Special Measures Guidance from the Professional Practice Committee

Part 29 of the Criminal Procedure Rules sets out the timetable in respect of special measures applications. The requirements in CPR29.1(4)© in particular pre-suppose that the court should be in a position to deal with an application at the pleas and case management hearing, and that by the date of the PCMH all parties will have already received notice and copies of any evidence on which the applicant seeks to rely. Counsel should upon receipt of the brief check to see if a special measures application is likely in respect of any of the witnesses and ensure that the Crown Prosecution Service or their instructing solicitors have taken the necessary steps in time.

It should be noted that the purpose of the Youth Justice and Criminal Evidence Act 1999 is to allow such steps as would maximise the quality of an eligible witness’s evidence. Any opposition to an application should concentrate on that. The Act already requires the trial judge to give an appropriate direction to the jury to mitigate any possible prejudice to the defendant.

CPR 29.2 sets out the procedure for applying for an extension of time. CPR 29.3 allows for an application to be made orally at the trial. Where appropriate, every step should be taken to avoid a late application.

In the case of an application under section 29 of the Act for the use of an Intermediary, counsel should be aware that there has from time to time been a late recognition of the communication needs of the witness. The fact that an Intermediary was not used in interview is therefore not in itself evidence that one is not needed at trial. The grounds for opposing a late application are the same as for one made on time, that is, the needs of the witness, and counsel should seriously consider the extent to which the client they represent would be prejudiced if the witness were assisted by an Intermediary. Above all, counsel should only raise such grounds in opposition as are properly arguable and not pursue a hidden agenda simply to deprive the witness of the opportunity of giving evidence effectively.

Counsel faced with making a late application in respect of their own witness should therefore not disregard the possibility of making an application at trial. If a report is available from the Intermediary, then they should take heed of its findings. It should be recognised that the Intermediary is exercising an expertise when assessing the witness’s needs. Counsel does not normally possess any such expertise and they should not take it upon themselves to decide what the communications needs are of any of their potentially vulnerable witnesses, and, in particular, children. They should not make themselves personally responsible for the quality of their own witness’s evidence or abandon their responsibility to the witness simply to avoid an adjournment or because a late application may be unpopular with the court.

When an Intermediary is used at trial, it is essential, before the witness’s evidence begins, for counsel, the Intermediary and the judge to hold a hearing to discuss the recommendations in the Intermediary’s report and to set down the ground rules for the examination of the witness.