In a trial at the Central Criminal Court, Bernard Richmond KC leading James Hay successfully applied for screens for a youth defendant to shield him from the public gallery. This unusual measure enabled the defendant to give his best evidence and participate fully in his trial for murder, despite attempts at intimidation from associates of the deceased in the public gallery.
Special measures for defendants are not a new aspect of trial procedure. The trial judge in the 1993 Bulger case adapted the trial process for the extremely young defendants. This included raising the dock to enable the physically small defendants to see the proceedings, and permitting them to be accompanied in the dock by social workers. The importance of such measures for defendants is highlighted by the subsequent judgment of the European Court of Human Rights, which found these measures so insufficient that there had been a breach of the defendants’ Article 6 right to a fair trial (V v United Kingdom (1999) 30 EHRR 121).
The ability to use special measures for defendants arises from a complicated patchwork of legislation and inherent court powers. This article intends to unpick the confusion, by identifying the measures available to defendants, and the basis on which they may be sought.
What are special measures?
“Special measures” generally describe the range of measures available under the Youth and Criminal Justice Act 1999 (YJCEA 1999) to assist a witness in giving their best evidence –
- screening the witness (s.23),
- giving evidence by live link (s.24),
- giving evidence in private (s.25),
- removing wigs and gowns (s.26),
- video recording examination in chief (s.27),
- video recording cross-examination or re-examination (s.28),
- using an intermediary (s.29),
- Using aids to communication (s.30).
Such measures are appropriate where a witness is vulnerable, or afraid of testifying (s.16 and s.17 YJCEA 1999). However, where the witness is the defendant, they are specifically excluded from such assistance (see s.16(1), and s.17(1) YJCEA 1999), notwithstanding the fact that defendants can be vulnerable and/or intimidated.
Are special measures available to defendants?
Yes. Although the YJCEA 1999 makes no provision for defendants, it does not affect the powers of the court to assist defendants during the trial process through the court’s inherent jurisdiction, or any other power (s.19(6) YJCEA 1999). Intermediaries and live links are explicitly available to defendants, as well as a host of other measures.
Intermediary
An intermediary is available to assist defendants with communication difficulties. This power derives from the inherent jurisdiction of the court to ensure that a defendant has a fair trial (R (on the application of C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin)). The common law power has been bolstered by the Criminal Procedure Rules 2020. Rule 18.23 states that the court must exercise its power to appoint an intermediary to facilitate a defendant’s effective participation in the trial where –
(a)the defendant’s ability to participate is likely to be diminished by reason of—
(i)age, if the defendant is under 18, or
(ii)mental disorder (as defined in section 1(2) of the Mental Health Act 1983), a significant impairment of intelligence and social functioning, or a physical disability or disorder; and
(b) the appointment is necessary for that purpose.
Further guidance on the use of intermediaries for the defendant is found in the Criminal Practice Directions 2023 at paragraphs 6.2.4 – 6.2.9, and R v Cox [2012] EWCA Crim 549. The overall effect is to undermine the strong language found in r18.23 in favour of intermediaries for defendants. In particular practitioners should be aware of the following:
- Notwithstanding the language of r18.23, there is no presumption that an intermediary will be provided, and even if it would assist the court, it is not mandatory for one to be appointed.
- Furthermore, where a direction is made for an intermediary, but the direction is not effective (for example where no intermediary is available), a trial will not necessarily be rendered unfair.
However, the guidance also emphasises that, regardless of whether an intermediary is appointed, the court is under a duty to accommodate the needs, including the communication needs, of a vulnerable defendant.
Live link
Participating in a trial over a live link is available to any person, including the defendant, under s.51(1) of the Crime and Justice Act 2003 (CJA 2003).
To give such a direction, the court must be satisfied that it is in the interests of justice for the defendant to participate through a live link, and all parties must be given the opportunity to make representations (s.51(4)(a)-(b) CJA 2003). If dealing with a youth defendant this will extend to representations from the relevant youth offending team (s.51(4)(c) CJA 2003).
That decision will require the court to consider any guidance given by the Lord Chief Justice (s.51(5)(a) CJA 2003). The most recent guidance is the Live Links in Criminal Courts Guidance 2022 found at: https://www.judiciary.uk/wp-content/uploads/2022/07/Live-links-Guidance-for-criminal-courts-July-2022.pdf.
A live link decision will also require the court to consider all the circumstances of the case (s.51(5)(b) CJA 2003). Particular circumstances which should be considered are listed non exhaustively at s.51(6):
(a) The availability of the person to whom the direction would relate,
(b) Any need for that person to attend in person,
(c) The views of that person,
(d) The suitability of the facilities at the place where that person would take part in the proceedings in accordance with the direction,
(e) Whether that person would be able to take part in the proceedings effectively if the person took part in accordance with the direction,
(f) In the case of a direction relating to a witness—
(i)the importance of the witness’s evidence to the proceedings, and
(ii)whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence, and
(g) the arrangements that would or could be put in place for members of the public to see or hear the proceedings as conducted in accordance with the direction.
Any application under s.51 of the CJA 2003 should consider r3.35-3.39 of the Criminal Procedure Rules 2020 for further guidance on procedure.
Other measures such as screens
Other special measures are available to the defendant through the inherent jurisdiction of the court. The inherent power covers measures available to witnesses under the YJCEA 1999 such as screens, but would in theory extend to any additional measure which would make the trial process fair. This could include for example, a vulnerable youth defendant being accompanied in the dock by a social worker as in the Bulger case.
The inherent power is drawn from:
- the common law (see among others R (on the application of C) v Sevenoaks Youth Court, Camberwell Green Youth Court; R (on the application of the Director of Public Prosecutions) v Camberwell Youth Court [2005] UKHL 4 at [59]),
- the Criminal Procedure Rules 2020 (see the overriding objective at r1.1, the duty of the court to actively manage cases including the early identification of the needs of witnesses at r3.2(2)(b), and the requirement to facilitate the participation of the defendant at r3.8(3)(b),) and
- the Article 6 right to a fair trial.
Further guidance is found in the Criminal Practice Directions 2023:
- The court is required to take ‘every reasonable step’ to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the accused. This includes enabling a witness or accused to give their best evidence, and enabling an accused to comprehend the proceedings. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends (paragraph 6.1.1).
- Where one or more defendants is young or otherwise vulnerable consideration should be given to the following matters… [see the lengthy list of measures which include familiarisation visits to the courtroom, having supporters on hand, and removing wigs and gowns] (paragraph 6.4.2).
- Consideration must be given to the need to ensure, by any appropriate means, that the defendant can comprehend and participate effectively in the trial process (paragraph 6.4.3).
Those making applications regarding a youth defendant, will also find assistance at paragraph 47 of the Bench Book for Youth Defendants in the Crown Court 2023, which mentions in particular screens for youth defendants.
In the matter at the Central Criminal Court which opened this article, a selection of the above were put before the court as part of the successful application for screens.
Conclusion
Special measures can be sought where they would assist defendants in giving their best evidence and making the trial fair, even though there is no direct equivalent to the statutory protections available to non-defendant witnesses under the YJCEA 1999. Such measures include a live link or use of an intermediary, but could encompass any reasonable measure which would achieve the goal of making the trial fair.
Robert Morton