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Abstract
‘Special measures’ were introduced into the English system of criminal trials under the Youth Justice and Criminal Evidence Act 1999. Their stated purpose is to facilitate better evidence from ‘vulnerable and intimidated’ witnesses giving evidence, through the provision of equipment such as video‐links and screens. This paper draws upon ethnographic research carried out in criminal courts in England and Wales to shed light on the application of such measures in practice, especially in relation to victims of crime. Criticisms are made of a system which seems in some cases to compel victims to give evidence through special measures without affording them much (if any) choice or considering how they would feel most comfortable presenting their accounts to the court. The results, it is argued, are increased stress for the victims and the danger of them withdrawing support for the process; neither of which seems in keeping with the government's pledge to put victims ‘at the heart’ of criminal justice, and may also be counterproductive to victims' ‘account‐making’ exercise.
Notes
1. See for example Daily Telegraph, 23 August 1996.
2. Although here the latter provision has never been brought into force whilst the former is only available to child witnesses.
3. Available in ‘pathfinder’ areas since February 2004 and presently being expanded further (cjsonline Citation2006).
4. That is, the assumption that under normal circumstances evidence should be presented out loud by witnesses themselves.
5. For further arguments in favour of re‐evaluating the adversarial model see Jackson (Citation2003).
6. A key point for the ‘accounts’ argument made below.
7. Early concerns from practitioners and the judiciary regarding the impact of special measures on jurors was addressed by Davies (Citation1999) who found that jurors preferred ‘live’ evidence but this did not affect their decision‐making.
8. Ninety‐five per cent according to Her Majesty's Courts Service (Citation2007).
9. In this paper ‘civilian witnesses’ is take to mean all non‐police officers giving evidence in a criminal trial, including those who are direct or indirect victims of crime. ‘Victim witnesses’ are therefore the subgroup of civilian witnesses who are in fact identified as being the direct or indirect victims of crime.
10. Here set at P = 0.05.
11. Non‐numerical Unstructured Data Indexing and Theorizing, see http://www.qsrinternational.com
12. No lawyer spoken to for this research had experience of an adult male giving evidence via special measures.
13. See Edwards (Citation2004).
14. Found under the Domestic Violence, Crime and Victims Act 2004.
15. Who, in any case, can give up this automatic right under s.17(4).
16. Legal advisers are clerks in the magistrates' courts who provide information to the lay magistrates on points of law.
17. There is little case law to assist us with our interpretations of s.21 on this point specifically, see R (on the application of D) v Camberwell Green Youth Court [2005] 1 WLR 393 for discussion on the compatibility of s.21 with the European Convention on Human Rights. Like many of the special measures cases the court concerned itself with the impact of the measure on a defendant's right to a fair trial.
18. Most magistrates' courts also have one or two legally qualified and professional ‘district judges’ to deal with especially complicated or legalistic cases.
19. Lawyers and other court staff confirmed this was not the case in other Crown Court Centres.
20. Indeed, although not the focus of this paper, the real story here may lie in the similarity of the averages for all civilians and civilian victims alone, as this might suggest that advocates are not adapting their questioning strategies for victims as a distinct group. This raises questions as to the extent victims are actually being made ‘central’ to this process. Instead, lawyers seem to have a standardized way of asking questions whomever the witness happens to be.
21. t = 3.010, df = 283, and P = 0.003.
22. t = 2.886, df = 254, and P = 0.004.
23. Note that this entirely contradicts the view of the legal adviser cited above, thus indicating the diversity of views on this issue.
24. Or, at least, to those conforming to some idealized notion of victimhood (Christie Citation1986).
25. Or, indeed, forcing victims to give evidence in court at all (see Cretney and Davis Citation1997).
26. Save, in England and Wales, though lay magistrates.
