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What special measures are available in Ireland? 

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- Video link - where the witness doesn't have to be physically in the court room but can give their evidence in another room via a camera. They will be seen on screens in the court. The evidence must be recorded  as it is being given.  A court usher brings the witness to the videolink room. He or she swears an oath or affirms to promise  to supervise the witness and make sure the evidence isn't tainted in any way:

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I swear by Almighty God that I shall well and truly keep this witness, that I shall not speak to him or her or allow any person to speak to him or her on any matter in connection with this trial. 

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Videolink helps witnesses give evidence without the feeling of intimidation of being in the court but it does have a drawback in that it can 'flatten' the evidence. Testimony given physically from the witness box can have a very powerful effect. Videolink has become very common for elegible complainants and witnesses since it was first introduced by s. 13 Criminal Evidence Act 1992. Defendants are excluded at the moment from the relevant legislation from giving evidence via videolink but an argument could be made that, if a vulnerable witness wished to give evidence (and it is quite rare for a defendant to give evidence) that he or she would be allowed by the court to give evidence via videolink to allow him or her to better participate in the trial. 

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- Recorded Testimony 

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For elgible witnesses, their evidence in chief evidence can be recorded in advance and, if the court permits, played at trial. This can be a huge benefit for vulnerable witnesses. If the court allows the recorded testimony to be admitted then there is a great deal of certainty about what evidence will be given and the fear about having to tell what happened  in a witness box live in court may be diminished. But the complainant or witness will still have to be available (whether behind a screen or via videolink) to be cross-examined. There may be no cross-examination - that's up to the defence but the complaiant or witness still has to be available for cross -examination.  There is no legislation that allows testimony for defendants to be recorded. And there seems to be no plans at the moment to allow for the fully recorded testimony ie both examination in chief and cross - examination testimony to be implemented in Ireland. This has been started in the UK but has not been rolled out nationally. 

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- Intermediaries 

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If a vulnerable witness has a communication diffiulty, the court may appoint an intermediary to help them. Under the legislation, the intermediary can explain the questiions to the witness or complainant. They can't explain the answers back. There is no information in the legislation as to who can act as an intermediary. The court can appoint someone they think fit. But this person may be challenged by the defence if there is a possibility that the intermediary might prejudice the evidence,for example, if they know the witness or complainant very well and won't be able to be independent, then they might not be able to act as an intermediary. In the UK , a panel of independent and trained intermediaries has been established. A couple of times, the Irish legal system has asked intermediaries from this panel to act in Irish trials. It is possible for intermediaries to act for defendants and this has happened on a couple of occasions where the court appointed someone to help the defendant participate in the proceedings which is important under the Constitution of Ireland and under European law. 

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- Screens 

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Where a witness doesn't want to use videolink or pehaps is not eligible for it, there is an option of giving evidence behind a screen so that while the defendant can her the evidence, they won't be able to see the complainant or witness and so hopefully he or she will be less intimidated. New legislation has allowed the use of screens in Dublin but the measure has always been available through an old case called R v Smellie (1919) 14 Cr App R 128 where a young girl gave evidence of abuse against her father while he remained out of sight in the stairwell leading to the cells of the courthouse. 

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Recorded Testimony

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Can the jury watch the DVD in the jury room? 

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The recording of examination in testimony is not the same as an exhibit and shouldn't be treated as such . Repeated viewings by the jury may give it an unnatural weight which may undermine the rights of the defendant. Where evidence is given by a witness in court, it is not repeated by the witness themselves but if the jury has a query, the judge may repeat the specific point in question  to the jury. The recording should be treated as examination in chief testimony. However, this point came up in the Court of Appeal in DPP v PP and the Court did not allow the appeal on this point but only on the basis that no injustice had arisen from this transgression.  

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In DPP v PP[1] previously unexamined aspects of the use of s.16(1)(b) Criminal Evidence Act 1992 were considered. When evidence had been completed at trial and the jury had retired, they had been given all exhibits included the DVD recorded under s.16(1)(b). The defence had objected on the basis that the recordings were to be regarded as oral evidence[2] and if the jury wished to have their memory refreshed regarding any part of it, it was appropriate that this be done in open court.  The trial judge permitted the jury to have the recording in the jury room and this recording could be played whenever wished during deliberations.

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This became a point of appeal as the appellant argued that the fact that the jury were able to view the recording during deliberations gave this testimony an unnatural weight which was prejudicial to the defendant. While there was no appropriate case law in this jurisdiction, the appellant cited relevant English case law. The case of R v Rawlings and R v Broadbent[3] was very clear on the point. This case stated that where the jury wished to have their memory refreshed, only the part of the evidence which was relevant should be replayed in open court. The judge, from his own notes, should also remind the jury of what was said in cross-examination and re-examination and these dicta had been approved in the more recent case of R v John Baird.[4]

 

In DPP v PP,[5] the Court of Appeal dismissed the appeal on this and other grounds. On this point, the court stated that the relevant cross-examination had been short and limited to general questions. It determined that there was no issue of any injustice resulting from the jury viewing ‘the s.16 DVD’ in their room along with any other exhibits. It is submitted that this judgment highlights the confusion that may arise between an ordinary exhibit, which may include recordings such as CCTV evidence, and the recording of evidence under s.16(1)(b). The subsection is quite clear in that it states that such recording shall be ‘admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible’.[6] If a jury had a query regarding testimony which had been given in court, it would be usual for the judge, in the presence of both counsel, to refresh the memory of the jury from his notes and from a transcript of the particular day’s evidence. It would be highly unusual for the judge to allow the transcript to be given to the jury for their deliberations.

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In DPP v PP,[7] the court noted that the defence objection at trial had been cursory in nature and the judgment appears to consider that this is an important factor in the dismissal of the ground of appeal. It is submitted that the Court of Appeal was incorrect in this instance and it is hoped that future decisions will follow the lead of the appropriate case law in England and Wales.

 

[1]           DPP v PP [2015] IECA 152. The judgment of the 6th July 2015 was delivered by Sheehan J.

[2]           The recording is ‘admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible’ and therefore is the equivalent of oral testimony.

             S.16(1)(b) Criminal Evidence Act 1992.

[3]           R v Rawlings and R v Broadbent [1995] 1 WLR 178.

[4]           R v John Baird [2007] EWCA Crim.287.

[5]           DPP v PP [2015] IECA 152.

[6]           S.16(1)(b) Criminal Evidence Act 1992.

[7]           DPP v PP [2015] IECA 152.

 

 

 

 

Can the jury be given a copy of the transcript of the DVD? 

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There is no guidance for this issue in this jurisdiction  so we have to look to other jurisdictions with similar legislative provisions to see  how they deal with this.  English case law provides that the jury may have transcripts of recorded evidence under narrow parameters e.g., the jury cannot bring the transcript into the jury room during deliberations in case the evidence is given an unnatural weight. R v Welstead [1996] 1 Cr App R 59 CA; R v Popescu [2011] Crim LR 227 CA; R v Sardar [2012] EWCA Crim 

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Is the judge under an obligation to mention to the jury that the use of special measures should not prejudice the defendant?

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An argument may be made that the use of special measures may be prejudicial to the defendant. If they are used at trial, then there is a risk that the jury may believe that they are necessary as the witness is in fear of the defendant and must be protected due to a factor  relating to the matter before the court. 
There is no provision in this jurisdiction which requires the trial judge to remind the jury that the fact that special measures are being used does not prejudice the accused. However, it is common for the trial judge to note the use of a support measure such as videolink or recorded testimony and indicate to the jury that this is a development which the legislation provides for and which facilitates the giving of evidence. Thus the provision may be seen as assisting the witness to give evidence in what is obviously a stressful situation rather than being a requirement due to any individual characteristic of the defendant in relation to the trial. 

 

In England and Wales, the Youth Justice and Criminal Evidence 1999 as amended does have a specific provision for the judge to consider whether a warning is necessary to ensure that a special measures direction does not prejudice the accused. 
32 Warning to jury.
Where on a trial on indictment evidence has been given in accordance with a special measures direction, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused. 

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