Policy paper

Special measures in the criminal courts factsheet

Updated 3 January 2024

What are we going to do?

Provide that all domestic abuse victims are eligible for assistance when giving evidence in criminal proceedings.

This could enable them, for example, to give their evidence from behind a screen or via a video link.

I know from my own experience of the legal system appearing as a witness can be a daunting experience. We need to ensure that victims can give their best evidence in court. The Bill provides that special measures are automatically available to victims of domestic abuse in criminal courts.

Justice Secretary, Robert Buckland, Commons second reading of the Bill, April 2020

How are we going to do it?

Generally, for a witness in criminal proceedings to be eligible for “special measures” as an “intimidated” witness, the court must be satisfied that the quality of the witness’s evidence is likely to be diminished due to their fear or distress about testifying. Complainants in respect of modern slavery offences and sexual offences are automatically eligible for special measures on these grounds, as are witnesses in proceedings relating to certain listed offences involving guns or knives.

The Act provides that victims of domestic abuse will also be automatically eligible for special measures on the grounds of fear or distress. The Act defines domestic abuse, and victims will be automatically eligible for special measures whenever it is alleged the behaviour of the accused falls within that definition.

However, whether any special measures are ultimately provided in a particular case will still depend on whether the court considers they would be likely to improve the quality of the witness’s evidence (taking into account the witness’s wishes and the ability of parties to effectively test the evidence).

Background

Victims of domestic abuse can already be eligible for special measures in criminal proceedings if the court is satisfied the quality of their evidence is likely to be diminished due to their fear or distress about testifying. In such cases, they are eligible for special measures as “intimidated” witnesses. Domestic abuse victims will also be eligible as “vulnerable” witnesses if they are under 18 years old or the quality of their evidence is likely to be diminished by reason of their mental or physical incapacity.

If a witness is eligible for special measures, the court must determine whether any available special measures are likely to improve the quality of the witness’s evidence (and if so, which measure or combination of measures would be best). In making that decision the court must consider all the circumstances of the case, including any views expressed by the witness and whether the measure(s) would inhibit the evidence being effectively tested by a party to the proceedings. So, eligibility does not necessarily guarantee that a special measure will be granted in any particular case, but it does require the court to consider whether a special measure should be granted.

What are “special measures”?

There are a range of special measures available, for example giving evidence from behind a screen, in private (that is without the public being in court) or via a live link so that victims do not have to face the accused. The use of video links allows victims and witnesses to take part in criminal proceedings without having to meet the accused face-to-face, thereby reducing unnecessary stress .

Will the victims of domestic abuse automatically get special measures to help them to give their evidence?

Those who are victims of domestic abuse (under the new definition set out in the Act) will not have to satisfy the fear or distress test to be eligible for special measures in the criminal courts. It will remain a matter for the court to decide which (if any) of the available measures would be appropriate in the particular case.

Will the accused’s right to a fair trial be compromised by automatic eligibility for special measures?

We do not consider that making domestic abuse victims automatically eligible for special measures compromises the accused’s ECHR or common law fair trial rights. The decision as to whether any special measure should be used in a particular case is left to the court, which is required by the Human Rights Act 1998 to act compatibly with ECHR rights. Section 19(3) of the Youth Justice and Criminal Evidence Act 1999 also requires the court, in determining whether to make a special measures direction, to consider whether the measure(s) in question might tend to inhibit the witness’s evidence being effectively tested by a party to the proceedings.

Key facts

To support the special measure of allowing for vulnerable or intimidated witnesses to be screened from the accused in criminal cases, in 2018/19 HM Courts and Tribunals Service invested £150k to provide an additional 295 privacy screens across 110 criminal courts in England and Wales.

These screens are part of a package of actions to help HMCTS to meet commitments made in the Victims Strategy to improve the experience of victims and witnesses attending court.