Ground Rules Hearing Archives

What are Special Measures?

26th January 2023

What are special measures and when are they implemented in legal proceedings? Intermediary Georgia Fleming explores the adjustments family and criminal courts can make to improve access to justice for court users with communication difficulties.

When talking about “special measures” in court, most people immediately think about large screens concealing witnesses and children giving evidence via video link. Whilst those strategies are perhaps the most well-known, they are not the only measures that we, as intermediaries, recommend to improve an individual’s participation in legal proceedings.

In simple terms, special measures are adjustments to typical court practices, which are made to help court users (particularly vulnerable witnesses and family court respondents with communication needs) participate fully in court proceedings. Special measures are sometimes also available to defendants with identified needs.

Special measures can vary whether you are in a family court or a criminal court. It is our job, as intermediaries, to look at a service user’s communication profile and determine what strategies or measures would assist to ensure that they can engage fully in proceedings, in the relevant setting. It’s also important to note that special measures can be implemented at any stage of proceedings, they are not restricted to during a court user’s evidence.

In this blog post, we will be looking at special measures in courts and how they can assist service users. We will also explore some of the different ways that we, as intermediaries, ensure best participation and engagement in court, including our role in recommending special measures to the court, following intermediary assessment of the individual concerned.

Special Measures and Criminal Court

Special measures in criminal court were first introduced in the Youth Justice and Criminal Evidence Act 1999 (YJCEA). This act outlined a range of measures that can be applied to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses.

Not everybody can ask for special measures, however. In court, a witness or defendant may request special measures if:

They are under the age of 18
They have a mental health difficulty
They have a learning disability
They have a physical disability
They are an intimidated witness
They are a victim of a serious crime
Or a combination of the above

Just because a person is eligible, does not mean the court will grant special measures. The court has to be sure that the use of special measures will assist defendant or witness to participate fully in proceedings and give their “best evidence”.

Special Measures and Family Court

The guidelines regarding special measures in family court are similar. Special measures are granted for “vulnerable” individuals in family court proceedings under the Family Procedures Rules 2010A. The 2010 Family Procedures Rules (FPRs) were updated in 2017 to ensure that vulnerable individuals were treated more fairly in family court. Previous reports had suggested that the family justice system lagged behind the criminal justice system in its procedures protecting vulnerable individuals. The updated FPR sets out more clearly what constitutes a vulnerable individual and notes that it is imperative that individuals who may be vulnerable are identified as early as possible in the court process. The updated FPR recognises that there are several ways in which an individual might be considered vulnerable. Vulnerabilities may relate to:

the social and cultural background and ethnic origins of the party or witness
the domestic circumstances or religious beliefs of the party or witness
the ability of the party to understand proceedings, make informed decisions and give instructions.

The criteria for special measures in criminal court (above) also apply to family proceedings, e.g., age, mental health difficulty, learning difficulties etc.

Special measures are not restricted to respondents in a family case, but also apply to intervenors, witnesses and child witnesses who are involved. The FPR also state that a Ground Rules Hearing is essential to ensure fairness throughout the trial. The Ground Rules Hearing is also a great opportunity for us intermediaries to speak to the court and make our recommendations.

Examples of Special Measures

There are many examples of special measures which can be implemented in court. Such as:

Intermediary assistance – The assistance of an intermediary during a trial or a family court hearing is an example of a special measure. The role of an intermediary is to facilitate communication between the courts and the service user. This involves the intermediary assessing someone’s communication profile and considering different strategies which can assist them with the court process, then implementing these strategies to support the service user’s understanding, engagement and participation.
Screens – These can be used so that a witness is only seen by the barristers, the judge and the jury (if in criminal court). This can help alleviate anxiety and help the witness to better engage in proceedings. Anxiety can impact an individual’s participation and concentration in court, as well as their ability to focus and answer questions accurately when giving evidence. Moreover, screens can help shield a witness so that they do not have to see certain people in court, which can help manage anxiety levels and improve their engagement.
Live link – This enables the individual to give evidence during the trial or hearing from outside the court through a video-link to the courtroom. This can take place from different locations, such as in a video-link room at court, in the individual’s house or from their solicitor’s office.
Evidence given in private – (Criminal court only) This involves excluding members of the public and sometimes even the press from the courtroom during an individual’s evidence. Again, this helps to ensure “best evidence” as well as best possible engagement.
The removal of wigs and gowns by judges and barristers – (Criminal court only – N.B. legal professionals do not wear wings and gowns in Youth Court). This measure can help support the emotional management of a court user who may find these accessories intimidating, confusing, distracting and/or anxiety-inducing.
Pre-recorded interview – This is usually permitted for those who are vulnerable or who would not be able to give their “best evidence” in person. The practice allows them to record their evidence in advance, with questions put to them in an agreed manner by an agreed individual. This removes the need for them to give live evidence during proceedings.

What are the advantages to Special Measures?

There are many advantages to having special measures. In some cases, their implementation can completely transform the way in which a person participates in legal proceedings and can help them to give evidence to the best of their ability.

Without special measures, the fairness of a court case can change drastically. For example, if a defendant who suffers from severe anxiety is denied the use of a screen in court, it is likely that their evidence will be seriously affected. They may inadvertently forget key information, have difficulty accurately processing questions put to them, struggle to challenge incorrect assertions put to them or misremember important facts, all due to the effect of their anxiety on giving evidence in front of a courtroom and public gallery. Adaptations, such as the use of a screen or live-link, can allow the defendant to better manage their anxiety and give their best possible evidence to the court (which benefits justice as a whole).

Case Study: 17 year old defendant in Crown Court

I once attended Crown Court to assist a young defendant called Jamie [false name]. We met in the cells with his barrister, and it was clear from the offset that he was extremely nervous. He was restless in his seat, fidgeting with his hands and swinging his feet. Having read his intermediary report (which noted his diagnosis of ADHD), I was expecting him to present in this way.

He made little eye contact, and his breathing was rapid. Whilst making superficial conversation, he turned to me and said, “You know what scares me the most? The stuff they wear. I’ve seen it on TV”. I asked what he meant, and he replied, “The stuff they put on their heads and the black gowns. Feel like I can’t look at them”. This is not uncommon. For many people, court is daunting, however as a young defendant, you are under particular pressure, due to your age and the unfamiliarity of your surroundings.

I began thinking about ways to make the process easier for him. The trouble is, court is never easy nor straightforward, regardless of individual difficulties. However, due to his age, and particularly his ADHD diagnosis, the trial was going to be especially difficult for Jamie. After 30 minutes in a pre-trial conference with his legal team, it was evident that he was fatigued and disengaged. I could only imagine how he would feel after a full day in court.

In preparing a list of suggested Ground Rules, we always read the intermediary report whilst also considering our own experience of working with the service user. From my meeting with Jamie, I already knew the type of special measures I would recommend in the Ground Rules Hearing. In court, I outlined Jamie’s communication difficulties and recommended the following measures (among others):

Gowns and caps to be removed in the courtroom to help minimise Jamie’s anxiety and support his emotional management.
All counsel to refer to Jamie by his first name, to aid his engagement throughout proceedings.
Jamie to be permitted to use a fidget aid, both in the dock and whilst giving evidence, to assist his concentration.

The judge immediately approved all these measures. When I informed Jamie of this, his demeanour completely changed. It was like a weight had been lifted from him. Just like that, his outlook on the whole trial had transformed. He presented as being more relaxed and focused. It also improved my rapport with Jamie. He began to ask more questions and would let me know if he didn’t understand something. His presentation at the end of the trial was completely different from the beginning, which is testament to the special measures put in place to help his participation.

Unusual special measures

While some special measures are widely recognised and applied, others require greater creativity or may be more unusual. They may be bespoke, in response to the specific court user’s individual needs and difficulties. For example:

Altering the lighting in the courtroom, if a person has sensory sensitivities which can impair attention or adversely impact emotional management.
Allowing the individual to attend court in clothing (or with a particular item) which assists their emotional regulation (for example, I once assisted an autistic person whose slippers were a special sensory item, which considerably aided his emotional regulation).
Allowing the individual’s therapy animal in the courtroom to alleviate anxiety.

As intermediaries, we are always grateful to the court for considering and permitting measures we recommend. Although they can be effortful to implement, these special measures can be vital in ensuring an individual is able to participate as effectively as possible in proceedings.

To learn more about special measures, Ground Rules Hearings and the intermediary role, visit The Access Brief, a free library of resources, developed by intermediaries for legal professionals. Here you will also find free, bite-sized guides to assisting court users who have a range of diagnoses and common communication difficulties.

Why questions in advance matter

26th July 2022

Holly examines how questions in advance can help legal professionals and their clients.

At the vast majority of Ground Rules Hearings, both in criminal and family cases, Communicourt intermediaries request questions in advance. This practice involves all advocates submitting their intended questions for the respondent, intervenor, witness or defendant to the intermediary in advance of the service user’s evidence.

There are some common objections to the practice, which include the time demands it places upon advocates and concerns regarding the confidentiality of questions. However, in many cases, this measure (which ensures all questions remain strictly confidential) has a considerable positive impact upon service users’ ability to give their best evidence.

In this post, we’ll be taking a closer look at questions in advance, exploring how the process works and why it often assists individuals with communication difficulties.

What are questions in advance?

Questions in advance are frequently raised by intermediaries at Ground Rules Hearings. This measure is widely discussed in guidance and practice directions regarding vulnerable witnesses. Section 5.5 of the Family Practice Directions (3AA), for example, states, “The court must consider whether to direct that […] questions or topics to be put in cross-examination should be agreed prior to the hearing”.

Section 3 of The Advocate’s Gateway: Toolkit 1: Ground Rules Hearings and the Fair Treatment of Vulnerable People in Court, provides helpful information regarding questions in advance. This resource writes, “It is reasonable for judges to ask advocates to write out their proposed questions for the vulnerable witness and share them with the judge and the intermediary (where there is one): ‘So as to avoid any unfortunate misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance.’ (R v Lubemba; R v JP [2014] EWCA Crim 2064, para 42)”.

The Advocate’s Gateway goes on to list a number of clear rules which should apply to this special measure, including:

questions provided to the intermediary are strictly confidential and not to be shared or “telegraphed” to any other professional, party or the service user
the provision of questions in advance is a matter for the judge who will consider whether approving this measure is in the interests of justice
the judge has ultimate responsibility for determining the appropriateness of a question, but may be assisted by information from an advocate or intermediary in doing so

How do questions in advance work?

When questions in advance are agreed at a Ground Rules Hearing, a Communicourt intermediary will typically request that they are provided no later than 48 hours in advance of the service user’s evidence. This will allow sufficient time for the intermediary to review questions and provide feedback to all advocates. Questions are generally requested from all advocates who plan to question the service user.

Once received, the intermediary will review questions, drawing from the service user’s intermediary report (which will include recommendations regarding question style), their experience of the service user (who the intermediary may have spent considerable time with during proceedings), case notes written by previous Communicourt intermediaries and any other information which may be available (e.g. cognitive assessments).

The intermediary will augment each set of questions, providing suggestions for rephrasing, alongside a rationale for any changes. The following fictitious example with Ms X may provide an insight into this stage of the process:

On Sunday evening 8th June 2018 you all had dinner together?

This question is phrased as a statement which is advised against in the intermediary report. It contains time concepts , which may prove challenging for Ms X. This could be rephrased as:

On the day Child A went missing, did you all have dinner together?

Then the children had a bath, then Child B FaceTimed her mum, Is that right?

This is a tag question appended to a multiple part assertion. These question types are advised against in the intermediary report. This could be rephrased as follows:

What happened after dinner?

AND/OR

When did Child B FaceTime her mum?

Was it before or after the children had a bath?

The intermediary may add comments including suggestions regarding how to assist communication when:

asking a question containing time and date concepts
referring the service user to written information
the service user has expressive communication difficulties
the service user has difficulties with attention

Rephrasing question types the service user may not understand or may have difficulty responding to with clarity, including:

tag questions
interrogative statements
questions containing negatives
multiple part questions
lengthy questions
questions preceded by preamble

Or they may suggest simplification of questions containing vocabulary the service user may not understand.

The reviewed questions will then be returned to the relevant advocate. If any queries arise upon receipt of suggested rephrasing, the intermediary will be happy to assist advocates for all parties, as their role is neutral and simply to facilitate best practice communication with the service user.

Reviewed and, in some cases, simplified questions can then be put to the service user during their evidence. During evidence, additional questions may arise. In this situation, advocates can apply feedback from the reviewed questions or the intermediary can monitor new questions as they are put to the service user and intervene if they may be too complex.

The advantages of questions in advance

The key advantage of implementing this practice is that it reduces the risk that questions which may pose difficulty to the service user will be put to them. Although an intermediary can intervene when potentially problematic questions are asked, this approach can disrupt the flow of evidence and requires the service user to process the original complex question, the intervention and the new, simplified question – thus increasing the cognitive demands upon them.

It is often challenging for an intermediary to intervene rapidly enough to prevent a service user answering a complex question which they may not have fully understood or may have difficulty answering clearly. This means the service user may need to answer both the original question and the simplification, which can ultimately increase confusion and impact the clarity of their evidence. It can also increase anxiety for the service user if the intermediary has to intervene after a question, they may assume they have made a mistake and find it harder to continue with the process.

The provision of questions in advance often markedly reduces the need for intermediary intervention during evidence and helps to ensure that questions are put to services users in their simplest form on the first occasion, assisting them to give their best evidence in a clear, smooth and timely manner.

Common objections to questions in advance

While many judges and barristers are very happy to order questions in advance and provide these to an intermediary, a few common queries and objections arise:

Will questions be shared with the service user?

The intermediary’s duty is inherently to the court. All questions received from all parties are kept strictly confidential and are not to be seen by any other party, including the service user or their legal team. The intermediary will not notify the service user of any questions, topics, themes or areas of questioning which may arise, and will not in any way ‘prepare’ them to answer questions.

Counsel are experienced and are familiar with the Advocate’s Gateway

Although many advocates are highly skilled at questioning individuals with communication difficulties, the demands of examining a witness while also carefully monitoring each question for complex syntax, features and vocabulary are considerable. The practice of writing questions in advance to undergo intermediary review can assist all advocates.

The demand upon counsel’s time is too great

Requiring counsel to provide questions in advance certainly adds to advocates’ already considerable workloads. However, by minimising the need for intermediary intervention and the risk of difficulties arising during a service user’s evidence, an overall time-saving stands to be made by the court. If advocates have limited time to provide questions in advance, it may be helpful to agree for a smaller selection of sample questions to be provided. This will ensure there is opportunity for the intermediary to provide feedback on the structure and framing of questions, while reducing the demands placed on counsel.

Will topics in advance suffice?

At some ground rules hearings, topics in advance are suggested as an alternative to questions in advance. Although a list of topics in advance may assist service users with attention difficulties (who may benefit from resources such as ‘topic cards’ to remain focussed), they do not allow the intermediary to provide feedback on the structure of questions or the vocabulary they contain. Rather than topics in advance, a small selection of sample questions (as above) is often a more helpful alternative.

The question of whether to order questions in advance can be a challenging one for judges keen to strike a balance between making realistic demands of busy advocates, while assisting service users to give their best evidence. From an intermediary perspective, the practice is almost always worthwhile, resulting in smoother evidence which allows service users the best opportunity to attend to, process and respond clearly to questions in the first instance, thus saving the court time overall.

Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs, including an information sheet on Questions in Advance.