Clause 9: Duration of contract

60.     The contract runs from the date that it is agreed (subsection (2)) and lasts for the period specified by the court in its referral order (subsection (3)), except where the order is subsequently extended by the court following a further offence or is terminated by a court after the offender has been referred back to the court by the youth offender panel (subsections (5) and (6)).

61.     Where the court has made two or more referral orders, the contract may not continue in force for more than 12 months after it is agreed (subsection (4)).

Clause 10: First meeting: failure to agree contract

62.     The clear intention is for the contract to be agreed at the first meeting of the youth offender panel. The meeting may be reconvened in order to reach agreement, but clause 10 provides that where there seems to be no prospect of reaching agreement, or where an agreement appears to have been reached but the young offender refuses to sign the contract, the youth offender panel must refer the young offender back to the court for re-sentencing (as to which see Schedule 1).

Clause 11: Progress meetings

63.     Clause 11 enables the youth offender panel to hold progress meetings during the course of the contract, as considered appropriate to monitor the young offender's progress. The number of meetings is not prescribed since it will depend on the length of the referral and the level of support the young offender appears to need in order to comply with the contract and complete the programme successfully. Progress meetings will also be required if a young offender wishes to vary the terms of the contract in any way or if there appears to a breach of the contract.

64.     In the event of an apparent breach, the purpose of the meeting will be to discuss with the young offender what has happened so that the youth offender panel can assess whether it will be appropriate to continue with the contract, perhaps varied to take account of any genuine difficulties that may be preventing compliance. If the breach is without good reason the panel may consider it to be sufficiently serious to refer the young offender back to court for re-sentencing (as to which see Schedule 1).

65.     Where there is a major change in the circumstances of the young offender (such as moving to live abroad) which would make it impossible to comply with the terms of the contract, the young offender may ask the youth offender panel to seek revocation of the order. In such cases the panel may terminate the meeting, where the request seems reasonable, to refer the case back to court for revocation to be considered (as to which see Schedule 1).

66.     Where it is considered appropriate to vary the terms of the contract, subsections (6) and (7) provide that, as with the original contract, the revised version should be set out or explained in clear language, signed by both the offender and a member of the youth offender panel and then copied to the offender. Subsection (9) provides that the same general rules governing content should apply to the varied contract as to the original.

Clause 12: Final meeting

67.     Clause 12 provides for the youth offender panel to call a final meeting before the end of the period specified by the referral order in order to review the young offender's overall compliance with the agreed contract.

68.     If the youth offender panel is satisfied that the contract is being successfully completed the order will be discharged as from the end of the period. If the panel is not so satisfied, the young offender will be referred back to court for re-sentencing (as to which see Schedule 1). The young offender must be provided with the panel's decision in writing.

69.     If the young offender is unable to attend the final panel meeting but has otherwise satisfactorily complied with the terms of the contract, the youth offender panel may discharge the order in his absence.

70.     The sanction for a young offender's non-compliance with a contract is for him or her to be sent back to court for re-sentencing. A referral back to court can be triggered by failure to attend a meeting; failure to agree a contract; refusal to sign a contract; or failure to meet the requirements of an agreed contract. The mechanics of the referral back procedure are contained in Part I of Schedule 1.

71.     Schedule 1 stipulates that the appropriate court to which the young offender is to be referred back (and which will carry out the re-sentencing) is the youth court or, where the young offender has reached the age of 18, the adult magistrates' court. The youth offender panel will send a report to the court by way of notification. The court will then require the young offender to attend court for a hearing by issuing a summons or warrant as appropriate.

72.     At such a hearing the court must consider the circumstances of the young offender's referral back to the court. The court must then make a finding of fact in respect of the report submitted by the youth offender panel.

73.     Where the court is satisfied that the referral back was justified, paragraph 5 empowers the court to revoke the referral order and to sentence the young offender afresh, with the same sentencing options (other than referral) as were available to the court which originally sentenced the offender. The court should consider the report of the youth offender panel and take into account the extent of the young offender's compliance with the contract up to the point of the referral back in reaching a decision on a fresh sentence. The offender will have a right of appeal to the Crown Court against any sentence imposed.

74.     It is hoped that inappropriate referrals back to the court will be rare, but where (for example) the court finds that an alleged breach is unsubstantiated or that a breach has indeed occurred but that it was a minor issue given the particular circumstances of the case, it should not revoke the referral order. In that event the youth offender panel should continue to try to negotiate a contract where one has yet to be agreed. Any contract agreed before the referral back to court will have continued in force during the resulting court proceedings with the panel continuing to monitor the young offender's progress and compliance.

75.     Part II of Schedule 1 provides for cases where a young offender who, having been referred by a court to a youth offender panel, is part-way through the referral period when he finds himself back before a court charged with a further offence. Where that offence (and any other further offences for which he is being sentenced on that occasion) occurred before the referral order was made, the court may sentence the offender for the further offence (or offences) by way of an extension to the existing referral period. Since any extension to the order must not extend its overall length beyond the maximum period of 12 months, this sentencing option will not be available where the original referral was for a full 12 months. Similarly, since the power of referral relates to young offenders aged from 10 to 17, this sentencing option will not be available if the young offender has reached the age of 18.

76.     The option to extend an existing referral order also applies where a court is dealing with a further offence committed after the order had been made, although this course of action is only likely to be appropriate in exceptional circumstances. Paragraph 12 of Schedule 1 requires the court to take account of any exceptional circumstances and, where they lead the court to make an extension of the original referral order, to give reasons for doing so in open court. The court's decision should be in line with the youth justice system's principal aim of preventing offending by children and young people.

77.     The Secretary of State may vary the cases in which extensions to referral orders may be imposed by way of sentence for further convictions. Any such amendment would be made by regulations subject to the affirmative resolution procedure (i.e. Parliament will be asked to discuss and approve it).

78.     The requirements of a youth offending contract under a referral order are incompatible with a custodial sentence and may interfere with aspects of other orders. Where a court decides to sentence in respect of further convictions otherwise than by extending an existing referral order, paragraph 14 of Schedule 1 creates a duty to revoke the referral order. This, in turn, will cause the contract drawn up with the youth offender panel to expire.

79.     In these circumstances, the court may re-sentence the offender for the offence in respect of which the revoked referral order was made. But in doing so the court must take into account how far the young offender may have already complied with the contract.

80.     The only exception to the use of the power of revocation is the case where the court gives an absolute discharge for the further offence as then there will be no difficulty with the existing referral order continuing to stand.

Clause 14: Functions of youth offending teams

81.     Clause 14 (along with paragraph 23 of Schedule 4) adds to the functions of youth offending teams, originally set by the Crime and Disorder Act 1998, to take account of their specific new responsibilities in respect of referral orders (which include the setting up of youth offender panels and the keeping of records of an offender's compliance with the terms of his contract).

Part II: Giving of evidence or information for purposes of criminal proceedings

Clauses 16 and 17: Eligible witnesses

82.     Witnesses other than the defendant (who already has the benefit of a number of procedural safeguards) will be eligible for special measures to assist them in giving evidence in criminal proceedings if:

• they are under 17;

• they suffer from a mental disorder, or have a mental impairment or learning disability (which could include autistic spectrum disorders) that the court considers significant enough to affect the quality of their evidence;

• they have a physical disorder or disability (which could include deafness) that the court considers likely to affect the quality of their evidence; or

• the court is satisfied that the witnesses are likely, because of their own circumstances and the circumstances relating to the case (clause 17(2)), to suffer fear or distress in giving evidence to an extent that is expected to affect its quality.

It will be possible to make applications, and for courts to grant special measures, on more than one of these grounds.

83.     A witness under the age of 17 will always be eligible ( and clause 21 provides for measures to continue when a witness turns 17 before the end of the trial). Otherwise, in deciding eligibility the court must consider witnesses' own views about their status. Complainants of sexual offences will be presumed to be eligible unless the court is satisfied that in the particular circumstances, and after considering the views of the complainant, special measures are not necessary.

84.     It is intended that the court will authorise special measures (see clause 19) if it takes the view that a measure or measures will be likely to improve the quality of a witness's evidence. Without the measures, the quality is likely to range

• from being unintelligible (in that the witness would not meet the tests for competence and intelligibility given in clauses 52 and 54: "to understand questions put to him as a witness and give answers to them which can be understood")

• to being of lesser quality than it otherwise could be, by virtue of the circumstances which make the witness eligible for the measures.

'Quality' means more than intelligibility (clause 16(5)): it encompasses completeness, accuracy and being able to address the questions put and give answers which can be understood (both as separate answers and when taken together as a complete statement of the witness's evidence).

Clause 18: Special measures available to eligible witnesses

85.     Subsection (1) of this clause provides that the special measures set out in clauses 22 to 29 are available to all eligible witnesses. The only exceptions are the examination of a witness through an intermediary (clause 28) and the use of a communication device (clause 29), which are not available to witnesses who are eligible on the ground of fear or distress only. Courts will continue to have a common law discretion to make measures available to disguise witnesses' identities in the wholly exceptional circumstances (such as where a public interest immunity certificate has been granted) where that identity needs to be kept secret in court.

86.     Subsection (2) provides that courts will not be able to award any of the special measures until they are notified by the Secretary of State that a particular measure or group of measures is available in their area: this will allow for piloting and phased implementation of the measures.

87.     The Secretary of State will be able to make new special measures available, and amend or remove others, by orders subject to the affirmative resolution procedure (i.e. the orders will have to be discussed and approved by Parliament) (subsection (5)).

Clause 19: Special measures direction relating to an eligible witness

88.     This clause describes what the court must consider when it decides, on application from either the prosecution or the defence, or of its own accord, whether special measures might be appropriate for a witness. These are:

• eligibility under clause 16 or 17; and

• whether any of the special measures available would improve the witness's evidence (subsection (2)) in the circumstances of the case (including the witness's own views and the possibility that the measures might tend to inhibit the evidence being tested effectively) and, if so, which ones.

89.     Any direction must give detailed instruction about where, when and how the measures specified must be provided (subsection (4)).

90.     The inherent discretion of the court to offer these or other measures to witnesses who do not qualify as eligible, or who need measures for reasons other than age, incapacity, fear or distress, is unaffected (subsection (6)).

91.     This clause provides that special measures directions are to be binding until the end of the trial although the court can alter or end a direction if it seems to be in the interests of justice to do so. Either party can apply for the direction to be changed or discharged, but it must show that there has been a significant change of circumstances since the court made the direction or an application for it to be changed was last made.

92.     This provision is intended to create some certainty for witnesses, by encouraging the parties to make applications for special measures as early as possible and by preventing reapplications on grounds the court has already found unpersuasive.

93.     Special measures directions can be made before the trial begins, at the Plea and Directions Hearing or another pre-trial hearing. New special measures directions might also be made if, after the verdict, witness testimony were needed for a Newton hearing (to settle the factual basis upon which sentence will be passed), a retrial or appeal proceedings.

94.     Subsection (5) is intended to ensure that there is a written record of the court's reasons for giving, altering or discontinuing a direction or refusing an application. This is intended to include, for example, the court's reasons for deciding that a witness is ineligible for help. The reasons should be recorded so that it is clear to all parties what decision has been made and why it was made.

95.     It is intended to use the rule-making powers in subsection (6):

• to enable applications that are not contested by the other side to be decided by the court without a hearing;

• to prevent the renewal of an unsuccessful application under this clause except where there has been a material change of circumstances;

• so that expert witnesses can give evidence about whether a witness will benefit from special measures (the court can hear evidence from non-expert witnesses on such subjects under its existing discretion);

• to govern the way that confidential and sensitive information connected with applications for special measures is dealt with.

Clause 21: Special provisions relating to young witnesses

96.     This clause imposes special obligations on the court in dealing with witnesses under the age of 17 in cases where certain of the measures have been made available to the court.

97.     Subsections (2) to (5) set up a new presumption that witnesses under the age of 17 should normally give their main evidence by means of a video-recorded interview, and further evidence by live link at trial. Courts would not make such a direction if the video recording is inadmissible because of a procedural or technical defect, or if the Secretary of State has not yet made the relevant measures available in that area. And it would not make such a direction if it was satisfied that, in the particular case, the witness did not need measures.

98.     Subsection (6) provides that where a witness has turned 17 before he begins to give evidence and is not eligible for special measures for any other reason, then the direction will be revoked. But if the witness turns 17 after he has begun to give evidence, the special measures he has been provided with will continue to apply. The intention is to reduce confusion for the witness and the court.

99.     Subsections (7) to (9) provide that if a witness gave video-recorded evidence in chief or was cross-examined on video before the trial at a time when he was still under 17, but has since turned 17, the video recording will still be admissible as evidence.

Clause 22: Screening witness from accused

100.     Subsection (2) is intended to ensure that screens authorised under this clause to shield the witness from seeing the defendant do not prevent the persons judging the case (whether judge, magistrates or jury) and at least one legal representative of each party to the case (i.e. the prosecution and each defendant) seeing the witness.

Clause 23: Evidence by live link

101.     This clause provides for witnesses to give evidence by live link. This would usually mean a closed circuit television link, but the clause is drafted sufficiently widely to include any technology with the same effect within its meaning.

102.     Subsections (2) and (3) are intended to create a presumption that a witness who gives evidence by live link for a part of the proceedings will continue to give evidence via this means throughout.

103.     Subsections (5) and (6) describe how temporary facilities may be made available to magistrates' courts for the purposes of hearing evidence by live link.

Clause 24: Evidence given in private

104.     This clause allows the courtroom to be cleared of spectators while a witness gives evidence. The measure will only be available in a case involving a sexual offence or when the court is persuaded that someone has tried to intimidate, or is likely to try to intimidate, the witness. The direction will describe individuals or groups of people, rather than areas of the court, and will mostly affect those in the public gallery and the press gallery. The court will have to allow at least one member of the press to remain. The freedom of any member of the press who is excluded under this clause to report the case will be unaffected, unless a reporting restriction is imposed separately.

Clause 25: Removal of wigs and gowns

105.     This measure can apply to the judiciary as well as legal representatives.

Clause 26: Video recorded evidence in chief

106.     This clause provides that a video recorded interview can take the place of a witness's evidence in chief, both at trial and for the purposes of committal proceedings (subsection (10)).

107.     Subsections (2) and (3) allow for the exclusion of recordings if the interests of justice so require and for the editing of recordings. In deciding whether to allow only an edited recording to be used in evidence, a court will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

108.     Subsection (4) provides that where a direction has been made for a recording to be shown to the court, the court can later exclude the recording if there is not enough information available about how and where the recording was made or if the witness who made the recording is not available for further questioning (whether by video, in court or by live link) and the parties have not agreed that this is unnecessary.

109.     The video recording (as edited, in a case where that is required) will form the whole of a witness's evidence in chief unless:

• the witness is asked to give evidence about matters not covered in the recorded interview; or

• the court gives permission for the witness to be asked further questions about matters not covered adequately in the recorded interview. Subsections (5)(b) and (7) provide that the court can give such permission on its own initiative or on an application by one of the parties if that party can show that there has been a material change of circumstances since the direction to admit the video recording was made.

110.     If the witness is asked to give further evidence, subsection (9) provides that the court may direct that the evidence should be given by live link and, as in other circumstances where live link is provided, that temporary facilities may be authorised for the purpose.

111.     It is intended that when a video recording is made of an interview with a witness aged 14 or over then, in anticipation of an application being made for a direction under this clause, the witness should be asked to make an affirmation at the beginning of the interview unless an affirmation would be wholly inappropriate. Where an affirmation is not made the evidence admitted will be evidence given unsworn.

Clause 27: Video recorded cross-examination or re-examination

112.     This clause provides that, where the court has already allowed a video recording to be admitted as the witness's main evidence, the witness may be cross-examined before trial, and the cross-examination, and any re-examination, recorded on video for use at trial.

113.     The video-recorded cross-examination would not take place in the physical presence of the defendant, although he would have to be able to see and hear the cross-examination and be able to communicate with his legal representative. This could be achieved through a live link, for example.

114.     The video-recorded cross-examination may, but need not, take place in the physical presence of the judge or magistrates and the defence and prosecution legal representatives. However, a judge or magistrate will have to be able to control the proceedings. It is intended that the judge or magistrate in charge of this procedure would normally be the trial judge. All the people mentioned in this paragraph will have to be able to see and hear the witness being cross-examined and communicate with any one who is in the room with the witness (such as an intermediary).

115.     As with video-recorded evidence in chief, a video recording of a cross-examination made in accordance with the court's direction may afterwards be excluded if any rules of court governing the cross-examination have not been complied with (subsection (4)).

116.     Subsections (5) and (6) provide that witnesses who have been cross-examined on video are not to be cross-examined again unless the court makes a direction permitting another video-recorded cross-examination. It will only do so if the subject of the proposed cross-examination is relevant to the trial and something which the party seeking to cross-examine did not know about at the time of the original cross-examination (and could not have reasonably found out about by then) or if it is otherwise in the interests of justice to do so. Information that has not yet been disclosed to the cross-examining party is intended to count as information that the party could not reasonably have found out about.

Clause 28: Examination of witness through intermediary

117.     This clause provides for witnesses to be questioned and to give evidence through an intermediary. An intermediary is someone whom the court approves to communicate to the witness the questions the court, the defence and the prosecution ask, and then communicate the answers the witness gives in reply. The intermediary will be allowed to explain questions and answers if that is necessary to enable the witness and the court to communicate.

118.     It is intended that an intermediary will be a specialist - through training or, perhaps, through unique knowledge of the witness - in communicating with a witness who has particular difficulty understanding questions or framing evidence coherently. An intermediary might also have specific skills to overcome specific communication problems, such as those caused by deafness. Deaf witnesses will be able to choose to rely on existing administrative arrangements for the provision in court of interpreters for the deaf, or, if they prefer, to apply for an interpreter or communication aid under the Bill's provisions.

119.     The judge or magistrates and at least one legal representative for both the prosecution and the defence must be able to see and hear the witness giving evidence and be able to communicate with the intermediary. The jury will also be able to see and hear the witness unless the evidence is being video-recorded (in which case they will see the recording when it is shown to them later).

120.     Where intermediaries are used at a very early stage of an investigation or proceedings, and subsequently an application is made for a video recording of an interview in which they were involved to be admitted as evidence, that direction can be given despite the judge, magistrates or legal representatives not having been present. But the intermediary who was involved must still gain the court's approval retrospectively before the recording can be admitted.

121.     Intermediaries will have to declare that they will perform their function faithfully. They will have the same obligation as foreign language interpreters (whose services are not a measure for which this clause provides) not to wilfully make false or misleading statements to the witness or the court. If they do make such statements they will commit an offence under the Perjury Act 1911.