Vulnerable defendants, special measures, and miscarriages of justice in England and Wales

Abstract – In the late-80s and throughout the 1990s, support for vulnerable and intimidated witnesses in England and Wales developed in the form of special measures. Under the Youth Justice and Criminal Evidence Act 1999, these measures provide adaptations to the traditional way in which evidence is collected and heard from witnesses who are vulnerable (under 18, or adults with mental health problems, or physical or learning disabilities/disorders) or intimidated (in fear or distress in connection with testifying in the proceedings). Vulnerable defendants are not eligible for special measures under this statutory scheme. Over the past two decades, we have seen an expansion of support to vulnerable defendants via ad hoc statutory provisions (live link) and case law (screens and intermediaries). This chapter considers the consequences of the still unequal provision of special measures to the accused. It looks at the effect that the lack of support—in both law and practice—has on the defendant’s rights under Article 6 of the European Convention on Human Rights, namely the right to participate effectively in the proceedings (Article 6(1)) and the principle of equality of arms. The chapter argues that the deficiencies in support for vulnerable defendants make it likely that miscarriages of justice are routinely occurring in the criminal justice system. It further argues that the nature of such cases presents significant hurdles to challenging these failures post-conviction, due to the difficulty pinpointing how the lack of a safeguard directly impacted upon the safety of the conviction. This chapter thus makes a compelling case for ensuring that the support available to vulnerable defendants is improved and, importantly, is implemented at the appropriate stage of the proceedings.