House of Commons portcullis
House of Commons
Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill


Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

46

 

(b)   

in relation to Northern Ireland, a magistrates’ court, the Crown

Court, a county court exercising its criminal jurisdiction, the

High Court or the Court of Appeal in Northern Ireland, or

(c)   

a service court;

“criminal proceedings” means—

5

(a)   

in relation to a court within paragraph (a) or (b) above (other

than the High Court in Northern Ireland), criminal proceedings

consisting of a trial or other hearing at which evidence falls to

be given;

(b)   

in relation to the High Court in Northern Ireland, proceedings

10

relating to bail in respect of a person charged with or convicted

of an offence where the proceedings consist of a hearing at

which evidence falls to be given;

(c)   

in relation to a service court, proceedings in respect of a service

offence consisting of a trial or other hearing at which evidence

15

falls to be given;

“the defendant”, in relation to any criminal proceedings, means any

person charged with an offence to which the proceedings relate

(whether or not convicted);

“prosecutor” means any person acting as prosecutor, whether an

20

individual or body;

“service court” means—

(a)   

the Court Martial established by the Armed Forces Act 2006

(c. 52),

(b)   

the Summary Appeal Court established by that Act,

25

(c)   

the Service Civilian Court established by that Act, or

(d)   

the Court Martial Appeal Court;

“service offence” has the meaning given by section 50(2) of the Armed

Forces Act 2006;

“witness”, in relation to any criminal proceedings, means any person

30

called, or proposed to be called, to give evidence at the trial or hearing

in question;

“witness anonymity order” has the meaning given by section 69.

Chapter 3

Vulnerable and intimidated witnesses

35

Special measures for vulnerable and intimidated witnesses

81      

Eligibility for special measures: age of child witnesses

(1)   

The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as

follows.

(2)   

In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute

40

“18”.

(3)   

In section 21 (special provisions relating to child witnesses)—

(a)   

in subsection (8), for “17” substitute “18”, and

(b)   

in subsection (9)(b), for “17” substitute “18”.

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

47

 

(4)   

In section 22 (extension of section 21 to certain witnesses)—

(a)   

in the title, for “17” substitute “18”, and

(b)   

in subsection (1)(a)(ii), for “17” substitute “18”.

82      

Eligibility for special measures: offences involving weapons

(1)   

The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as

5

follows.

(2)   

In section 17 (witnesses eligible for assistance on grounds of fear or distress

about testifying), after subsection (4) add—

“(5)   

A witness in proceedings relating to a relevant offence (or to a relevant

offence and any other offences) is eligible for assistance in relation to

10

those proceedings by virtue of this subsection unless the witness has

informed the court of the witness’s wish not to be so eligible by virtue

of this subsection.

(6)   

In subsection (5) a “relevant offence” means an offence listed in

Schedule 1A.

15

(7)   

The Secretary of State may by order amend the list in Schedule 1A so as

to add, modify or omit an entry.”

(3)   

In section 64(2) (orders subject to negative resolution procedure), after

“section” insert “17(7) or”.

(4)   

Before Schedule 2 insert the Schedule 1A set out in Schedule 12 to this Act.

20

83      

Special measures directions for child witnesses

(1)   

Section 21 of the Youth Justice and Criminal Evidence Act 1999 (special

provisions relating to child witnesses) is amended as mentioned in subsections

(2) to (7).

(2)   

In subsection (1) (definitions), omit paragraph (b) (child witnesses in need of

25

special protection) (but not the “and” following it).

(3)   

In subsection (2) (determining contents of direction), for “(7)” substitute “(4C)”.

(4)   

In subsection (4) (limitations on primary rule)—

(a)   

omit the “and” at the end of paragraph (b), and

(b)   

after paragraph (b) insert—

30

“(ba)   

if the witness informs the court of the witness’s wish

that the rule should not apply or should apply only in

part, the rule does not apply to the extent that the court

is satisfied that not complying with the rule would not

diminish the quality of the witness’s evidence; and”.

35

(5)   

After subsection (4) insert—

“(4A)   

Where as a consequence of all or part of the primary rule being

disapplied under subsection (4)(ba) a witness’s evidence or any part of

it would fall to be given as testimony in court, the court must give a

special measures direction making such provision as is described in

40

section 23 for the evidence or that part of it.

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

48

 

(4B)   

The requirement in subsection (4A) is subject to the following

limitations—

(a)   

if the witness informs the court of the witness’s wish that the

requirement in subsection (4A) should not apply, the

requirement does not apply to the extent that the court is

5

satisfied that not complying with it would not diminish the

quality of the witness’s evidence; and

(b)   

the requirement does not apply to the extent that the court is

satisfied that making such a provision would not be likely to

maximise the quality of the witness’s evidence so far as

10

practicable (whether because the application to that evidence of

one or more other special measures available in relation to the

witness would have that result or for any other reason).”

(6)   

After subsection (4B) (inserted by subsection (5)) insert—

“(4C)   

In making a decision under subsection (4)(ba) or (4B)(a), the court must

15

take into account the following factors (and any others it considers

relevant)—

(a)   

the age and maturity of the witness;

(b)   

the ability of the witness to understand the consequences of

giving evidence otherwise than in accordance with the

20

requirements in subsection (3) or (as the case may be) in

accordance with the requirement in subsection (4A);

(c)   

the relationship (if any) between the witness and the accused;

(d)   

the witness’s social and cultural background and ethnic origins;

(e)   

the nature and alleged circumstances of the offence to which the

25

proceedings relate.”

(7)   

Omit subsections (5) to (7).

(8)   

In section 22 of that Act (extension of provisions of section 21)—

(a)   

in subsection (1), omit paragraph (b) (but not the “and” following it),

and

30

(b)   

for subsection (2) substitute—

“(2)   

Subsections (2) to (4) and (4C) of section 21, so far as relating to

the giving of a direction complying with the requirement

contained in section 21(3)(a), apply to a qualifying witness in

respect of the relevant recording as they apply to a child witness

35

(within the meaning of that section).”

84      

Special provisions relating to sexual offences

After section 22 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)

insert—

“22A    

Special provisions relating to sexual offences

40

(1)   

This section applies where in criminal proceedings relating to a sexual

offence (or to a sexual offence and other offences) the complainant in

respect of that offence is a witness in the proceedings.

(2)   

This section does not apply if the place of trial is a magistrates’ court.

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

49

 

(3)   

This section does not apply if the complainant is an eligible witness by

reason of section 16(1)(a) (whether or not the complainant is an eligible

witness by reason of any other provision of section 16 or 17).

(4)   

If a party to the proceedings makes an application under section

19(1)(a) for a special measures direction in relation to the complainant,

5

the party may request that the direction provide for any relevant

recording to be admitted under section 27 (video recorded evidence in

chief).

(5)   

Subsection (6) applies if—

(a)   

a party to the proceedings makes a request under subsection (4)

10

with respect to the complainant, and

(b)   

the court determines for the purposes of section 19(2) that the

complainant is eligible for assistance by virtue of section

16(1)(b) or 17.

(6)   

The court must—

15

(a)   

first have regard to subsections (7) to (9); and

(b)   

then have regard to section 19(2);

   

and for the purposes of section 19(2), as it then applies to the

complainant, any special measure required to be applied in relation to

the complainant by virtue of this section is to be treated as if it were a

20

measure determined by the court, pursuant to section 19(2)(a) and

(b)(i), to be one that (whether on its own or with any other special

measures) would be likely to maximise, so far as practicable, the quality

of the complainant’s evidence.

(7)   

The court must give a special measures direction in relation to the

25

complainant that provides for any relevant recording to be admitted

under section 27.

(8)   

The requirement in subsection (7) has effect subject to section 27(2).

(9)   

The requirement in subsection (7) does not apply to the extent that the

court is satisfied that compliance with it would not be likely to

30

maximise the quality of the complainant’s evidence so far as practicable

(whether because the application to that evidence of one or more other

special measures available in relation to the complainant would have

that result or for any other reason).

(10)   

In this section “relevant recording”, in relation to a complainant, is a

35

video recording of an interview of the complainant made with a view

to its admission as the evidence in chief of the complainant.”

85      

Evidence by live link: presence of supporter

(1)   

In section 24 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)

(evidence by live link), after subsection (1) insert—

40

“(1A)   

Such a direction may also provide for a specified person to accompany

the witness while the witness is giving evidence by live link.

(1B)   

In determining who may accompany the witness, the court must have

regard to the wishes of the witness.”

(2)   

In section 27 of that Act (video recorded evidence in chief), after subsection (9)

45

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

50

 

insert—

“(9A)   

If the court directs under subsection (9) that evidence is to be given by

live link, it may also make such provision in that direction as it could

make under section 24(1A) in a special measures direction.”

86      

Video recorded evidence in chief: supplementary testimony

5

(1)   

Section 27 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (video

recorded evidence in chief) is amended as follows.

(2)   

In subsection (5) (consequences of admitting video recording), for paragraph

(b) substitute—

“(b)   

the witness may not without the permission of the court give

10

evidence in chief otherwise than by means of the recording as to

any matter which, in the opinion of the court, is dealt with in the

witness’s recorded testimony.”

(3)   

In subsection (7) (giving permission for additional testimony)—

(a)   

for “subsection (5)(b)(ii)” substitute “subsection (5)(b)”, and

15

(b)   

in paragraph (a) (requirement of a material change of circumstances

since the relevant time), omit from “if there” to “relevant time,”.

(4)   

Omit subsection (8) (definition of “the relevant time”).

(5)   

In subsection (9) (supplementary testimony by live link), for “subsection

(5)(b)(ii)” substitute “subsection (5)(b)”.

20

Evidence of certain accused persons

87      

Examination of accused through intermediary

(1)   

After section 33B of the Youth Justice and Criminal Evidence Act 1999 insert—

“33BA   

 Examination of accused through intermediary

(1)   

This section applies to any proceedings (whether in a magistrates’ court

25

or before the Crown Court) against a person for an offence.

(2)   

The court may, on the application of the accused, give a direction under

subsection (3) if it is satisfied—

(a)   

that the condition in subsection (5) is or, as the case may be, the

conditions in subsection (6) are met in relation to the accused,

30

and

(b)   

that making the direction is necessary in order to ensure that the

accused receives a fair trial.

(3)   

A direction under this subsection is a direction that provides for any

examination of the accused to be conducted through an interpreter or

35

other person approved by the court for the purposes of this section (“an

intermediary”).

(4)   

The function of an intermediary is to communicate—

(a)   

to the accused, questions put to the accused, and

(b)   

to any person asking such questions, the answers given by the

40

accused in reply to them,

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses

51

 

   

and to explain such questions or answers so far as necessary to enable

them to be understood by the accused or the person in question.

(5)   

Where the accused is aged under 18 when the application is made the

condition is that the accused’s ability to participate effectively in the

proceedings as a witness giving oral evidence in court is compromised

5

by the accused’s level of intellectual ability or social functioning.

(6)   

Where the accused has attained the age of 18 when the application is

made the conditions are that—

(a)   

the accused suffers from a mental disorder (within the meaning

of the Mental Health Act 1983) or otherwise has a significant

10

impairment of intelligence and social function, and

(b)   

the accused is for that reason unable to participate effectively in

the proceedings as a witness giving oral evidence in court.

(7)   

Where a live link direction under section 33A has effect in relation to

the accused, any examination of the accused in pursuance of a direction

15

under subsection (3) must take place in the presence of such persons as

Criminal Procedure Rules or the direction under subsection (3) may

provide, but in circumstances in which—

(a)   

the judge or justices (or both) and legal representatives acting in

the proceedings are able to see and hear the examination of the

20

accused and to communicate with the intermediary,

(b)   

the jury (if there is one) are able to see and hear the examination

of the accused, and

(c)   

any other person charged in the same proceedings as the

accused is able to see and hear the examination of the accused.

25

   

For the purposes of this subsection any impairment of eyesight or

hearing is to be disregarded.

(8)   

Where two or more legal representatives are acting for a party to the

proceedings, subsection (7)(a) is to be regarded as satisfied in relation

to those representatives if at all material times it is satisfied in relation

30

to at least one of them.

(9)   

A person may not act as an intermediary in a particular case except

after making a declaration, in such form as may be prescribed by

Criminal Procedure Rules, that the person will faithfully perform the

function of an intermediary.

35

(10)   

Section 1 of the Perjury Act 1911 (perjury) applies in relation to a person

acting as an intermediary as it applies in relation to a person lawfully

sworn as an interpreter in a judicial proceeding.

33BB    

Further provision as to directions under section 33BA(3)

(1)   

The court may discharge a direction given under section 33BA(3) at any

40

time before or during the proceedings to which it applies if it appears

to the court that the direction is no longer necessary in order to ensure

that the accused receives a fair trial (but this does not affect the power

to give a further direction under section 33BA(3) in relation to the

accused).

45

(2)   

The court may vary (or further vary) a direction given under section

33BA(3) at any time before or during the proceedings to which it

 
 

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links

52

 

applies if it appears to the court that it is necessary for the direction to

be varied in order to ensure that the accused receives a fair trial.

(3)   

The court may exercise the power in subsection (1) or (2) of its own

motion or on an application by a party.

(4)   

The court must state in open court its reasons for—

5

(a)   

giving, varying or discharging a direction under section

33BA(3), or

(b)   

refusing an application for, or for the variation or discharge of,

a direction under section 33BA(3),

   

and, if it is a magistrates’ court, it must cause those reasons to be

10

entered in the register of its proceedings.”

(2)   

In the heading of Chapter 1A of Part 2 of that Act, after “live link” insert “and

intermediary”.

Witnesses protected from cross-examination by accused in person

88      

Age of child complainant

15

In section 35 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (child

complainants and other child witnesses), in subsection (4)(a), for “17”

substitute “18”.

Chapter 4

Live links

20

89      

Directions to attend through live link

(1)   

The Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2)   

In section 57B (use of live link at preliminary hearings where accused is in

custody), after subsection (6) add—

“(7)   

The following functions of a magistrates’ court under this section may

25

be discharged by a single justice—

(a)   

giving a live link direction under this section;

(b)   

rescinding a live link direction before a preliminary hearing

begins; and

(c)   

requiring or permitting a person to attend by live link a hearing

30

about a matter within paragraph (a) or (b).”

(3)   

In section 57C (use of live link at preliminary hearings where accused is at

police station)—

(a)   

after subsection (6) insert—

“(6A)   

A live link direction under this section may not be given unless

35

the court is satisfied that it is not contrary to the interests of

justice to give the direction.”,

(b)   

omit subsection (7) (no live link direction unless accused consents),

(c)   

in subsection (8) (power to rescind live link direction before or during

hearing), omit “before or”, and

40

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2009
Revised 14 January 2009