Plans and Communication Concerning the Trial
4.60 Applications for Special Measures can, however, be made at any stage up to
and including the trial itself and procedures for making applications are set
out in Part 29 of the Criminal Procedure Rules. If the court rules that a
witness is eligible for one or more Special Measures then this ruling and
the details of the measures to be provided are binding on the trial court.
Details of where, when, and how these are to be provided are set out in the
form of binding directions (Section 20 of the 1999 Act). This enables the
pre-trial supporter to plan ahead with greater certainty. Frequent
communication and co-ordinated planning is needed if more than one
person is undertaking the pre-trial support for the witness and support
within the court hearing.
4.61 Information about the witness’s needs and wishes should be available to
the person preparing the witness for court. Depending on who the
supporter is, this may include the items listed in forms MG2, MG6 and the
back of MG11, together with additional information that the pre-trial
supporter has gained during the preparation for court and the pre-trial
visit.
Role of the Witness Service
4.62 The Witness Service is run by the national charity Victim Support. It
provides a service in Crown and magistrates’ courts for witnesses who are
vulnerable or intimidated. It provides a free, independent, impartial and
confidential service, adapted to individual needs. The Witness Service
supports victims, prosecution and defence witnesses and their families and
friends. The Witness Service also supports and works alongside other
people who may accompany a witness, for example a carer, social worker,
expert witness, interpreter, intermediary or specialist witness supporter.
They also provide:
•Someone to talk to (but not about the evidence);
•Information about court and legal processes;
•Emotional support in dealing with the impact and experience of
attending court;
•Pre-trial visits for witnesses so that they are familiar with the
courtroom and the roles of court personnel;
•Support in the courtroom if necessary and on the day of the trial;
•Practical help with completing expenses forms;
•Support and information during and following sentencing;
•Special support for vulnerable and/or intimidated witnesses;
•Arrangements for defence and prosecution witnesses to be kept
separate;
•Liaison with other statutory and voluntary agencies;
•Referral to victim support’s community service or other services; and
•Other arrangements such as baby changing, prayer facilities, etc.
Role of the Courts
4.63 In all courts there is a Witness Liaison Officer who will assist in co-
ordinating the provision of facilities and providing a focal point for liaison
with other agencies. Local practices vary but duties may include pre-trial
familiarisation visits, liaising with the judge to ensure that the cases
progress speedily and undertaking the practical arrangements on the day of
trial, for example ensuring that the video and TV link equipment is set up
and working effectively, meeting the witness and arranging separate
waiting areas where possible.
4.64 Courts should consider the order and timing of witness attendance so as to
minimise inconvenience. Such an approach will benefit vulnerable or
intimidated witnesses.
Meeting the Legal Representative
4.65 The Bar Code of Conduct allows legal representatives to introduce
themselves to witnesses and assist with procedural questions provided the
evidence is not discussed. It is CPS policy under the Prosecutor’s Pledge for
the CPS to meet witnesses (including children) who are potentially entitled
to Special Measures when they first attend court. The Code of Practice for
Victims of Crime, in support of the Prosecutor’s Pledge, now places an
obligation on the CPS to ensure, where circumstances permit, that
prosecutors (or, if prosecutors are unavailable, other representatives of the
CPS) introduce themselves to victims at court. This is applied to all
witnesses in the Witness Charter. It is the policy of the Law Society and the
Criminal Bar Association that the defence legal representative should meet
defence witnesses. Supporters should ask witnesses whether they wish to
meet their legal representative prior to giving their evidence.
Meeting the Judge
4.66 It is entirely a matter for the trial judge or magistrates to decide whether it is
appropriate for them to meet a witness before they give evidence. Where it
is considered appropriate for such a meeting to take place experience
suggests that it can assist in demystifying the court process and that putting
child witnesses more at ease helps them to give their best evidence.
Support at the Hearing
4.67 The court witness supporter’s role during the court hearing is principally to
provide emotional support for the witness in order to reduce anxiety or
stress, and therefore enable the witness to give their best evidence. If the
court has approved the use of an intermediary to assist the witness, then that
intermediary will be present to assist the witness in communicating their
evidence to the court, but not as a supporter. Research has demonstrated that
the presence of a support person known to the witness may reduce the
witness’s anxiety and improve the accuracy of their recall. As is the case for
all support functions, the witness supporter during the hearing must be
someone who has only basic information about the witness’s evidence, and
the supporter must avoid discussing the witness’s testimony with them. In
addition, the court witness supporter will not be a party to the case but will
have received appropriate training, and where possible will have a
relationship of trust with the witness. It is likely that the court witness
supporter will work alongside a specially trained court usher. At court the
supporter will be with the witness while they are waiting to give evidence
and will then accompany the witness to the court. The supporter will sit
beside the witness and provide emotional support in a neutral but
sympathetic manner; they cannot influence the court proceedings in any
direct way. The court witness supporter should also
be able to comfort the witness should they become distressed and should
have prior arrangements agreed to enable the supporter to alert the judge in
the event of problems arising while the witness gives evidence (see
Appendix L). This applies equally to witnesses in the live link room, where
an usher will also be present to look after any technical difficulties and to
administer the oath. In April 2001, the Justices’ Clerks’ Society and the
Magistrates’ Association jointly issued guidance on the presence of Victim
Support volunteers in the youth court.
Planning for Breaks in the Testimony
4.68 The court witness supporter will need to make prior arrangements to enable
the court to be alerted to a vulnerable witness’s need for a break in
proceedings. This may either be direct or indirect, such as through a ‘touch
card’. Although judges and lawyers should invite vulnerable witnesses to tell
the court when they need a break, the witness’s ability to identify when this
is necessary should not be relied upon. Where an intermediary is used they
may be able to assist in bringing the witness’s need for a break to the
attention of the court. Supporters should ensure that information is passed to
the CPS or, in the case of a witness called by the defence, to the defendant’s
legal representative. This will enable the judge and legal representatives to
plan breaks in the witness’s testimony. Scheduled breaks are also less likely
to occur at a time that would favour one side over another.
Interpreters and Intermediaries
4.69 In some circumstances, arrangements will have been made for an interpreter
to be present during the hearing. Interpreters might be required for those
with limited or no understanding of English, or to assist with the use of
communication devices or a form of sign language. The role of the
interpreter is to facilitate communication with the witness at court, and is
distinct from that of the court supporter.
4.70 Similarly, the court may have approved the use of an intermediary to
help the witness to give evidence. The role of an intermediary is also
separate from that of the court supporter and they should be available
during pre-trial preparation to improve the witness’s understanding.
An intermediary will usually have undertaken an assessment of the witness
at an early stage in the proceedings, and will have produced a written report
for the judge, the prosecution and the defence. This report should highlight
matters such as limited concentration spans and particular types of
questioning that should be avoided.
Special Provisions for Children
4.71 The UN Convention on the Rights of the Child and a number of Directives
from the European Union emphasise the need for adults and organisations,
when making decisions that affect children, to consider their best interests
and their views. Reports to the CPS should always include clear information
about the wishes of the child – and those of their parents
or carers – about going to court. The CPS may in any event need to seek
additional information from the joint investigating team.
4.72 The general points concerning pre-trial support and preparation apply to all
child witnesses. Additional guidance is provided in the National Standards
for Child Witness Preparation (see Appendix K), and the advice below
should be read in conjunction with that document. Some additional points
are made below because of the particular needs of child witnesses. The
majority of these special or added points derive from the developmental
immaturity of children, and the need to take this into consideration so that
they can give their best evidence. Central among these developmental
issues are the following:
•Children’s understanding and appreciation of the world around them is
not fully developed;
•Children’s language and communication skills are not as developed as
those of adults;
•Children are dependent on adult carers to varying degrees during childhood;
•Children are used to adults being in charge of their lives, and may
not appreciate or be familiar with the fact that their own views,
perspectives and wishes are important;
•Children’s ability to delay, postpone or inhibit their reactions to
discomfort or distress may be underdeveloped.
4.73 Other vulnerabilities or disadvantages may compound these developmental
issues, for example learning disabilities, psychological or psychiatric
problems, sensory or communication difficulties, issues deriving from
cultural or ethnic group differences, or extreme poverty. Furthermore, child
witnesses, in addition to being developmentally immature, can be
intimidated and may be subject to fear through threat, whether imagined or
real. Such situations often occur in sexual abuse cases.
4.74 There may be a special vulnerability in children who have suffered
maltreatment that affects their attitudes towards adults in positions of
authority or power, and which might raise additional sensitivity to
questions such as those which imply guilt or suggest that responsibility
resides with the victim, or questions relating to a requirement to
demonstrate alleged sexual activities on themselves. Child witnesses may
be particularly distressed when asked to show on their own body where
they were touched, or to mimic sexual actions, and this should be avoided.
The pre-trial supporter should discuss with the police and legal
representatives whether the child may be asked to demonstrate intimate
touching at court. If this is a possibility, consideration should be given to
providing a doll, model or drawing to which the child can point. The
judge’s agreement should be sought on the use of an alternative method
before the question arises.
4.75 These particular issues render children more vulnerable to adult influences in
questioning. There are a number of measures that can be implemented at
different stages in order to reduce the effect of these developmental issues
and enable children to give their best evidence (see Boxes 4.4 and 4.5 and
Chapter 6).
4.76 Most of the issues covered in Boxes 4.4 and 4.5 figure in the questionnaire
that is completed at the PCMH. Completion of the questionnaire requires
prior consultation with the witness, carer and pre-trial and/or court witness
supporter and the forwarding of information to the prosecution, before the
PCMH. It is important that the prosecution is given information from home
or school about the child witness’s attention span, bearing in mind that it is
likely to be shorter in the stressful atmosphere of the court. This will enable
the judge and legal representatives to plan breaks in the child witness’s
testimony.
4.77 It is important to have professionals with an aptitude and skill in being able
to communicate effectively with children of different ages. The skills
required include an ability to prepare the child witness to give their
evidence without coaching them in any way, familiarity with court
procedures and the relevant legal processes, an ability to work with
children of different ages and abilities, and communication skills (see also
Appendix K).
4.78 All information on prosecution witness preparation needs to be
communicated to the CPS in sufficient time to enable the necessary action
to be taken. The CPS would only expect the preparer to disclose information
that is directly relevant to the witness giving their best evidence (e.g. the
need for an intermediary). Such information can be provided separately by
the police with the case file, by an early Special Measures meeting or
through a court witness support person, and should include the child’s views
on issues such as the gender and identity of a court witness supporter to
accompany the child in the live link room; the wearing of wigs and gowns
by judges and legal representatives; meeting the prosecution legal
representative; and viewing the video statement before the trial. The CPS
has published a policy document on prosecuting criminal cases involving
children and young people. The policy document, Children and Young
People (CPS, 2006) is available at www.cps.gov.uk. Children and Young
People is a public statement of the CPS’s commitment to working together
with others to safeguard children in the spirit of the cross-government
initiative ‘Every Child Matters: Change for Children’.
It brings together the principles of the Prosecutors’ Pledge, the Code of
Practice for Victims of Crime and the Witness Charter, and applies them to
children.
4.79 The child’s stress is likely to increase with the length of time that the child
waits to give evidence on the day of the trial. The Witness Charter promotes
the idea of ‘standby’ arrangements for vulnerable witnesses who are
available on call at another location. The Witness Charter states that if a
witness is vulnerable, or if the case involves a vulnerable witness, the
prosecution or defence lawyer will ask the court to give the case priority in
respect of times and dates of hearings. Some judges have given local case
management directions to the effect that no child witness should be brought
to court before 12 noon on the first day of a trial. Others require preliminary
matters to be dealt with on the first day of the trial, with
the child called as first witness on the second day as they can give their
evidence more effectively if they are fresh in the morning. This may well be
the preferable option for children.
4.80 Cases need to be managed robustly to ensure that the case is ready for trial.
The commitment to give high priority to child abuse cases is contained in
many policy documents, including the Code of Practice for Victims of
Crime issued under Section 32 of the Domestic Violence, Crime and
Victims Act 2004. It is CPS policy to give priority to child witness cases.
Section 51 of the Crime and Disorder Act 1998 gives magistrates’ courts the
authority to transfer cases involving certain offences against children direct
to the Crown Court. The Crown Prosecution Service’s Criminal Case
Management Framework (Annex A: Section 14 of the Crown Court Manual
– Listing of cases) states that child witness cases are to be given the earliest
available fixed date and that trial dates must only be changed in exceptional
circumstances. The Courts Charter emphasises the need to assign the earliest
possible date for a trial involving a child witness.
