Have the Special Measures Directions now available to witnesses undermined the protection of the defendant?

This question will test your general reading in this area. It will not be enough to be familiar with the statutory sections, you must show an understanding of the surrounding intellectual debate. You may of course argue your points from any standpoint, that of approving or of disapproving of the measures or some of them. You will be graded on how far you present the legal arguments objectively, bearing in mind that this is a law not a politics essay and how far you back up your assertions with references to academic writings. The following is a possible framework for your answer:

Introduction

Background to the development of law including Government White Paper 2001, Putting Victims First. What is meant by the additional protections? – here refer to the Special Measures Directions in YJCEA but also demonstrate that you are aware of other related changes, for example those on anonymous witnesses and on the admissibility of hearsay. You could make the point that there seems to be a real problem of witness intimidation and of reluctance of certain classes of witnesses, particularly rape victims, to come forward. Respect for human dignity requires that witnesses should be treated humanely.

What are the arguments to suggest that the additional protections do NOT undermine the defendant? These include:

• The ECtHR has demonstrated that non-defendant witnesses need protection, see Doorson v Netherlands (1996) and the importance of Art 8 (Art 6(3)(d) does not stipulate when or how a witness is to be available for examination by the defence). Evidence need not always be given at a public hearing in court.
• The acknowledgement by the UK courts that the measures do not undermine defendants see R (D) v Camberwell Green Court (2005).
• The defendant has other protective measures see new s33A, 333BA and 33BB YJCEA 1999. The accused may give oral evidence through a live link or intermediary if the court is satisfied that it is in the interests of justice and either the accused is under 18 and his ability to participate effectively in the proceedings as a witness giving oral evidence is compromised by his level of intellectual ability or social functioning or the accused is over 18 years and suffers from a mental disorder or otherwise has significant impairment of intelligence and social functioning.
• Common law powers exist to allow a vulnerable defendant to be absent from the trial and other technical means are available such as a video link, see R v Ukpabio (2008).

What are the arguments to suggest that the defendant's position is undermined? These include:

• theoretically they are incoherent in that changes mark a move to privatizing the trial and making it one between victim and offender not offender and the state;
• the rights in Art 6, e.g. the right to examine and have examined witnesses should not be 'balanced' with the interests (not rights) of victims;
• the changes are the outcome of political policy making rather an attachment to the principle of the right to a fair trial;
• the defendant always risks more than the alleged victim in the case of a wrongful conviction.

Conclusion

The measures are a welcome acknowledgement of the need to appreciate the trauma of vulnerable victims, particularly children. Arguably, however, some measures deny the defendant the right to cross examine effectively. The protection afforded to child and vulnerable defendants, although increased following the Coroners and Justice Act 2009, is inferior to that afforded to child and vulnerable witnesses. Hoyano (‘Coroners and Justice Act 2009: special measures directions take two: entrenching unequal access to justice?’ (2010) Criminal Law Review 345) comments at p366 ‘The unspoken but unmistakable premise in the C&JA 2009 is that defendants, whatever their age, are somehow less deserving of assistance to give their best evidence than are other witnesses with the same communication difficulties’.

The difficulty the courts face in treating vulnerable witnesses humanely while safeguarding the interests of defendants is illustrated in the case of R v E (2011). E pleaded not guilty to a charge of cruelty to a five year old. There was conflicting evidence of the cause of the child’s injuries. The defence case was not put to her in cross examination. E appealed. The Court of Appeal rejected the appeal. There was strong supporting evidence, the jury had been asked to make allowances for the defence difficulties and as a result there was no compromise in the right to a fair trial.

Special Measures are arguably primarily pro-prosecution changes and should be seen in the light of other such changes which cumulatively impact on defendants' rights – e.g. erosion of right to silence, allowing anonymous witnesses, limiting cross examination by the defendant in person, extending the exception to hearsay, the increased admissibility of prior convictions.