|
| |
|
(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 |
| |
| |
“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 |
| |
| |
(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 |
| |
“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 |
| |
| |
(a) | the Court Martial established by the Armed Forces Act 2006 |
| |
| |
(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 |
| |
| |
“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 |
| |
| |
“witness anonymity order” has the meaning given by section 69. |
| |
| |
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 |
| |
| |
(2) | In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute |
| 40 |
| |
(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”. |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
| |
(6) | In subsection (5) a “relevant offence” means an offence listed in |
| |
| 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) | 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. |
| |
|
| |
|
| |
|
(4B) | The requirement in subsection (4A) is subject to the following |
| |
| |
(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 |
| |
| |
(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 |
| |
(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), |
| |
| 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) |
| |
| |
“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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| |
| 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 |
| |
| |
(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 |
|
| |
|
| |
|
| |
“(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) | 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 |
| |
(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 |
| |
| |
(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, |
| |
|
| |
|
| |
|
| 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 |
| |
| |
(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 |
| |
(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 |
| |
| 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 |
| |
|
| |
|
| |
|
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 |
| |
| |
(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 |
| |
| |
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” |
| |
| |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
|
| |
|