Further Memorandum from the Ministry of
Defence
PROVISION OF
EVIDENCE THROUGH
A LIVE
LINKCRIMINAL
JUSTICE ACT
1988
1. Live link video evidence. Section
32 of the 1988 Act enables evidence to be given through a live
television link in a Crown Court trial by a witness (other than
the accused) who is outside the United Kingdom. It is applied
to Service Courts with modifications, with effect from 4 November
1996, by the Criminal Justice Act 1988 (Application to Service
Courts) (Evidence) Order 1996 (SI 1996/2592). As modified, the
section allows evidence to be given before a court-martial through
a live television link on the satisfaction of certain conditions,
one of which is that the witness is in a country other than that
in which the court-martial is sitting. For example, it is not
possible to apply to adduce such evidence before a court-martial
sitting in the United Kingdom if the witness concerned is also
in the United Kingdom. The procedure for applying to adduce such
evidence is laid down by rule 60 of the Court-Martial (Army) Rules
1997 (and the Naval and RAF equivalents).
2. Video recordings of testimony from
child witnesses. Until replaced by the Youth Justice and Criminal
Evidence Act 1999, section 32A of the 1988 Act enabled the recorded
video testimony of a child to be adduced before the Crown Court.
It is applied to Service Courts, with modifications, with effect
from 4 November 1996 by the Criminal Justice Act 1988 (Application
to Service Courts) (Evidence) Order 1996 (SI 1996/2592). The procedure
for applying to adduce such evidence is laid down at rule 61 of
the Court-Martial (Army) Rules 1997 (and the Naval and RAF equivalents).
YOUTH JUSTICE
AND CRIMINAL
EVIDENCE ACT
1999
3. Special measures. Section 19
of the 1999 Act provides that special measures directions can
be made in respect of eligible witnesses. Eligible witnesses are
defined by sections 16 and 17 of the Act and refer, generally,
to witnesses who are eligible because of their age or incapacity
(section 16) or through fear of testifying (section 17).
4. Evidence by live link. Section
24 of the 1999 Act provides that a special measures direction
may provide for an eligible witness to give evidence by means
of a live link.
5. These provisions of the 1999 Act came
into force in the civilian criminal justice system on 24 July
2002. Section 61 of the Act enables them to be applied to
Service Courts by order of the Secretary of State. Statutory instruments
have been drafted that will apply them (with the appropriate modifications)
to Service courts and it is anticipated that these statutory instruments
will be laid within the next two months.
CRIMINAL JUSTICE
ACT 2003
6. Live links in criminal proceedings.
Section 51 of the 2003 Act enables a court to authorise witnesses
other than the defendant (and not solely witnesses who are vulnerable
or outside the United Kingdom), to give evidence through a live
link in certain criminal proceedings. "Live link" is
defined in section 56(2) of the 2003 Act and will usually mean
a closed circuit television link, but could apply to any technology
with the same effect such as video conferencing facilities or
the internet. Subsections (4)(a) and (4)(b) provide that a court
may only authorise the use of a live link if:
— it is in the interests of the efficient
or effective administration of justice for the witness to give
evidence by way of a live link (for example, a witness may be
able to give evidence from his place of work in a different part
of the United Kingdom rather than have to travel to court); and
— the court has been notified by the
Secretary of State that suitable facilities are available in the
area where the proceedings are to take place: this will allow
for phased implementation of the facilities required for live
links. The responsibility for ensuring that there are facilities
in the remote location from which the witness intends to give
evidence falls to the parties and is therefore not covered by
this section.
7. Subsection (6) directs the court to consider
all the circumstances of the case when deciding whether to authorise
the use of a live link and subsection (7) points out some of the
most important considerations the court must take into account.
8. Section 51 of the 2003 Act is not yet
in force in the civilian criminal justice system. The Ministry
of Defence is liaising with the Home Office to ensure that the
provisions will be applied to Service Courts, with any necessary
modifications, as soon as is practicable after their introduction
in the civilian criminal justice system.
CONCLUSION
9. Therefore, the only live link evidence
that can be adduced before a court martial pursuant to a power
derived from primary legislation is from a witness who is outside
the country in which the court martial is being held, or is a
child witness (sections 32 and 32A Criminal Justice Act 1988 as
applied with modifications refer).
10. However, as referred to at paragraph
5 above, statutory instruments have been drafted to apply with
modifications the provisions of Part 2 of the 1999 Act, and it
is expected that they will be laid before Parliament within the
next two months. Consequently, the ability to adduce evidence
by video link before courts-martial will be analogous to the power
already available to the civilian criminal courts.
April 2006
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