Page 1 of 11
Vulnerability in the Witness Box: Reforming Special Measures to Enhance Resilience
By Dr Samantha Fairclough, Birmingham Law School
Introduction: what are special measures?
A legislative special measures scheme was enacted via the Part II of the Youth Justice and Criminal Evidence Act (YJCEA) 1999. These special measures provide alternative ways in which evidence can be given, and witnesses can be supported, in criminal trials. They include testifying via live link or from behind a screen in court, with the assistance of a communication specialist called an intermediary, or pre-recording testimony to be played at trial. To be eligible for their use, witnesses must be ‘vulnerable’ or ‘intimidated’ as per the definitions set out in the Act. In brief, vulnerable witnesses are children, who are automatically eligible for special measures support. They are also adult witnesses with mental health issues or physical or intellectual disabilities that risk diminishing the quality of their evidence. Intimidated witnesses are those who are testifying in relation to sexual, modern slavery or gun/knife offences (who are automatically eligible for special measures support). Otherwise, intimidated witnesses are those in ‘fear or distress in connection with testifying in the proceedings’ that risks diminishing the quality of their evidence. The Act defines evidence quality to mean its completeness, coherence and accuracy.
Adversarial trials: why were special measures introduced?
Special measures were introduced following widespread concern about the impacts of the adversarial trial process on such vulnerable and intimidated individuals. The principle of orality – a key feature of our adversarial system – traditionally requires witnesses to give evidence live, in open court, in the presence of the accused. This is often months, if not years, after the commission of the alleged offence about which they are testifying. Witnesses’ evidence is then subject to challenge in this setting through cross-examination – a process that is stressful, arduous, and has sometimes been abusive. The Home Office published a series of reports, culminating in the Speaking up for Justice Report (1998), on the impacts of the evidential conditions in which vulnerable and intimidated witnesses are required to testify. It concluded that such witnesses are treated inhumanely and often (re)traumatised in the process and that the quality of their evidence is poor due to delay, undue stress, and their (sometimes limited) communicative capacity. In essence, the adversarial trial process itself and the evidential rules surrounding witness evidence were acknowledged as an additional, or at least an exacerbating, source of vulnerability for witnesses who are already in vulnerable positions due to inherent or other situational factors.
Problems with the current provision of special measures
While special measures are lauded for their positive effects on the treatment of witnesses and the ability to secure good quality evidence from them (see Fairclough (2020)), their provision is not without its deficiencies. The definitions of ‘vulnerable’ and ‘intimidated’ under the YJCEA are under-inclusive. They exclude the accused from eligibility entirely, despite the fact that they too can act as a witness in the trial and can be (and often are) vulnerable in all of the same ways as other witnesses. This leads to the second issue, which is that the definitions of vulnerability that now exist for special measures are inconsistent (because defendants are now eligible for some special measures support via separate provisions to witnesses in the YJCEA and the case law). A third issue is with the instrumental way that vulnerability is defined for the purpose of special measures eligibility. For witnesses, it hinges on whether their evidence quality will be diminished. For defendants, it is about whether they would otherwise be unable to participate effectively as a witness. This means that special measures are not available in law to protect those who would be able to give complete, coherent, and accurate evidence but may suffer undue distress if they do so in court without assistance.
More generally, there are serious issues inherent in the language of vulnerability. It has negative connotations associated with risk, weakness, blame and deservingness. While it can trigger enhanced access to support and resources, it can also be seen as a mechanism of widening social control and justifying increased regulation of certain groups. The language adopted in the provision of special measures thus runs the real risk of alienating individuals who need support but do not wish to identify (or do not see themselves/are not seen by others) as vulnerable in order to qualify for their use.
Re-thinking our approach: switching to ‘resilience’
To address these problems with the current law, Martha Fineman’s vulnerability theory (2008) is useful as a way to rethink our approach to the provision of special measures to witnesses and defendants in criminal trials. Instead of seeing vulnerability as ‘a special condition for some’, Fineman’s premise is that we are all vulnerable due to our existence as human beings in the social world. As well as this shared vulnerability, there is still space for different experiences of vulnerability depending on variations in embodiment (such as age, ability, gender) and embeddedness in social, economic and institutional relationships. What this means is that some people – while vulnerable – are more resilient due to the resources at their disposal and the particular situation that they are in. In the context of witnesses and defendants testifying in the criminal trial, special measures are a resource that can help to build their resilience in a spatial context where the adversarial rules and formalities often strip people of their resilience (or highlight their lack of resilience in the first place).
Reforming special measures provision
The advantages of reforming the provision of special measures to reflect Fineman’s approach are that we can avoid the problems with the current law relating to its under-inclusiveness, inconsistencies, instrumental nature, and the problematic nature of the term ‘vulnerability’ and all it has come to represent. A new starting point – and thus an official acknowledgment – that all witnesses are vulnerable in the adversarial criminal trial would mark an important shift in approach. Special measures would then become available to build the resilience of those who otherwise lack or will lose resilience when testifying in this spatial context. The new approach would dispel existing distinctions between witnesses and defendants and remove the instrumental criterion for securing support. Witnesses and defendants themselves should drive decisions about the way in which they testify (and what support they need to build their resilience) without needing to fit themselves into a vulnerability category and have the court convinced of the potentially detrimental effects of the vulnerability on their evidence quality.
Changing the language in this way and so generally flipping the approach to special measures would help to ensure that more people who testify in criminal trials have additional resources at their disposal to do so to the best of their ability without incurring personal harm in the court setting. The likely result of this is that special measures are used by more people. This has obvious resource implications. It is suggested, then, that the more costly special measures, such as intermediaries and pre-recorded evidence, could justifiably be reserved for those with particular vulnerabilities around communication and memory, while screens and live link (where costs incurred are, at most, minimal) could be more widely available.
The precise contours of a new legislative approach to special measures are not provided here, but some initial musings as to how the law could be improved aim to start kick-start the conversation. Fineman’s theory is a particularly useful way to turn the current approach on its head and start afresh from the position that we are all vulnerable in the spatial context of the witness box in an adversarial trial. Resistance to a more generous provision of special measures is likely from those who see the use of special measures – which adapt the traditional adversarial evidence giving setting – as in conflict with, and indeed diluting, the principle of orality. But this is short-sighted. Measures that help witnesses to give more effective oral evidence, and to withstand fair cross-examination of that evidence to challenge its accuracy, support a model of criminal justice that seeks to maintain the primacy of oral evidence and do not undermine it.