Trial procedure in magistrates' court and Crown Court - Spec...

Learning Outcomes

This article explains the framework for special measures available to vulnerable and intimidated witnesses in both magistrates' and Crown Court criminal trials, as set out primarily by the Youth Justice and Criminal Evidence Act 1999 (YJCEA), including:

• Statutory and practical eligibility criteria for vulnerable and intimidated witnesses (children; adults with communication difficulties or disabilities; witnesses intimidated due to their involvement in proceedings)
• The statutory basis, rationale, application procedures, and judicial discretion for deploying special measures, contextualised by the need to ensure a fair trial under Article 6 ECHR
• Competence to testify versus eligibility for special measures, and how both concepts interact in criminal proceedings
• Practical implications of special measures directions for complainants, defence witnesses, and, in limited cases, defendants
• Typical scenarios in magistrates’ courts and in the Crown Court, including resource challenges, implementation differences, and safeguards for the rights of the defendant alongside support for witnesses
• Procedural steps, evidential considerations, and judicial guidance relevant to the proper use, variation, or discharge of special measures during trial

Understanding these concepts enables effective client advice and confident responses to all related SQE1 multiple-choice questions within the criminal law and practice syllabus.

SQE1 Syllabus

For SQE1, you are required to understand the statutory and practical framework governing special measures for vulnerable and intimidated witnesses in magistrates' court and Crown Court criminal trials, with a focus on the following syllabus points:

• Legislative foundations for special measures, especially YJCEA 1999, related Criminal Procedure Rules, and the interplay with the Human Rights Act 1998 and Article 6 ECHR.
• Criteria for witness competence, compellability, and the interface with special measures eligibility.
• Detailed statutory and practical eligibility for vulnerable witnesses (YJCEA s 16) and intimidated witnesses (YJCEA s 17).
• Statutory presumptions of eligibility for complainants in sexual offences and witnesses in specified violent/weapon offences.
• Range and statutory basis for special measures (YJCEA ss 23-30), including screens, live links, private evidence, video-recorded evidence, intermediaries, and aids to communication.
• The statutory process for applying for and granting special measures directions (YJCEA s 19), including court discretion, required considerations, judicial balancing of witness needs and defendant rights.
• Role of pre-trial ground rules/ directions hearings and the involvement of intermediaries and communication specialists.
• Procedures for variation, revocation, and ongoing reassessment of special measures during trial; proper basis for court-initiated measures.
• Impact of special measures on the conduct of examination-in-chief, cross-examination, and rules around pre-recorded cross-examination and intermediary involvement.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which Act primarily governs special measures for witnesses in England and Wales?
   1. Police and Criminal Evidence Act 1984
   2. Criminal Justice Act 2003
   3. Youth Justice and Criminal Evidence Act 1999
   4. Bail Act 1976

2. True or False? A witness who is merely distressed about testifying automatically qualifies as an intimidated witness under s 17 YJCEA 1999.

3. Which special measure involves a witness giving evidence from a location outside the courtroom via a video connection?

Introduction

The criminal justice system recognises that some witnesses require tailored assistance to give their best evidence due to age, disability, significant impairment, or fear resulting from their involvement in a case. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) was enacted to address these challenges, seeking to prevent the re-traumatisation of victims, safeguard the reliability of witness testimony, and ensure just outcomes. Through various 'special measures,' courts can adjust proceedings to meet individual needs while rigorously protecting the defendant's right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).

Special measures are not limited to complainants: they may apply to any eligible prosecution or defence witness, with courts maintaining careful oversight to avoid prejudicing the accused or undermining the integrity of the justice process. Application and implementation of these provisions is an important area of SQE1, requiring precise knowledge of both statutory law and best practice.

Key Term: Special Measures
Statutory adjustments to standard trial procedure, available to eligible witnesses to help them give their best evidence, such as using screens, live links, or intermediaries.

Eligibility for Special Measures

Eligibility is tightly defined by the YJCEA 1999, and the court must assess both statutory criteria and the practical likelihood that measures will improve evidence quality. Importantly, competence to give evidence is a distinct concept: all witnesses are presumed competent unless the court determines otherwise, and a witness may be competent but still require special measures to give effective evidence.

Vulnerable Witnesses (s 16 YJCEA 1999)

A wide range of individuals may qualify as vulnerable for the purposes of special measures:

• Children: All witnesses under 18 at the time of the hearing are automatically considered vulnerable.
• Physical or Mental Condition: Adults whose evidence quality is likely to be diminished because they suffer from—
  • a mental disorder (see the Mental Health Act 1983),
  • a significant impairment of intelligence and social functioning, or
  • a physical disability or disorder.

The statutory test centres on whether these conditions are likely to diminish the quality of the witness's evidence—quality encompassing completeness, coherence, and accuracy.

Courts examine supporting evidence (such as medical or psychological reports) and often seek views from specialist practitioners or the witness’s own clinician. For child witnesses, especially those below the age of 10, supplementary special measures (e.g. intermediaries, communication aids) are frequently necessary to ensure evidence can be understood and fairly tested.

Key Term: Vulnerable Witness
An individual under 18, or whose capability to give complete, coherent, and accurate evidence is likely impacted by disability, mental disorder, or impairment (YJCEA s 16).

Intimidated Witnesses (s 17 YJCEA 1999)

Intimidation is a fact-sensitive concept: a witness is considered intimidated if the court is satisfied that the quality of their evidence is likely to be diminished by reason of fear or distress connected to testifying. Relevant considerations include—

• The alleged offence’s nature (e.g., sexual offences, violence, gang- or weapon-related matters).
• The witness's age, social/cultural background, and any vulnerabilities.
• Domestic and employment context.
• Actual behaviour (direct or indirect) by the defendant, their associates, or other parties.

Certain statutory presumptions apply. For example, complainants in sexual offence cases and witnesses in certain firearm or knife offences are automatically considered eligible for special measures as intimidated witnesses unless they opt out.

The qualification is not triggered by mere nervousness; there must be an identifiable risk that fear or distress in connection with the proceedings will affect the witness's ability to give evidence reliably.

Key Term: Intimidated Witness
A person whose quality of evidence is likely to be diminished due to fear or distress about testifying (YJCEA s 17), which may arise from the circumstances of the offence or conduct of others.

Mechanics of Eligibility Assessment

Courts are required to approach eligibility assessments case by case, considering:

• Expert evidence (medical, psychological, educational).
• Recommendations from social services or the Youth Offending Team, especially for younger witnesses.
• Whether measures will truly improve 'quality', not just provide comfort.
• The practical implications of instituting a given measure, especially if it might impede effective cross-examination or the fairness of the trial.

Special measures are available to both prosecution and defence witnesses. For defendants, the scope is limited (for example, defendants cannot have evidence-in-chief pre-recorded, but may give live link evidence in rare circumstances).

Applying for and Granting Special Measures

An application for special measures may be made by either party (prosecution or defence), or the court may raise the issue on its own initiative if it believes a witness may benefit. Applications should be supported by evidence and, where possible, the stated preference of the witness. Importantly, the court is not bound by the witness's wishes but must weigh them.

Applications are governed by the Criminal Procedure Rules in addition to the YJCEA, with requirements to detail:

• The special measures requested and supporting rationale.
• Evidence as to eligibility (expert reports, previous history, etc.).
• The likely effect of the measures on the evidence's quality and any risk to the fairness of proceedings.

The Special Measures Direction (s 19 YJCEA 1999)

The court, once satisfied that the witness qualifies as vulnerable or intimidated, must consider whether a direction should be given, and, importantly, which measures or combination of measures are likely to maximise the quality of their evidence. The court is required to:

• Consider the witness's wishes and belief about the measures.
• Evaluate whether the measures would inhibit effective testing of evidence (e.g., restrict cross-examination unfairly).
• Assess the impact on the fairness of proceedings, including possible prejudice in the minds of the jury or magistrates.

Courts may give a direction for one or more measures, and are required to record reasons for granting or refusing directions, especially where the decision may impact trial fairness.

Key Term: Special Measures Direction
A formally issued court direction stating which special measure(s) are to apply for an eligible witness's evidence, under s 19 YJCEA 1999.

Judicial Discretion and the Article 6 ECHR Fair Trial Requirement

It is necessary that the judicial exercise of discretion under the YJCEA 1999 balances the interests of witnesses and defendants. Article 6 ECHR is central: special measures must not impede the accused’s rights to challenge evidence, be present during proceedings, and receive a fair and public hearing. Judges routinely provide directions to the jury (Crown Court) or notes to magistrates that special measures are not indicative of the reliability or truthfulness of the witness, nor may they be taken as prejudice against the accused.

Additional safeguards include:

• Allowing the defendant to see and hear the witness during their testimony, unless this would defeat the protective aim of the measure (for example, use of screens).
• Assigning intermediaries only in circumstances where they facilitate (rather than impede) candid, testable evidence.
• Weighting the quality of the evidence produced against any potential limitation on the crossexamination or ability of the trier of fact to assess demeanour.

Key Term: Article 6 ECHR
The right to a fair trial, including presumption of innocence, adversarial proceedings, and opportunity to challenge evidence.

Worked Example 1.1

Scenario: A 15-year-old witness (W), due to give evidence in the Crown Court on a robbery charge, is highly anxious about seeing the defendant (D) in court. The prosecution seeks a live link for W. D's counsel objects, citing D's right under Article 6 ECHR to directly confront his accuser.

Answer:
The judge should weigh both the statutory requirement to facilitate W's best evidence (automatic eligibility due to age, YJCEA s 16) and D's Article 6 right to confront his witness. The court must consider if the live link is likely to improve W's evidence's quality and whether it would inhibit D’s ability to test or challenge that evidence effectively. If appropriate safeguards are put in place to ensure clarity and visibility, and D’s participation is not unreasonably restricted, the live link may be permitted.

Types of Special Measures Available

The menu of statutory special measures is set out in ss 23-30 YJCEA. Each measure is designed to address different limitations or sources of distress. Where necessary, the court may order:

Screens (s 23 YJCEA 1999)

Physical screens are positioned in the courtroom to prevent a witness from seeing the defendant, and sometimes the public gallery. The witness remains observable by the judge, legal representatives, and jury (Crown Court). This aims to alleviate stress caused by direct eye contact with the accused.

Live Link (s 24 YJCEA 1999)

Live link is a mechanism for a witness to give oral evidence from a location separate from the courtroom, either in the same building or remotely elsewhere. Advanced video and audio technology allows questioning and cross-examination as close to 'in-person' as possible. This is the default special measure for child witnesses in Crown Court, and is increasingly used with adult vulnerable or intimidated witnesses.

Key Term: Live Link
A technical means allowing oral evidence to be given from outside the courtroom, ensuring visibility and interaction by the judge, counsel, and (if applicable) jury (YJCEA s 24).

Evidence Given in Private (s 25 YJCEA 1999)

In sexual offence cases, or those involving intimidation, courts may order that the public (but not parties, advocates, or accredited press) be excluded during the witness's testimony. This supports the protection of dignity and privacy without infringing on the open justice principle unless justified. The exclusion of the media is rare and only if their presence would likely intimidate the witness.

Removal of Wigs and Gowns (s 26 YJCEA 1999)

In the Crown Court, the judge and/or barristers may be directed to dispense with wigs and gowns when a vulnerable witness gives evidence, reducing the formal atmosphere and making proceedings less intimidating, especially for children.

Video-Recorded Evidence-in-Chief (s 27 YJCEA 1999)

This measure allows a pre-trial video-recorded interview with a vulnerable or intimidated witness (typically their Achieving Best Evidence or 'ABE' interview) to be played in court as the witness's main evidence. The witness must still attend for cross-examination and re-examination, which may itself be subject to special measures (usually a live link).

Video-Recorded Cross-Examination or Re-Examination (s 28 YJCEA 1999)

Section 28, in specified pilot schemes and gradually expanding nationally, permits pre-recorded cross-examination and re-examination of eligible witnesses before trial. The recording is then played at the substantive hearing. Implementation is particularly complex, requiring early judicial management, legal argument pre-trial, and ground-rules hearings.

Examination of the Witness Through an Intermediary (s 29 YJCEA 1999)

Intermediaries are communication specialists who enable witnesses (often with complex needs or communication disorders) to understand questions and to express themselves clearly. Intermediaries may suggest forms of questioning and translate, paraphrase, or rephrase questions to reduce confusion. Case law and best practice stress that intermediaries must be independent and not act as advocates.

Key Term: Intermediary
An accredited professional appointed to facilitate communication between a witness and the court by interpreting questions and assisting the witness in understanding and responding accurately (s 29 YJCEA 1999).

Use of Aids to Communication (s 30 YJCEA 1999)

Aids such as symbol boards, speech synthesizers, picture cards, or written forms may be authorised by the court where the witness has difficulty with verbal communication. Courts may set specific limits or provide instructions to parties on their use.

Worked Example 1.2

Scenario: An 8-year-old child, a witness to serious assault, is known to have significant expressive and receptive communication difficulties.

Answer:
Automatically eligible for special measures due to age (YJCEA s 16), the child may benefit from:

• Use of a pre-recorded police interview (s 27, video recorded evidence-in-chief);
• Cross-examination via live link (s 24);
• Facilitation by an intermediary (s 29), assisting with understanding and responding to questions;
• Removal of wigs and gowns (s 26), reducing anxiety;
• Potentially use of communication aids (s 30), depending on ability. The court will weigh whether each measure will improve the evidence's quality and will ensure measures do not infringe the defendant’s Article 6 rights.

Worked Example 1.3

Scenario: An adult witness in a gang-related shooting case refuses to testify in open court due to fear of retaliation. The prosecution requests the use of a screen and for evidence to be given in private, but the defence argues that excluding the public would unfairly prejudice the jury.

Answer:
The court is required to consider the likely impact of fear on the quality of evidence (s 17), the specific risks posed by intimidation, and whether the statutory thresholds for excluding the public (s 25) are met. The need for open justice is strong but may be outweighed if necessary to secure meaningful evidence from the witness. The judge must direct the jury appropriately to avert prejudice and ensure the defence is not unduly hampered in challenging evidence.

Procedural Considerations

Magistrates' Court vs Crown Court

All statutory measures are available in both forums, but differences emerge in facilities, resourcing, and tribunal processes.

• Facilities: Crown Courts often have superior equipment for remote evidence and video recording. For magistrates’ courts with limited technology, alternatives (such as physical screens) may be prioritised.
• Jury vs Magistrates: In Crown Court, careful judicial directions to the jury are necessary to avoid inadvertent prejudice where special measures are used; in the magistrates’ court, the magistrates themselves must exercise vigilance.
• Case Management: Early identification of the need for special measures is necessary to allow proper listing, resource allocation (e.g. intermediary diaries are often heavily booked), and avoiding case adjournment.

Defendant’s Rights

Special measures are not available solely on witness preference—there must be a demonstrable benefit to evidence quality, with fair trial considerations always central. Defence solicitors play a central role in scrutinising applications and in ensuring that any restriction on open justice or the opportunity to test evidence is justified and proportionate.

The court will issue clear directions to the jury or magistrates to disregard any inference that the application of special measures reflects adversely on the defendant. Key legal safeguards include the principle that all parties—regardless of the evidential structure—must have a sufficient opportunity to examine or have examined the witnesses against them.

In rare circumstances, the defendant may be permitted to use a live link as a special measure when giving evidence, but cannot use intermediaries or pre-recorded examinations-in-chief. Broader participation assistance for defendants themselves is the subject of separate statutory provisions and is not covered by the standard YJCEA special measures regime.

Variation and Revocation

Under s 20 YJCEA 1999, the court has an ongoing duty to review and, if circumstances warrant, vary or discharge previously granted special measures directions. Reasons for variation may include changes in the witness’s circumstances, technological failure, or a later finding that the measure is impeding rather than assisting the quality of evidence.

Importantly, directions ought not to be revoked simply at the request of one party without proper reasoned analysis; child witness protections, in particular, should only be lifted if to do so would not diminish evidence quality or cause harm.

Ground Rules Hearings and Intermediary Reports

Where intermediaries are involved, or where communication difficulties are significant, ground rules hearings are mandated before the witness gives evidence. Here, the court, advocates, and intermediary agree in advance on methods and limits of questioning, clarifying expectations and avoiding ambiguity. The court is responsible for ensuring the agreed approach is followed and that any necessary clarifications are provided to the jury.

Exam Warning

Be careful not to confuse legal competence with special measures eligibility. A competent witness (able to understand and answer questions) may still be so impaired or fearful that, without special measures, their evidence would be incomplete or unreliable. The law requires attention both to competence (s 53 YJCEA 1999) and to practical vulnerability or intimidation.

Key Point Checklist

This article has covered the following key knowledge points:

• The YJCEA 1999 provides a statutory, structured scheme for special measures to support vulnerable or intimidated witnesses in criminal proceedings.
• Competence to testify and eligibility for special measures are distinct but interrelated concepts.
• Automatic eligibility applies to witnesses under 18, or with certain physical or mental conditions; intimidation by itself requires court assessment of evidence quality and facts.
• Special measures available include screens, live links, evidence given in private, removal of wigs or gowns, pre-recorded evidence, intermediaries, and use of communication aids.
• Courts must assess suitability, not simply upon request, and record the reasoning behind all special measures directions.
• The grant of special measures does not relieve the court of its responsibility to ensure fairness to the defendant; Article 6 ECHR is always central.
• Application, variation, or discharge of special measures follows specific statutory and procedural rules, including ongoing case management and judicial oversight.
• In cases involving intermediaries or significant communication challenges, ground rules hearings are a mandatory and important step.
• Differences in practical implementation exist between the magistrates’ and Crown Court, largely due to facilities and tribunal structure, but the statutory regime is consistent.

Key Terms and Concepts

• Special Measures
• Vulnerable Witness
• Intimidated Witness
• Special Measures Direction
• Live Link
• Intermediary
• Article 6 ECHR