The Vulnerable and Intimidated witness; a socio-legal analysis of Special Measures

Abstract

The Youth Justice and Criminal Evidence Act (YJCEA; 1999) concerns vulnerable and intimidated witnesses (VIW); literature suggests these are not identified in the early stages of most criminal investigations, and trials. This is often detrimental to the trial outcome, attracts significant financial cost, and leaves victims to flounder (Burton et al., 2006; Cook et al., 2004; ONS 2011; HIJJI, 2012). Cooper and Roberts (2005) identified that investigators only identify approximately fifty percent of all witnesses eligible for Special Measures; there is recurrent misidentification between those who are vulnerable and intimidated within the 1999 act. This limits the measures available to some witnesses. This review examined the issues through three lenses, firstly: evidential and legal, secondly: a reflection of risk and harm, thirdly: ethics and power. Traditional applications of giving evidence are shown to be at odds with the relatively newer concepts such as Visually Recorded Evidence (VRE), under the Criminal Justice Act (CJA; 2003) s.137, and ‘Special Measures’ under the YJCEA (Murphy & Glover, 2010) which are vastly underused. Despite international efforts to improve the provisions for VIW’s (Tinsley & McDonald, 2011; Cooke et al., 2002; Baldry et al., 2013) there is still room for improvement which would benefit victims, witnesses and criminal justice agencies (Clark, 2012; De Than, 2003; De Wilde, 2013; Starmer, 2014; Harris, 1993). The estimated cost of misidentification along with inadequate prosecution file preparation (HMCJJI, 2009; HMIC, HMCPSI, 2013) is approximately £18 million per annum (ONS, 2014).