‘It is likely only to be a matter of time until vulnerable defendants also acquire a statutory right to be shielded from the adversarial arena in the same way as non-defendants’. (J. Doak, (2005)’ Child witnesses: do special measures directions prejudice the accused's right to a fair hearing? R v Camberwell Green Youth Court, ex p. D; R v Camberwell Green Youth Court, ex p. G’ E&P (291,295)

Analysis of the question

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 the lack 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 case-law and academic writings. Note that the reference to the ‘adversarial arena’ indicates the question centres on witness testimony and cross-examination by the opposing party rather than the more general point about the admissibility of evidence. Much of the answer will rely on your knowledge of the provisions of the YJCEA 1999 and the common law.

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 all witnesses should be treated humanely. However, whether vulnerable defendants should be accorded a similar degree of protection as that enjoyed by non-defendant witnesses is controversial. The question centres on the extent to which Doak’s prediction that there would be a degree of equality of arms between these groups of witnesses has come to pass and asks for your comment on the resulting state of the law in this area. You thus need to outline the law and critically evaluate its efficacy and fairness. Your introduction should outline the current law and the larger body of the answer should analyse it.

How far is there equality of arms?

Table 7.6 will give you an introductory summary of the statutory protections afforded to vulnerable non defendant witnesses. Explain that the differences between vulnerable defendants and non-defendants is evidenced in two areas, namely the groups eligible for special measures and the specific measures available to them. Non-defendant witnesses include presumptively all those under 18 years, whereas s33A (4) for defendants only includes those under 18 years whose testimony would be compromised by their level of intellectual or social functioning. Section 33 A(5) covers defendants suffering from a mental disorder or impairment of intellectual or social functioning, whereas for non-defendants the test is much broader including physical and mental disorder and fear or distress about testifying. Only live links (s33A, B, C) are currently available for certain accused persons, whereas for non-defendants the measures cover the broader range in ss 23-30, including examination of the witness through an intermediary. Point out that the court has common law powers in the case of vulnerable defendants to use an intermediary, but this is rarely applied see R v Bromley Youth Court (2020).

The second part of your answer assesses the fairness of this state of affairs.

Arguments to support the proposition that the current law is fair:

• The EctHR has stated 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 some protective measures see above. s33A, 333BA and 33BB YJCEA 1999.
• Common law powers, albeit infrequently employed, exist to allow a vulnerable defendant to be absent from the trial, to have an intermediary and other technical means are available such as a video link, see R v Ukpabio (2008)

Arguments to support the proposition that the current law is not fair:

Theoretically, the measures are somewhat incoherent in that the changes mark a move to a form of personalising 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
• Many changes are the outcome of political policymaking, rather than 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
• Some non- defendant witnesses have additional protection under ss 34-39 YJCEA on cross -examination of witnesses by accused in person. See also s41.
• 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).

Conclusion

The measures protecting non defendant witnesses 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, p. 366) comments that ‘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’.

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.