Vulnerable and Intimidated Witnesses (eligible for
Special Measures)
Vulnerable Witnesses
1.5 Vulnerable witnesses are defined by Section 16 of the Youth Justice and Criminal
Evidence Act 1999 (as amended by the Coroners and Justice Act 2009). Children
are defined as vulnerable by reason of their age (Section 16[1]). The Act makes
all children under 18 years of age, appearing as defence or prosecution
witnesses in criminal proceedings, eligible for Special Measures to assist them to
give their evidence in court.
1.6 In addition to the witness who is under the age of 18 at the time of the
hearing three other types of vulnerable witness are identified by Section
16(2) Youth Justice and Criminal Evidence Act 1999. These are:
•Witnesses who have a mental disorder as defined by the Mental
Health Act 1983 (as amended by the Mental Health Act 2007);
•Witnesses significantly impaired in relation to intelligence and social
functioning (witnesses who have a learning disability); and
•Witnesses who have a physical disability.
Witnesses in this category are only eligible if quality of evidence that is given
by them is likely to be diminished by reason of the disorder or disability
(Section 16[1][b]). Wherever a reference is made in the legislation to the
‘quality of a witness’s evidence’ for the purposes of defining a witness as
vulnerable or intimidated, and in terms of access to Special Measures, it refers
to the “completeness, coherence and accuracy” of the evidence and
“coherence” refers to a witness’s ability in giving evidence to give answers
which address the questions put to the witness and can be understood both
individually and collectively (Section 16[5]).
1.7 The court must take account of the views of the witness in
determining whether a witness may be regarded as vulnerable by
virtue of a disorder or disability (Section 16[4]).
1.8 The legislation also provides that if a witness gave video recorded
evidence in chief on the grounds that they were under 18 years of
age but subsequently turned 18, the video recording is still
admissible as evidence (Section 21[9]).
1.9 Early identification of the individual abilities as well as disabilities of each
vulnerable adult is important in order to guide subsequent planning. An
exclusive emphasis upon disability ignores the strengths and positive abilities
that a vulnerable individual possesses. Vulnerable witnesses may have had
social experiences that could have implications for the investigation and any
subsequent court proceedings. For example, if the vulnerable adult has spent
a long time in an institutional environment, they may have learned to be
compliant or acquiescent. However,
such characteristics are not universal and can be ameliorated through
appropriate preparation and the use of Special Measures.
Intimidated Witnesses
1.10 “Intimidated” witnesses are defined by Section 17 of the Act as
those whose quality of evidence is likely to be diminished by
reason of fear or distress. In determining whether a witness falls
into this category, the court should take account of:
•The nature and alleged circumstances of the offence;
•The age of the witness;
•Where relevant
• The social and cultural background and ethnic origins of the witness
• The domestic and employment circumstances of the witness
• Any religious beliefs or political opinions of the witness;
•Any behaviour towards the witness by
• The accused
• Members of the accused person’s family or associates
• Any other person who is likely to be either an accused
person or a witness in the proceedings.
1.11 Complainants in cases of sexual assault are defined as falling into this
category by Section 17(4) of the Act. Witnesses to specified gun and knife
offences are defined as falling into this category by Section 17(5) of the Act
(as inserted by the Coroners and Justice Act 2009). Vulnerable and
Intimidated Witnesses: A Police Service Guide (Ministry of Justice 2011)
suggests that victims of and witnesses to domestic violence, racially
motivated crime, crime motivated by reasons relating to religion, homophobic
crime, gang related violence and repeat victimisation, and those who are
elderly and frail also fall into this category. The Code of Practice for Victims
of Crime (Office for Criminal Justice Reform, 2005) indicates that the families
of homicide victims fall into this category.
1.12 Research suggests that the intimidation of witnesses is likely to arise in sexual
offences, assaults and those offences where the victim knew the offender and
also crimes that involve repeated victimisation, such as stalking and racial
harassment. In addition, some witnesses to other crimes may be suffering from
fear and distress and may require safeguarding and support in order to give
their best evidence. While the legislation distinguishes between vulnerable and
intimidated witnesses, in respect
of the criteria for their eligibility for Special Measures it is
important to recognise that:
•Some witnesses may be vulnerable as well as intimidated (e.g. an elderly
victim of vandalism who has dementia on an inner-city estate);
•Others may be vulnerable but not subject to intimidation (e.g. a
child who witnesses a robbery in the street); and
•Others may not be vulnerable but may be subject to possible
intimidation (e.g. a young woman who fears violence from her
current or former partner or someone who has been the subject
of a racial attack).
1.13 While these examples provide illustrations of the application of
the legislation, it is important not to attempt to categorise
witnesses too rigidly.
Special Measures
1.14 The Youth Justice and Criminal Evidence Act 1999 introduced a range of
Special Measures that can be used to facilitate the gathering and giving of
evidence by vulnerable and intimidated witnesses.
1.15 The Special Measures that are available to vulnerable and
intimidated witnesses with the agreement of the court are:
•The use of screens (Section 23);
•The use of live TV link (Section 24);
•Giving evidence in private (Section 25) (limited to sexual
offences and those involving intimidation);
•The removal of wigs and gowns (Section 26);
•The use of video recorded interviews as evidence-in-chief (Section 27).
1.16 Vulnerable witnesses are also eligible for the following Special Measures:
•Communication through intermediaries (Section 29); and
•The use of special communication aids (Section 30).
1.17 The Special Measures listed above have now all been implemented.
Section 28 video-recorded cross-examination has not been implemented.
1.18 Even though some witnesses may now be eligible for these measures it is
important to remember that different witnesses have different needs. It is a
matter of judgment based on a consideration of these needs, as well as
the circumstances of the alleged offence, as to which Special Measures
may be appropriate in any given case.
1.19 Access to Special Measures is very much a matter for the court
and is contingent on the application of three ‘tests’. These ‘tests’
are set out in Section 19 as follows:
•Whether the witness is ‘vulnerable’ or ‘intimidated’ as
defined by Sections 16 and 17 respectively;
•Whether any of the Special Measures or any combination of them
are likely to improve the quality of the witness’s evidence;
•Which of the available Special Measures are most likely to
maximise the quality of the witness’s evidence.
1.20 The practical effect of these tests is that even where a witness may be
eligible for Special Measures it does not necessarily follow that playing
a video-recorded interview as evidence-in-chief is going to be the best
way of achieving their best evidence; in some cases other Special
Measures such as live evidence-in-chief from behind a screen or via a
television link may be of more assistance to them.
1.21 The court also has to take account of the interests of justice when
considering an application for video-recorded evidence-in-chief
(Section 27[2]).
1.22 In addition to Special Measures, the Youth Justice and Criminal Evidence Act
1999 also contains the following provisions intended to enable vulnerable or
intimidated witnesses to give their best evidence:
•Mandatory protection of witness from cross-examination by the
accused in person. An exception has been created which
prohibits the unrepresented defendant from cross-examining
vulnerable child and adult victims in certain classes of cases
involving sexual offences (Sections 34 and 35);
•Discretionary protection of witness from cross-examination by the
accused in person. In other types of offence, the court has a
discretion to prohibit an unrepresented defendant from cross
examining the victim in person (Section 36);
•Restrictions on evidence and questions about complainant’s sexual
behaviour. The Act restricts the circumstances in which the defence can
bring evidence about the sexual behaviour of a complainant in cases of
rape and other sexual offences (Section 41);
•Reporting restrictions. The Act provides for restrictions on the
reporting by the media of information likely to lead to the
identification of certain adult witnesses in criminal proceedings
(Section 46). The Children and Young Persons Act 1933, Sections
39 and 49 apply in relation to child witnesses.
1.23 Vulnerable or intimidated witnesses can also receive social support at
all stages of the investigation. Three distinct roles for witness support
have been identified and it is unlikely to be appropriate for the same
person to be involved in all three. They are:
•Interview support provided by someone independent of the police,
who is not a party to the case being investigated and who sits in
on the original investigative interview; they may be a friend or
relative, but not necessarily so;
•Pre-trial support provided to the witness in the period between
the interview and the start of any trial. Appendix K sets out
National Standards for Young Witness Preparation; and
•Court witness support from a person who may be known to the witness,
but who is not a party to the proceedings, has no detailed knowledge of
the case and may have assisted in preparing the witness for their court
appearance. A direction for evidence to be given via live link under
Section 24 Youth Justice and Criminal Evidence Act 1999 (as amended by
the Coroners and Justice Act 2009) may also provide for a supporter.
Appendix L sets out National Standards for the Court Witness Supporter in
the Live Link Room.
1.24 Research indicates that pre-trial and court support are best
undertaken by the same person. Any supporter used during the
interview, however, should not be used to prepare the witness for
court or the offer to support them while they are giving evidence
because they are already aware of the witness’s account.
Significant Witnesses (not eligible for Special Measures)
1.25 Significant witnesses, sometimes referred to as ‘key’ witnesses, are
those who:
•Have or claim to have witnessed, visually or otherwise, an indictable
offence, part of such an offence or events closely connected with it
(including any incriminating comments made by the suspected
offender either before or after the offence); and/or
•Have a particular relationship to the victim or have a central
position in an investigation into an indictable offence.
While significant witnesses are usually defined with reference to indictable-only
offences, investigating officers may consider designating witnesses as
significant in any other serious case where it might be helpful.
1.26 Interviews with significant witnesses should usually be video-
recorded because they are likely to:
•Increase the amount and quality of information gained from
the witness; and
•Increase the amount of information reported by the witness
being recorded.
1.27 Video-recorded interviews with significant witnesses can also
have the additional benefits of:
•Safeguarding the integrity of the interviewer and the interview
process; and
•Increasing the opportunities for monitoring and for the
development of interview skills.
1.28 There is no statutory provision for video-recordings of interviews with
significant witnesses to be played as evidence-in-chief, although
interviewers should be aware that the defence might ask the court for
permission to play some or all of the recording in support of their case. The
options for adducing the testimony on the recording as evidence in chief are
set out in paragraphs 2.135 and 2.136 of this document.
