La ambivalencia de la compasión

Special Measures were introduced under the Youth Justice and Criminal Evidence Act 1999 to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses (MoJ 2011). They can take a number of different forms including:

• Screening a witness from the accused; • Giving evidence by live-link;

• Giving evidence in private (in sexual offences cases and those involving intimidation); • Removal of wigs and gowns;

• Use of video recorded interviews as evidence- in-chief;

• Communication through intermediaries; and • The use of special communication aids.39 Guidance clearly stipulates that the Special Measures applied for should be determined on a case-by-case basis. Decisions should reflect the needs of the victim and the nature of the offence and pay cognisance to the views of the victim and, where appropriate, their parents/carers (CPS 2013a). An application for Special Measures does not necessarily mean that these will be granted. The Court will decide on this based on the application of three tests which relate to the vulnerability of the witness (all under 18’s will fulfil this), whether the application of Special Measures is likely to improve the quality of their evidence and, if so, which are most likely to do this (MOJ 2011).40

Most the experts by experience reported that some form of Special Measures was used within their case, most frequently use of a live-link and the removal of wigs and gowns. Not all, however, spoke positively about their experiences of this. Although one young person positively reflected on how they had actively been involved in decision-making around the use of Special Measures in their case – including being informed that they could change their mind about this at the last minute as per recommended practice – reflections from the majority clearly indicated that their experience of the application of Special Measures was more disempowering than empowering.

Many of the experts by experience did not realise that there were a range of Special Measures available for use, having only been told about the one(s) that the professionals felt were most appropriate in their case. Nor did they realise

that they (and/or their parents/carers) should have an opportunity to input into decisions about which Special Measures would most effectively facilitate their evidence giving, with virtually all noting that decisions about Special Measures were made ‘for them’ rather than ‘with them’. This is in clear conflict with current policy direction about victim involvement in decision- making around use of Special Measures. As the Equal Treatment Bench Book notes: “emphasis is now given to the witness’s viewpoint because witnesses are likely to give better evidence when they choose how it is given” (Judicial College 2013:53).

For the majority of the experts by experience, the Special Measure they were advised of and ‘encouraged’ to use was that of live-link. This is in line with the stated presumption that this will be the preferred measure where the witness is a child (MoJ 2011). What was not explained to most was the fact that they could express a preference to give evidence in court, with use of a screen (MOJ 2011; Judicial College 2013), something a number of them would have preferred to opt for had they fully understood the implications of both options:

“I didn’t want to be in the video link but they just sort of said like ‘you’re going to be in the video link room’ and there was no choice really” (young person D).

“Nobody says – well this [video link] is an option or on the other hand you can stand in court” (young person I).

In addition to the disempowerment inherent in their exclusion from the decision-making processes around Special Measures, many experts by experience reflected on the negative implications that enforced Special Measures had on their experience of the court process. This was particularly true of those who had been advised or instructed to appear via live-link. There was no evidence that any had exercised their right to try out the live-link equipment during a pre-trial visit, and subsequently most did not realise in advance of the trial that this did not offer visual anonymity from the court:

“I didn’t like the fact in the trial that – like he was there and he could see me – it was a long time ago from when he had seen me and obviously my appearance had changed and I’d done that to feel more safe because it was like – well he still does live in the same area – so I did that and he was there

in court and looking at me and he knew exactly what I looked like – and like I didn’t like the fact that everyone could see me and I couldn’t see them. If I’m being shown on the screen, well I might as well just be there” (young person I).

The experts by experience were very vocal about the inequity associated with their experience of live-link; in which they could be seen by everyone in the court room, but they could only see legal representatives and were therefore unaware of who was watching them:

Young person D: “When you’re in the video

room you don’t get to see in there [the court room]. You just get to see the barrister and the judge. You don’t get to see anyone else who is there and I would have liked to see who else was there, to see if there was people watching.”

Researcher: “and who gets to see you?” Young person D: “Everyone gets to see you.

Everyone gets to see you but you only see the people who are talking to you.”

Young person E: “There’ll be so many people

watching it and you don’t know. Cos you know some people come just for the fun of it, cos there’s something hot going around town, and they can see your face and everything but you don’t know who they are, who knows about your story.”

Young person D: “And you can’t see them.

We should be able to see them. It should be like you are in a stand, you should be able to see everything you could if you were on a stand but just be in a different room. There could be two cameras – one with whoever’s talking, and the other just an overview of the whole court room.”

Again, this is in conflict with accepted wisdom on this matter. CPS Guidance on Safeguarding Children as Victims and Witnesses, for example, clearly stipulates the need for children to be made aware that the defendant and others in the court room will be able to see them (CPS 2013b). It further stipulates that if this will cause the child distress (noting that for many, fear of being seen by the defendant is worse than that of seeing the defendant) steps should be taken to address this such as covering the defendant’s monitor or allowing the child to give evidence from behind a screen in court. The Equal Treatment Bench Book recommends consideration of combined Special Measures in such situations, using screens to shield the live-link screen from the defendant and public (Judicial College 2013).

Interestingly, the one Special Measure that young people most often noted being offered choice around was that which they felt was of least consequence to them, the removal of wigs and gowns. This was highlighted as yet another example of how they felt professionals failed to understand the differences between working with adolescents and younger children and the consequent patronising and alienating impact this can have:

“The barrister said ‘do you want me to take my wig off?’ and I was like ‘No, it’s not really going to bother me’, but he said some young children find it funny and distracting and I felt dead patronised by it. I was like ‘I’m not a young child’. I am a child but I’m not, at the same time…If they are giving you the option to not wear it, why not just get rid of it. It’s obviously not that important that they wear it. Why not just wear a suit in the beginning” (young person D).

It is also interesting, although in many ways unsurprising, to note that there was no one Special Measure that the experts by experience consistently expressed a preference for. Some of those who were told they had to use the video-link would have preferred to be in court behind a screen, and vice-versa. What there was clear consensus around across all three groups however was the need to:

• offer young people choice;

• explain the practicalities and pros and cons of each option;

• take on board their preferences in line with their age and capacity; and

• where there are valid reasons for not doing so, clearly explain the rationale for this.

These principles of operation were strongly supported by professional participants who also shared many examples of Special Measures decisions being made for, rather than with, young people. They similarly emphasised the importance of consultation and choice in the process:

“It’s about choice and empowerment…It’s telling them what’s available, not making decisions for them” (interview 1).

“You need some flexibility for [adolescents]. Explain these are the reasons we do these; its up to you whether you want them or not. It’s assessing that young person’s wishes and needs and making the best decision with them…Even if you had to make a decision that went against what a

young person wanted, the process of that is important. We do risk assessments all the time. We talk with the young person why things are certain ways. It’s just being honest and working with them so if in the end the decision has to be against what the young person wants, there’s a reason that you can explain and justify. It’s not rocket science” (focus group 4).

A further important point made by professionals relates to considering the nature and medium of the offence when assessing the appropriateness of different Special Measures. A frequently cited example of this related to the use of live-link in the case of online abuse:

“If a young person has been exploited online, images distributed or they may have been asked to perform sexual acts or been filmed, then being cross-examined or giving evidence via video link, might not necessarily be the most appropriate form of Special Measure…its having the different options and actually discussing with the young person and considering their case – what actually would be the best option”

(focus group 2).

4.5 Support for victims and