Vulnerable and Intimidated Witnesses Rob Ewin University of Cumbria PhD – Vulnerability in Criminal Investigation

The Youth Justice and Criminal Evidence Act 1999 Who are ‘they’? The Youth Justice and Criminal Evidence Act 1999 s.16) Witnesses eligible for assistance on grounds of age or incapacity. s.17)Witnesses eligible for assistance on grounds of fear or distress about testifying. s.63) “witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings. Ewin, R. (2015). The Vulnerable and Intimidated witness; a socio-legal analysis of Special Measures. Journal of Applied Psychology and Social Science, 1(2), 31-54.

‘Vulnerable & Intimidated’ In R v Iqbal (Imran) & anr [2011] EWCA Crim 1348 it was recorded that the 17 year old victim of an assault had ‘significant impairment of social functioning, intelligence and communication’. The assault took place as the victim walked back from his college for those with special educational needs. In R v PR [2010] EWCA Crim 2741 it was recorded that one victim of historic familial rape was permitted Special Measures under the gateway of fear and distress of testifying (YJCE 1999, s.17). Crucially, it was not identified that the victim also had a learning disability resulting in an inability to comprehend complex questions.

What can ‘they’ get? s.23) Screening witness from accused. s.24) Evidence by live link. s.25) Evidence given in private* s.26) Removal of wigs and gowns* s.27) Video recorded evidence in chief. s.28) Video recorded cross-examination or re-examination. s.29) Examination of witness through intermediary** s.30) Aids to communication**

Where are the issues? Incomplete or missing assessments of vulnerability from the outset. No Initial Identification of a Vulnerable or Intimidated Witness Misidentification between - s.16 & s.17 YJCEA (1999)

What do practitioners say? Witness Care Officer said: “I often see that the back of MG11’s has not been completed and there are no contact details for witnesses either”. A Crown Prosecutor also said: “I think there becomes an issue where officers assume the needs of the victim or in some cases don't even assess it at all, and then try and cobble together an MG2 which is full of waffle and does not contain sufficient detail to allow applications to be considered and granted”. Ewin, R (2016) The Vulnerable and Intimidated Witness: a study of the Special Measure Practitioner. Manuscript under review. Journal of Applied Psychology and Social Science.

Are there any assumptions? All too often the complex needs of witnesses are assumed and the correct identification of vulnerable, intimidated, key and significant witnesses within the definition of the Youth Justice and Criminal Evidence Act (1999) and Guidance on Achieving Best Evidence are overlooked. Do you agree or disagree with this? 65.8% - of professionals agreed or strongly agreed Over half also agreed or strongly agreed that these issues could be resolved well before the point of charge or are a result of poor case file management

What do the Police say? Front Line officers and professionals believe there are insufficiently trained, or specially trained and available staff to deal with Vulnerable and Intimidated Witnesses– 71.4% agreed or strongly agreed. A Uniform Police Officer said: “In the past three years of my career I have filled out an MG2 once and that was only because I was directed to by a Detective”. A Specialist Police Investigator said “I find that quite often inexperienced uniform officers don't look at the bigger picture when attending a crime and there is a lack of thought surrounding the best and most appropriate way to record the victims/witness evidence”.

What do the Defence say? One Defence Advocate highlighted: “In my experience our local courts tend to grant the use of special measures even if the prosecution have not identified the right gateway and/or have applied at a very late stage of proceedings”. A Defence Advocate said: “Magistrates courts are woefully underprepared to deal with video evidence and the Police often assume the needs of the witness rather than considering what the evidence that witness would give to a case”.

What does the Case File say? Her Majesty's Inspectorate of Constabulary (HMIC) et al (2015) indicated in its assessment of Police Case Files that: ‘there was found to be no difference when a vulnerable or intimidated victim or witness was involved in the case and, in some instances, it was slightly worse’ (p.10). The qualitative almost explains the quantitative in this area as the Pilot Study shows that the majority (54.3%) agree or strongly agree that partnership referrals fail, in part, because of weaknesses in case-file evidence and case management. HMIC, CJJI., HMCPSI. (2015). Witnesses for the prosecution: Identifying victim and witness vulnerability in criminal case files. (No. 1). London: HMIC.

Moving Forward The Victims Code (MOJ, 2015) is clear: "All victims of a criminal offence are entitled to an assessment by the police to identify any needs or support required, including whether and to what extent they may benefit from Special Measures" (p.13). Use a Deliberative Methodology to understand contextual issues, reflecting the assessments needed, and examining hurdles to implementation. Develop a model for Vulnerability Assessment inclusive of environmental, psychological and physiological elements which is universally understood. Ministry of Justice. (2013). Code of practice for victims of crime. HMMOJ, 1(1).

Rob Ewin University of Cumbria Thank You Rob Ewin University of Cumbria