Special measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stresses associated with giving evidence. Special measures apply to prosecution and defence witnesses and are subject to the discretion of the court.
For a special measures application to be successful, two requirements must be satisfied under the Criminal Evidence (Northern Ireland) Order 1999, as follows:
- The witness must be eligible for special measures.
- If a witness is deemed to be eligible, then the court must be of the opinion that the use of special measures would be likely to improve the quality of the witness’s evidence.
If the court is satisfied of the above, it must then decide which special measure or combination of measures will likely maximise the quality of the evidence.
Who is eligible for Special Measures?
In accordance with Articles 4 and 5 of the Criminal Evidence (Northern Ireland) Order 1999, a vulnerable or intimidated witness will be eligible for special measures.
Who are vulnerable witnesses?
Vulnerable witnesses are defined as:
- All child witnesses (under 18 years).
- Any witness whose quality of evidence is likely to be diminished because they:
Are suffering from a mental health disorder as defined by the Mental Health (Northern Ireland) Order 1986;
Have a significant impairment of intelligence and social functioning; or
Have a physical disability or are suffering from a physical disorder.
Some disabilities are obvious and others are hidden. Some witnesses may have a combination of disabilities. They may not wish to disclose the fact that they have a disability during any assessment of their needs. Different witnesses on the autistic spectrum may have very different needs.
Witnesses under 18 – the Primary Rule
A witness who is under 18 on the proposed date of contest, is automatically eligible for special measures without further qualification as per Article 4(1) of the Criminal Evidence (Northern Ireland) Order 1999.
Complainants in Sexual Offences
In accordance with Article 5(4) of the Criminal Evidence (Northern Ireland) Order 1999, a witness who is the complainant in respect of a sexual offence is automatically eligible for special measures, unless the witness informs the court that they do not wish to be eligible.
How the PPS handle sexual offence cases.
Intimidated witnesses are those who are in fear or distress about testifying in a case. Unlike a minor or a complainant in a sexual offence case, this category of eligibility is not automatic.
Under Article 5(1) of the Criminal Evidence (Northern Ireland) Order 1999, the court must be satisfied of 2 requirements for an application to be successful. Firstly, the court must be satisfied that the witness is in fear or distress in connection with testifying in the proceedings. Secondly, the court must be satisfied that by reason of this fear or distress the quality of evidence given by the witness is likely to be diminished.
The fact that a witness is eligible for special measures does not mean that they will be automatically granted by the court. The court has to satisfy itself that the special measure or combination of special measures requested is likely to maximise the quality of the witness’s evidence before granting an application.
Types of Special Measures
The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, are detailed in the Criminal Evidence (Northern Ireland) Order 1999 and include:
- Screens are available for vulnerable and intimidated witnesses and may be made available to shield the witness from the defendant.
- Live link facilities enable the witness to give evidence during the trial from outside the court through a televised link to the court room. The witness may be accommodated either within the court building or in a suitable location outside the court. This type of special measure is available for vulnerable and intimidated witnesses
- Giving evidence in private involves the exclusion of members of the public and the press from court in cases involving sexual offences or intimidation by someone other than the accused.
- The removal of wigs and gowns by judges and barristers is available for vulnerable and intimidated witnesses at the Crown Court
- Video recorded evidence is a measure available for vulnerable and intimidated witnesses. It allows the video recorded evidence of a witness to be played in court as the evidence in chief.
- Aids to communication may be permitted to enable a witness to give best evidence whether through a communicator or interpreter, or through a communication aid or technique, as long as the communication can be independently verified and understood by the court.
- A Registered Intermediary can be used to facilitate better communication between a witness and those asking questions of them. A Registered Intermediary can be involved during an ABE interview or during a court hearing.
There may be situations in which a combination of special measures may be appropriate. For example, if a witness who is to give evidence by live link wishes, screens can be used to shield the live link screen from the defendant and the public.
It is important that the Prosecutor has all the available and relevant information to assist with the making of a special measures application. In most cases it will be the Police who provide the prosecutor with the information. Sometimes, however the information will come directly from the witness.
Ideally early decisions should be taken regarding special measures to assist victims and witnesses. An application can, however be made at a later stage in the proceedings in the event of a change of circumstance.