Special Measures And Advocates For Vulnerable And Intimidated Witnesses (VIWs) In Court

Who are VIW’s in court?

In recent decades, a wealth of research has examined the treatment of vulnerable and intimidated witnesses in the criminal court, with an increasing emphasis on the explicit guidance towards implementing a fair and impartial trial. Whilst the search for a universally recognised definition of vulnerable and intimidated witnessed has not been entirely consistent internationally, the Crown Prosecution Service have provided the foundations for an appropriate definition. Broadly speaking, vulnerable witnesses may be defined as individuals who are likely to produce a poorer quality of evidence due to their age or mental impairment with regards to intelligence, social, or physical functioning. Specifically, all child witnesses under 18 years of age, and individuals who display a multitude of psychological conditions, including learning disabilities, Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), dyslexia, depression, and anxiety. Intimidated witnesses are defined as individuals whose quality of evidence may be diminished due to excessive fear or distress in relation to giving evidence in court. In particular, cases surrounding domestic violence, racially motivated crime, crime motivated by reasons relating to religion, disability, homophobia, transphobia, harassment, and violent or gang-related crime.

Background

In order to assess the effectiveness of safeguards for vulnerable and intimidated witnesses in court, it is essential to understand the legislative framework surrounding the field. A wealth of research has entrenched the notion that such frameworks are attributable to the disproportionate volume of false confessions, resulting in a multitude of wrongful convictions due to a lack of understanding of basic courtroom phrases or distress at the prospect of giving evidence. The enactment of pivotal legislation has provided the foundations for greater accountability within the courtroom, and greater enforcement of pertinent procedures to ensure witness rights and safeguards are protected throughout the criminal justice system.

Consequently, the Youth Justice and Criminal Evidence Act (1999) introduced a set of newly established principles to facilitate the understanding of evidence for vulnerable and intimidated witnesses – recognised today as special measures. Proposed under Section 16 to Section 33 of the Act, these provisions signified the development of preventative guidelines that uphold the right to an impartial and fair trial, and to ensure that VIWs recognise the fundamental principles surrounding the approach to questioning in court.

In addition, the Equality Act (2010) has extended this concept further, by providing a comprehensive and definitive framework that attempts to educate public authorities and service providers on the innumerable safeguarding concerns for VIWs in court, and thus proposes a series of ‘reasonable adjustments’ tailored specifically for individuals whose physical and mental impairments hinder their ability to give evidence. Whilst the following does not demonstrate an exhaustive list of the reasonable adjustments available for VIWs, it guides the reader on the adjustments that are available if required:

• Forms available in larger print
• Hearing enhancements
• Adjustments for the length of interviews
• Regular breaks during cross-examination
• IQ assessments for individuals with learning disabilities to determine their fitness to plead
• Using simple and direct language to avoid complexity of question
• Providing additional time for the witness to respond to questioning
• Repeating or rephrasing questions to assist comprehension
• Avoiding acronyms, metaphors, or nuances
• Avoiding criticism of memory weakness
• Allowing sequencing difficulties in the recall of numbers of chronology of events

Special Measures in Court:

In order to improve the safety of VIWs, whilst enhancing the quality of accurate evidence presented, a multitude of special measures may also be implemented to assist vulnerable and intimidated witnesses:

• Screens – Screens are placed around the witness box during the trial to shield the witness from the defendant
• Live link – Live link enables the witness to give evidence outside the courtroom via a linked television screen.
• Removal of wigs and gowns – Judges and lawyers involved the case may remove their wigs and gowns to create a more informal and relaxed environment for the witness
• Aids to communication– This enables a witness to give evidence via a communicator aid or interpreter (such as alphabet aids or symbol books) to help understand questions and general court proceedings.
• Evidence given in private – This excludes members of the public and the press from court, and may be applied in cases involving a sexual offence for intimidated witnesses.
• Examination of the witness through an Intermediary – An intermediary may be appointed to support the witness to give evidence during the trial. The intermediary may assist in explaining questions or answers, or to provide communication assistance in the investigation stage.
• Registered Intermediary – These selected individuals provide practical and emotional support to the witness. Examples include an Independent Sexual Violence Advisor (ISVA) who assist witnesses who have experienced rape and sexual assault by acting as a direct single point of contact and to tailor individual support for the individual. Similarly, an Independent Domestic Violence Advisor (IDVA) are specialist professionals who assist victims of domestic abuse. Their role is to address the safety of victims who may be at risk of harm from partners or family members, and develop safety plans for the victim and their children.