Monday, 11 February 2013

Special Measures in Criminal Proceedings

Update 27th March:  Brewer was sentenced to a total of 6 years imprisonment

Frances Andrade was a very talented violinist.  As a child she studied at Chetham's School of Music, Manchester.  A teacher at the school was Michael Brewer who, on 8th February, was convicted at the Crown Court Manchester (His Honour Judge Rudland and a jury) of five counts of indecent assault on Frances Andrade during the 1970s when she was at the school and aged 14-15.  Brewer's former wife was also convicted of indecently assaulting Andrade.  See 'Choirmaster Michael Brewer guilty of sec abuse'

The case against Brewer emerged years later as a result of Andrade's friend (Jenevora Williams) informing the Police. (Andrade had told Williams about what Brewer had done).  Consequently, Andrade was called as a witness for the prosecution.  As a complainant in this type of case, Andrade was qualified to benefit from special measures (Youth Justice and Criminal Evidence Act 1999) but, as permitted by s.17(4) of the Act, she declined them and chose to give her evidence in person before the court.  She endured a rigorous cross-examination by Brewer's counsel Kate Blackwell QC. Between giving her evidence and the conclusion of the trial, Andrade took her own life.  Her family are particularly distressed at the conduct of the cross-examination which, they suggest, contributed to her state of mind - The Guardian 8th February 2013 - "Sexual abuse victim killed herself after giving evidence at choirmaster trial."  and The Guardian 10th February.  The fact of Andrade's death was withheld from the jury until after the verdicts had been returned.

Every defendant
is entitled to a fair trial and to have his or her case properly put to the jury.  There are three stages to the examination of a witness: examination in chief; cross-examination and re-examination.  Each of these stages must be conducted according to legal rules and there are also professional and ethical limits.  The cross-examiner will seek to both elicit evidence supportive of his version of the facts in issue and cast doubt upon the witness's evidence.  The trial judge's role is to ensure fairness and adherence to the required rules and limits.  The judge must prevent any questions which in his opinion are unnecessary, improper, or oppressive.  Cross-examination is a powerful weapon entrusted to counsel and it should be conducted with restraint and with a measure of courtesy and consideration to the witness (per Sankey LC - Mechanical and General Inventions v Austin [1945] AC 346, HL at 360).  In relation to the cross-examination of Andrade, the trial judge has said that counsel for the defence had been "perfectly proper and correct in her examination of all the witnesses in this case."  It is not the purpose of this post to question that view in any way.  Judgment on such an issue must be left to others and could, in any event, only be given with full knowledge of all the details of the trial.

This case is not the first time that questions have been raised about the conduct of cross-examination - see Milly Dowler family's court ordeal 'appalling' says victim czar Louise Casey - Telegraph 24th June 2011.   The case is bound to raise questions as to how cases of this type are handled.  For example, see the issues raised by former Solicitor General Vera Baird QC - The Guardian 9th February.  

(Added 18th February) - Criminal Bar Association - Nigel Poole QC - Counsel's duty explained - 'No system of justice worth its name – be it criminal or civil – should prevent the rigorous scrutiny of evidence. Barristers who are wholly independent of the state and of any vested interest are an essential part of the administration of justice. It would be harmful to justice if, for fear of public opprobrium, barristers drew back from asking difficult, embarrassing, even hurtful questions ...... ' 

Special Measures:

For many witnesses attendance at court is highly daunting and may be a frightening experience.  "Special measures" exist to assist vulnerable and intimidated witnesses (VIWs)  to give their best evidence in court by relieving some of the stress associated with giving evidence. Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants,.

Legislation for special measures may be traced back to an Advisory Group chaired by His Honour Judge Pigot (Report of the Advisory Group on Video Evidence 1989).  The 1999 Act introduced a range of special measures.  Changes have been made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.  (See Ministry of Justice Circular 2011/04 ).  The legislation is open to various criticisms since it is needlessly complex and unduly inflexible - (see, for example, Adrian Keane The Modern Law of Evidence 8th ed)

The possible measures:

Screening from the accused (section 23), evidence by live link (s.24), taking evidence in private (s.25), removal of wigs and gowns (s.26), video recorded evidence in chief (s.27), evidence via an intermediary (s.29) and aids to communication (s.30).  Crucially, the 1999 Act s.28 provides for video recorded cross examination or re examination but this section has not been brought into force.  The reason for this is not clear and there have been calls for its implementation - e.g. The Guardian 12th May 2011 - Children and the law: state failing to help young witnesses

Who is eligible?

Not all witnesses qualify for special measures.  Vulnerable witnesses are defined by section 16 YJCEA as:
  • All child witnesses (under 18); and
  • Any witness whose quality of evidence is likely to be diminished because they:
    •  are suffering from a mental disorder (as defined by the Mental Health Act 1983);
    • have a significant impairment of intelligence and social functioning; or
    • have a physical disability or are suffering from a physical disorder.
Intimidated witnesses are defined by section 17 YJCEA as those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences are defined by section 17(4) as automatically falling into this category unless they wish to opt out.

Witnesses to certain offences involving guns and knives are similarly defined as automatically falling into this category unless they wish to opt out.

Victims of domestic violence, racially motivated crime and repeat victimisation, the families of homicide victims, witnesses who self-neglect/self-harm or who are elderly and/or frail might also be regarded as intimidated.

Being eligible for special measures does not mean that the court will automatically grant them. The court has to satisfy itself that the special measure or combination of special measures is likely to maximise the quality of the witness's evidence before granting an application.

CPS Special Measures

Ministry of Justice - Table of Eligibility for Special Measures

Crown Prosecution Service  for Victims and Witnesses.    


A report was prepared for the Home Office in 2006 - Are special measures for vulnerable and intimidated witnesses .... (Authors Mandy Burton, Roger Evans and Andrew Sanders).  This research suggested that, at one level, special measures are a clear success. Most VIWs who used them were pleased they did so.  However, it was noted that there was a failure to identify large numbers of witnesses as VIW.  Among those actually identified as VIW, there was a 'huge unmet need' - e.g. in some instances, the wrong measures were sought or provided. This was 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).

The Nuffield Foundation has been conducting research on the Impact of special measures on jury decision-making


In Scotland, special measures apply by virtue of the Vulnerable Witnesses (Scotland) Act 2004

Measures similar to those in England and Wales are possible but with the interesting addition of the witness being able to give evidence before a Commissioner prior to the actual trial.   The Commissioner procedure may be helpful in some circumstances:

(a) Where the witness may be regarded as a vulnerable witness and there is a risk that the witness's evidence may be affected due to the passage of time depending on their age, or due to increasing physical or mental ill-health or disability;

(b) Where a case is likely to be adjourned and there is a risk that the delay (or repeated delays) will either:
  • cause undue or intolerable levels of distress, fear or psychological trauma to the witness; or
  • delay the witness's physical or psychological recovery from any alleged incident regardless of therapeutic intervention.
Scotland also has very good material on the internet for witnesses - Witnesses in Scotland (a website which covers both criminal and civil proceedings) and Being a Witness  Similar material ought to be made available for all parts of the United Kingdom.

Highly recommended links:

Francis FitzGibbon QC - Nothing like the Sun Blog - The Best defence

I recommend a reading of Understanding Sex Crime Trials by Barrister Felicity Gerry and here  This takes the reader through a typical trial scenario with a view to demonstrating the various issues involved in securing the conviction of the genuinely guilty but also ensuring the the accused has a fair trial.

The Defence Brief - The Future of Rape Trials

Other links:

Witness Charter

Crown Prosecution Service Meeting with Witnesses

Special Measures meetings between the CPS and Witnesses - Practice Guidance

CPS - Provision of therapy for vulnerable and intimidated adult witnesses prior to a criminal trial - Practice Guidance

Ministry of Justice - March 2011 - Vulnerable and Intimidated Witnesses - A Police Service Guide

Nottingham University and Leeds University - Special Measures in Rape Trials: Exploring the Impact of Screens, Live Links and Video-Recorded Evidence on Mock Juror Deliberation

NSPCC Report 2009 - Measuring Up - authors Joyce Plotnikiff and Richard Woolfson


  1. The BBC reports that:
    Theresa May: Chethams abuse case death 'may deter victims'
    The death of a woman after she gave evidence against her sex abuser may deter other victims from speaking out, Home Secretary Theresa May fears

    I suspect that many other politicians would fear victims speaking out about the Elm Guest House scandal...

  2. She was offered screens (themselves a highly dubious practice which run counter to the right of the defendant to be confronted with the witnesses against him) and turned them down. What more is to be done? Convict men (and in this case a woman) of serious offences on written evidence only?

  3. @ Andrew T - 'Confrontation' seems to go back (at least) to the trial of Walter Raleigh. His alleged co-conspirator (Cobham) was not called in person and Raleigh said that the proof of the common law is by witness and jury. 'Confrontation' found its way into the US Constitution - 6th amendment - and was applied rigidly in Coy v Iowa 1988 when the Supreme Court of the USA ruled (by a majority) that the 6th amendment was violated by a screen used in a child sex abuse case. Some of the justices (Blackmun, Rehnquist) dissented and recongised the fact that other interest are at play such as the need to convict the truly guilty.

    The European Convention (Art 6) offers the right to examine witnesses against the defendant but special measures are accepted as not violating the right to a fair trial. After all, in special measures cases, the witnesses are still examined. In a sense, special measures are a concession to human weakness but, in some cases, it takes a very brave witness to testify for the prosecution. is it fair that it be made as traumatic as possible?

    Even where witnesses cannot be called, the European Court of HR has accepted the use of hearsay - the Al Khawaja and Tahery cases.