Coroners and Justice Bill

House of Commons

Session 2008 - 09
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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