In Part Two (which you can read here), we looked at Criminal Injuries Compensation Evidence (CICE), Character Evidence, Independent Legal Advice for Complainants and the Right of Appeal for complainants regarding the previous subjects mentioned.

In this part, we’ll look at the recommendations concerning ‘Measures to Assist with Giving Evidence’ or what was called ‘Special Measures’.

Measures to Assist with Giving Evidence

This is what the Law Commission wrote:

In Chapter 9, Measures to Assist with Giving Evidence we make several recommendations for reform of eligibility for, and provision of, special measures. We recommend that the term “special measures” should be replaced with the more neutral and descriptive term “measures to assist with giving evidence”. We recommend that complainants in sexual offences cases should have an entitlement to the use of the following standard measures to assist with giving evidence: 

• screens
• live link
• pre-recorded evidence
• exclusion of the public during the complainant’s evidence (subject to a reformed exemption which would apply to persons directly involved in proceedings, representatives of news gathering or reporting organisations, academic researchers and a supporter for the complainant);
• removal of wigs and gowns
• presence of a supporter
• separate and accessible entrances and waiting rooms. 

We recommend that complainants should be entitled to ILA [independent legal advice] on measures to assist with giving evidence. We also recommend that complainants should have an entitlement to live links and separate and accessible entrances and waiting rooms to facilitate their engagement with the trial process once they have given their evidence. Finally, we recommend that the Government should consider further review of the measures available to all defendants when they give evidence at trial.

The recommendations

R41. We recommend that in sexual offences cases, the term “measures to assist with giving evidence” should be used instead of “special measures” We recommend that the Government should consider whether the term “measures to assist with giving evidence” should be used in all cases.

R42. We recommend that complainants in sexual offences cases should be entitled to the use of standard measures when they give their evidence.
We recommend that the provision of standard measures should be subject to the availability of the measure in that court and the defence’s ability to effectively test the evidence.

R43. For the purposes of measures to assist with giving evidence, we recommend that the evidence of a complainant should include their evidence in chief, cross-examination, re-examination and their reading of their victim personal statement.

R44. We recommend that the entitlement of a complainant in a sexual offences case to pre-record their evidence should not be dependent upon there being an admissible video-recorded Achieving Best Evidence (“ABE”) interview. Where there is no admissible ABE interview, evidence in chief should be able to be pre-recorded at a separate hearing conducted by the prosecution.
We recommend that the Government should consider further review of whether ABE interviews should continue to be used as evidence in chief in criminal prosecutions, or should be reformed for this purpose.

R45. We recommend that the current provisions governing the ability to edit the recordings of a witness’ evidence in chief, cross-examination and re-examination should be consolidated within the statute that governs the power to order pre-recorded evidence.

R46. We recommend that the Government should consider whether the use of pre-recorded evidence should be extended to sexual offences prosecutions in youth courts.

R47. We recommend that where the complainant:

1. gives evidence using a screen
2. gives evidence using a live link; or
3. is pre-recording their evidence,
4. the effect of these measures should be that the defendant cannot see the complainant while they are giving their evidence.

We recommend that when the recording of the complainant’s pre-recorded evidence is disclosed to the defence or played back at court, the defendant should be permitted to see the complainant in the recording when watching the recorded evidence

R48. We recommend that where the public are excluded during the evidence of a complainant in a sexual offences prosecution, there should be an exemption to allow the following categories of individuals to attend:

1. persons directly involved in proceedings
2. bona fide representatives of news gathering or reporting organisations;
3. academic researchers conducting research that has been approved by a university research ethics committee; and
4. a supporter for the complainant, where requested by the complainant.

We recommend that, on application from an individual, the judge should retain discretion to allow that individual to attend where it is in the interests of justice for them to do so, considering the impact on the quality of the complainant’s evidence, the need for humane treatment of the complainant, the complainant’s privacy rights and the wishes of the complainant.

R49. We recommend that complainants in sexual offences cases should be entitled to the following standard measures when they give their evidence:

1. screens
2. live link
3. pre-recorded evidence
4. exclusion of the public during their evidence, with the exception of:
   1. persons directly involved in proceedings
   2. bona fide representatives of news gathering or reporting organisations;
   3. academic researchers conducting research that has been approved by a university research ethics committee;
   4. a supporter for the complainant, where requested by the complainant; and
   5. on application from an individual, the judge should retain discretion to allow that individual to attend where it is in the interests of justice for them to do so, considering the impact on the quality of the complainant’s evidence, the need for humane treatment of the complainant, the complainant’s privacy rights and the wishes of the complainant;
5. removal of wigs and gowns
6. presence of a supporter, including but not limited to an Independent Sexual Violence Adviser; and
7. separate and accessible entrances and waiting rooms.

We recommend that the provision of standard measures should be subject to the availability of the measure in that court and the defence’s ability to effectively test the evidence.

R50.  We recommend that the Government should consider whether reform is needed to the use of intermediaries where complainants in sexual offences cases have communication difficulties as a result of trauma.

R51. We recommend that complainants in sexual offences cases should have access to independent legal advice in relation to their entitlement to measures to assist withgiving evidence.

R52. We recommend that where sexual offences are charged alongside other offences, complainants of the sexual offences in those prosecutions should be entitled to use standard measures to assist with giving evidence throughout the trial.
We recommend that the Government should consider whether complainants of other offences, including an offence under sections 1 or 2 of the Modern Slavery Act 2015, or an offence where it is alleged that the behaviour of the accused amounted to domestic abuse within the meaning of section 1 of the Domestic Abuse Act 2021, should be entitled to standard measures to assist with giving evidence.

R.53. We recommend that complainants in sexual offences prosecutions should be entitled to the following measures to facilitate their attendance at the trial, verdict and sentencing hearing when not giving evidence:

1. live link; and
2. separate and accessible entrances and waiting rooms.

We recommend that the provision of measures to facilitate the complainant’s attendance should be subject to the availability of the measure in that court.

R54. We recommend that the Judicial College should consider providing training to the judiciary on the evidence base of the impact on juries of measures to assist with giving evidence.
We recommend that legal professionals should receive training on the evidence base of the impact on juries of measures to assist with giving evidence.

R55. We recommend that the Government should consider the need for a further review of measures to assist with giving evidence for defendants. This should include a review of the measures available to support vulnerable defendants in criminal prosecutions.

Measures to Assist with Giving Evidence – our summary

his was previously called ‘Special Measures’ but the Commission is recommending a change of label.  It could be argued that they are trying to pretend that the measure aren’t “special”. “Special Measures” already existed, as outlined in the Justice Department’s document: Achieving Best Evidence inCriminal Proceedings: Guidance in interviewing Victims and Witnesses, using Special Measures and Pre-Trial Therapy

Note the use of the word “Victims” in that document. At least we can be grateful that the Law Commission uses the correct term, ‘complainants’. Those special measures were mainly intended for ‘vulnerable’ people, such as children, but adult complainants of sexual offences were also included.

One can easily understand that children might be intimidated by the presence of the defendant & public or by the process in  general – hence the removal of wigs and gowns, but the latter seems rather molly-coddling for adults. I don’t see why sexual offence victims should be any more intimidated by wigs and gowns than any other victims.

It is understandable that genuine victims of, especially violent, sexual assault should not have to be subject to unnecessary stress when giving evidence at trial. However, there principle of fairness to the defendant also needs to be taken into account. Article 6 of the European Convention on Human Rights (ECHR), which deals with the right to a fair trial, leads to a principle called “equality of arms” which implies equal treatment for both sides:
ECHR Article 6:
3. Everyone charged with a criminal offence has the following minimum rights:..
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

There is a get-out clause but going on the above, one could reasonably expect that if complainants are given the option of giving evidence in chief (i.e. their initial evidence to questions from their own side – in their case, the prosecution), then so should the defendant be offered the same facility. 

We do not know before a trial (and as likely as not, we won’t know afterwards either) whether the complainant IS a victim or not, so false accusers as well as genuine victims will be entitled to such measures. However, defendants of false accusations – who are the victims in such cases – may equally feel vulnerable and intimidated by their accuser and other factors, so why should they not qualify for such equivalent protection?

In the final part, we will cover the remaining recommendation on the subjects of Juries, Conduct of the trial in Sexual Offence Cases, Specialist Courts/More radical reform, Pre-Trial Hearings and the chapter called Holistic Reform, which discusses the subject but has no specified recommendations.

---

Links

You will find links below to the Law Commission’s original consulation document, FACT’s response to that, the Law Commission’s Final report, and Part One of this review

• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part One
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Two
• Law Commission: Evidence in Sexual Offences Prosecutions – Consultation Paper and Summary
• FACT’s response to the ESOP Consultation Paper
• Law Commission: Evidence in Sexual Offences Prosecutions – Final Report