Youth Justice and Criminal Evidence Act 1999

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Section 17(4) and (5) provides that a witness will be automatically eligible for special measures if they are a complainant in respect of a sexual offence or an offence under section 1 or 2 of the Modern Slavery Act 2015 or if they are a witness in proceedings for certain “relevant offences”, unless they inform the court that they do not wish to be so eligible. The relevant offences are listed in Schedule 1A to the YJCEA 1999, and include various violent offences in which a firearm or knife was either used or in some circumstances carried. Even though a witness may be automatically eligible, the type of measures(s) sought will still need to be canvassed with the witness and applied for.

An unredacted evidential statement of the witness; this is not required where it is proposed to request the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness, unless the prosecutor decides that they need to see a version which does identify the witness; and,

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It is crucial that prosecutors are fully conversant with these rules. The key rules are highlighted below:

Whatever the offence, prosecutors should consider the position of the child and what can be done, having regard to the role and the powers of the prosecutor, to safeguard the child including the availability of Special Measures and the possibility of a prosecution without the participation of the victim. Although it is unlikely to be possible to eliminate stress and worry altogether, prosecutors should take such steps as are possible to reduce it to a minimum. Reviewing cases where the child is a victim or a witness Achieving Best Evidence (ABE) A full risk assessment (complying with Osman v UK (2000) 29 EHRR 345). This should include an explanation of what protective measures, special measures or other steps short of anonymity have been taken or considered and why these would not be adequate to deal with the risk identified, and, where relevant, an assessment of the reasonableness of the witness’s fear. The risk assessment may include information identifying the witness. Prosecutors will need to consider in appropriate cases (domestic abuse, child sexual abuse, neglect or cruelty, for example) whether to make enquiries through the police of the local authority solicitors, about family proceedings. The Family Procedure Rules Provisions relating to making an application are contained in section 77. Applications can be made to a justice of the peace by parties including the chief officer of a police force, the Director General of the NCA and the DPP. These persons may authorise others to exercise these functions on their behalf (section 81).Where the prosecutor is not able to leave the court to speak with a witness who has just given evidence and been released, it is nevertheless good practice for the prosecutor to thank the witness in open court for attending. The CPR permit the court to vary this timetable, even after the expiry of the time limits.(Rule 22.8) Child witnesses should have had the opportunity to have one or more visits to the court. This can be vital in ensuring that the child is not overawed on the day of the trial and that they understand the layout of the court when giving evidence from the live link room. Children can be victims of offences and can also be affected by crime even if they are not themselves victims or witnesses. A child may be seriously affected by, for example, domestic violence, even if not present in the same room as the offence is committed. Prosecutors should, where possible, explain the reasons for any delays. If they cannot do so in person because they cannot leave the courtroom they should ensure that an assistant or court official does so. Not only is it courteous, but it will also reduce anxiety levels. That is important in itself but will also mean that the witness is more likely to give their best evidence. Familiarisation visits

The court must give every party to the proceedings the opportunity to make representations, but it has the power to consider matters in the absence of a defendant (section 87(6) and (7) and CPR 18.18(1)(b) and (2)); and, The principle of a fair and public trial is enshrined in Article 6 of the European Convention on Human Rights, which includes: In such cases, prosecutors should ensure that the final decision is fully supported by relevant information and reasoning. In many cases it is possible adequately to mitigate adverse effects of the trial process by applying for appropriate special measures. In extreme cases, witness anonymity, for example, may be considered.

What Version

If the victim is a very young child and both parents are defendants then no letter should be sent. It would normally be inappropriate to write directly to a child under twelve in any circumstances. If the victim is a child of twelve or over it may be appropriate to write to them, as well as the parent/carer. If the victim is a child looked after by the local authority, the letter should be sent to the guardian and, if sufficiently old, the child. In appropriate cases, the use of a Registered Intermediary should be considered to assist advocates to assess understanding. Further information about Registered Intermediaries can be found in the Special Measures Legal Guidance.

The imposition of appropriate conditions or a remand in custody where applicable can be a highly effective way of safeguarding children. The nature of the application will depend on the circumstances of the case; where the defendant is charged with an allegation of physical or sexual abuse against a child, protection of the child will be obvious. However, there will be cases where there is a child who is not a victim or a witness, but where the behaviour of the defendant is such that there are substantial grounds for believing that the child is in danger.If the VRI has been edited, for example to remove inadmissible material, this should be explained to the child so that they are not confused when the recording does not match their recollection of the interview. b) (relates to consent and the sexual behaviour is alleged to have taken place ‘‘at or about the same time as’’ the event in issue), In some very serious cases the risk to a witness is so great that they may need to relocate to another part of the country or even change their identity. Witness protection is the means of providing protective measures for people involved in the criminal justice system who find themselves at risk of serious personal harm as a result of that involvement.