Select support: eligibility and special-measures directions

Special measures address the way evidence is given. Special measuresGlossary termSpecial measures under YJCEA ss 16–30 help an eligible witness give evidence of better quality. Here quality means completeness, coherence and accuracy; coherence includes answering the actual questions intelligibly, both individually and as a whole. A measure does not certify truth, establish competence automatically, make the witness compellable or provide a missing hearsay gateway. First identify eligibility; then determine the legally available measure and its likely effect.

Age or impairment: s 16. A witness other than the accused is eligible if under 18 when the court determines eligibility, or if the court considers that evidence quality is likely to be diminished because of mental disorder, significant impairment of intelligence and social functioning, or physical disorder or disability. For an adult, a diagnosis alone is not enough: explain its likely effect on giving evidence. The court considers the witness's views. The under-18 eligibility rule is different from the under-14 oath rule and the under-16 specified-offence rule for spouses.

Fear or distress: s 17. A non-accused witness is eligible where fear or distress about testifying is likely to diminish evidence quality. The court considers the offence and alleged circumstances, the witness's age and background, relevant behaviour towards the witness, and the witness's views. This route is not confined to a diagnosed disorder. Complainants in sexual-offence and relevant modern-slavery proceedings are automatically eligible under s 17(4) unless they tell the court that they do not wish to be eligible on that basis. Section 17(4A) provides corresponding automatic eligibility where the accused's alleged behaviour towards the complainant amounts to domestic abuse. There is also the s 17(5) route for non-accused witnesses in the offences specified in Schedule 1A, subject to its opt-out. An opt-out from automatic eligibility does not itself resolve whether another eligibility ground exists.

Automatic domestic-abuse eligibility has a commencement limit. The commencement of Domestic Abuse Act 2021, s 62, on 19 May 2022 expressly excluded enabling directions under both s 27 and s 28. Accordingly, domestic-abuse status alone does not entitle a witness to video-recorded evidence-in-chief or pre-recorded cross-examination. A different, satisfied eligibility route may matter: for example, an under-18 witness qualifies under s 16, and an adult may independently satisfy the s 17(1) fear-or-distress test. That still leaves the separate availability restrictions on the particular measure. SI 2022/553, reg 2(1)(a) and (2).

Eligibility is not the final direction. Under s 19, the court assesses whether any available measure or combination is likely to improve evidence quality. If so, it selects what is likely to maximise that quality so far as practicable and makes the appropriate direction. It considers all the circumstances, including the witness's views and whether the measures might inhibit effective testing of the evidence. The witness's preference is important, but does not alone determine the order. The court should identify the actual barrier—seeing the accused, difficulty processing language, fear of the courtroom, or a sensory limitation—and how the proposed arrangement addresses it.

Not every measure is available on every eligibility ground. Under s 18, the s 16 route can support the measures in ss 23–30, subject to the individual provisions and implementation arrangements. The s 17 route does not by itself make the s 29 intermediary or s 30 communication-aid measures available. Section 28 has additional commencement limits. Distinguish a statutory entitlement or direction from other reasonable adjustments that the court can make to manage the proceedings fairly.

Screens and live links perform different tasks. A screen under s 23 prevents the witness from seeing the accused while preserving the necessary views for the judge, jury and representatives. It does not conceal the witness's identity automatically. A live link under s 24 permits evidence from outside the courtroom through an audiovisual connection. The court must consider the proposed arrangements, including where the witness will be, who may be with them, and communication with the court. Neither arrangement dispenses with proper questioning. Once a live-link direction governs the evidence, a departure requires the court's leave under the statutory conditions.

Other courtroom arrangements have specific limits. Section 25 permits evidence in private in its specified sexual-offence, modern-slavery and domestic-abuse proceedings, or where the statutory intimidation ground is satisfied. It is not a general power to exclude the accused or the parties' legal representatives; the statutory protections for attendance, including the qualified media provision, remain. Section 26 permits removal of wigs and gowns. The purpose is an appropriate evidence environment, not a different burden of proof.

Recorded evidence-in-chief: s 27. An interview recording may be admitted instead of the witness giving the same initial account live. The court controls its admission and any editing, including exclusion of inadmissible material. The witness ordinarily remains available for cross-examination. A video recording is not automatically admissible simply because the police made it, and this measure is not a general substitute for the hearsay rules when the witness is absent.

Recorded cross-examination and re-examination: s 28. This requires the relevant s 27 direction and a qualifying witness in proceedings to which s 28 has been brought into force. The questioning takes place under judicial control and is recorded for later use. The accused must be able to follow it and communicate with their representative; the measure does not remove the opportunity for a defence challenge. Further questioning is not available merely because an advocate later prefers a different approach: it requires a further direction within s 28(5)–(6), for qualifying new material or otherwise in the interests of justice.

Section 28 availability is narrower than all special-measures eligibility. Its implementation covers qualifying s 16 witnesses and s 17(4) sexual-offence or modern-slavery complainants across the Crown Court; the remaining Crown Court extension took effect on 1 February 2023. A fear-only or domestic-abuse-only classification is not enough. There is also a specifically commenced s 16 route in the youth court sitting at Leeds Magistrates' Court, from 26 September 2022. This limited route must not be turned into a nationwide magistrates' court entitlement. Check the actual court, eligibility ground and implementation arrangements rather than assuming that a recording can be ordered everywhere. SI 2023/100, art 2; SI 2022/992, art 2(4); YJCEA ss 18 and 28.

Children: the primary rule and its exceptions. Under s 21, the normal combination for a child witness is a video-recorded interview as evidence-in-chief and live-link evidence for what remains, subject to availability, the s 27 controls and the statutory exceptions. The court may omit a measure if it would not be likely to maximise evidence quality. A child can also express a wish not to use a measure, but the court must be satisfied that omission would not diminish quality. It considers age and maturity, the ability to understand the consequences, relationships, background and the nature of the offence. Do not treat either preference or age as the entire decision.

The screens fallback is conditional. Under s 21(4A)–(4C), where omission following the child's qualified opt-out would mean giving evidence in court, the direction normally provides for a screen. The child can express a wish not to have it, subject to the no-diminution test; the court may also omit it where it would not maximise evidence quality. This is not a rule that any failure to use video or live link automatically requires a screen, whatever the reason. The statutory treatment of a witness who turns 18 also distinguishes ongoing testimony and qualifying recordings: recheck ss 21(8)–(9) and 22, rather than discard an existing recording solely because a birthday has passed.

Adult sexual complainants have a separate recorded-chief rule. In the Crown Court, s 22A addresses a non-child sexual-offence complainant eligible under s 16(1)(b) or s 17(4), where a party requests admission of the interview recording. Its primary rule remains subject to the s 27 admissibility controls and the statutory quality exception. Do not transfer the whole child-witness package to every adult complainant.

Application and timetable. Under CrimPR r 18.4, a party applies in writing as soon as reasonably practicable, and ordinarily no more than 20 business days after a not-guilty plea in the magistrates' court, or 10 business days after a not-guilty plea in the Crown Court. Serve the court officer and every other party. Identify the witness, the eligibility ground, the requested measures, the witness's views and the reasons they should improve quality; explain any recording and intermediary requirements. Rule 18.10 governs the content. An opposing party ordinarily has 10 business days after service for representations under r 18.13. Business days exclude weekends and the holidays identified in r 2.2; do not count these as calendar-day periods.

Apply early, not at the outer deadline as a matter of routine. For a proposed s 28 case, Criminal Practice Directions (CPD), para 6.3.10, requires the special-measures application and a transcript of the Achieving Best Evidence (ABE) interview to be served on the court and defence at least five business days before the Plea and Trial Preparation Hearing. Any Registered Intermediary report must accompany the application. That hearing is where the Crown Court organises the trial. Under r 18.8(2) the court fixes the ground-rules hearing, recording date and timetable for any application for further questioning. Rule 18.6 allows the court to shorten or extend a time limit, including after expiry, or allow another form; a late party must apply and explain the delay. Lateness neither proves ineligibility nor guarantees relief. If sexual-history leave creates a new need for support, r 22.7 supplies its separate application window of no more than 10 business days after that ruling.

Directions must remain workable. The court gives reasons under r 18.5. A direction normally binds through the proceedings. A party seeking its variation or discharge must identify the material change and statutory basis, not simply request a different preference at trial. The court retains its own powers of review. If a link fails or the witness's needs change, raise the problem immediately for a lawful alternative or adjournment; do not continue on the fiction that the original plan is working. YJCEA s 20; CrimPR rr 18.6, 18.9 and 18.11.

Apply the child's primary rule, any valid opt-out and the detailed section 28 implementation limits above where relevant. Authorities: YJCEA sections 16–22 and 27–29; SI 2022/553; CrimPR 18.19.