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Make provision for the making of orders for securing the anonymity of |
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witnesses in criminal proceedings. |
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Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
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consent of the Lords Spiritual and Temporal, and Commons, in this present |
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Parliament assembled, and by the authority of the same, as follows:— |
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1 | New rules relating to anonymity of witnesses |
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(1) | This Act provides for the making of witness anonymity orders in relation to |
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witnesses in criminal proceedings. |
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(2) | The common law rules relating to the power of a court to make an order for |
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securing that the identity of a witness in criminal proceedings is withheld from |
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the defendant (or, on a defence application, from other defendants) are |
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(3) | Nothing in this Act affects the common law rules as to the withholding of |
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information on the grounds of public interest immunity. |
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2 | Witness anonymity orders |
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(1) | In this Act a “witness anonymity order” is an order made by a court that |
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requires such specified measures to be taken in relation to a witness in criminal |
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proceedings as the court considers appropriate to ensure that the identity of the |
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witness is not disclosed in or in connection with the proceedings. |
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(2) | The kinds of measures that may be required to be taken in relation to a witness |
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include measures for securing one or more of the following— |
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(a) | that the witness’s name and other identifying details may be— |
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(ii) | removed from materials disclosed to any party to the |
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(b) | that the witness may use a pseudonym; |
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(c) | that the witness is not asked questions of any specified description that |
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might lead to the identification of the witness; |
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(d) | that the witness is screened to any specified extent; |
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(e) | that the witness’s voice is subjected to modulation to any specified |
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(3) | Subsection (2) does not affect the generality of subsection (1). |
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(4) | Nothing in this section authorises the court to require— |
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(a) | the witness to be screened to such an extent that the witness cannot be |
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(i) | the judge or other members of the court (if any); |
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(ii) | the jury (if there is one); or |
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(iii) | any interpreter or other person appointed by the court to assist |
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(b) | the witness’s voice to be modulated to such an extent that the witness’s |
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natural voice cannot be heard by any persons within paragraph (a)(i) to |
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(5) | In this section “specified” means specified in the witness anonymity order |
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(1) | An application for a witness anonymity order to be made in relation to a |
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witness in criminal proceedings may be made to the court by the prosecutor or |
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(2) | Where the application is made by the defendant, the defendant must inform |
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the prosecutor of the identity of the witness. |
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4 | Conditions for making order |
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(1) | This section applies where an application is made for a witness anonymity |
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order to be made in relation to a witness in criminal proceedings. |
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(2) | The court may make such an order only if it is satisfied that Conditions A to C |
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(3) | Condition A is that the measures to be specified in the order are necessary— |
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(a) | in order to protect the safety of the witness or another person or to |
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prevent any serious damage to property, or |
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(b) | in order to prevent real harm to the public interest (whether affecting |
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the carrying on of any activities in the public interest or the safety of a |
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person involved in carrying on such activities, or otherwise). |
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(4) | Condition B is that, having regard to all the circumstances, the taking of those |
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measures would be consistent with the defendant receiving a fair trial. |
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(5) | Condition C is that it is necessary to make the order in the interests of justice |
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by reason of the fact that it appears to the court that— |
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(a) | it is important that the witness should testify, and |
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(b) | the witness would not testify if the order were not made. |
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(6) | In determining whether the measures to be specified in the order are necessary |
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for the purpose mentioned in subsection (3)(a), the court must have regard (in |
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particular) to any reasonable fear on the part of the witness— |
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(a) | that the witness or another person would suffer death or injury, or |
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(b) | that there would be serious damage to property, |
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| if the witness were to be identified. |
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5 | Relevant considerations |
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(1) | When deciding whether Conditions A to C in section 4 are met in the case of an |
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application for a witness anonymity order, the court must have regard to— |
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(a) | the considerations mentioned in subsection (2) below, and |
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(b) | such other matters as the court considers relevant. |
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(2) | The considerations are— |
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(a) | the general right of a defendant in criminal proceedings to know the |
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identity of a witness in the proceedings; |
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(b) | the extent to which the credibility of the witness concerned would be a |
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relevant factor when the weight of his or her evidence comes to be |
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(c) | whether the witness’s evidence could be properly tested (whether on |
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grounds of credibility or otherwise) without his or her identity being |
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(d) | whether there is any reason to believe that the witness— |
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(i) | has a tendency to be dishonest, or |
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(ii) | has any motive to be dishonest in the circumstances of the case, |
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having regard (in particular) to any previous convictions of the |
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witness and to any relationship between the witness and the |
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defendant or any associates of the defendant; |
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(e) | whether it would be reasonably practicable to protect the witness’s |
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identity by any means other than by making a witness anonymity order |
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specifying the measures that are under consideration by the court. |
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6 | Discharge or variation of order |
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(1) | A court that has made a witness anonymity order in relation to any criminal |
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proceedings may subsequently discharge or vary (or further vary) the order if |
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it appears to the court to be appropriate to do so in view of the provisions of |
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section 4 that applied to the making of the order. |
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(a) | on an application made by a party to the proceedings if there has been |
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a material change of circumstances since the relevant time, or |
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(b) | on its own initiative. |
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(3) | “The relevant time” means— |
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(a) | the time when the order was made, or |
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(b) | if a previous application has been made under subsection (2), the time |
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when the application (or the last application) was made. |
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(1) | Subsection (2) applies where, on a trial on indictment, any evidence has been |
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given by a witness at a time when a witness anonymity order applied to the |
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(2) | The judge must give the jury such warning as the judge considers appropriate |
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to ensure that the fact that the order was made in relation to the witness does |
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not prejudice the defendant. |
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8 | Special provisions for service courts |
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(1) | Subsections (2) and (3) apply in relation to criminal proceedings before a |
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service court consisting of a judge advocate and other members. |
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(2) | Any decision falling to be made by the court in such proceedings under |
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sections 2 to 6 is to be made by the judge advocate alone. |
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(3) | If any evidence is given by a witness in such proceedings at a time when a |
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witness anonymity order applies to the witness, the judge advocate must give |
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the other members such warning as the judge advocate considers appropriate |
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to ensure that the fact that the order was made in relation to the witness does |
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not prejudice the defendant. |
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(4) | Each of the provisions mentioned in subsection (5) has effect with the |
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modification set out in that subsection in a case where— |
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(a) | a witness anonymity order is made by a service court to which that |
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(b) | a person does anything in relation to the order which would, if the |
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court had been a court of law having power to commit for contempt, |
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have been contempt of that court. |
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(a) | section 101(1) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) has effect with |
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the omission of the words “not subject to military law; |
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(b) | section 101(1) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) has effect |
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with the omission of the words “not subject to air-force law”; and |
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(c) | section 65(1) of the Naval Discipline Act 1957 (c. 53) has effect with the |
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omission of the words “not subject to this Act”. |
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Application of provisions etc. |
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9 | Proceedings to which new rules apply |
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(1) | Sections 2 to 8 apply to criminal proceedings in cases where— |
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(a) | the trial or hearing begins on or after the day on which this Act is |
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(b) | the trial or hearing has begun, but has not ended, before that day. |
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(2) | Section 10 applies to certain proceedings falling within subsection (1)(b). |
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10 | Pre-commencement anonymity orders: existing proceedings |
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(1) | This section has effect in relation to criminal proceedings in cases where— |
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(a) | the trial or hearing has begun, but has not ended, before |
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(b) | the court has made a pre-commencement anonymity order in relation |
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to a witness at the trial or hearing. |
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(2) | Subsection (3) applies if the witness has not begun to give evidence under the |
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terms of that order before commencement. |
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(3) | In such a case the court— |
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(a) | must consider whether that order was one that the court could have |
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made if this Act had been in force at the material time, |
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(b) | if it considers that that order was one that it could have made in those |
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circumstances, may direct that the order is to remain in place, and |
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(c) | otherwise, must discharge the order and consider whether instead it |
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should make a witness anonymity order in relation to the witness in |
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accordance with sections 2 to 5. |
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(4) | Any witness anonymity order made by virtue of subsection (3)(c) must be |
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made so as to come into effect immediately on the discharge of the pre- |
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commencement anonymity order. |
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(5) | Subsections (6) and (7) apply if the witness began before commencement to |
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give evidence under the terms of the order mentioned in subsection (1)(b) |
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(whether or not he or she has finished doing so). |
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(6) | In such a case the court must consider whether the effect of that order is that |
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the defendant has been prevented from receiving a fair trial, having regard (in |
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(a) | whether the order was one that the court could have made if this Act |
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had been in force at the material time, and |
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(b) | whether the court should exercise any power to give a direction to the |
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jury (if there is one) regarding the evidence given under the terms of the |
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(7) | If the court determines that the defendant has been prevented from receiving |
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a fair trial, it must give such directions as it considers appropriate for and in |
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connection with bringing the trial or hearing to a conclusion. |
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“commencement” means the day on which this Act is passed; |
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“pre-commencement anonymity order” means an order made before |
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commencement that falls within section 1(2). |
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11 | Pre-commencement anonymity orders: appeals |
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(1) | This section applies where— |
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(a) | an appeal court is considering an appeal against a conviction in |
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criminal proceedings in a case where the trial ended before |
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(b) | the court from which the appeal lies (“the trial court”) made a pre- |
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commencement anonymity order in relation to a witness at the trial. |
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(a) | may not treat the conviction as unsafe solely on the ground that the trial |
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court had no power at common law to make the order mentioned in |
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(b) | must treat the conviction as unsafe if it considers— |
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(i) | that the order was not one that the trial court could have made |
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if this Act had been in force at the material time, and |
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(ii) | that, as a result of the order, the defendant did not receive a fair |
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“the appeal court” means— |
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(b) | the Court of Appeal in Northern Ireland; or |
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(c) | the Courts-Martial Appeal Court or the Court Martial Appeal |
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“commencement” and “pre-commencement anonymity order” have the |
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meanings given by section 10(8). |
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(a) | in relation to England and Wales, a magistrates’ court, the |
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Crown Court or the criminal division of the Court of Appeal; |
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(b) | in relation to Northern Ireland, a magistrates’ court, the Crown |
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Court, a county court exercising its criminal jurisdiction or the |
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Court of Appeal in Northern Ireland; or |
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“criminal proceedings” means— |
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(a) | in relation to a court within paragraph (a) or (b) above, criminal |
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proceedings consisting of a trial or other hearing at which |
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evidence falls to be given; |
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(b) | in relation to a service court, proceedings in respect of a service |
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offence consisting of a trial or other hearing at which evidence |
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“the defendant”, in relation to any criminal proceedings, means any |
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person charged with an offence to which the proceedings relate |
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(whether or not convicted); |
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“prosecutor” means an individual or body charged with duties to conduct |
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“service court” has the meaning given by subsection (2); |
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“service offence” has the meaning given by subsection (3); |
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“witness”, in relation to any criminal proceedings, means any person |
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called, or proposed to be called, to give evidence at the trial or hearing |
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“witness anonymity order” has the meaning given by section 2. |
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(2) | In this Act “service court” means— |
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(a) | a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 |
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c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline |
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Act 1957 (c. 53) or the Court Martial established by the Armed Forces |
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(b) | the Summary Appeal Court established by any of those Acts; |
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(c) | a Standing Civilian Court established under the Armed Forces Act 1976 |
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(c. 52) or the Service Civilian Court established by the Armed Forces |
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(d) | the Courts-Martial Appeal Court or the Court Martial Appeal Court. |
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(3) | In this Act “service offence” means— |
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(a) | any offence against any provision of Part 2 of the Army Act 1955 |
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(3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) |
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or Part 1 of the Naval Discipline Act 1957 (c. 53); or |
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(b) | any offence under Part 1 of the Armed Forces Act 2006. |
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This Act comes into force on the day on which it is passed. |
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14 | Short title and extent |
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(1) | This Act may be cited as the Criminal Evidence (Witness Anonymity) Act 2008. |
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(2) | Subject to subsection (3), this Act extends to England and Wales and Northern |
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(3) | The service courts provisions of this Act extend to England and Wales, |
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Scotland and Northern Ireland; and in section 384 of the Armed Forces Act |
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2006 (extent to Channel Islands etc.) any reference to that Act includes a |
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reference to the service courts provisions of this Act. |
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(4) | In subsection (3) “the service courts provisions of this Act” means the |
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provisions of this Act so far as having effect in relation to service courts. |
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