vulnerability, fear or distress and to state which special measures are likely to improve
the ability of the witness to give evidence and to communicate. However, in interviews, it was
noted that the police often have little awareness of the type of information/evidence that is
needed to support a special measure application. Thus, the police frequently do not provide
the level of information needed or attach the appropriate supporting evidence required by the
MG2 form. This was noted by more than half (18 out of 32) of CPS respondents. These
problems could be addressed by CPS liaising with police in such cases, but, as this research
will show, this is rarely done.
CPS respondents indicated that, as in Phase 1, the police were much better at providing
relevant information about child witnesses and adult witnesses in sexual assault cases. The
distinction between specialist and generalist officers, noted in Phase 1, apparently remained
important. Both in the CPS survey and interviews it was noted that specialist officers are
much more likely to provide the level and quality of information required to consider and apply
for special measures than generalist officers. With regard to the generalists there is huge
variation in practice: the depth and quality of information provided (and, probably elicited)
primarily depends on the individual officer involved.
As in Phase 1, the CPS respondents indicated that the police were generally quite good at
providing information about VIWs if the prosecutor is proactive in seeking it. Once the CPS
make a request for more detailed information the police respond positively. However, the
CPS cannot make the request unless they are at least alerted to the possibility that the
witness may be vulnerable or intimidated. If this information does not come directly and
explicitly from the police it remains rare that it can be ascertained from other sources. It is
also still the case that the only material that the CPS have to help them identify VIWs is the
statement of the witness which, again, may conceal vulnerability because it is written by a
police officer and merely signed by the witness.
It was apparent that the CPS generally attributed shortcomings in identification to the police.
Many judges, however, were convinced that at least some of the fault was that of the CPS.
There is perhaps some room for scepticism about whether the CPS often seek to remedy
gaps in information where the police have not provided details of the witnesses’ capabilities
and needs, despite obvious cues of vulnerability.21 Court interviewees complained that the
CPS sometimes missed the most obvious cues that there was something wrong with the
witness. For example, in relation to a witness who was using the name of a well known
deceased person, it was observed; “Anyone would realise that someone doing that was
mentally disturbed. In fact he was picked up from a doorway and brought to court. The CPS
did not pick it up in advance”. Some interviewees were even more strident in their comments
about the alleged shortcomings of the CPS. They said that the prosecution were highly
remiss in relaying information and were simply incompetent. They said that they had drawn
the attention of the CPS to the problem on a number of occasions but without any effect. All
the judges interviewed complained, to varying degrees, about the CPS providing insufficient
The MG2, Initial Witness Assessment, is specifically designed to improve the provision of information about VIWs.
The Manual of Guidance states that the form “is designed to help the police officer to inform the CPS of the
information required to make an application for a special measures meeting and to indicate the views of the witness”.
The form must be completed by an officer who has knowledge of the witness’s circumstances and in accordance with
the guidance contained in Achieving Best Evidence (Home Office, 2002).
In relation to child witnesses it has been found that the CPS often failed to take remedial action where they could
be expected to seek information not provided by the police (Plotnikoff and Woolfson, 1995).
information. This confirms earlier research on child witnesses, showing problems of
communication between the CPS and Court (Plotnikoff and Woolfson, 1995). In this study the
CPS was said to be bad at conveying information, even in cases where the problems were
obvious: for example, where the witness was a protected witness and the arrangements had
been made well in advance of the case coming to court. Some of the data collection
difficulties set out in Chapter 2 were as a result of CPS lawyers not understanding the
concept of ‘VIW’ and thus failing to identify very large numbers, giving some support to these
Witness Service and courts
The problem of the lack of timely information received by the Witness Service (WS) about
VIWs (primarily adults in non-sexual offence cases) was, according to the questionnaire data
received from WS respondents, if anything worse in Phase 2 (21 out of 46 responses) than
Phase 1 (15 out of 45). The interviews also suggest that the problem of identification only on
the day of the trial had not improved between Phase 1 and Phase 2. Only two WS
respondents felt that this problem had been reduced and one considered that this was the
result of the employment of a particular individual. The rest of the WS respondents stated that
this problem had not been reduced at all. This is consistent with the data received from the
courts, CPS and (to a lesser extent) the police. The common view from the interviews with
court officials and judges was captured in a comment from a judge that “it is always last
minute notification because that is the way that the system works”.22 Often the court did not
know until the morning of the trial that the witness was vulnerable, with the consequence that
cases had been put in as ‘floaters’23 when they should have been for a fixed date. The
problems that the lack of early identification presented to listing officers, and for the provision
of appropriate support for vulnerable or intimidated witnesses, were mentioned by court and
WS personnel in interviews in all four of the study areas.
The survey asked about the frequency with which the Witness Service identified VIWs that
had not been identified by other criminal justice agencies. Around a third (16 out of 46) said
‘often’ and almost half (21 out of 46) said ‘sometimes’. Over half the respondents (27 out of
46) said that this happens on the day of the trial when volunteers meet with the witnesses and
talk to them. It can also occur during pre-trial visits (16 out of 46) or through telephone contact
prior to the trial (8 out of 46). Other agencies or relatives (6 out of 46) sometimes alert the
Witness Service to the fact that a witness is vulnerable or intimidated. In interviews, all but
one of the services suggested that they sometimes had to identify witnesses who had not
been picked up as vulnerable by other agencies. One service commented that this occurred
most often in less obvious cases of vulnerability. The other agencies were fairly successful at
picking up children and people with obvious disabilities. Three services mentioned that they
had to be very proactive and ‘scrabble around’ for information. Most judges had a high regard
for the WS, some meeting with the local WS co-ordinator regularly, and they agreed that
many VIWs were identified by the WS, and still others self-identified on the day of the trial.
Witnesses who had not been identified as VIW were, not surprisingly, generally not asked if
they would like any of the measures. One service suggested that this meant that 80 per cent
of the applications for screens received in their court would be dealt with on the day of the
trial. One problem with identification on the day was said to be that the defence is able to say
that a screen is unnecessary as the witness has already seen the defendant on the way into
court. This should never be a successful argument, for seeing the defendant while giving
evidence might be traumatic no matter how often the witness had seen the defendant before
(whether on the day of the hearing or before that). However, the fact that it might nonetheless
be put in court, and that the VIW might be warned about this, can be very unsettling. And, as
shall be discussed in Chapter 6, a major point of these reforms is to make appropriate
arrangements in advance in order to give VIWs peace of mind, not to make arrangements on
the day of court.
Whilst this is obviously an exaggeration, it reflects the frustration that was common in courts. This frustration may
be diminishing for, according to the CPS, the Video Transcription Unit shows a steady rise in transcriptions of videos
for vulnerable adults, suggesting that the CPS is making more applications to admit them, thus putting the court on
Cases which are listed for trial depending on courtroom availability on the day set for the start of the trial.
When the WS had advanced access to witness lists and listings they could identify some
potential VIWs because of the nature of the case (e.g. if it involved a serious sexual assault).
Sometimes they identified VIWs by their manner: for example, because they appeared to be
unusually nervous or unduly intimidated by the defendant or his or her supporters. However,
some respondents acknowledged that it was sometimes difficult to differentiate these VIWs
from other generally nervous witnesses. Information on the back of MG11 forms should be
sent to the WS under a national CPS protocol, but much of the time, the WS relies on self-
Both the Phase 1 national survey and the interviews with WS co-ordinators suggested that
the WS played a crucial link role between the main agencies in court. WS co-ordinators often
had a better knowledge of witnesses’ circumstances than anyone else. They could, for
example, find themselves suggesting to the court ushers or the prosecution that a particular
special measure was needed. It seemed from WS and court questionnaire responses and
interviews that, at least in some courts, judges relied on the WS to keep them informed about
issues both at a general level, for example, through the court users committee, or in particular
The majority of WS respondents (36 out of 46) had completed the training programme in
supporting young witnesses or had special training for working with VIWs, although ten had
not received any training. Survey responses indicated that WS awareness of VIWs appeared
to increase between Phase 1 and Phase 2: the majority (38 out of 46) thought that they
increased their ability to identify VIWs in that period. The interviews provided a slightly
different picture on the question of whether Witness Service effectiveness in identifying VIWs
had improved. Four respondents felt that their service was very effective at identifying
vulnerable or intimidated witnesses, but only one of these stated that this had improved. The
remaining three did not provide an answer either way. One respondent did not answer this
question but the remaining three suggested that they were satisfied with their ability to identify
vulnerable or intimidated witnesses, and that generally they were better than many other
The court VIW officer
The extent to which courts are involved in the identification of vulnerable or intimidated
witnesses appears to be dependant on the role of the court’s VIW officer or, on occasion, the
court witness liaison officer (WLO). The precise role of the court’s VIW officer varies
considerably. In some courts, managing VIW cases is a full-time job for the VIW officer. In
other courts, handling VIW cases accounts for only a small proportion – perhaps 20 per cent
– of the workload of the designated person (usually the WLO). The time the VIW officer has
allocated for the performance of VIW related work inevitably impacts on the kind of service
that the courts can provide in VIW cases and the role the officer can play in identification of
VIWs. For example, in one area, the Witness Service commented in interview that they were
much more readily able to speak to the court about VIW problems in cases allocated to the
court which had a full-time VIW officer than they were in the court where the task comprised a
relatively small part of a person’s job. The functions of the VIW officer also vary between
courts, which probably reflects the time allocated. The full-time VIW officer in one court has
been proactive in facilitating communication between the criminal justice agencies about
VIWs and always ensures significant court representation at any multi-agency meetings. The
VIW officer plays an active role in examining cases to try to pick up VIWs and to prompt the
CPS to make special measures applications. There is ongoing monitoring of the progress of
the application, for example, to ensure that the police are notified of any decision to grant
measures so that the witness can be kept informed. The role of the full-time VIW officer is
positively evaluated by all the agencies and appears to provide a useful backstop where other
agencies have failed to identify VIWs. Even WLOs are sometimes highly regarded in VIW
work, one WS saying that they relied almost solely on the witness liaison officer in the court,
who was described as ‘fantastic’.
System level identification and inter-agency liaison 24
Given the importance attached to the Speaking up for Justice initiative by Government and
the CJS, one would have expected each CJS agency to have its own system, and the CJS as
a whole to have inter-agency systems, for monitoring the effectiveness of systems for
identifying and dealing with VIWs.
Around two-thirds of the WS respondents said that they had a system for monitoring VIWs
(29 out of 46), usually by collecting monthly statistics or by completing some form of witness
contact form. But WSs were not able to give the researchers accurate counts of different
categories of VIW they had dealt with.
Just under two-thirds (24 out of 37) of police forces claimed in Phase 2 to have a system for
monitoring their effectiveness in identifying VIWs (and one stated that monitoring was just
commencing). The following methods were mentioned:
• an internal recording system or Home Office monitoring form (n=13);
• specialist unit or officer (n=3);
• attaching a special measures document to the prosecution file (n=3);
• monitoring through inter-agency work/feedback on an informal basis (n=2); and
• a central quality and audit process (n=1).
Most of these measures are actually ways of recording identified VIWs – not monitoring the
effectiveness of identification. Thus few, if any, forces have a systematic and consistent
system for monitoring VIWs, or for monitoring the effectiveness of their identification or of the
effectiveness of actions taken by the police to support them. Only inter-agency feedback
systems can do this. Thus, the earlier discussion showed that the CPS, courts and WS all
identified many VIWs that the police failed to identify or to pass on the details of (and courts
and WS identified VIWs that the CPS failed to identify or communicate about). It would not be
difficult to establish an inter-agency system that gathered such data on a routine basis.
The researchers found only one comprehensive police VIW monitoring system (in Area B).
This system not only took an inclusive approach to identifying VIWs but enabled the police to
collect basic information and to aggregate it in order to monitor the use of measures to
support VIWs. This information included:
• the number of cases involving VIWs initially identified;
• S.16 and 17 category into which VIWs fell;
• age, sex and ethnic origin;
• the number of ABE interviews; and
• the number of cases involving VIWs in which a suspect was charged.
The use of such a monitoring system is crucial for system level identification, as is the ability
of the systems used by different agencies to talk to each other.
The difficulties that the agencies had in assembling the main samples of 500 witnesses in
each of the four areas illustrated the absence of single-agency and inter-agency monitoring
systems. It was rather naively assumed that the police Criminal Justice Units (CJUs) or CPS
offices would have systems in place that would enable the researchers to identify which of the
cases in the main samples involved VIWs. In practice, the agencies were not in a position to
provide the most basic information about VIWs, such as which category they might fall into,
and what systems they did have rarely inter-faced with each other. For example, while
individual police officers identified VIWs in some cases, it was frequently impossible to
discover which these were except by reading through the case files. Even then, the routine
monitoring forms (MG6 and MG2) were often not correctly completed or not on the file at all,
and there appeared to be no ‘quality assurance’ processes in place to ensure that this
For the purpose of this report, the term ‘ inter-agency’ is used to refer to work across the criminal justice agencies.
happened. In addition, since systems were largely paper-based there was no way to retrieve
or interrogate aggregate information.
So, for example, in one of the study areas, two out of the four CPS offices used the national
VIW monitoring system and seemed to have a high level of compliance with it. Another office
claimed to use it but this was not borne out by the evidence from the cases that were tracked.
Only one file was identified as VIW using this system in six months. In another office no-one
used the system after the administrator responsible for it left. Even then, this was a special
measures system, not a VIW system, and was, therefore, useless in determining which cases
were VIW and what proportion of VIW cases had special measures applied for and granted.
Due to the difficulties experienced in tracking down case files, the case tracking exercise took
longer than had originally been anticipated. One consequence was that a change in practice
was observed in some areas towards the later stages of the research. It appeared that the
introduction of the MG2 form was leading to a higher rate of identification of VIWs than
Since the systems in the individual agencies were limited, it is no surprise that there were
difficulties in systems talking to each other except on a case by case basis. Again this was
illustrated by the CPS’s difficulties in obtaining court results for the 500 sample. In each of the
areas, the CPS had to attempt to retrieve the results from courts case by case. It appears that
this information was not routinely collected and that files were not routinely endorsed with the
results. The CPS did not therefore appear to be in a position to ask the most basic questions
about VIWs, such as whether such cases were discontinued more frequently or ended as
cracked or ineffective trials. Our findings are consistent with others, such as the HMCPSI
(2002) which, in the context of rape investigation and prosecution, also found a striking lack of
co-ordination across the criminal justice agencies.
The hierarchy of identification
It has been shown that professionals in the various agencies found it easier – or were more
concerned – to identify some categories of witnesses as VIW than others. There was, in other
words, a hierarchy of identification, whereby witnesses at the top of that hierarchy were much
more likely to be identified as VIW than those lower down the hierarchy, as follows:
1. Child victims of sexual offences.
2. Child witnesses to sexual offences.
3. Child victims of violent offences.
4. Child witnesses to violent offences.
5. Adult victims of sexual offences.
6. Adult witnesses to sexual offences.
7. Adult victims of violent offences.
8. Adult witnesses to violent offences.
9. Child and adult victims/witnesses of and to other offences.
This hierarchy clearly does not capture witnesses with mental, physical or learning disabilities
or intimidated witnesses. There were small numbers of such cases (especially people with
disabilities) within the file sample, suggesting, as argued in Chapter 3, that they are the most
easily missed of all, i.e. they are even lower in the hierarchy unless they are victims of, or
witnesses to, sexual or violent offences.
1. Child victims of sexual offences
There was only one instance in the case tracking sample where a child victim of a sexual
assault was not identified by the police as being a VIW. The reason for non-identification
appears to be a) the ‘child’ was on the cusp of being considered an adult; and b) this was an
indecent assault that was considered to be relatively minor. This case illustrates that even in
circumstances where identification is regarded by the police as being easy and almost ‘non-
discretionary’, there is an element of ‘residual’ discretion in identification of child victims of
sexual assault as VIW.
2. Child witnesses to sexual offences
These were normally identified as VIW where the child was also a victim. However, in cases
where the victim was an adult, the police did not always identify the child witness of a sexual
offence as VIW. For example, a child witness to a domestic assault with a sexual component
(resulting in charges of attempted rape) was not identified by the police as VIW.
3. Child victims of violent offences
There are numerous examples of police failure to identify child victims of violent offences as
VIW. There appears to be little consistency in the reasons for this. For example, A3NS was
not picked up as VIW even though she should have been easily identifiable due to her age
(14) and the nature of the offence (she was in a relationship with a man in his 30s). The
physical assault on her by her ‘partner’ was treated as ‘domestic violence’. Given the disparity
of age between the victim and defendant it is surprising that this case was treated as typical
domestic violence. This also happened in case C1S, which involved a 23-year-old man in a
relationship with a 13-year-old girl. The girl was not identified as VIW, but the domestic
violence policy for managing retraction was complied with when she withdrew her complaint
The police failed to identify as VIW a child who was assaulted by his employer (C8NS) and
his vulnerability was only picked up when the CPS was informed by the WS that he was being
intimidated. From the outset it was clear that the victim had been told not to make a statement
by the defendant. Two 16-year-old girls assaulted by a group of youths whilst they were
walking home were not identified as VIW by the police (D12NS).
The non-identification of child victims of violence as VIW seems to be partly related to their
age. Older child victims may not be perceived to be vulnerable either because of their
physical appearance or life experiences. An interesting example of this is B23S, which
involved a 16-year-old boy assaulted by three men whilst he was out walking with friends.
The men used violence and threats of violence to steal from the victim but the police did not
identify the victim as VIW as he was in the army and considered to be fully capable of giving
his evidence as an adult. In another case involving an older child victim of street robbery
(DS17), the police did not identify the 15-year-old victim as VIW. The CPS did identify this
victim as VIW, but it was noted in discussion that one of the difficulties with identification in
cases such as this is the number of competing priorities faced by the criminal justice
agencies. In an area that has a designated priority for street crime the special consideration
that should also be accorded to VIWs sometimes got lost in what one prosecutor described
as ‘initiative-itis’. Although on the face of it there is no reason why the Street Crime Initiative
and measures for VIWs should be considered competing or in any way incompatible, there
were issues of multiple flagging of cases as requiring special attention and a feeling that
some points were bound to get missed where there were too many priorities to be
Issues of victim precipitation and blame may also account for non-identification. In a case of a
14-year-old victim of assault (D34S), the police thought that the victim had caused a nuisance
by going to the house where the defendants lived to find out why they had been saying bad
things about his mother. Potential vulnerability was not mentioned on the MG6 form and there
was no consideration of special measures by the CPS either.
4. Child witnesses to violent offences
Child witnesses of violent offences against other children are not always treated the same
way by the police as victim witnesses. This type of case was the most common example of
CPS identification where the police had failed to identify a witness as VIW. Once the case
was passed to the CPS the prosecutor would flag the other child witnesses as VIW and
eligible for special measures. The CPS generally applied for a live television link. But the CPS
did not refer such cases back to the police for video recorded interviews to be conducted with
the witnesses, although there will often be sound legal and tactical reasons for this once
written statements have been taken.
There were several cases within the sample where children were witnesses to violent
offences against adults. This typically occurred in the context of domestic violence, where a
child of the relationship was present at the time of an assault against the primary victim,
usually the mother, but in one case within the sample the victim was the female sibling of two
male child witnesses. In the domestic violence cases, child witnesses were not normally
identified as VIW. The adult primary victims were typically not identified as VIW either.
However the non-identification of the adult as VIW did not preclude the identification of
children as there were cases within the sample where children were identified as VIW even
when the adult victim was not. In one non-domestic violence case (D37S) where a child
witnessed a serious assault on a security guard, the police did not identify the child witness or
the adult victim as VIW. The 14-year-old boy was a crucial witness because he knew the
victim’s attacker and therefore was able to identify him as well as to corroborate the victim’s
account. The issue of vulnerability was not addressed by either the police or the CPS. It was
only picked up by counsel at the Plea and Directions Hearings (PDH).
The identification of child witnesses also appears to be problematic in situations where the
child may be a witness for the defence. Thus, in DS5, the defendant’s son was a witness to
the assault committed by his father. Although only 12 years old he was not video interviewed
by the police or identified as VIW. It would be expected that where the child witness to an
offence becomes the direct victim of further offences due to witness intimidation, the police
would readily identify them as VIW. However, DS6 illustrates that this is not necessarily the
case. Here a 13-year-old girl who was a witness to assault was not identified as VIW by the
police even though there were subsequently separate intimidation charges as a result of
efforts to get her to withdraw her evidence in the case. The CPS identified the child as VIW
although the police had not properly completed the MG6 form.
5. Adult victims of sexual offences
Identification in these cases appears to be dependent on the nature of the offence and the
relationship between the victim and the defendant. The police and CPS seem to believe that,
for example, the more serious the sexual assault the more vulnerable a witness may feel or
the greater the incentive for the defendant to subject the witness to intimidation. Thus, for
example, in one case of low level indecent assault (touching of the complainant’s legs) the
police did not consider the possibility that the victim might be VIW, even though she was
living in the same accommodation as the defendant and there was a history of disharmony
between her and the defendant.
A close relationship between the victim and defendant might create an expectation that the
victim will feel more vulnerable or exposed to intimidation, possibly due to ongoing contact.
However, the case tracking suggests that if the victim and defendant know one another they
are less likely to be identified as VIW. There are a number of cases of historical sexual abuse
within the family setting where the police do not identify the victims as VIW. In relation to
historical sexual abuse allegations the victim’s views seem to be particularly influential in the
police determination of vulnerability. If the victim does not self-identify as vulnerable the case
is generally not flagged as VIW despite the nature of the charges.
However, there are examples within the sample where victims did self-identify as vulnerable
but the police did not flag them as VIW, nor did the CPS respond to concerns that had been
raised by the victims. For example, A40NS involved several victims of historical sexual abuse
allegations but they were not identified as VIW by the police. The victims made it clear to the
police that they were concerned about giving evidence because of the family relationship with
the defendant, but the police suggested that these fears could be discussed at a later stage.
There was no evidence on the file that these fears were addressed at any stage before the
CPS decided to accept a plea bargain and thereby avoid a trial: certainly no application for
special measures was prepared or made by the CPS.
There were also domestic violence cases where the victim of rape or attempted rape was not
identified as potentially VIW by either the police or CPS. The adult victims of sexual assault
who are most likely to be identified as VIW are victims of ‘stranger’ rape. One further factor
which may play some role in identification of adult victims of sexual offences is the police
assessment of credibility and lifestyle of the complainant. In a ‘stranger’ rape case where
identification would normally be automatic the police did not identify the victim as VIW where
she was working as a prostitute (D28S). However, in this case, the CPS did identify the victim
as potentially vulnerable and asked the police to consult her about her views as to special
It is interesting to note a significant difference in the level of identification of child victims of
sexual offences compared to adult victims of sexual offences. The much more discretionary
nature of identification in relation to the latter is illustrated by a group of cases within the
sample where there are both child and adult victims of sexual assault within the same case.
Thus, in cases where child victims of sexual assault were identified as VIW (as discussed
above, this is routinely the case), adult victims of sexual assault were not always so identified.
For example, in C1NS, the defendant indecently assaulted two occupants of a house during
the course of a burglary. One of the victims, a 14-year-old girl, was identified as VIW by the
police and video interviewed. But the second victim of indecent assault, her mother, was not
identified as VIW and not considered by the police or CPS for special measures. There was
evidence that the mother, the adult victim, had suffered considerably as a result of the assault
and could have benefited from consideration of special measures had the case gone to trial.
In a Victim Personal Statement, she described feeling anxious and experiencing problems
with sleeping. Whilst she was consulted about special measures for her daughter, there was
no consultation about whether she would benefit from assistance herself. This case is a
failure in identification by both the police and CPS.
6. Adult witnesses to sexual offences
Sexual offences by their nature may often take place in private where there are no other
witnesses to the offences. However, there may be witnesses to the circumstances of the
offence, including the time leading up to the alleged assault and perhaps also the aftermath.
The case tracking and court observations suggest that adult witnesses to sexual assault are
not normally identified as VIW even in cases where there are seemingly obvious vulnerability
issues. For example, in court observation OB2, the main prosecution witness (the
complainant in a rape allegation) gave her evidence via live television link. However another
prosecution witness in the case, a man who was at the nightclub with the complainant, gave
his evidence without any special measures being used. The witness failed to attend court in
accordance with the witness warning. He was arrested and kept in the hospital wing of the
prison the night before he was brought to court to testify. The judge noted that he was ‘a
vulnerable young man’ and had mental health problems. He was visibly shaking as he
entered the witness box and during his testimony. Whilst he was giving his evidence the
defendant was shouting at him from the dock, and continued to shout when he left the
witness box. No one in the court intervened.
In another court observation (OB8) the complainant in an allegation of rape was allowed to
give her evidence using a screen, but her friend was not identified as vulnerable or afforded
any special measures. The complainant’s friend was the person to whom she had first made
a complaint of rape. She was summonsed to give evidence due to the fact that she was
reluctant to testify. She appeared to be very nervous but the screen was pulled back for her to
give her evidence in full view of the defendant.
7. Adult victims of violent offences
Adult victims of violent offences are not routinely identified as VIW even when their
statements reveal that they are afraid of the defendant and/or of attending court. Part of the
reason for the low level of identification of adult victims of less serious violent offences as
VIW may be that the police and CPS felt at the time of the research that there was little point
flagging them as VIW if they were to be dealt with in the magistrates’ courts. This is because
the range of special measures available to them summarily was limited. In M2S, the
defendant was charged with threats to kill and the victim witness stated quite clearly in his
statement that he was frightened and intimidated. He was not flagged as vulnerable and
intimidated, and no consideration was given to special measures. This may be because the
charges were downgraded before the first hearing, and so the case was to remain in the
magistrates’ courts. However, some measures were available summarily at the time of the
field work, so this is a poor reason for not flagging the case appropriately.
In a few cases, potential vulnerability was considered but rejected. The reasons for rejection
did not always appear to be sound. For example, in one case where asylum seekers had
been subjected to violent offences, the police decided that having had to cope with traumatic
events in their own countries did not make them VIW.
In domestic violence cases, the police and CPS rarely identify adult victims as VIWs.25 The
situation for these cases may be affected by the fact that, unlike other offences referred to in
this report, domestic violence is not in itself a recorded crime category and, therefore, these
crimes cannot be identified on the basis of the original offence classification. Difficulties may
also arise as a result of the level of charges and availability of measures. However, it should
be noted that screening arrangements were available as a matter of common law discretion in
the magistrates’ courts prior to the implementation of special measures in magistrates’ courts.
Again, there may be issues of multiple flagging in domestic violence cases where the priority
appears to be to comply with domestic violence policy for managing victim retraction rather
than to explore the possibility of continuing a prosecution by supporting the witness to give
her evidence with the benefit of special measures.
8. Adult witnesses to violent offences
In cases where there were obvious indicators of vulnerability or intimidation the police still
sometimes failed to identify it. For example, in A38S, which involved a ‘glassing’ in an
unprovoked attack outside a nightclub, one of the witnesses stated that they did not wish to
attend court but instead of considering VIW issues and special measures a partial plea was
accepted so that the case did not have to go to trial.
9. Child and adult victims/witnesses of and to other offences
The number of cases within the sample where the police or other agencies identified the
victim as suffering from physical/mental or learning disabilities was small unless the offences
were violent or sexual in nature. This was partly due to failure to probe possible indicators of
vulnerability falling within these categories where the disability is not obvious and severe. The
case file analysis suggests that there were some cases where victims displayed signs of
possible vulnerability in these ways but this was not further explored by the police or CPS.
This was an issue in particular for older witnesses where there were indications of both
physical frailty and possibly the onset of dementia.
There were a few cases in the sample of elderly victims of property offences. These cases
usually involved defendants gaining access by pretending to be on official business and then
carrying out thefts. Where such offences were carried out without violence, the vulnerability of
the witness was not considered. In A35S, the elderly residents of a care home were not
identified as VIW even though there were questions about the level of their mental ability to
act as witnesses against the managers of the care home, who were facing allegations of false
imprisonment and putting a person in fear of violence.
As the interview data suggests, the identification of victims with obvious physical or mental
disabilities is relatively straightforward. So, for example, in B8S the police were able to
immediately identify a victim of multiple assaults who was wheelchair bound as a result of a
stroke as VIW. The victim also had communication difficulties that were notified to the CPS.
Likewise in B44S the police were able to easily identify as VIW a victim who had severe
physical disabilities and was only able to communicate via his mother. A victim of sexual
offences who had serious learning disabilities was also easily identified by the police in D26S
(see also C7S). The difficulty with victims with severe disabilities is not identification but the
Guidance on rape issued by the CPS since the field work was conducted addresses this issue, although the impact
of this guidance is not yet known.
capacity of the special measures to adequately address the consequential evidential
problems, a theme to be taken up in the next chapter.
This chapter has endeavoured to explain the gap, demonstrated in Chapter 3, between the
number of witnesses identified as VIW by the CJS agencies and the number that were readily
identifiable in this research. The lack of awareness in the police and CPS of their failure to
correctly identify VIWs is a cause for concern. It is not just that the police appear to wrongly
believe they are improving in this regard. It is that the police have no systems for adequately
monitoring how much of a problem this might be. Without identification of people who are
likely to be VIW it is not possible to go on to ask the harder questions of what support, if any,
should be provided.
5. Pre-trial support and decision-making
Speaking up for Justice (Home Office, 1998) makes it clear that, once a witness is identified
as vulnerable or intimidated, all the agencies examined in this research have a duty to
provide such support as is appropriate. This will vary according to the nature of the
vulnerability. Different solutions are required for different witnesses in order to maximise their
opportunities to give best evidence, and to minimise the danger that the victim will feel re-
victimised by the process. This chapter discusses the ways in which the agencies support
VIWs prior to trial, if the case goes to trial.
As with identification, the initial responsibility for assessing witnesses and deciding what kind
of support is necessary lies with the police, but effective communication between the criminal
justice agencies is equally important. Once the police have decided that special measures (or
other measures) may be desirable, they are also the agency that informs the witness about
the various measures available and discusses with them, at least in the first instance, which
they might find helpful. The police are also responsible for providing the CPS with information
on which they can base an application for special measures, if appropriate, and within the
scope of the legislative framework. The written information provided by the police to the CPS
at this stage is a core element of the preparation for supporting the VIW at trial.
Information about VIWs (or possible VIWs) in a particular case received from the police in a
prosecution file will, in some cases, cause the prosecutor to seek more information from the
police or discuss aspects of the case on the phone. It is also possible for ‘early strategy
meetings’ to take place between the police and CPS. This enables them to work out together
what measures may assist witnesses. These are all opportunities for inter-agency working to
improve the support for VIWs. In some cases, effective support for VIWs may require that the
prosecutor meet the witness in the pre-trial stages too.
Assessment of support needs
The majority (38 out of 41) of respondents to the Phase 1 police survey stated that support
was provided for vulnerable witnesses during the police investigation and pre-trial. The
majority said that support was provided “routinely” (n=16) or “always” (n=11), with only a few
stating it was provided only “sometimes” (n=6) or “occasionally” (n=1). The type of support
provided varied but usually consisted of referral to Victim Support and the Witness Service
(WS). According to the latter, however, the main problem that VIWs faced during the period
leading up to the trial was lack of information, contact or support from the police (21
respondents out of 46), which suggests that the police over-state their level of activity in this
regard. The WS view is supported to some extent by the findings of Hamlyn et al. (2004a).
This survey of VIWs, also in two phases, found that nearly a fifth of VIWs felt the police had
given them insufficient support. Children were most satisfied, and those with
disabilities/disorders least (over a quarter in Phase 2). This probably reflects the identification
problems discussed in Chapters 3 and 4. Overall, nearly half of all VIWs wanted more help
and support (Hamlyn et al., 2004a).
Interviews with the Witness Service suggest that, as a whole, witnesses are apprehensive
about going to court and giving their evidence. They are, for example, frightened of the
unknown and of bumping into the defendant within the court building. Escorts to and from
court and pre-court visits can do a lot to allay these fears. On a visit, the witness is able to
see that the court might have separate entrances and waiting areas for witnesses. They can
talk about the possibility of using a special measure, and what are its advantages and
disadvantages. A few court and CPS respondents commented that the expectations of VIWs
were built up by the police and Witness Service when special measures were not always
appropriate or available. More pre-court visits could reduce this problem if all WS volunteers
were exceptionally well trained, but could exacerbate it otherwise. If there has already been a
special measures application, VIWs on visits can see the screen in the courtroom or see the
TV link room, for example.
Escorts and pre-court visits do not seem to be offered frequently and visits are rarer before
decisions are taken about what measures to seek. Certainly most Witness Service
respondents (31 out of 46) thought that visits are the most important form of support that
VIWs could be offered. Again, this view is supported by the findings of Hamlyn et al. (2004a).
In particular, only a minority of VIWs had pre-court visits and/or escorts, and only a minority
were asked if they wanted them. Many who did not have them said they would have
welcomed them. One-third of all VIWs were not offered escorts but would have liked them,
and one-quarter of all VIWs were not offered pre-court visits but would have liked them.
Ninety-one per cent of those who had pre-court visits found them helpful (73% ‘very helpful’)
and virtually all who had escorts found them at least helpful. Similar findings are reported in a
study of 50 child witnesses (Plotnikoff and Woolfson, 2004).
Nearly all police respondents (40 out of 41) indicated that there are arrangements for passing
information about vulnerable or intimidated witnesses to the CPS. The majority (n=28) of
these indicated that the arrangements were formal and consisted primarily of completing and
passing on to the CPS the MG6 (confidential information) form. Five respondents stated that
the arrangements were both formal and informal and consisted of the MG6 form,
supplemented by verbal direct communication with the CPS.
In Phase 1, the distinction between the expertise held in specialist units and that of generalist
police officers was made frequently in interviews. For example, a member of the CPS
commented that “in specialist units, the police have the necessary experience and are looking
for the problems. Ordinary police officers are not. Child abuse units are very good at providing
information”. In one sense this was unsurprising as special measures had been in place to
protect the interests of child witnesses for some time (see Chapter 1). Police Child Protection
Units, or their equivalent, were most often cited as being likely to provide timely information to
other agencies, to engage with CPS and the Courts, to liaise with the witness service and to
provide advice and assistance to colleagues within mainstream policing. Other specialist units
that were similarly highly regarded were Domestic Violence and Community Safety Units. A
small number of forces had specialist witness protection units for cases involving the most
serious levels of intimidation and at least one force had a dedicated witness care function
designed to serve the needs of witnesses throughout the force.26 However, no information on
how well these units functioned or on how they were regarded by other agencies could be
ascertained from the current research.
All agencies reported that, in cases where information was provided by generalist officers, it
was often insufficiently detailed to establish the particular nature of the difficulties experienced
by the witness and to identify the measures needed to assist them. This should be contrasted
with the arrangements for communicating information in child witness cases, where the police
provided information about the witness that generally was sufficiently full and timely for
appropriate steps to be taken in the handling of the case. Thus, vulnerable child witnesses
benefited, in terms of the level and type of support provided, from a better level of
communication and co-operation across the criminal justice agencies than did most other
vulnerable witnesses who were normally dealt with by generalist officers (except in rape and
domestic violence cases). Generalist officers relied on standard forms of communication and,
unlike specialist officers, had not usually developed contacts with individuals in other
The distinction between the different levels of knowledge of specialist and generalist officers
that characterised Phase 1 responses was not such a feature of Phase 2. This may reflect an
increased awareness of VIWs amongst mainstream investigating officers. The majority (23
out of 37) of respondents to the Phase 2 police survey identified the officer in charge of the
case as the person who decided how to provide support for a witness once he or she had
been identified as VIW. They would do this either alone (n=14) or in conjunction with others
such as an Inspector, Detective Superintendent, Detective Inspector (n=3), CPS (n=6), or a
witness liaison officer. Seven respondents mentioned specialist units or officers and four
stated that there was an inter-agency approach.
Since the research was concluded, all areas have begun to introduce Witness Care Units, staffed by police and
CPS personnel, the purposes of which include the assessment of witnesses’ needs and the provision of a single
point of contact about the case. Units were in place in all areas at the end of 2005.
Decision about whether to make a video interview
Video recorded interviews should take place for all child witnesses who are expected to give
evidence in sexual offence cases or cases involving an offence of violence, abduction or
neglect (children ‘in need of special protection’), unless the child objects or there are
insurmountable difficulties. In all other cases involving child witnesses, according to the ‘ABE’
guidance from the Home Office (2002), the decision about whether or not to video record an
interview should take into account the needs of the child, whether the measure is likely to
maximise the quality of the particular child’s evidence, the type of offence, the circumstances
of the offence and the child’s state of mind. The guidance outlines the factors to be taken into
account in planning a recorded interview, including the time and place of the interview. There
is a presumption that the interview will normally take place as soon as practicable after the
police hear the allegation. The interview should be carried out by a lead interviewer, who
should establish a rapport with the child in an environment that is comfortable and practical
for the purposes of interviewing. Interviewers are given detailed guidance on the principles of
interviewing and style of questions.
The police decided to video record only a minority of VIWs. This is very surprising in the light
of the ABE guidance. While not all VIWs need the benefits that video recorded interviews
bring – such as their use in court without the stress of giving evidence again, and removal of
the need to rely on memory at a hearing that could be months later – it would be surprising if
police officers, particularly generalist police officers, could make this judgment at the start of
so many cases.
It seems that the older the child, the less likely a video interview would take place, especially
if the defendant was also a child of a similar age to the victim witness. For example, in B6S,
the defendant and the victim witness lived at the same children’s home. The defendant was
charged with a Section 47 assault as a result of punching the victim in the face, causing
damage to his teeth. The victim/witness was identified by the police as vulnerable but it was
felt that no video interview was necessary as he was 15 years old. The CPS did not question
the decision not to video interview the victim. In fact, the VIW sample did not contain any
cases where the CPS had requested the police to go back and carry out a video interview
with a witness where the police had not done such an interview. The fact that the witness in
this case was an older child was a significant factor in the police/CPS assessment that
evidence-in-chief could wait until trial (though as noted in Chapter 4 there may be other
reasons why it is unwise to take a second (video recorded) statement after taking an initial
However, even in cases of ‘younger’ child witnesses the issue of parity between the victim
and defendant may influence whether the police decide to record an interview for use as
evidence-in-chief. In B12S, the fact that the defendant was close in age to the victims of a
street robbery seemed to be a factor in the decision not to video interview the victims. Both of
the victims were aged 12 years and the defendant was 14. In B16S, both the defendant and
victim of a street robbery were 11 years old and no video interview was done. The victim was
identified by the police as vulnerable and the MG6 form contained a statement that special
measures would have to be considered when the case was ready for court. The CPS made
an application for live television link.
During the case-tracking exercise, police officers suggested that differences in policy (Areas
B and D) or the availability of video suites (Areas A and D) might affect decisions whether or
not to conduct ABE interviews. For example, there was considerable pressure on video
interviewing facilities in Area D, which only had five video suites at the time Phase 2 was
carried out. Amongst those five suites, some were regarded as much more comfortable and
practical for the purposes of interviewing child witnesses than others. There were examples of
police officers apologising to child witnesses that a more comfortable suite was unavailable
for their interview. However, it is interesting that all three of the above examples of decisions
not to do video interviews with child witnesses come from an area where every police station
had the facilities to carry out such interviews. A cross-tabulation of ABE interviews by area
showed that, whatever the differences in resources or policy, there were no statistically
significant differences between areas in the frequency with which video interviews took place.
This suggests that the decision not to interview is more likely to be due to the features of the
case than due to a lack of resources.
Early strategy meetings (ESMs)
The Action for Justice Practice Guidance produced by the Home Office for the CJS agencies
(Home Office, 1999) requires officers in charge of cases involving VIWs to consider whether
to ask for an ESM between the police and CPS. The questionnaire surveys asked the police
and CPS about this. Three-quarters of respondents in the Phase 1 police survey (31/41) said
that ESMs took place, and it was encouraging to see that this proportion rose in Phase 2
(32/37). This was consistent with the CPS Phase 2 survey results, where in only four out of
32 areas was it stated that no ESMs took place. However, as regards the other areas, in only
five did ESMs take place in most cases; in the remainder they took place in some or few
cases (11 in each instance, plus 1 ‘don’t know’). The stage at which the meetings were held
varied: most respondents stated “as appropriate”, “after charge” or “as early as possible”.
It was interesting to see that police questionnaire respondents believed ESMs to be generally
organised by the police, alone or together with the CPS, while CPS respondents indicated
that the decision to hold an ESM was normally taken by the CPS, alone or with the police.
Questionnaire comments confirmed the impression of great variation across areas in the
frequency and circumstances of ESMs:
Infrequently and procedures require tightening up.
We get advice from in-house CPS lawyers. This usually occurs in the case of videos.
Upon requests from CPS.
In complicated cases or where witness has complex needs/ learning disabilities.
Technically in place but rarely used.
Prior to victim statement being recorded or prior to charge or prior to PDH.
The survey responses in both Phase 1 and 2 contrasted with the interview responses and the
findings from the case sample analysis in Phase 2. In both phases, the police and CPS
interview responses suggested that ESMs were one aspect of the implementation of
Speaking up for Justice that was not working, as they were so rare. For example, CPS
responses included the following:
Early special measures meetings are not working very well.
Resource implications are immense.
They do not happen as often as we would like.
We do have the occasional phone call.
The Phase 2 interviews suggest that, in one force, meetings between the police and the CPS
occurred fairly regularly as they operated from the same building. CPS respondents to both
interviews and questionnaires, who said that meetings did not take place in most cases,
explained that face-to-face meetings were not always needed or that pressures of time did
not allow them to take place. It was noted that, when discussions occurred, they were more
frequently held on the telephone and via e-mail than face-to-face. Actual meetings would be
held only in serious cases or if there were disagreements.
In contrast to both the survey and interview responses, it was not possible to find a single
example of an ESM in the analysis of the sample cases and non-sample cases that were
tracked. The interview responses are therefore more reliable than the survey responses, and
even these responses probably portray co-operation across the criminal justice agencies in
this respect as far more effective than it really is. As noted earlier, full ESM meetings will often
be unnecessary if adequate discussion has taken place by phone, e-mail or exchange of
memos. Even this will not be required in those particularly serious cases involving children
where ABE interviews and the use of CCTV are near-mandatory. However, these are a
minority of cases. All discussion or exchange of views should be recorded in prosecution files.
Not much was evident from the file analysis undertaken for the purposes of this research –
indicating that either little of this activity occurred and/or little of it was recorded in the files.
The CPS is frequently criticised for poor file endorsement in general (e.g. see regular CPSI
reports), so this will undoubtedly be part of the explanation. But the interview and other
material presented in Chapter 4 indicates that there is also in reality a significant lack of
discussion between the criminal justice agencies.
Police meetings with, and provision of information to, VIWs
The Home Office guidance distinguishes ESMs between police and CPS to decide whether
(special) measures should be sought, and later meetings between the police and/or CPS and
the VIWs in the case (with or without their carers). There are several reasons why it is
desirable in some cases for police and/or CPS to meet VIWs in the course of pre-trial
proceedings. For example, it may be to ascertain the witness’s views, to reassure the
witness, to form a judgment about the witness’s state of mind or health, to discuss what
measures might help them, or to convey information. According to 31 out of 32 Phase 2 CPS
questionnaire responses, witnesses were consulted by the police about their views on special
measures in at least some cases. The YJCE Act requires the police to consult VIWs about
special measures, but whether a (potential) witness is to be regarded as a VIW is, as has
been seen, a matter primarily for the police. Thus, the decision to consult the witness was
usually taken by the police who would then inform the CPS of the witness’s views.
Ascertaining witness’ views on special measures is problematic. In interviews, judges
observed that witnesses have very little real understanding of how the measures work in
practice at the time when they are asked to express a view on what will assist them. It is only
when the witness gets to court, or during a pre-court familiarisation visit, that it may become
apparent to them how a particular measure works. At that stage an application may have
already been made for a measure that the witness might later have felt to be less likely than
another to improve his or her ability to give evidence. If pre-court visits were more common,
they could take place early – either before any special measure had been applied for or in
time for an application to be made to alter the measure ordered. As it is, many VIWs are
reliant on the police for information about how special measures work.
The most frequently cited problem was that witnesses often do not realise that using a live
television link means that the defendant can see them. Once they realise this, many opt for a
screen instead. Court staff and the judiciary commented that the police are not well informed
about the facilities of the court and how special measures work in practice. In one court this
had resulted in an invitation being issued for police officers to come to court to familiarise
themselves with them. Improved police knowledge of how special measures work in practice
may enable them to give better information to the witnesses, and in turn increase the
likelihood of the witness asking for the measure that is most likely to suit them.
Many practitioners who were interviewed suggested that the police regard the CCTV link as a
‘panacea’ for all the problems encountered by child witnesses. They also suggested that, in
general, police officers have little understanding of how special measures operate in practice.
Prosecutors, counsel and judges share the perception that police officers routinely inform
child witnesses that they would be able to give their evidence by live television link and gave
little thought to whether the witness was eligible according to the statutory framework or, in
cases where a strong presumption did not apply, what supporting information could be
provided for the application. These concerns were to some extent verified by court
observations and interviews with prosecutors and the Witness Service. In OB6, there were
three child witnesses due to give evidence in relation to a violent offence against one of their
number (a girl aged 16). The victim witness in this case asked the police officer whether the
defendant would be able to see her whilst she was giving evidence. The police officer replied
that he did not know.
But the problems do not stop with the CCTV link. Many police officers dealing with VIWs
appeared to be insufficiently knowledgeable about many measures or had too low an opinion
of them. The same could be said of prosecutors and judges (see Chapter 6 on agency
evaluations of measures such as screens, clearing the court, and removal of wigs and
gowns). Thus, as Chapter 6 will show, VIWs are frequently not offered measures that they
might find helpful. If most VIWs had early pre-court visits, including discussions with
knowledgeable members of the WS (see earlier discussion), this would not matter so much.
As it is, with these visits being arranged for only a minority of VIWs, it is a matter of great
Thirty of the respondents to the Phase 2 police survey stated that the police were responsible
for keeping witnesses informed about the progress of their case. Three of these said this duty
was shared between the police and the CPS and two respondents also mentioned police
support staff. Half (19 out of 36) of the respondents felt that performance in relaying
information to witnesses about special measures was good, or very good, regardless of who
was responsible for this duty. Fourteen stated that it was performed poorly and three had no
data or gave no answer. The view from 14 out of 46 Witness Service respondents that VIWs
did not understand the trial process and therefore feared the unknown suggests that, again,
the police survey respondents over-estimated their effectiveness in this respect. Indeed,
police interviews in Phase 2 suggested that this function was not carried out to very high
standards. Communication can be lost in the gap between file preparation and trial. In rape
cases and cases involving child witnesses, where specialist officers were likely to be involved,
communication was said to be better than in other cases. One force suggested that their
performance was likely to improve as there would be new staff within the police and the
witness service. The same respondent felt that it was not really the role of the police to be
supporting the witnesses. This problem is now (since completion of the field work) being
addressed through joint police-CPS Witness Care Units. These will be briefly discussed in
Chapter 7 in the context of recommendations for reform.
The majority of police questionnaire responses (23 out of 37) said that the CPS generally kept
them informed of the progress of individual cases involving VIWs. When asked about how this
was done, ten respondents said that communication would be made to the OIC, usually by
means of a note or memo. In two forces, communication was by telephone (in one case by
the Senior Crown Prosecutor). Communication was to a witness liaison officer or dedicated
witness care department in five forces. One respondent mentioned strategy discussions and
another a monitoring form. In one force, a respondent stated that the CPS was based in the
police station and so communication was frequent and thorough. Another suggested that
feedback had highlighted some gaps in this area. Views were divided on whether witnesses
were kept adequately informed of the progress of their cases and of the availability of special
measures, with 16 respondents saying that they were, 14 that they were not, and seven
unable to provide an answer. Hamlyn et al. found that 36 per cent of VIWs in Phase 2 were
not kept informed of the progress of their cases, and only 27 per cent were kept regularly
informed. Twenty-three per cent wanted more information on what happens in court (Hamlyn
et al., 2004a). Again, Plotnikoff and Woolfson’s (2004) findings with regard to child witnesses
were similar. The introduction of Witness Care Units should improve matters here.
CPS meetings with VIWs
Meetings between prosecutors and VIWs are seen as qualitatively different from police-VIW
meetings and police-prosecutor meetings. In the Phase 1 CPS survey, the majority (29 out of
39) of respondents said that meetings with witnesses did not take place, adding a rider that
they thought such meetings would be inappropriate or pose considerable difficulties for the
prosecution. The principal difficulty mentioned was the potential allegation of witness
coaching. The possibility of cases being damaged by allegations of coaching was seen to
outweigh the potential benefit to the witness of the meeting. The CPS position was similar in
Phase 2. The majority (17 out of 32) of respondents to the Phase 2 CPS survey indicated that
meetings between prosecutors and witnesses took place infrequently. Nine respondents said
that meetings did not take place at all, and only six said that they took place in some (n=4) or
most (n=2) cases. Respondents explained that few or no meetings took place because they
were not necessary or because there was insufficient time. Others indicated that meetings
would take place at the request of the witness, but that such requests were rare. In this phase
only a few mentioned the problem of witness coaching. It was noted that the decision about
whether to hold a meeting would be taken by the reviewing lawyer in consultation with the
police, and through the police, with the witness. The meeting would be attended by the police,
prosecutor and witness and occasionally others, such as counsel or witness support.
CPS interviews in Phase 2 revealed mixed views about the usefulness of meetings with
VIWs. Two areas seemed opposed to meetings and cited traditional objections. One area
was keen and the other had taken positive steps in the direction of meeting VIWs. However,
even in the area where steps had been taken, it seemed that meetings with witnesses were
only taking place in a particular category of case – domestic violence 27 – due to other
initiatives in that area. This area gave as an example of good practice the special domestic
violence courts. Meetings between the CPS and the witness took place, with positive results.
There had been an increase in the number of serious cases coming to court, more guilty
pleas, and a reduction in the time between the offence and trial.
The Phase 1 CPS survey asked in what circumstances and in what ways CPS decision-
making was affected by the existence of vulnerable or intimidated witnesses. Most
respondents referred to the application of the evidential and public interest tests in the Code
for Crown Prosecutors. In relation to the evidential test, respondents said that the existence of
such witnesses may mean that the case was too weak to proceed. The CPS needed to know
that the witness would attend court, withstand cross-examination and make a credible
witness. If they would not voluntarily attend court then they could be compelled, but then the
public interest came into play: would it be fair, for example, to force vulnerable people to
undergo such a stressful experience? It was thought that special measures could sometimes
be used, but they were not always available, and they were not always thought likely to get
the case past the evidential threshold. It was accepted that there was a need for continuing
review of the evidence and consideration of measures that might enable the case to proceed.
Contradictory views were expressed on the level of evidence required to run with a case.
Some respondents said that they were reluctant to take risks because of the non-jury
acquittal problem. Others said that because of the vulnerability there was ‘more scope’ to try
to take the prosecution forward.28
So far as the public interest was concerned, vulnerability and risk of intimidation were
regarded as aggravating features that pointed to prosecution. However, prosecutors had to
take into account the trauma of the process in considering where the victim’s interest lies and
balancing that against the wider public interest. Generally, vulnerability made the prosecutor
more determined to proceed but the risk to the victim was recognised as sometimes
outweighing the benefit of going to trial. For psychiatric and medical reasons it was seen as
not always being in VIWs’ best interests to proceed.
In relation to selection of appropriate charges, it was said that any inability of the victim to
withstand cross-examination would be a relevant factor in determining whether to reduce the
charges. If the victim may find it traumatic to give evidence, then the prosecutor may consider
accepting a guilty plea to a lesser charge.
Respondents to the Phase 2 CPS survey commented that prosecutors still had to apply the
Code for Crown Prosecutors to cases involving VIWs, but that the implementation of special
measures had affected decisions relating to mode of trial and prosecutors’ assessments of
the credibility of witnesses. In relation to mode of trial, the existence of a VIW was significant
because of the greater availability of measures in a wider range of cases in the Crown Court
than in magistrates’ courts at the time of the field work. Assessments of the credibility of
witnesses, in the application of the evidential test, were affected by the availability of
Note that victims in domestic violence cases are not automatically VIWs under the YJCE Act.
Although the evidential test is supposed, in principle, to apply equally to all cases, and the public interest test is not
supposed to be applied unless the case first passes the evidential test, the CPS sometimes prosecutes VIW cases
with little chance of success precisely because of the public interest in doing all that is reasonably possible to protect
and support vulnerable victims: Sanders et al. (1997).
measures which might assist the witness in giving evidence and, as one respondent put it,
“enhance the credibility of those witnesses who would not so very long ago have been
dismissed as not being credible”. In so far as the existence of a VIW affected the assessment
of the public interest it was asserted that it was a factor in favour of prosecution.
Some respondents commented that pre-recorded evidence allows prosecutors to make an
assessment of the credibility of the witness at an early stage in proceedings. However, the
case tracking exercise suggests that this opportunity is rarely taken. For example, in D13S,
the defendant allegedly raped a 16-year-old girl in the street. He had a history of allegedly
sexually assaulting vulnerable victims (the mentally impaired, drug addicts) but had never
been convicted. The complainant was video interviewed but the interview was not available to
the CPS at the time the file was reviewed and the case was discontinued on evidential
grounds: the victim had sustained no injuries, had assisted the defendant in putting on a
condom, and had delayed in reporting. The CPS did not even wait to view the video interview
to assess whether the complainant appeared to be a convincing witness. In another rape
case, the defendant and victim were known to each other, having previously been in a brief
sexual relationship. The complainant had gone to the defendant’s home and went to sleep on
his bed with him; later she awoke to find he had penetrated her. The police were supportive of
special measures in this case and carried out a video interview, but the CPS discontinued on
the basis that there was insufficient evidence to provide a realistic prospect of conviction.
Again, it appears that this decision was taken without the video evidence being viewed by the
Lack of injury, delay in reporting and a prior sexual history have consistently been identified in
previous research as influential factors in prosecutors’ assessments of credibility and of the
prospect of conviction in rape cases. Witness credibility involving less than ‘ideal’ victims in
alleged sexual assaults has always troubled prosecutors who are regarded as either
operating on overly ‘masculinist’ assumptions, or as giving undue weight to the perceived
masculinist assumptions of jurors and judges (Lees, 1996; Bronitt, 1998; Temkin, 2000). It
appears that little has changed, despite the measures that could help prosecutors to assess
witnesses’ credibility independently.
Another type of case illustrating this point is that of very young witnesses to sexual and
physical violence. Practitioners suggest that special measures produced a trade-off: whilst on
the one hand the impact of evidence might be reduced by the use of special measures, on
the other hand more cases could be brought to court that would never previously have made
it (see Chapter 6). The typical illustration of this trade-off was the use of pre-recorded video
evidence in the cases of children of, say, five or six years old. However, again the case
tracking exercise seems to indicate the minimal impact of special measures on the
assessment of the evidential strength of these cases. There are several cases within the
sample where the CPS either discontinued or plea bargained without viewing the video
evidence of young witnesses. For example, in DS9, the prosecutor specifically noted that he
was not minded to use the evidence of a five-year-old child and consequently was open to a
plea bargain even though he had not viewed the video.
One final category of cases where it was anticipated in practitioner interviews that special
measures might have some impact on prosecution decisions as to evidential sufficiency
(although this was a more disputed category) was learning disabled witnesses. Some
prosecutors thought that special measures would have little or no impact on evidential
assessment in these cases because they were mindful of the limitations of the measures in
overcoming severe disabilities. Others were more optimistic in their assessment. The fact that
there are so few cases of learning disabled witnesses within the case tracking sample
suggests that the more pessimistic assessment may be well founded in practice. The way
these few were dealt with also supports this assessment. For example, N26S involved a
learning disabled victim of alleged rape. The CPS discontinued the case because they were
concerned that they might not be able to prove lack of consent. However, this did not turn
exclusively on an assessment of the complainant’s ability to give evidence with special
measures. The defendant in this case was also learning disabled and there were questions
about whether he would have understood that the complainant was not consenting.
All these cases of sexual offences with non-ideal victims, very young witnesses and learning
disabled witnesses are categories of case that the CPS in general, and respondents in this
research in particular, claim to be particularly concerned to prosecute wherever this is
reasonably possible. Yet many of these cases are dropped on grounds of witness credibility
without viewing the video tapes that might give prosecutors more confidence in their
witnesses. How can this paradox be resolved? The veracity of the CPS claims at the level of
principle is not in doubt. At the everyday level, though, it seems that prosecutors simply do
not have the time – or do not sufficiently prioritise these cases over other tasks – to view the
tapes. As reported in Chapter 6, some CPS respondents in both phases commented that they
have insufficient time to review video evidence at the early stages of cases.
As mentioned earlier, ABE interviews are carried out with a minority of VIWs, even children,
and even in prosecuted cases. This is far less often than expected. It means that the potential
benefits of the video facility are not realisable in the majority of cases. But, if the CPS has no
time to pre-view the limited number of ABE interviews recorded at present, it would certainly
have no time to do so if they were carried out in as many cases as they should be.
Cases like the ones discussed here also illustrate some of the intractable evidential problems,
identified some years ago by Sanders et al. (1997), of prosecuting cases with learning
disabled witnesses and defendants. It was suggested that even with special measures it was
only possible to predict a realistic prospect of conviction in many such cases if some
corroborative evidence – for example, forensic evidence – was available to support the
prosecution. In another case (L44S) of a witness with severe physical and communication
problems, the prosecution was discontinued on evidential grounds because the complainant
had previously used drugs with the defendant. Like the rape cases, this is a credibility factor
which is unrelated to the specific disability. However, it was clear that the special measures
currently available might have been judged as inadequate anyway, given that the
complainant’s mother was the only person who was capable of understanding him. The police
had used the mother as an intermediary in carrying out the pre-recorded interview, and cases
like this might only be prosecutable when the provisions for intermediaries are implemented. 29
Prosecutions for witness intimidation
In relation to prosecutions for witness intimidation, Phase 1 and Phase 2 responses were
similar, suggesting that little changed between 2000 and 2003. In the Phase 1 police survey,
just below half of respondents (n=17) said that criminal proceedings against perpetrators of
witness intimidation (under the Criminal Justice and Public Order Act 1994, s 51) were given
priority, 13 said that they were not and 11 did not know or did not answer the question. All
respondents to the CPS surveys indicated that there were no specific arrangements for giving
priority to these cases. However, they said that such cases were regarded as serious, the
public interest in favour of prosecution was clear, and that such cases would always be
prosecuted if the evidence allowed. Additionally:
1. A remand in custody would normally be sought in cases of witness intimidation, thus
bringing the custody time limits into play.
2. Efforts would be made to link the intimidation charges up with the main charges,
resulting in them being dealt with earlier than would otherwise be the case. However,
one respondent noted a downside to linking up intimidation charges with the main
charge – a tendency for the intimidation charge to become sacrificed within a
package of charges because defendants are reluctant to plead guilty to intimidation.
This, he said, was not giving priority to intimidation.
Respondents noted that they were reliant on other agencies, in particular the court listing
officer, for the fast tracking of cases. Generally, respondents stated that no data was
collected locally on the number of s.51 prosecutions per annum.
These provisions are currently being piloted and are subject to separate evaluation.
These place upper limits on the length of time which defendants can be held in custody at each stage of the pre-
Data on court proceedings for s.51 offences are collected centrally by the Home Office.
The protection of VIWs in the period leading up to trial is obviously of crucial importance.
Special measures can provide some assurance to witnesses that they will receive help at
court once their case comes to trial. However, if VIWs do not feel adequately supported
during the pre-trial process, then they may withdraw their support for the prosecution before
the case reaches trial. One means of protecting VIWs pre-trial is through the defendant’s bail
Over three-quarters of respondents (33 out of 41) to the Phase 1 police survey said that there
are procedures to ensure that the police provide information on witness intimidation to the
courts in relation to bail applications – primarily using the MG6 and MG7 (bail) forms, but also
occasionally through meeting with the CPS. When asked if they were informed by the CPS or
court if bail was granted to a defendant suspected of witness intimidation, and of any
conditions imposed, the majority replied that they were routinely (n=14) or always informed
(n=10). Nine said that they were sometimes informed, four that they were occasionally
informed and three that they were never informed. One said that a mechanism was in place
for provision of information but that it had not been audited. About half (n=22) said that
witnesses were ‘sometimes’ given information on bail decisions, with a quarter (n=11) saying
they were routinely informed, four stating they were never informed and two saying they were
occasionally informed. Two respondents did not know.
Respondents to the Phase 1 CPS survey thought that police arrangements for informing the
CPS about vulnerable or intimidated witnesses in relation to bail and other pre-trial processes
were generally “satisfactory” (27 out of 39). Four respondents said they were “very
satisfactory”, and only eight that they were “unsatisfactory”. Respondents to the Phase 2 CPS
survey were not so happy, although it is unclear whether the difference marks a real change
or simply differences in the perceptions of those interviewed on each occasion. They were
evenly divided in relation to whether they thought the arrangements for the police informing
the CPS about VIWs in relation to bail were adequate: 15 out of 32 said the arrangements
were “satisfactory”, while 17 out of 32 said that they were “unsatisfactory”. Respondents in
both phases indicated that their satisfaction with the arrangements depended on the
particular police officer, that practice was variable, and that it was better in cases involving
child witnesses than those involving adult witnesses.
Several respondents referred to the problem of the police “over-egging the pudding”/
“exaggerating” the situation on the MG7. There could be difficulties identifying cases where
victims were genuinely vulnerable and in need of protection because of the routine inclusion
of statements of vulnerability to back up requests for applications for remands in custody (one
prosecutor referred to this as a process of too often “crying wolf”). The problem was
compounded by general statements being made without the necessary detail to back them
up, although one respondent said that he felt that the police might be reluctant to include
more detailed information because it might raise doubts about the witness’s reliability. Any
suggestion that the case might falter would be counter-productive in terms of securing a
remand in custody.
The Phase 1 CPS survey suggested that the CPS encountered difficulties in presenting
information about vulnerable or intimidated witnesses to the courts considering bail
applications. If the prosecution revealed too much about witnesses’ vulnerability at the bail
hearing it could make them more vulnerable. For example, if the defendant’s associates were
present they might be encouraged to ‘go the extra mile’ in intimidating the witness. The
defence lawyer may also gather useful ammunition to use against the witness in any future
cross-examination if the case came to trial. As one respondent remarked: “confidential
information cannot be transmitted to the court without the defendant or the defence lawyer
being made aware of it”. However, several commentators remarked that the defence often
knew, or appeared to know, more about the witness than the prosecution in any event. If the
defence raised information, like previous unsupported allegations, then it was difficult for the
prosecution to rebut. One problem with rebutting the defence case was that police officers did
not regularly attend bail hearings and, therefore, could not be asked to verify information
given to the court. Prosecutors had insufficient information to hand to challenge defence lines
of argument. The defence frequently pressed the prosecution for more information than they
had, making the prosecution case appear weak.
Respondents also referred to the problem of embarrassing or offending witnesses when
talking about their problems in court. There was a need to choose words carefully to avoid
Listing special measures cases
Generally it was thought desirable for VIW cases to be in the courts’ ‘fixed’ lists. This means
that the case should go ahead on a day assigned (as long as the prosecution or defence do
not successfully seek adjournments) rather than being fitted in when a slot becomes available
(such cases being ‘floaters’). This is because, while all victims and witnesses find it preferable
to know when the case is going ahead to not knowing, for VIWs the uncertainty of the case
being a ‘floater’ and the let-down of a sudden adjournment is particularly stressful. Hamlyn et
al. (2004a) found that 16 per cent of VIWs who said the original date had been changed
thought again about testifying in court, and 36 per cent said that it made them feel more upset
and anxious. Further, being in the fixed list makes it more likely that the case will be heard
sooner rather than later, which again is particularly important for VIWs. Plotnikoff and
Woolfson (2004) found that, even cases with child witnesses, typically involved delays of
months, occasionally even a year or more, and in many cases one or more adjournments –
all of which the witnesses tended to find very unsettling. Finally, where only a few courtrooms
have particular facilities (e.g. CCTV), fixed listing may be needed to ensure that the right
rooms are available.
Respondents to the Phase 2 court survey indicated that it was rare for a trial involving special
measures not to be in the fixed list. These answers were inevitably qualified for cases where
late applications for special measures were made. Such cases would often not be in the fixed
list because there would often have been no indication from CPS that they should be. As
Chapter 6 will show, the expectation of courts and CPS is that application for some special
measures (e.g. screens) will indeed be on the day of court, thus creating an obstacle to
putting such cases on the fixed list.
If the court knows in advance that live television link facilities are required, and there are
limited numbers of courtrooms with such facilities then fixed listing is necessary. With other
special measures, particularly those that can be made available in any courtroom, the survey
and interviews indicated that some courts felt that fixed listing was not always necessary. This
misses the point that fixed listing is valuable as much to avoid stress for the VIW as it is to
ensure technical compliance with the YJCE Act.
The argument made by respondents overlooks the importance of fixed listing with regards to
the three-stage test set out in Chapter 1 – whether someone is a VIW and, if so, what
measures, if any, should be provided. In some cases, fixed listing may be the most important
measure that could be provided. Clearly, many judges and court administrators, and to some
extent also the CPS and police, have not yet grasped this, nor the importance of thinking in
terms of VIW cases rather than special measures cases. In other words, where a VIW case
might benefit from fixed listing, whether or not special measures are being sought,
applications to that effect should be facilitated. The courts might respond by observing that if
all truly VIW cases were so treated, and if the estimates in Chapter 3 are accurate, even on
the most conservative estimate a very substantial minority of cases would have to be on the
fixed list. This would push back ‘ordinary’ cases (which are, of course, generally not ordinary
for the victims involved) intolerably. The answer to this is to ensure that the three-stage test is
applied properly: that the CPS should not automatically seek fixed listing for all VIW cases,
but that each case should be evaluated individually, as should happen in relation to all
The nature and extent of pre-trial support provided by the police to VIWs appears to have
improved between the start of Phase 1 and the end of Phase 2 of this research. The
improvement, however, is patchy and when generalist police officers demonstrate little
understanding of special measures, they are not able to help VIWs make informed choices
about the help they seek. Police-CPS communication and joint action remains a concern.
The findings regarding prosecution decisions were somewhat paradoxical. On the one hand,
the CPS appears keen to prosecute VIW cases where possible, even to the extent of applying
the evidential test flexibly, for understandable public interest reasons. On the other hand, the
research samples included very few cases involving learning disabled and mentally
disordered victims and those prosecutions are often dropped on evidential grounds.
The general problem identified in the pre-trial stage is that the three-stage test is not being
applied adequately. In other words, VIW cases are still not being assessed sufficiently in
terms of their individual wants and needs, but instead are all too often assessed in categorical
ways. In addition the focus has tended to be on the support that VIWs can be offered at trial
and insufficient attention has been given to how pre-trial decisions can determine the nature
and effectiveness of this support.
6. The use and effectiveness of special measures
Unlike most of the forms of pre-trial support and preparation discussed in Chapter 5, the
special measures discussed in this chapter are the product of legislation (the YJCE Act) and
for specific use in court. The CJS was not on entirely new ground by the time the Phase 2
research was carried out, for some of these measures had been created by earlier legislation
for children, and some had previously existed as common law powers.
A distinguishing feature of the special measures discussed in this chapter is that, unlike most
of the measures discussed in Chapter 5, the police and CPS cannot simply decide to use
them on their own. Application has to be made to the courts. Thus, while the police can
decide whether or not to video record an interview, whether or not it is used in court is a
matter for the judiciary. Under section 20 of the YJCE ACT, special measures directions have
binding effect from the time they are made until proceedings are either determined or
abandoned (although it is possible for the court to discharge or vary a direction if it is deemed
in the best interests of justice to do so).32 This chapter first considers the application process,
looks at each measure in turn and then evaluates them in comparison with each other, and
briefly look at shortfalls in what the legislation provides.
Applications for special measures
Although it is always the CPS that presents an application (for prosecution witnesses), there
seems to be little agreement about whether the decision to make an application is the
responsibility of the police or CPS, or both together. The majority of police respondents to the
Phase 2 survey (22 out of 37) said that the CPS is responsible, and that this may be in
conjunction with the police (15 out of 22). Otherwise it was said to be the decision of the
police alone. The CPS, however, overwhelmingly regard the reviewing lawyer as responsible.
According to CPS respondents, the criteria applied in reaching that decision are the
requirements of the legislation, the Home Office ABE guidance and the views of the witness
(which, as seen in Chapter 5, are normally sought by the police). CPS and police
respondents were asked what they would do if there were differences of opinion between the
CPS, police and witness regarding special measures. Most replied that differences of opinion
could be referred to a senior prosecutor or senior police officer for resolution, but that they did
not often occur. A somewhat different impression is given by VIWs themselves in the
research of Hamlyn et al. (2004a). Although around 60 per cent of Phase 2 respondents
agreed with this view, 27 per cent said that only some of their views had been acted on by the
police and CPS, and 14 per cent that their views had not been taken into account. Plotnikoff
and Woolfson’s (2004) child witnesses’ research reported similar mixed experiences.
The Phase 1 CPS survey respondents stated that there were a number of difficulties with
special measures applications. These included:
• lack of adequate or supporting information from the police;
• the need to balance the victim’s and defendant’s interests, and for the CPS to appear
independent in this respect;
• it was thought that the ECHR made it more difficult to obtain measures because of the
defendant’s interests (as discussed in Chapter 1 and again later in this section); and
• lack of resources within the CPS. For example, respondents said that prosecutors had
insufficient time to review video evidence. This presented particular problems where
applications had to be made early: in cases involving youth defendants, for instance,
applications have to be made within 28 days of first appearance.
The same problems were identified in Phase 2. The main problem was a lack of information
or evidence (from the police) to support an application. Also significant was the complexity
Provisions for binding have also been made in the Criminal Procedure and Investigations Act 1996 and the Courts
and length of the forms required to complete an application, lack of CPS resources and tight
time-scales. Approximately one-third of respondents also said that either prosecution counsel
or the judiciary were resistant to special measures and preferred evidence to be given in the
traditional way with the witness receiving no assistance.
In Phase 2 interviews, CPS respondents said that courts were receptive to applications
provided that the correct supporting documentation was provided. It was noted that the
judiciary had become better at looking for supporting evidence and it was no longer possible
to obtain measures on the basis of ‘flimsy’ evidence. However, the judiciary was thought on
the whole to be supportive of the legislation and good at picking up cases where applications
had not been made but perhaps should have been. The police survey responses were
broadly consistent with those of the CPS, insofar as the police had feedback from CPS and
courts. However, all agencies expressed some reservations about how far judges truly
accepted the movement away from witnesses giving evidence in person in the courtroom, as
will be discussed further later.
Respondents to the Phase 2 court survey indicated that trial judges rarely take a different
view of special measures to the judge at the PDH. In the minority of instances (n=3) where
respondents mentioned a different view being taken in a particular case it was to grant a
measure that had been refused at the PDH or substitute one measure for another. In
interviews, judges were willing to concede that there might be occasions where the trial judge
would take a different approach to the judge at the PDH, but they also pointed out that it was
not simply a matter of variation in judicial views. The continuing problem of late returned
briefs might result in prosecution counsel at the trial taking a different view to the counsel
originally briefed, although if this happens the issue should be referred back to the reviewing
The majority (11 out of 15) of respondents to the court survey thought that the prosecution
made applications in all (n=6) or most (n=5) cases where a special measures application was
appropriate. However, the picture for applications made by the defence in respect of
vulnerable or intimidated defence witnesses was very different. Only two respondents thought
that the defence made applications for special measures in all or most cases where an
application was appropriate. About half (7 out of 15) of the respondents stated that few
applications were made by the defence when appropriate. The reasons for this difference are
The majority (9 out of 15) of respondents to the court survey stated that prosecution
applications for special measures were usually supported by appropriate evidence and
representations. Six respondents stated that only some or few applications had adequate
supporting evidence or representations. Although the courts receive fewer applications for
special measures from the defence, about half of respondents (7 out of 15) indicated that
defence applications that were made were adequately supported in all or most cases.
The case analysis and court observations enabled the researchers to make their own
assessment of the quality of applications. Most applications for the CCTV link in cases of
child witnesses are made in advance of trial. This is perhaps due to the relative ease with
which child witnesses can be identified as VIW and the legislative framework being pre-
disposed towards the use of some special measures for child witnesses. Some CPS lawyers
and caseworkers questioned the need for applications for live television links to be made,
given that eligibility is virtually automatic in many instances. The perception that the CCTV
link will almost always be granted for child witnesses may perhaps explain the cursory nature
of the special measures applications in the case files. It was rare to see much detail in
support of a special measures application for child witnesses, although this was a matter
frequently commented upon adversely by prosecution counsel. To a certain extent it was felt
that the legislative framework might encourage lazy prosecuting, with CPS lawyers giving little
thought to the justification for special measures in the particular case. This may be an unfair
statement in so far as prosecutors are limited by the material that the police provide in making
an assessment about the grounds for a special measures application. The practice also
accords with the interpretation of the 1999 Act for video and live link by Camberwell. 33
See Regina v. Camberwell Green Youth Court and others  EWHC 227 (Admin).
Prosecutors do have the option of seeking more information and/or requesting early strategy
meetings (although, as noted in Chapter 5, there was no evidence in the case files that these
meetings ever took place), however.
Despite this, the CCTV link (and other special measures) is sought and granted in relatively
few cases involving children. This is because of a) the (perceived) human rights problem of
parity between witness(es) and defendant; and b) assumptions about the capabilities of older
children. A case illustrating both points is C1S, where both the defendant and victim were
under the age of 17. The police did not conduct a videotaped interview, nor did the
prosecution apply for the CCTV link at trial. Under the legislative framework, the victim was
strongly presumed to be eligible for special measures as the offences were of a violent nature
(including threats to kill). The victim struggled to give her evidence coherently at trial and the
defendant was found not guilty. A prosecutor involved in the case commented, in interview,
that in this case, as in many others, it was feared that CCTV and pre-recorded evidence
might be prejudicial to the witness who could be perceived by counsel, judge and jury as fully
capable of giving his or her evidence in court without any assistance.
This argument misses out the third stage of the three-stage test outlined in Chapter 1: that
whether special measures should be sought for a VIW should depend on an individual
assessment of that person’s needs and wishes. It should not rest on a priori assumptions
based on categories (the approach rejected by Speaking up for Justice).
A rather different issue concerns applications for screens. The case tracking exercise reveals
that screens are most commonly considered as a special measure for adult (not child)
vulnerable and intimidated witnesses but it is rare for an application for screens to be made in
advance of trial. The practice of delaying applications until the day of trial means that
witnesses may have little reassurance in the run up to trial about whether they will have the
benefit of special measures. For example, in B4S, the victim witness had experienced a
lengthy campaign of abuse from her next door neighbour but no application for special
measures was made in advance. The prosecutor said that this was because it was intended
that an application for screens would be made on the day of trial “as is common practice”.
The victim witness in this case did in fact attend trial and give evidence without the screening
arrangements, but the evidence of another witness was lost because she was too afraid to
It is unclear why it is routine to delay applications for screens until the day of trial. Although
there may be substance in the view expressed by some prosecutors that judges are reluctant
to grant applications for screens in advance, this simply begs the question of why judges take
this view, if it is true. For example, in B8S, the victim witness was assaulted by her son-in-law
on several occasions. She had both physical disabilities and communication problems and
was identified as a VIW in need of special measures. The issue of screens was raised at a
hearing prior to the trial but the prosecution was told to make the application on the day of
trial. Even in cases where there are serious charges and the victim witness would probably
benefit greatly from the reassurance of knowing that screens will be available, applications
are delayed until the day of trial. Thus, in L16S, where the victim was falsely imprisoned and
raped in her own home, the police consulted the victim about special measures. She was in
favour of screens, which the police felt would ‘greatly benefit’ her. However, the CPS did not
make an application in advance of trial. All three of the above examples come from one area
but the pattern of delaying applications for screens is also evident in the other areas.
This illustrates a problem in interpreting the survey and interview data from this research.
Where prosecutors and courts express satisfaction with each others’ practice, as they
generally do with regard to special measures applications, this does not necessarily confirm
that arrangements work as intended. It may, as in this context, simply confirm that old habits
die hard and that shared misunderstandings continue.
As far as contesting applications for special measures is concerned, respondents to the court
survey indicated that it was rare for either the prosecution or defence to contest applications
for special measures. Only one respondent said that prosecution applications were contested
in most cases; the majority (14 out of 15) observed that they were only contested in some
(n=3) or a few (n=11) cases. Seven respondents stated that there were no cases where
defence applications for measures were contested; for the rest, applications were contested
in some (n=2) or few (n=6) cases. Respondents indicated that, in the majority of cases where
the prosecution or defence challenged an application, the challenge was supported by
appropriate evidence or representations. In Phase 1, both the courts and CPS anticipated
defence challenges to special measures applications based on general objections and
inadequate evidence. It is interesting to note that, in Phase 2, nine out of 15 courts suggested
that defence challenges were generally adequately supported.
Overall, it appears from the qualitative analysis that – as with ‘measures’ discussed in
Chapter 5 – there are significant numbers of VIWs for whom there was no special measures
application, and others for whom the most useful or sought after special measure was not
applied. These findings are, again, consistent with those of Hamlyn et al. (2004a) and
Plotnikoff and Woolfson (2004). Hamlyn et al. found that the numbers of cases in which there
were special measures did rise between Phase 1 and Phase 2. But there remains an ‘unmet
need’ in relation to all the special measures: around one-third of all VIWs did not use the
CCTV link or screens but wished to do so; over one-quarter did not use video recorded
evidence-in-chief or have the public gallery cleared but would have liked these measures; and
12 per cent would have liked wigs and gowns removed but were not offered this. This meant
that the numbers of people wanting these measures in total exceeded those who were
granted them (Table 6.2).
Video recorded evidence-in-chief
The use of video recorded evidence-in-chief has been evaluated in relation to child witnesses.
Davies et al. (1995) found that there was strong support for the use of video interviews
amongst child protection workers, although lawyers were more ambivalent, and that it
increased the accuracy and completeness of the evidence.
It was seen in Chapter 5 that ABE interviews were conducted with around one-third of the
adult VIWs in the main sample, and with little more than a quarter of the children. These
differences were not statistically significant. The important point is that ABE interviews were
conducted only in a minority (albeit a substantial minority) of cases, even those with child
VIWs where there is a presumption in favour of a video interview. This is also surprising in the
light of the enthusiasm of the police for this measure. Two of the three police officers who
were interviewed felt that this was a particularly good way of putting VIWs at ease. And in the
Phase 2 police survey, three-quarters rated video evidence as ‘very effective’, with
respondents rating this as the most effective special measure of all.
It is, therefore, surprising that ABE interviews are relatively rare. Qualitative analysis of the
case files (where those files indicate reasons for these decisions being taken), supplemented
by case specific interviews with prosecutors, suggests some recurrent reasons for failure to
video interview child witnesses.
If the police video interview a child witness then that video must normally be used as
evidence-in-chief even though the child’s performance in the video interview may not be the
best evidence they are capable of giving. The YJCE Act places severe restrictions on when
live examination can take place if the child has been video interviewed, however poor that
video interview may be. 34 This research enabled an assessment to be made about whether
the ABE guidance has enabled a balance to be struck between the witnesses’ particular
needs and circumstances and the evidential requirements for a prosecution. Ellison (2001)
points out that there are structural problems with the quality of video interviews that are
difficult to overcome, however good the guidance for conducting interviews and however well
it is adhered to. For example, video interviews perform multiple functions, and an interview
that is designed both to investigate and provide evidence of an offence will never be carried
out in the same way that a barrister at trial attempts to construct a credible narrative.
See s.27: the provisions are very complicated. See Birch (2000).
Prosecutors commented on the variable quality of video interviews, although these comments
typically related to technical quality rather than the competence of the interviewer. However,
in some areas, it was noted that there was a shortage of officers trained to carry out
interviews with vulnerable child witnesses. Knowledgeable interviewees anticipated that the
introduction of newer technology, in the form of DVD, should help overcome some of the
technical difficulties in making and editing pre-recorded interviews. An inevitable problem, that
will always remain, is that, as one prosecutor put it, “someone else has asked the questions
and they won’t be the questions and order that counsel would have asked”.
One of the key benefits of a video interview (acknowledged in the survey responses from, and
interviews with, all the agencies) is that, by enabling evidence to be recorded in close
proximity to the complaint, it may produce a more detailed and accurate account than would
otherwise be produced in court. What is lost in terms of immediacy at trial may be made up
for in terms of a fuller, and perhaps therefore more convincing, account. However, this trade-
off does not work if there is considerable delay in making the video interview. For example, in
one of the trials observed (OB1) there was a 16-month delay in making the video after the
allegations of indecent assault and cruelty to children were first made. The concern
expressed about this by the trial judge was not challenged by prosecution counsel.
Numerous interviews with prosecuting counsel at the conclusion of case observations
produced adverse comments about the impact of video evidence on the prosecution case.
For example, in OB4, the 16-year-old rape victim gave her evidence-in-chief by pre-recorded
videotape. Although the technical quality of the video was good, the interviewing officer was
constantly obscuring the view of the witness by excessive gesturing and the victim (who was
watching the video in the live television link room) was drowning out the sound of the
recording. The judge directed an acquittal at half time and counsel commented that it would
have been better if she had given her evidence live. The legislative constraints upon giving
evidence live were evident in another case (OB12) where the 14-year-old victim of a section
18 assault expressed a preference for giving evidence in court. The judge ruled that it was not
possible because the legislation specified that his video interview must be played and
commented that the inflexibility of the legislation did not make it easy for prosecution counsel.
The prosecution was forced to rely on a technically very poor videotape. The interview was
virtually inaudible. The jury was therefore provided with transcripts but, as in all other cases
where transcripts of videos were provided, the jury were not allowed to retain these beyond
the duration of the interview (in case they should give the evidence undue weight). The jury
was therefore faced with the difficult task of both following a transcript and observing the
demeanour of the witness during the interview as directed by the judge. A striking feature of
this discussion is that most CJS participants, even judges, appear to believe that it is almost
obligatory to use video recorded statements, no matter how disadvantageous to the witness,
when it is not clear from the (admittedly complicated) legislation that this is so.
Another disadvantage of video recorded evidence-in-chief is that the witness goes into cross-
examination ‘cold’. Practitioners commented upon this in interview and it has long been
recognised that witnesses may encounter difficulties of being “plunged directly into hostile
cross-examination at trial (albeit via the live link) without the ‘warm up’ that examination in
chief arguably provides” (Ellison, 2001, p. 57). The long delay between giving evidence-in-
chief (on pre-recorded videotape) and cross-examination (at trial) gives greater potential for
undermining the credibility of witnesses by exposing inconsistencies due to failures of recall.
Witnesses have the opportunity to view their video prior to cross-examination. In the case file
sample this nearly always happened on the day of trial; the witness would watch the video at
the same time as it was being played as evidence-in-chief. However, there were occasions
where child witnesses were offered the opportunity to watch their videotape in anticipation of
trial. This offer is not always welcome since some children find it quite traumatic to watch their
video interviews. This was apparent in some cases in courts that allow witnesses to be seen
watching their video interviews in a small inset picture to the main screen. In other courts,
only the judges could see the witnesses, and sometimes stopped the video when they saw
the witnesses becoming distressed. In C3NS, the child victims of sexual assault by a
neighbour were video interviewed but declined the offer to watch their video before trial
because they found it too upsetting. Viewing videos in advance is sometimes needlessly
upsetting because so many cases are adjourned without prior warning due to defence
applications (as happened in C3NS). On the other hand, Plotnikoff and Woolfson (2004)
found that even child witnesses who found it upsetting to watch their video recorded
interviews in advance nonetheless regarded it as valuable preparation, and better than going
into the trial ‘cold’.
As an alternative, viewing the video at trial provides some preparation, albeit minimal
compared with live examination-in-chief. One of the difficulties with this, practically speaking,
is that, in virtually every observed case where videotaped evidence was used, there was then
a delay in proceeding to cross-examination via the live television link. This is because, after
all the preliminaries, chief victim-witnesses generally do not watch their videos until the late
afternoon of the first day of the trial. They are then required to return the following morning for
examination via the live television link. Several judges commented on the desirability of cross-
examination following immediately upon the video evidence but never seemed to manage to
achieve this despite the perceived detrimental impact upon witnesses of having their
evidence split across two days and coming into cross-examination without the ‘warm up’ of
having just viewed their videotaped interviews. Further, Plotnikoff and Woolfson (2004) found
that some children who watched the recording for the first time at trial felt disadvantaged
because they found it hard to concentrate.
In the light of the above, it was not surprising to find that prosecutors, judges and the Witness
Service rated video recorded evidence less highly than did the police, although most
respondents from all agencies rated it as either ‘very effective’ or ‘effective’. Significantly,
prosecutors were aware of the argument that it had less impact than live evidence, but none
claimed that it led to a lower conviction rate. Some judicial respondents, on the other hand,
did feel that a conviction was less likely, particular mention being made of the reduced impact
of evidence given by adults. Reviewing the evidence on the impact of televised testimony on
jury decision-making, Davies (1999) concludes that, whilst jurors show a preference for live
evidence, they do not appear to allow that preference to influence their decision-making.
Studies cited by Davies show that the medium of presentation of evidence had no overall
impact on the proportion of guilty verdicts.
Live television link (CCTV)
The live television link enables a witness to give evidence from outside the courtroom where
the trial is taking place through a televised (CCTV) link to the courtroom. The witness will
normally be accommodated in a room in another part of the court building, although some
courts have a ‘remote’ link outside the building, from which the witness can testify. The use of
CCTV as the medium of evidence giving for child witnesses has been evaluated in a number
of different jurisdictions (for an overview see Davies, 1999 and Cashmore, 2002). Davies and
Noon (1991) carried out an evaluation in England and Wales. Children generally reported a
preference for giving evidence in this way rather than in the courtroom. One hundred and fifty-
four child witnesses in England and Wales giving evidence via live link were ‘significantly less
unhappy, more audible and more forthcoming’ than 89 child witnesses giving evidence in
court without the live link in Scotland. However, some children prefer to go into court.
Although 90 per cent of respondents using CCTV in the research of Hamlyn et al. (2004a)
found it helpful, ten per cent did not. Many of Plotnikoff and Woolfson’s (2004) child witnesses
felt they had been given no choice, felt that they would have liked a choice, and some would
not have chosen the CCTV link had they been fully informed.
The room to accommodate different preferences has been curtailed by the YJCE Act. This
creates a presumption that the live link will be used for certain categories of child witness
(those ‘in need of special protection’, such as cases involving sexual offences and offences of
violence, abduction or neglect). Other children and adults who do not fall within the definition
of those ‘in need of special protection’ are eligible to give their evidence and be cross-
examined via live link unless giving their evidence that way would not improve the quality of
their evidence. The statutory regime has been criticised for its complexity by, for example,
Hoyano (2000), who also argues that it is difficult to justify this offence-based categorisation.
She predicted that hard pressed police officers and prosecutors might find it difficult to
understand, administer and explain the framework to prospective witnesses. To some extent
these predictions appear to be borne out by the findings of this study.
As seen earlier, the live television link is not a panacea for all problems that prosecution
witnesses encounter. Its scope is particularly limited in certain types of case, such as where
the victim/witness is in a continuing relationship with the defendant. In B6, the police had not
carried out a video interview. The CPS made a CCTV application but the victim/witness still
did not want to attend court to give evidence, and retracted her statement. This was not
entirely surprising, as there was ongoing contact between the victim and defendant in their
home environment (the defendant was bailed to reside at the same address as the victim).
The live link addresses the issue of seeing the defendant in the courtroom, but this may be of
little practical benefit to a witness who must face the defendant on a daily basis outside the
court. Further, as seen in Chapter 5, the CCTV link does not prevent the defendant seeing
the witness. This is something that surprises and worries many VIWs who, when they realise
this, sometimes opt for screens instead.35
A common problem with – or, in some circumstances, advantage of – the live link in practice
that emerges from the interviews and observations is that it gives only a very partial view of
the witness. Children typically sit very low in relation to the camera, and little more than their
head and shoulders can be observed over the link. This partial view of the witness over the
link makes it very difficult for the body language of the witness to be observed – something
that counsel noted may be used by the jury as a guide to credibility. Sometimes this can work
in favour of the prosecution; on other occasions it appears that it works in favour of the
defence. For example, in OB7, two 13-year-old girls were giving evidence via the live link.
One was the alleged victim of an indecent assault, the other was the stepdaughter of the
defendant giving evidence on his behalf. The assault had allegedly taken place at the
defendant’s home whilst the complainant was staying over with his stepdaughter. The
physical appearances of the two witnesses were markedly different. Prosecution counsel
observed that the alleged victim appeared to be an “utterly naïve chubby little girl. The
defendant’s stepdaughter? As you can see they are chalk and cheese”. In a conversation in
the interlude in the trial (and in the absence of the jury), the defence witness was described
as looking like ‘a lady of the night’, referring to the fact that she was wearing a very short skirt,
long boots and heavy make-up. Defence counsel observed that the witness did look “a lot
more sophisticated” than the complainant and that it was fortuitous for the defence that the
jury did not have a complete view of her attire. He referred to another indecent assault case
where he had been acting as prosecution counsel and the victim was “particularly well
endowed”. He said that he had been grateful that this had not been evident over the live link;
“I don’t know if we would have got a conviction if she had been in court and the jury had
actually seen her”.
Counsel was suggesting that the more child-like the link helps the witness to appear, the
more likely the jury is to believe that he or she is the ‘innocent’ victim of a predatory adult. The
concealment of the ‘worldly wise’ appearance of the defence witness in OB7 was considered
to be a significant feature in the decision to acquit the defendant. However unfair it may be to
assess witnesses based on physical appearance, and drawing on associated stereotypes, it
is clear that the live link does impact on these assessments.
In view of the difficulties of the live link, it was not surprising to find that, although virtually all
respondents in the Witness Service, CPS and police surveys viewed it as ‘effective’ or ‘very
effective’, the CPS responses were evenly divided between these two categories (although
the police were somewhat more, and the Witness Service somewhat less, enthusiastic – see
Tables 6.1 to 6.4). By contrast, the live link was rated as the most effective measure by far by
respondents to the Phase 2 court survey. The effectiveness of the measure was attributed to
the fact that witnesses did not have to enter the courtroom and come into contact with other
participants in the trial, and that this increased their confidence and reduced their level of fear
and intimidation. All of this is consistent with the other research findings discussed at the start
of this section, but does constitute a generalisation that is not always true. It was also thought
Whilst for many child witnesses one of the key benefits of CCTV is avoidance of direct confrontation with the
defendant, some children in a study by Wade (2002) found the thought of the defendant watching them whilst they
could not see him disturbing.
that these witnesses would also have a better idea of what to expect at court because there
would normally have been a pre-court familiarisation visit (although the research findings
suggest that this is optimistic as far as many VIWs are concerned).
Screens can be made available for adult and child VIWs to protect the witness from being
seen by the defendant whilst in the courtroom. Screening arrangements vary from court to
court. In some courts there are permanent screens which protect the witness from sight of the
defendant on entering and exiting the courtroom as well as when in the witness box. In other
courts the screening arrangements are more temporary and may not protect the witness from
sight of the defendant once outside the witness box. In these courts, the defendant is
sometimes removed from the dock whilst the witness enters and leaves the courtroom.
The court observations reveal the variable quality and usefulness of screening arrangements.
In OB8, the screen was effective to shield the witness (an alleged victim of rape) from the
view of the defendant, and the entrance and exit from the box was screened. But the witness
was in full view of the public gallery, which overlooked the witness box, and no restrictions
were placed on the defendant’s supporters accessing it.
There was little reference to the screening arrangements when they were used but some of
the comments in the closing speeches and summing up are instructive. The judge referred to
the screens as being “completely normal in a case like this” and instructed the jury that they
should not consider them to be in any way prejudicial to the complainant or “detrimental to the
complainant’s truthfulness”. This is interesting given the traditional objection to the extension
of the use of screens, evident in Phase 1 interviews, that screens are unduly prejudicial to the
defendant. In OB19, the screening arrangements were very effective in shielding the victim-
witnesses of historical sexual abuse allegations from their stepfather (the defendant) and the
public gallery. However, the defence suggested that the use of special measures reflected
badly on the truthfulness of the witness. A defence witness who had also experienced sexual
abuse as a child (although not at the hands of the defendant) gave evidence without any
special measures. Great play was made of this as an indicator of her honesty in contrast to
the prosecution witnesses who, it was said, could not give their account in full view.
Despite these problems, screens were thought by prosecutors and police officers in
interviews and in survey responses to give confidence to witnesses and often to be
unobtrusive. This was thought sometimes to give screens an advantage over live television
link so far as the witness is concerned, as confirmed by some of the cases noted earlier. CPS
respondents also commented that judges preferred screens to the live television link for adult
witnesses. The police and the CPS noted the difficulty many judges had in letting go of the
idea of immediacy provided by witnesses giving evidence in person in the courtroom. In fact,
judges regarded screens as only partially effective, although their reservations were largely
with respect to arrangements that provided only partial screening. Overall, of all the agencies,
the police were the most enthusiastic about screens, perhaps reflecting their closer
relationship with VIWs than judges and prosecutors. In interviews, CPS respondents noted a
dramatic increase in the use of screens for adults as well as children. However, some
prosecutors appeared to think that screens were only of use for intimidated (including
sexually abused) witnesses. The idea that a witness who was vulnerable through mental or
learning disabilities might benefit from screens did not occur even to a senior prosecutor with
responsibility in the area for VIWs. As noted earlier, Hamlyn et al. (2004a) found that most
VIWs who used screens found them helpful, and that many who had not used screens would
have liked to do so. Most of the VIWs in Hamlyn’s sample who used screens feared or
experienced intimidation, but 18 per cent were vulnerable in other ways.
Removal of wigs and gowns
Section 26 of the YJCE Act placed on a statutory footing the common law discretion of a trial
judge to order the removal of wigs and gowns. This measure was intended to be particularly
beneficial for child witnesses and witnesses with learning disabilities who might find the
costume of the court unfamiliar and inhibiting.
This measure is not used often – in 15 per cent of the Phase 2 VIW sample (up from 8% in
the Phase 1 sample) interviewed by Hamlyn et al. (2004a). There is hardly any discussion of
the removal of wigs and gowns as a possible measure to be considered in any of the case
files examined in this research. This lack of discussion may be due to the fact that the
removal of wigs and gowns is considered to be entirely a matter for the judge on the day of
the trial. However, it could be equally due to the fact that police officers and prosecutors
consider the measure to be insignificant in most cases. One exceptional case where the
removal of wigs and gowns was considered in advance of the trial involved sexual offences
against a severely learning disabled witness (M7S). The defendant in this case was charged
with multiple counts, including rape and unlawful sexual intercourse with a defective. Given
the severe nature of the victim’s disability, the police were very thorough in completing the
confidential information form and it was noted that it was quite possible, even probable, that
the witness would run out of the courtroom during cross-examination. The police and CPS
both gave detailed consideration to which special measures might be helpful to the witness,
and the witness’s family was consulted. The police asked for the removal of wigs and gowns
to be requested because of the limited ability of the witness to understand court proceedings.
The prosecution also contemplated an application for evidence to be given by remote video
link so that the witness did not have to come to court but this was not proceeded with.
Ultimately, concerns about the capacity of the witness to give evidence resulted in the
acceptance of a plea bargain on the day of trial; the defendant pleaded guilty to unlawful
sexual intercourse with a defective.
In several of the court observations, judges offered child witnesses the option of removal of
wigs and gowns on the day of the trial but this was nearly always refused. This may confirm
practitioners’ assessments that the measure is not particularly useful to child witnesses. Thus,
in OB7, a 13-year-old girl (the alleged victim of an indecent assault) was offered the option of
wigs and gowns being removed. Her views were ascertained via counsel who reported back
that the witness was ‘neutral’ and the judge decided therefore that court dress should be kept
on. In OB15, a 15-year-old female victim of indecent assault and her boyfriend (also 15 years
old and a prosecution witness) were both offered the removal of wigs and gowns, but they
refused. There was only one observed case where the offer to remove wigs and gowns was
taken up and this involved a child witness who was suffering from an attention deficit disorder
The removal of wigs and gowns was felt to be the most ineffective measure by most agencies
(along with the use of pagers). This is apparent from Tables 6.1 to 6.4, from the practitioner
interviews in both phases of this research, and from the case tracking and court observations.
Interviews revealed a high level of ambivalence about the usefulness of this measure.
Although judges were willing to offer the removal of wigs and gowns to child witnesses they
felt that the witnesses’ preferences (for the dress to be kept on) were likely to be influenced
by their preconceptions of what is normal in court. One judge remarked ‘they like to know who
is in charge’ and he felt that his attire gave the clearest indication of that. Witnesses, even
young children, were used to seeing traditional court dress on the television. Because they
were familiar with it, they expected to see it when they were in court. Otherwise they did “not
feel that they had had their day in court”.
The information provided by practitioners is consistent with the findings of earlier research
(Sanders et al., 1997). However, Sanders et al. (1997) also found that, for some VIWs, this
could be an important way of reducing stress. This measure may therefore be valuable for a
small proportion of VIWs and requires a careful assessment of the individual witnesses’
needs and desires. Significantly, the agency that thought best of this measure, the Witness
Service, may be best placed to make this kind of assessment. The results of the current study
also correspond with those of Hamlyn et al. (2004a) who found that most VIWs who gave
evidence with wigs and gowns removed appreciated this, and that many not offered this
facility would have accepted.
Evidence in private
Section 25 of the YJCE Act provides the power to exclude certain persons from the courtroom
whilst the witness gives evidence. Practitioners refer to this measure as clearing the public
gallery and interviews with them in both phases of this research revealed a certain level of
unease with this measure, which was seen to conflict with the principle of open justice.
However it was anticipated that this measure might be particularly useful in certain categories
of case, for example, sexual offences where the witness might find it difficult to be questioned
about intimate matters with members of the public present, and also cases where intimidation
from the defendant’s supporters in the public gallery was a significant issue.
There is no evidence from the case files that the possibility of witnesses giving evidence in
private was ever considered prior to the day of trial. The case observations showed that it is
fairly common for the public gallery to be packed with the defendant’s and witness’s
supporters at the trial and that they are sometimes vocal. Even though video evidence and
the live link prevented witnesses in some of these cases from seeing the defendants’
supporters, much of the activity in the public gallery could have been audible. Witnesses who
are in the courtroom and benefiting only from screens would have been even more affected,
particularly where screening arrangements are poor. The case observations reveal only one
attempt to get the public gallery cleared (OB26). In this case the prosecution witness was a
victim of alleged historical abuse. The offences were said to have taken place a decade
previously when between the ages of eight years and ten years old she was allegedly raped
and indecently assaulted by her brother-in-law. The public gallery was packed with both the
defendant’s and victim’s supporters and there was a great deal of acrimony in the now
fragmented family. The judge refused a request to clear the public gallery and said that he
had only limited discretion ‘to clear the press box in cases of bad behaviour’.
As with screens and the removal of wigs and gowns, the neglect of this measure by CJS
agencies contrasts with the views of VIWs themselves. Hamlyn et al. found that the gallery
was cleared in ten per cent of VIW cases in Phase 2 (a slight increase on Phase 1). But 26
per cent of VIWs for whom this was not done would have liked it. Of the VIWs for whom the
gallery was not cleared, those who would have liked this were far more frequently dissatisfied
than those who would not have wanted it (49% as compared to 28%) (Hamlyn et al., 2004a).
Aids to communication/interpreters/intermediaries
The provision in section 29 for intermediaries was not available during either phase of this
research and implementation is awaiting the outcome of a separate pilot. However, section
30 aids to communication for s.16 witnesses was introduced in July 2002 in the Crown Court,
along with the other measures considered above. This measure permits child witnesses to
give evidence through an interpreter or using some other communication aid or technique,
provided that the communication can be verified and understood by the court. There were no
examples of this measure being used or even being considered for use in the case tracking or
court observations. Hamlyn et al. (2004a) did find these measures used in a few cases, in all
of which the VIWs expressed satisfaction.
The effectiveness of the measures
Since the research reported here was not designed to compare a matched control sample of
cases where special measures were not used with those in which they were, it was not
possible to objectively assess the effectiveness of special measures and the other Speaking
up for Justice measures. However, some light was thrown on this by the qualitative material
presented earlier, and the Phase 2 agency survey responses to questions about the
effectiveness of the different special measures and other measures. These are presented in
Tables 6.1 to 6.4. Care should be taken in the interpretation of these tables. In assessing
‘effectiveness’ agencies could have been making a quantitative judgment (which measure
works for most witnesses) or a qualitative judgment (when a measure is suited to a witness,
which works best).
Table 6.1: Number of police respondents who perceived measures to support VIWs as
Measure Very Effective Ineffective Very No answer
Screens 13 14 3 1 6
Live link 20 12 0 1 4
Evidence in 4 14 5 0 14
Removal of wigs 7 8 9 2 11
Video recorded 26 6 1 0 4
Aids to 13 9 2 0 13
Interpreters 8 15 0 0 14
Escorts 10 14 2 0 11
Separate waiting 25 3 2 1 6
Liaison officers 19 7 1 0 10
Pagers 4 6 8 4 15
When asked if the introduction of the special measures under the 1999 Act had helped
witnesses to feel more confident in the early stage of the process, the majority of police
respondents said yes (25 out of 37). Only two said no, whilst ten respondents did not know or
gave no answer. Of the respondents who provided an answer to this question, six stated that
witnesses were more reassured (three, as a result of knowing they would not have to go into
the courtroom), six respondents said that witnesses were more aware or better prepared and
two that they were more willing to give evidence. There were some negative responses to the
effect that unrealistic expectations could be raised (consistent with the qualitative material
presented earlier), and that the warning given to witnesses that the judge had the final say
could undermine reassurances.
Tables 6.2, 6.3 and 6.4 show the CPS, courts’ and WS views in turn.
Table 6.2: Number of CPS respondents who perceived measures to support VIWs as
Measure Very Effective Ineffective Very Not No
effective ineffective used or answer
Screens 8 20 1 0 0 3
Live link 14 13 2 0 0 3
Evidence in private 5 11 1 2 1 12
Removal of wigs and 1 12 8 4 0 7
Video recorded 14 13 1 0 0 4
Aids to 4 11 1 0 2 14
Use of interpreters 6 7 1 2 2 14
Escorts 7 16 0 0 0 9
Separate waiting area 24 4 0 1 0 3
Liaison officer 15 9 1 0 0 7
Pagers 2 7 8 3 2 10
Table 6.3: Number of Courts’ respondents who perceived measures to support VIWs as
Measure Very Effective Ineffective Very N/A No
effective ineffective answer
Screens 4 6 3 1 0 1
Live link 10 4 0 0 0 1
Evidence in private 0 2 2 0 0 11
Removal of wigs and 1 9 4 0 0 1
Video recorded 7 6 1 0 0 1
1 3 1 0 0 10
Aids to communication
Use of intermediaries 1 1 1 1 0 11
Escorts 4 2 2 0 0 7
Separate waiting area 9 2 0 0 0 4
Liaison officer 7 4 0 2 0 2
Pagers 3 1 3 4 0 4
Table 6.4: Number of Witness Service respondents who perceived measures to
support VIWs as effective/ineffective (N=46)
Measure Very Effective Ineffective Very No
effective ineffective answer
Screens 23 20 2 1 0
Live link 22 21 0 0 3
Evidence in private 15 11 6 0 14
Removal of wigs and 6 20 8 6 6
Video recorded 21 17 2 0 6
Aids to communication 5 9 1 0 31
Use of intermediaries 12 19 3 0 12
Escorts 9 7 1 0 29
Separate waiting area 15 4 0 0 27
Liaison officer 11 25 4 2 4
Pagers 1 11 11 13 10
As can be seen, respondents to all the surveys rated separate waiting areas very highly, as
knowing that they would not have to confront the defendant and his supporters in public areas
was thought to make attendance at court less traumatic for the witness. However, the matter
is not this straightforward, and is discussed later. All agencies except the WS also rated
liaison officers very highly, as did VIWs themselves (Hamlyn et al., 2004a). Pre-recorded
evidence and the live link were highly rated by all the agencies and by VIWs themselves
(Hamlyn et al., 2004a). Screens were rated highly by most respondents from most agencies
and, again, according to Hamlyn et al. (2004a) by VIWs themselves. Pagers were thought to
be of limited value by all agencies because most people now had mobile phones and
because judges were reluctant to let witnesses stray far anyway. Court respondents also
mentioned that pagers got lost or did not produce a timely response. It is interesting to see a
broad measure of agreement among all four agencies about the most and least effective
All the Phase 2 surveys asked the agencies whether the Speaking up for Justice reforms
actually assisted VIWs significantly, and made VIWs feel better assisted. The responses
(excluding ‘don’t knows’) are tabulated in Table 6.5.
Table 6.5: The views of CJS agencies on the impact of the Speaking up for Justice
reforms on VIWs
Police CPS Courts WS
% % % %
(N=37) (N=32) (N=15) (N=46)
Are VIWs now better assisted? Yes 97 100 80 93
No 0 0 13 0
Do VIWs feel better assisted? Yes 84 94 60 85
No 11 6 13 0
Clearly all the agencies, to a greater or lesser extent, feel that the reforms have helped
significantly. To support this, respondents to the court survey, for example, noted that more
witnesses were now giving evidence and that there were more requests for special measures,
most of which were granted. Increased use of special measures is confirmed by Hamlyn et al.
(2004a) who observe that levels of anxiety and distress among VIWs (especially relating to
the court environment) fell significantly between Phase 1 and Phase 2. But more VIWs who
did not use the special measures of their choice would have liked to use those measures than
actually did so. It is also noteworthy that all agencies also feel that the VIWs themselves do
not fully appreciate the benefits. This may well be true, but Hamlyn et al. (2004a) found a
generally high level of satisfaction with the new measures. Most dissatisfaction arose from
measures not being offered, offered but then not being sought or granted, or the particular
measure they wanted not being provided. One-third of those using special measures said that
they would not have been willing or able to give evidence without them (most of the rest
saying that they would have given evidence regardless). Victims of sexual offences were
particularly helped by special measures.
Problems that Speaking up for Justice has not solved
According to Witness Service survey respondents, the main problem for VIWs once they
arrived at court was the possibility of coming face to face with the defendant (18 out of 46)
and delays or waiting time in the court process (13 out of 46). Thus, separate entrances (13
out of 46) and separate waiting rooms (18 out of 46) were highly regarded or, where not
provided, were sought. However, Hamlyn et al. (2004a) found that the provision of separate
waiting areas did not necessarily prevent defendants and VIWs seeing each other: for
example, in toilets, outside the courtroom. This was upsetting for many VIWs of all types, not
just intimidated witnesses. But even this does not get to the heart of the problem.
In all of the four areas in this study, the courts had separate waiting facilities for prosecution
and defence witnesses. However, amongst the witnesses interviewed as a result of court
observations there was a degree of ambivalence about the arrangements for separation.
Some witnesses felt that separation was more like ‘segregation’, with the more negative
connotations being attached to the latter. These prosecution witnesses were therefore
reluctant to take up the offer of waiting in an area designated for prosecution witnesses only,
even though they were uncomfortable or afraid at the prospect of seeing the defendant and
his supporters in the main shared waiting areas of the court building. They did not want the
defendant to think that they were ‘hiding away’. Some witnesses felt that separate waiting
facilities for prosecution witnesses sent a distorted message about whose side the court was
on. Of course the court is a neutral arbiter, but when the defendant is, quite properly (when on
bail), free to roam the court building, yet the prosecution witnesses are invited or discouraged
from doing so, some prosecution witnesses felt aggrieved. They felt that the defendant should
be ‘separated’ rather than them.
Keeping the defendant and his supporters out of the main court waiting areas is arguably not
feasible or desirable. However, perhaps more could be done to mitigate the experiences of
those who reluctantly submit to separation but are then restricted for lengthy periods of time
to prosecution witness only waiting rooms. It has been noted that the nature of trials is such
that witnesses can be required to spend many hours, and sometimes days, in small waiting
rooms or areas. When the facilities available to witnesses in these areas are not good then
the experience of waiting to give evidence may not only feel frustrating but unfair. Lack of
access to refreshment facilities is one issue. Although witness waiting areas may have
facilities for drinks, obtaining food is more problematic. Witnesses who decide to seek
refreshments in the cafeterias in the main waiting areas may have to ‘run the gauntlet’ of
defendant and supporters. Instances of this happening were noted in the court observations.
The greater use of pagers or mobile phones may be a possible solution to this problem, even
though pagers were the least highly rated measure available, as these allow witnesses to wait
outside the court building until they are called. As with some other measures, this may reflect
court culture, in this case in accepting that the witnesses do not have to be in the confines of
the court building, more than objective effectiveness. Some practitioners, when questioned in
the course of court observations, suggested that avoiding delay (ensuring that the witness is
there when the court is ready to hear evidence from them) was the most important issue. But,
whilst having a witness on standby might in some instances cause small inconveniences for
the court, it might significantly improve the experience of some VIWs. Hamlyn et al. (2004a)
found that, while pagers were not used at all, VIWs overwhelmingly supported the idea of
using pagers and mobile phones: 64 per cent said that they would have been useful.
The court observations show that some courts do try to avoid VIWs having to wait in the
confines of the court for long periods of time. They will set a later time for the witness to
attend court or rearrange the order of witnesses to try to ensure that a VIW who has been
waiting is not called back on a second day. Although this relies on the co-operation of
counsel, the court observations suggest that defence counsel are reluctant to antagonise the
court by refusing to accommodate the requests made by the judge to alleviate the burden on
VIWs attending court: this may sometimes be detrimental to the defence.
The main problem that VIWs experience once the trial has begun is, according to WS
respondents, the form of questioning by barristers in cross-examination (10 out of 46),
language and communication problems (6 out of 46), being called a liar (5 out of 46) and the
fear of repercussions from the trial (5 out of 46). Again, these findings are confirmed by
Hamlyn et al. (2004a) who report VIWs being more upset and stressed by cross-examination
than anything else. 36
The support and reassurance offered by WS volunteers was thought to be another valuable
type of support by WS respondents (18 out of 46), as was the fact that a volunteer may be in
court with the witness (13 out of 46). This self-assessment by the WS of their worth might
appear to be of limited value, but Hamlyn et al. (2004a) found that, of all the CJS agencies,
the WS was the most highly regarded by VIWs, over 80 per cent being ‘very satisfied’ with the
WS, and most of the rest being ‘fairly satisfied’. The concerns expressed by the WS should
therefore be taken seriously.
A common complaint was that no funding had been allocated to support the increased role of
the Witness Service in most courts. Indeed, one service had a new vulnerable witness suite,
funded entirely out of the Street Crime Initiative. It was said that staff were forced to leave the
service because of bad pay, and that this lack of funding did not reflect the desire of the
government to put the victim at the heart of the criminal justice system. One respondent
commented that, initially, the service was not taken seriously by the police and the courts but
now they are well established and information-sharing was good, although some WSs
indicated that there was room for more improvement.
The facilities that the Witness Service can offer VIWs while at court are shown in Table 6.6.
This is consistent with a substantial body of research summarised by Ellison (2001).
Table 6.6: Facilities for VIWs offered by the WS
Facility N % of 46 respondents
Separate waiting areas 42 91
Separate entrance 13 28
Separate toilet 3 7
The two most cited examples of improvements that could be made to facilities were the
provision of separate toilets (13 out of 46) and a separate entrance (7 out of 46). The two
main barriers to implementation of these improvements were lack of finance (21 out of 46) or
limited building potential, either through lack of space or because buildings were listed (21 out
of 46). In responses to the court survey, six out of 15 courts said that they have separate
waiting areas for witnesses but nine courts said that they do not. About half of the courts who
do not have separate designated waiting areas said that they could arrange for the
segregation of witnesses if required, but this can cause practical problems because of the
general pressures on space in the court building.
According to police interviewees, many witnesses want anonymity. This is not something that
the police can offer, and would not be possible in general because of the defendant’s Article 6
ECHR rights (although exceptions can be made in extenuating circumstances).
The present research and the related research of Hamlyn et al. (2004a) shows that, at one
level, special measures are a clear success. They were used far more in Phase 2 than in
Phase 1; agencies regard them as valuable on balance; and most VIWs who used them were
pleased they did so. Problems remain, however, some of which have been documented in
this report. By returning to the process and outcome measures referred to in Chapter 1, a
more comprehensive and systematic analysis can be undertaken of the success of the
measures and the areas that require further development.
The Speaking up for Justice initiative was a response to the problems posed by the criminal
justice system for victims and witnesses in general, and vulnerable and intimidated victims
and witnesses (VIWs) in particular. A body of knowledge of these problems and how to
alleviate them had developed over two or more decades. New policies and practices had
been introduced for particular groups, such as children, and evaluated. The initiative, and the
YJCE Act which was a part of it, was not therefore a leap into the dark. It was an extension of
existing policies that had been found to be at least partially effective.
Effectiveness means at least three things in this context:
• Encouraging VIWs who would not otherwise testify to do so.
• Enabling VIWs to give their evidence as effectively as possible.
• Minimising the stress and trauma of giving evidence.
The initiative rested on the understanding that, as court proceedings are often held many
months after offences are committed, achieving these objectives required support and
encouragement to be provided to witnesses in the long pre-trial period as much as in the
relatively short trial period. Thus, for many VIWs the general measures discussed in Chapter
5 (and whose evaluation was described in Chapter 6) are as important as the special
measures of the YJCE Act discussed in Chapter 6.
A three-stage test that decision-makers should apply is implicit in this initiative and was
formulated in Chapter 1 as follows:
1. Is the (potential) witness potentially vulnerable/intimidated?
2. If yes: is this vulnerability/intimidation likely to affect whether they will be willing to testify
in court, to affect their capacity to give their ‘best evidence’ in court (i.e. evidence that is
complete, coherent and accurate), and to cause them undue stress in or before court?
3. If yes: what type of support or assistance will be most likely to alleviate these difficulties?
It follows that early identification of VIWs as such (Q1) is important in order to:
• arrange for the provision of pre-trial support;
• enable interviews with police to be recorded to facilitate, for example, CPS evaluation of
the strength of the case;
• facilitate work across criminal justice agencies where necessary and appropriate;
• enable applications for special measures to be made at an early stage to reassure
• ensure an early fixed date for the trial in a courtroom with appropriate facilities.
But also decision-making must be based on answers to Q2 and Q3, and not based on
preconceptions. These answers will usually be informed, in part, by knowledge of the wishes
of the witnesses themselves and of their own assessment of their needs.
Chapter 1 set out a number of process and outcome measures by which the success of this
initiative could be judged. In this chapter, the implementation and use of these reforms is
evaluated against these measures.
Process and outcome measures
1. Appropriate training for all agencies comprehensively deployed
Chapter 4 found that police training had been fairly comprehensive in the period between
Phase 1 and Phase 2. However, as the police themselves acknowledged, this distance-
learning training was of limited value, particularly bearing in mind the complexity of the
legislation, the many other initiatives the police had to prioritise, and the fact that most police
who deal with witnesses are generalists who deal with a wide variety of issues in the course
of a few days. CPS training appeared to have been minimal, and of minimal effect, to the
extent that one prosecutor assigned as a liaison officer for the research who was her area’s
designated ‘VIW officer’ appeared not to understand what a VIW was. Thus both agencies
performed poorly in often not applying the three-stage test and, when they did, often not
doing so intelligently. Judges and the Witness Service appeared to have had more effective
training, but the opportunities to use that training to salvage VIW cases that had been dealt
with badly pre-trial were limited.
On this measure the initiative works poorly but it is difficult to see how all police officers could
be adequately trained. A higher proportion of CPS staff could be trained, and CPS has
indicated that, since the research was completed, a national training programme (now
delivered locally) to prosecutors and caseworkers on ABE has been undertaken. This was a
three-day course including one day’s input from the Ann Craft Trust. 37 There is an online
training resource available on the CPS intranet. The necessary forms are also to be found
there. There is a national network of Speaking up for Justice (SUFJ) “Champions” to further
ensure that guidance is available.
2. Deployment of guidance to enable better identification of VIWs
There is little guidance available to enable identification of VIWs. Identification might be
improved if national guidance is issued to police forces. The system to be adopted should
include basic information about VIWs that can be used for identification and monitoring
This research estimated that the majority of witnesses are potentially VIW, so a more radical
approach to identification would be to consider all witnesses as VIW until there is firm
evidence that they are not. Given the scale of the problem of early identification this would at
least have the potential advantage of raising awareness of the needs of VIWs at all levels in
the police and CPS.
The screening interviews used by BMRB Social Research in this research contained well
validated questions designed to enable the interviewers to identify VIWs. These could be
adapted for use by the police. Guidance could specify that, when answers to these questions
lead investigating officers to think that a (potential) witness could be vulnerable or intimidated,
the witness should be handed over to a specialist officer who could make a more informed
judgment. Guidance should emphasise the idea of vulnerability or risk of intimidation as a
spectrum, not a ‘yes/no’ category.
On this measure the initiative works very poorly, but it would not be difficult to combine better
guidance with screening interviews that could work well.
3. Video suites for ABE interviews available and use of ABE interviews
There appeared to be no problem in finding video suites within a reasonable distance,
although not all were of the standard that officers hoped for. On this measure the initiative
works very well.
Whether appropriate use was made of these facilities, however, is a different matter. It was
seen in Chapter 5 that ABE interviews were conducted only in a minority (albeit a substantial
The Ann Craft Trust works with staff in the statutory and voluntary sector to promote the interests of people with
learning disabilities. Their activities include the provision of specialist training for people working with the learning
minority) of cases, even those with child VIWs where there is a presumption in favour of a
video interview. This was despite the survey finding that the police were enthusiastic about
the use of ABE interviews and believed them to be very effective. The reasons for their lack of
use were explored in Chapter 6 using the case file tracking data. So the initiative has worked
well in terms of the provision of facilities but not well in terms of their use.
4. Implementation of VIW monitoring systems
Only one comprehensive police VIW monitoring system was identified. This system not only
took an inclusive approach to identifying VIWs but enabled the police to collect basic
information and to aggregate it in order to monitor the use of measures to support VIWs. The
use of such a monitoring system is crucial for system level identification, as is the ability of the
systems used by different agencies to talk to each other.
Some Witness Services claimed that they had monitoring systems but were still unable to
provide accurate figures for the volume and types of VIW. The CPS had a special measures
monitoring system, which is not the same, and which was not properly used by prosecutors in
many offices. On this measure the initiative works very poorly.
5. Good levels of VIW file completion and endorsement
Neither police nor CPS endorsed files thoroughly in any consistent manner. Thus, in many
cases it was difficult to see what had happened or why certain things had or had not
happened. The thought processes of decision-makers were often not set out. On this
measure the initiative works well at times (in serious VIW cases) and poorly at others
(especially where VIWs are not identified or not thought suitable for special measures).
6. Accurate advice to witnesses about special measures
As with file completion and endorsement, CPS and police performance was patchy. This was
because of poor training, poor understanding of the different uses that different measures had
for a variety of VIWs, even among supposedly specialist prosecutors, and the application of
preconceptions instead of use of the three-stage test. It was therefore good at times (in
serious VIW cases) and poor at others (especially where VIWs are not identified or not
thought suitable for special measures).
The Witness Service appeared to give far better advice than did the police, which would have
retrieved the situation in many cases had more pre-trial visits been arranged (the paucity of
which in itself is an indicator of poor advice given by the police). The WS therefore did well on
7. Inter-agency information-sharing, liaison and strategy meetings
Police-CPS information-sharing and liaison was patchy, and strategy meetings were held in
not one case in the case file tracking sub-sample, despite police and CPS claims that they
held them when there was a pressing need and when resources permitted. WS liaison with
courts and other agencies was good, but again this was often too late to have much effect.
On this measure, due to poor police-CPS performance, the initiative works very poorly.
8. Increase in proportion of VIWs identified by the police
Data collection in Phase 1 was far less extensive than in Phase 2, so no direct comparison
can be made. However, the proportion of possible-VIWs identified in the BMRB Social
Research screening exercise was very similar in both phases. Nearly half of the sample was
so identified, compared with around seven per cent by the police and CPS. Even on a
conservative estimate, many more VIWs are not identified than are identified by police and
CPS. It does seem that the police identify more VIWs now than they did when Phase 1 was
conducted, but as the police themselves acknowledge, this performance remains poor.
On this measure the initiative works poorly.
9. Use, where appropriate, of special measures and other measures
There are two possible problems here: over-use of measures where those measures are
counter-productive; and under-use of measures or the use of the wrong measures.
There appears to be a small problem of over-use and a greater one of under-use. Both are a
result of the application of preconceptions rather than proper application of the three-stage
test. This applies particularly to video recorded ABE interviews and use of CCTV in court. The
categorical element of the combined approach in the legislation itself pushes the CPS and
courts in this direction. However, most of the other special measures (e.g. screens, removal
of wigs and gowns) and other measures (e.g. pre-court visits, use of fixed lists) are not used
for VIWs in many cases where they could be useful – also because the three-stage test is
On this measure the initiative works fairly well.
10. Increase in satisfaction of VIWs with the court process
The research did not directly measure this indicator. However, the data collected led the
researchers to believe that there had been a marked improvement in the treatment of VIWs
by all agencies at all stages, particularly as the WS retrieved the situation in many cases and
the courts were usually sufficiently flexible to adjust accordingly. This extrapolation was
consistent with the results of the BMRB Social Research witness satisfaction surveys that
found that levels of satisfaction among VIWs had risen, and that levels of court-based anxiety
had fallen. There was still substantial dissatisfaction and anxiety, and although this is
inevitable in any stressful process such as giving evidence in court, there clearly remains
room for improvement, as is evident from the findings of this research. On this measure the
initiative works fairly well.
This research is consistent with other recent research in identifying two main problems. First,
there is a failure to identify large numbers of witnesses as VIW. Second, even among those
who are identified as VIW, there is still a huge unmet need: for some, no special or other
measures are sought or provided, while for others the wrong measures are sought or
provided. This is largely due to lack of resources and poor advice and information given to
VIWs (often because of lack of knowledge and understanding on the part of police officers
and prosecutors). Further, pre-trial stages tend to be neglected in this court-focused culture.
The groups that are most neglected as a result are learning disabled, physically disabled,
mentally ill and (potentially) intimidated adults, but many older children are also neglected.
A number of specific problems amenable to reform can be identified.
1. The YJCE Act is extremely complicated. This research suggested that many CJS officials,
even including judges, wrongly believe that ABE interviews must be used in evidence once
they have been pre-recorded and that the statutory presumption of use of ABE interviews and
CCTV in serious child cases is virtually irrebuttable. If these beliefs are correct, the YJCE Act
should be changed. If they are not, the Act should be clarified. The three-stage test, if applied
properly and with due regard to the VIW’s individual wishes and needs, should be entirely
adequate in guiding when ABE interviews should be done, when they should be used in
court, and when the CCTV link should be used.
2. Serious thought should be given to extending to vulnerable defendants all the provisions
available to vulnerable witnesses. Not only is this discrimination unfair, but the belief among
many lawyers and judges that it is unfair impacts adversely on the use of special measures
for prosecution witnesses when the defendant is vulnerable and not able to secure similar
1. More liaisons over individual cases are essential, and strategy meetings should be used
more. It is possible that this will happen naturally as police and CPS staff work together in
CJUs more in the future. Further, Witness Care Units are now being provided in all police
force areas under the ‘No Witness, No Justice’ programme. Staffed by police officers and
CPS staff, this should facilitate better liaison, better assessment of needs, and better use of
MG2, 6 and 11 forms. This initiative needs to be evaluated to ensure that it is producing these
2. The official guidance on police/CPS liaison over assessment of support needs should be
re-thought, particularly the unnecessary distinction between initial meetings (police and CPS)
and subsequent meetings (with VIW and/or carer). It would be more in keeping with the spirit
of Speaking Up for Justice if the nature of the meeting, and who participates in it, were
decided according to the needs of each individual case.
3. Monitoring: CJS agencies cannot be relied on to identify poor practices in other agencies,
as they often share the same poor practices (e.g. making assumptions about certain victim-
categories). A more sophisticated inter-agency monitoring and feedback system is needed
such as that discussed above. The CPS states that its electronic case tracking system
(COMPASS) has such facilities, but this needs to be evaluated.
4. ‘Initiative-itis’ can torpedo many valuable initiatives. They need to be prioritised: not every
type of case can be fast-tracked, for example.
5. An example of what might be nationally possible is the CPS-Liverpool City Council
partnership on “Vulnerable Witnesses – Support, Preparation and Profiling”.38 The impact of
this will need to be monitored so that, if appropriate, it can be applied nationally.
1. The need for better training, especially for police and CPS is evident. As noted earlier, this
appears to be happening in the CPS, but there are simply too many police officers, who have
too many responsibilities to keep in their minds, to expect training to do more than instil a few
basic points in most officers’ minds. It is thus important that training ensures that all officers
can recognise possible VIWs and then pass those individuals onto officers who do have full
training. The impact of training should be evaluated to see, for example, how far the CPS is
now viewing recorded ABE interviews in order to help it make decisions, and whether CPS
lawyers are meeting VIWs more than they have hitherto.
2. The CPS special measures monitoring form should be a VIW form on which is recorded
what measures (if any) are sought and provided, and the stage of the case at which
applications are made.
3. The police should complete a similar VIW monitoring form.
4. Identification of VIWs could be improved by using simple prompt questions based on the
screening interviews used in the present research. In addition, a check on any written
communication difficulties would be valuable.
5. The value of many measures, even if applicable only to a minority of VIWs, needs to be
brought home to CJS staff at all levels. Pre-court visits, pagers, clearing the court and the
removal of wigs and gowns are examples of simple but little-used measures that many VIWs
would benefit from.
Merseyside CPS has a protocol with Liverpool Social Services Directorate that formalises the systems for assisting
vulnerable witnesses. The City of Liverpool Investigations Support Unit will provide witness ‘profiles’ to help the CPS,
counsel and the court to understand and respond to vulnerable witnesses appropriately.
1. Courts need VIW officers.
2. Thought should be given to the role (and consequent funding) of the WS. As the best-
performing CJS agency in this evaluation, the arguments for it having a greater role are
3. Where possible, court buildings should include better provision for separate defence and
prosecution witness facilities.
4. Many court procedures should be re-evaluated – from accepting small delays as a result of
freeing VIWs to wait outside the building (calling them in using court-provided pagers) to
Overall, taking the ten measures together, five are judged to work poorly (two very poorly)
and two well (one very well), with three being variable. This is a mixed result. Some measures
have been identified as capable of improvement without radical change, while others require
significant cultural change and others require major legislative change. Some changes are
simply unlikely: structural change in many buildings will not be possible and some changes to
cross-examination practice and culture are unlikely. The largest groups that still fall through
the net are mentally disordered and learning disabled witnesses and ‘less-than-ideal’
witnesses, both of whom could significantly benefit from the measures not yet implemented
on intermediaries and pre-recorded cross-examination.
More use could be made of the Witness Service, which could be a more formal link between
the witness and all the other agencies. This seems only to be the case at present on an
informal basis within court buildings. Police officers and CPS lawyers often pop in and out of
the office giving and receiving bits of information. This could be put on a more formal footing
and introduced at an earlier stage in the process. The WS could be the single point of contact
for witnesses, relieving pressure on the police. The WS would be able to find out information
they do not have from their contacts in the police and CPS or within the court. There appears
to be willingness amongst the Service to do this as much as possible within the resource
constraints they have. Increasing their resources to improve the working of this initiative could
be more cost-effective than increasing police or CPS resources to do the same. However,
developments on these lines could duplicate the Witness Care Units (referred to above) that
have now been introduced. Care must be taken to ensure that, if the role of the WS is
expanded, it does not duplicate the work of these units, and that they work together and
share information fully.
It was observed earlier in this chapter that ‘effectiveness’ meant three things. Many judges
believe that video recorded evidence and the live television link are less effective than the
giving of evidence ‘live and in the flesh’. This is probably due to a belief that these methods of
giving evidence reduce its impact on juries, although this is not supported by the research
evidence (Davies 1999). This view, probably shared by many counsel, accounts for the
slightly jaundiced view that some Witness Service respondents have of judges and counsel.
Negative views of these measures appear to be less prevalent among the other agencies. All
agencies recognise (and as was confirmed by VIWs in the survey by Hamlyn et al., 2004a)
that many witnesses would not give evidence were it not for these measures.
Nonetheless, the view that some judges held, that more careful assessments should be made
in individual cases of what VIWs really do need, and how they would be best served, seems
to have great weight. At present these measures are all too frequently sought as a matter of
routine in certain types of case, and not sought at all in other categories. The idea of
vulnerability as a spectrum is rarely fully understood. These careful assessments need to be
made by a combination of those who know the witnesses and those responsible for
presenting the case in court (CPS and/or counsel). As shown by this research, it is rare for
CPS/counsel to meet the police to discuss these matters, let alone any witnesses. Until these
barriers are overcome, these problems will remain. This is not a radical suggestion. It is
simply asking that the three-stage test set out in Chapter 1, which is implicit in these reforms,
is applied conscientiously. But insofar as it requires not just extra resources, but a shift in
cultural attitudes and work methods, it is not really simple at all.
Discussions about VIWs (with the notable and worthy exception of Speaking up for Justice
itself) tend to focus on the courts, for successful court cases are the ultimate objective of most
criminal justice processes. This research has shown that effort must now be directed at the
investigation and pre-trial processes as much as at the court processes, for more of these
court cases to be successful.
Youth Justice and Criminal Evidence Act 1999: Special Measures Implementation (England and Wales)
Availability in criminal proceedings Crown Court Magistrates’ courts
(England & Wales) at 3 October 2005 Section 16 witnesses Section 17 Section 16 witnesses Section 17 witnesses
(children & vulnerable adults) witnesses (children & vulnerable adults) (intimidated/fear or
(intimidated/fear or distress)
Section 23 Full availability Full availability Full availability Full availability
Screening witness from accused (note 1) (note 1) (note 2) (note 2)
Section 24 Full availability Full availability Full availability Full availability
Evidence by live link (note 1) (note 1) (notes 3 & 4) (note 4)
Section 25 Full availability Full availability Full availability Full availability
Evidence given in private (note 1) (note 1) (note 2) (note 2)
Section 26 Full availability Full availability Not applicable Not applicable
Removal of wigs and gowns (note 1) (note 1)
Section 27 Full availability Not available – Partial availability - for child Not available
Video recorded evidence-in-chief (note 1) except pilot courts witnesses in need of special (note 6)
(notes 5 & 6) protection only) (notes 3 & 6)
Section 28 Not available Not available Not available Not available
Video recorded cross-examination/re-examination (note 7) (note 7) (note 7) (note 7)
Section 29 Partial availability – pilot areas Not applicable Partial availability – pilot areas Not applicable
Examination through an intermediary (note 8) (note 8)
Section 30 Full availability Not applicable Full availability Not applicable
Aids to communication (note 1) (note 9)
1. Full availability for these witnesses in these courts since 24/07/02.
2. Full availability for these witnesses in these courts since 3/06/04.
3. Available for ‘child witnesses in need of special protection’ (defined by section 21 of the 1999 Act) only since 24/07/02.
4. Available since 1/09/04 in West London magistrates’ court and full availability across magistrates’ courts from 3/10/05.
5. Available in Wood Green and Sheffield Crown Courts as part of investigation of alternatives to transcription in less serious cases (ROVI pilot) since summer 2004.
6. No decision on the extension of video recorded evidence-in-chief to all vulnerable and intimidated witnesses will be made until after the final evaluation report of the ROVI pilot has been
received in September 2005. This will inform the development of implementation plans for extending the availability of video recorded evidence-in-chief. The implementation plan will
incorporate a suitable period of notice to enable criminal justice agencies to prepare.
7. We are currently reviewing the workability of this measure in the context of a review of child evidence.
8. Intermediaries are being piloted in preparation for national roll out (planned 2006/07) - Merseyside pilot went live 23/2/04, Thames Valley 2/10/04, West Midlands 1/11/04 (from 13/9/04 in Black
Country area), Norfolk 1/02/05, S Wales 1/02/05 (Cardiff Crown Court and related magistrates’ courts in S Wales) and Devon and Cornwall 20/6/05 (Plymouth Crown and magistrates’ court).
9. Available in Merseyside since 23/02/04; full availability across magistrates’ courts since 3/06/04.
Appendix 2: Letter to victims
I am writing to ask for your help.
The Home Office is carrying out research among people who are witnesses/victims of crime and who may be
asked to appear in court. From next July special help can be provided at some criminal courts for witnesses who
need it - for example, those who have health or communication problems, or who may have difficulty giving
evidence for other reasons. At the moment no one knows how many witnesses are likely to need this help. In
order to find out, hundreds of witnesses will be contacted by telephone to ask them a few questions about this.
The interview will only take about 5 minutes, and will be carried out by an independent research company called
BMRB Social Research.
Your name has been taken completely at random from records of people who are victims of, or witnesses to,
crimes where the police intend to charge the offender. An interviewer from BMRB will attempt to contact you by
telephone, in the next few months, to ask you if you will be willing to take part in the interview. Everything that you
say in the interview will be treated in the strictest confidence, your name will not appear on any record of the
interview, and no information about you as an individual will ever be passed on to anyone outside the research
I hope that you will take part in this survey to help us plan new initiatives to assist witnesses. If you have any
questions about the survey, you may ask the BMRB interviewer who will be happy to help you. However if you
really do not want to take part, you can write within the next 14 days to:
Insert Freepost/police address
If you do write, please give the reference number from the top of the letter and you will be taken off the list of
people that BMRB will attempt to contact.
Whatever you decide, any proceedings that you are involved in will not be affected in any way, either now
or in the future.
We hope you agree to take part and thank you in advance for your help and co-operation.
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