Policy background Special measures in criminal proceedings
Many witnesses experience stress and fear during the investigation of a crime and when attending court and giving evidence. Stress can affect the quality of communication with, and by, witnesses of all ages. Some witnesses may have particular difficulties attending court and giving evidence due to their age, personal circumstances, fear of intimidation or because of their particular needs. In such circumstances, where witnesses are considered to be vulnerable or intimidated, "special measures" can improve the quality of their experience by helping them to give their "best evidence".
	The Youth Justice and Criminal Evidence Act 1999 ("YJCEA 1999) introduced a range of measures that can be used to facilitate the giving of evidence by vulnerable and intimidated witnesses in criminal proceedings in England and Wales. The measures are collectively known as "special measures".
	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 stress associated with giving evidence. Special measures under sections 23 to 30 of the YJCEA 1999 are available to prosecution and defence witnesses, but not to the accused and are subject to the discretion of the court.
	Vulnerable and intimidated witnesses are eligible for the special measures in sections 23 to 28 of the YJCEA 1999. The use of intermediaries or communication aids under sections 29 and 30 of the YJCEA 1999 is only available for vulnerable witnesses; that is witnesses who need assistance on grounds of age or incapacity.
	Intimidated witnesses are eligible for special measures by reason of section 17 of the YJCEA 1999. Generally, in order for a witness to be eligible under that section, the court must be satisfied that the quality of the witness’s evidence is likely to be diminished due to the witness’s fear or distress in relation to testifying in the case. Complainants in sexual offences and modern slavery offences are, by section 17(4), automatically assumed to fall into this category unless they wish to opt out. Witnesses to certain offences involving guns and knives are also assumed to automatically fall into this category unless they wish to opt out (section 17(5)). Currently, complainants in domestic abuse-related offences may be eligible for special measures under section 17 if the court is satisfied the quality of their evidence is likely to be diminished by their fear or distress about testifying, but they do not automatically fall into this category. Section 62 puts victims of domestic abuse-related offences in England and Wales in the same position as victims of sexual offences and modern slavery offences and witnesses in relation to certain offences involving guns and knives.
	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 improve the quality of the witness's evidence before granting an application (section 19(2) of the YJCEA 1999). In making this assessment, the court must consider all the circumstances of the case, including in particular any views expressed by the witness and whether the measure or measures in question might tend to inhibit the witness’s evidence being effectively tested by a party to the proceedings (section 19(3)).
	The victim of a domestic abuse-related offence will be eligible for special measures as an intimidated witness and, with the agreement of the court, this could include one or a combination:
Screens (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from seeing the accused (section 23 of the YJCEA 1999).
Live link (available for vulnerable and intimidated witnesses): a live link enables the witness to give evidence during the trial from outside the court through a televised link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court (section 24 of the YJCEA 1999).
Evidence given in private (available for some vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences, modern slavery offences or intimidation by someone other than the accused (section 25 of the YJCEA 1999).
Removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court) (section 26 of the YJCEA 1999).
Video-recorded interview (available for vulnerable and intimidated witnesses): a video recorded interview with the witness may be admitted by the court as the witness's evidence-in-chief (section 27 of the YJCEA 1999).
Pre-recorded cross-examination (available for vulnerable and intimidated witnesses, although currently only partially commenced ): cross-examination (and re-examination) of the witness may be pre-recorded in advance of the trial, and the recording then played during the trial in place of live evidence (section 28 of the YJCEA 1999).