One of the practical realities affecting the criminal justice system is that the success or failure of many criminal prosecutions depends largely upon the availability, and quality, of evidence given by witnesses. It is also an unfortunate reality that, in many such cases, the witness or witnesses relied upon by the prosecution require assistance or, in extreme cases, protection so as to give the best testimony possible. The issue is perceived to be particularly acute where key witnesses are children and may be required to testify to abuse that they, themselves, have suffered, although the same difficulties often arise with adult victims, for instance in the context of domestic abuse. Securing a conviction, therefore, often turns on the ability of the court system to accommodate the special needs of vulnerable or at-risk witnesses, and in that respect the existing legal and procedural regimes were broadly considered to be inadequate. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) was introduced as part of New Labour’s stated aim of modernising the youth justice system. As a starting point, the younger the suspect, the less likely it is that a prosecution is required.

The prosecutor should engage actively with the defence and the court to establish whether the application is contested and a hearing required or whether the application can be granted on the papers. For example, a hearing may not be necessary where the witness is recognisable by the defendant and known only by an assumed name (such as an undercover police officer) and there is no likelihood that the witness’s credibility will be in issue. The court may indicate a provisional decision and invite representations within a set period, usually 14 days, including representations about whether or not there should be a hearing. On 29 June 2018, local authorities began their transition from Local Children's Safeguarding Boards (LSCBs) to the local safeguarding partner arrangements set out in Working together to safeguard children 2018 (Department for Education, 2018a).As this extract states, the prosecutor must ensure that the court is provided with all material relevant to the application, including any material capable of tending against it being made. In legal terms, as is indicated above, the methodology of the YJCEA revolves largely around the introduction of a series of ‘special measures’, introduced in Part II of the Act, as well as significant procedural reform of the youth criminal justice system, introduced in Part I.

sexual behaviour’ means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused’ Child witnesses under the age of 18 are automatically eligible to apply for special measures by virtue of section 16 of the YJCEA 1999 and the court just has to satisfy itself that the special measure is likely to maximise the quality of the witness’s evidence before granting an application.

However, there may be circumstances where the offence committed is so serious or the suspect’s past record suggests that there are no suitable alternatives so that a prosecution is therefore in the public interest. Other aggravating features are: Accordingly, prosecutors must ensure that any material which may identify the witness is separately provided to the court and only relied upon at the final stage, where the court considers that information and hears representations by the applicant in the absence of the defendant(s). A ‘Rapid Review’ will be held within 15 days of referral of a case to establish the type of review required Prosecutors should first identify the nature and degree of risk of prejudice to a fair trial in disclosing particular items of material. Having identified the risk, what material can be disclosed without compromising a fair trial? If material cannot be disclosed safely forthwith, can it be disclosed at a later date? What is the issue to be decided in the family court?