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Clause 84: Special provisions relating to certain sexual offences

460.     Clause 84 inserts new section 22A into the 1999 Act. Section 22A makes special provision for complainants in respect of sexual offences tried in the Crown Court. Section 22A(7) and (9) require the admission of the complainant’s video- recorded statement under section 27 of the 1999 Act, unless that requirement would not maximise the quality of the complainant’s evidence.

461.     New section 22A(1) and (3) establish that this new section will apply if the complainant of a sexual offence is a witness in proceedings relating to a sexual offence, but not if the witness is under 18 years old (the rules set out in section 21 apply to a witness under 18). Also the requirement to admit the video recorded evidence in chief only applies if a party to the proceedings makes an application requesting that it should be admitted.

462.     New section 22A(2) excludes proceedings in magistrates’ courts from these provisions. This does not mean that video recorded evidence in chief is not admissible in such proceedings, but only that the rule in section 22A in favour of admitting such evidence does not apply.

Clause 85: Evidence by live link: presence of supporter

463.     Section 24 of the 1999 Act enables the court to make a direction allowing a witness to give evidence by live link. Clause 85 amends this section so that the court, when making such a direction can also direct that a person specified by the court can accompany the witness when the witness is giving evidence by live link. The court must take the witness’ wishes into account when it determines who is to accompany the witness.

Clause 86: Video recorded evidence in chief: supplementary testimony

464.     . Section 27 of the 1999 Act enables the court to give a special measures direction that allows a video recorded statement to be admitted as a witness’ evidence in chief. Clause j9 106 amends this section so as to relax the restrictions on a witness giving additional evidence in chief after the witness’ video-recorded statement has been admitted.

465.     Subsection (2) removes the prohibition on asking a witness questions about matters the court considers have been covered adequately in the recorded statement. The effect of this is that the witness may be asked additional questions regarding:

  • matters that are not covered in the recorded statement (as is now the case under section 27), and

  • matters that are covered in the recorded statement (so long as the permission of the court is given).

466.     Subsections (3) and (4) remove the requirement that where an application to ask additional questions is made by a party, the court can give permission to ask a witness supplementary questions only if there has been a material change in circumstances since the court gave the direction to admit the recording.

Clause 87: Examination of accused through intermediary

467.     The powers of the court under Chapter 1 of Part 2 of the 1999 Act to make directions allowing for special measures when giving of evidence do not apply where the witness is the accused. Chapter 1A gives the court more limited powers regarding the evidence of accused persons. Clause 87 increases these powers by adding sections 33BA and 33BB to Chapter 1A. These new sections provide for the use of an intermediary where certain vulnerable accused persons are giving evidence in court.

468.     Subsections (1) and (2) of new section 33BA provide that the court may make a direction allowing an intermediary in any proceedings if the accused satisfies either the condition in subsection (5) or the conditions in subsection (6) and making the direction is necessary to ensure that the accused receives a fair trial.

469.     Subsections (3) and (4) of new section 33BA set out the nature of a direction and the role of the intermediary when the accused gives evidence. The intermediary is to relay any questions that are put to the accused and to relay the answers to the questioner. In doing so the intermediary can explain to the accused what the questions mean and to the questioner what the answers mean. Subsection (3) requires the intermediary to be a person approved by the court.

470.     Subsection (5) of new section 33BA sets out the condition that is to be satisfied before a court may allow an accused aged under 18 to use an intermediary. This is that the accused’s ability to participate effectively in the trial in terms of giving oral evidence as a witness is compromised by his or her level of intelligence or social functioning.

471.     Subsection (6) of new section 33BA sets out the condition applying to an accused who is 18 years or older. The condition is that the accused is prevented from participating effectively as a witness giving oral evidence because the accused has a mental disorder (as defined by the Mental Health Act 1983) or a significant impairment of intelligence and social functioning.

472.     Subsections (7) and (8) of new section 33BA concern the combination of intermediary and live link and ensures that the judge (or justices), legal representatives and the jury are able to see and hear the examination of the accused.

473.     Subsections (9) and (10) of new section 33BA require intermediaries to declare that they will perform the role faithfully and extend the Perjury Act 1911 to persons in the role of an intermediary. This is the same obligation that applies to foreign language interpreters and also to intermediaries assisting witnesses under section 29 of the 1999 Act.

474.     New section 33BB gives the court power to discharge a direction for the use of an intermediary where this is no longer necessary for the purposes of a fair trial. A court must state publicly its reasons for discharging an intermediary direction. This accords with similar provisions in section 20 of the 1999 Act that apply to special measures directions made in respect of witnesses.

Clause 88: Age of child complainant

475.     Section 35 of the 1999 Act prevents the cross-examination of a “protected witness” by an accused in person. The definition of a “protected witness” includes a child and clause 88 amends the definition of “child” in section 35 to mean a person under the age of 18 (as opposed to 17).

Chapter 4: Live Links

Clause 89: Directions to attend through live link

476.     Subsection (2) amends section 57B of the Crime and Disorder Act 1998, which makes provision for courts to give live link directions for preliminary hearings where the defendant is in custody. The effect of the provision is to enable a single justice of the peace to give or rescind such a direction, thus obviating the need to convene a full court for that purpose.

477.     Subsection (3) amends section 57C of the Crime and Disorder Act 1998 by removing the requirement for the defendant’s consent to the use of a live link for a preliminary hearing in a magistrates’ court where the defendant is at the police station, whether detained there in connection with the offence or having returned to answer live link bail (subsection (3)(b)). It also adds a requirement for the court to be satisfied that a live link direction would not be contrary to the interests of justice (subsection (3)(a)) and removes the ability of a court to rescind a live link direction before the hearing (subsection (3)(c)).

478.     Subsection (4) amends section 57D of the Crime and Disorder Act 1998 by removing the requirement for a defendant’s consent to be sentenced by live link where he or she has pleaded guilty at a live link preliminary hearing. The subsection adds a requirement for the court to be satisfied that the defendant continuing to attend through the live link would not be contrary to the interests of justice. The separate requirement for the defendant’s consent if he or she is to give oral evidence at this kind of live link sentencing hearing is also removed.

479.     Subsection (5) amends section 57E of the Crime and Disorder Act 1998 by removing the need for the defendant’s consent for a live link sentencing hearing where he or she has previously been convicted of the offence and is in custody. The separate requirement for the defendant’s consent if he or she is to give oral evidence at this kind of live link sentencing hearing is also removed.

Clause 90: Answering to live link bail

480.     This clause amends section 46ZA of the Police and Criminal Evidence Act 1984 (which sets out the circumstances in which a person answering live link bail may be treated as being in police detention), and section 46A(1ZA) of that Act, by making changes that are consequential on the removal of the consent requirement by clause 89.

Clause 91: Searches of persons answering to live link bail

481.     Subsection (1) amends the Police and Criminal Evidence Act 1984 by inserting new sections 54B and 54C giving police the power to search defendants attending the police station for the purposes of answering live link bail. Such searches would at present depend on defendants giving their consent to be searched, as they are not treated as in police detention when they enter a police station in answer to live link bail and the existing powers of search in that Act therefore do not apply to them.

482.     Subsections (2) and (3) of new section 54B provide that a constable may seize and retain anything found on the defendant if the constable reasonably believes it may jeopardise the maintenance of order in the station, endanger anyone in the police station, or be evidence relating to an offence. New section 54B(4) provides that a constable may record any or all of the items seized and retained.

483.     Subsections (5) and (6) of new section 54B provide that the constable searching must be of the same sex of the defendant and that the constable may not carry out an intimate search.

484.     New section 54C(1) provides that anything seized and retained under new section 54B(2) must be returned to the defendant when he or she leaves the police station. However, this is subject to subsections (2) and (3) of new section 54C which provide that items can continue to be retained by a constable:

  • in order to establish the lawful owner of the item, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence, or

  • if the item is evidence of or relating to an offence, for use as evidence at trial for an offence or for forensic examination or investigation in connection with an offence unless a photograph or copy of the item would be sufficient for that purpose (subsection 54C(4)).

485.     New section 54C(5) preserves the power of a court to make an order under section 1 of the Police (Property) Act 1897.

486.     Subsection (2) of clause 91 inserts new subsection (1ZB) into section 46 of the Police and Criminal Evidence Act 1984 which extends the power of arrest for failure to answer to police bail to include defendants who attend the police station to answer live link bail but refuse to be searched under the new section 54B.

487.     Subsection (3) of the clause inserts a new paragraph 27A into Part 3 of Schedule 4 to the Police Reform Act 2002, to ensure that designated detention officers, as well as constables, can use the powers in new sections 54B and 54C to search and seize. Where a detention officer exercises the power to seize things found pursuant to a search the officer must deliver the things seized to a constable as soon as practicable and in any case before the person from whom it was seized leaves the police station.

Clause 92: Use of live link in certain enforcement hearings

488.     Subsection (1) of this clause adds a new section 57F to the Crime and Disorder Act 1998 to permit a live link direction to be given in respect of hearings held to enforce a confiscation order, in much the same way as for preliminary hearings under section 57B of that Act. This will enable enforcement proceedings in respect of confiscation orders made against persons who are in custody having been sentenced for the substantive matter to take place by live link between the prison and the magistrates’ court.

489.     Subsection (1) of the new section 57F sets out the conditions for making a live link direction in enforcement proceedings for confiscation orders. Subsection (4) of the new section provides that the direction may be given by the court of its own motion or on application by a party to the proceedings. The court may rescind a live link direction at any time before or during the hearing (subsection (5)); the court must allow the parties to the proceedings to make representations before giving or rescinding such a direction (subsection (6)), and if the person in respect of whom the order has been made is to give oral evidence at this type of hearing, the court must be satisfied that it is not contrary to the interests of justice for him or her to do so (subsection (8)). The powers to give and rescind a direction are exercisable by a single justice of the peace (subsection (10)).

490.     Subsection (2) makes necessary consequential amendments and defines the types of confiscation order in respect of which a direction under the new section 57F may be given.

Clause 93: Direction of registrar for appeal hearing by live link

491.     This clause permits the power to give a live link direction for hearings in the Court of Appeal to be exercised by the registrar.

Chapter 5: Miscellaneous

Clause 94: Effect of admission of video recording

492.     Clause 95 repeals section 138(1) of the 2003 Act. This provision provides that where an eyewitness’s video recorded evidence in chief has been admitted as evidence under section 137, the eyewitness cannot give further evidence in chief about a matter which, in the opinion of the court, is adequately covered in the recording.

Clause 95: Admissibility of evidence of previous complaints

493.     Section 120 of the 2003 Act provides for the admission of certain previous statements of witnesses and is part of the code on hearsay evidence set out in the 2003 Act.

494.     A previous statement will be admissible as evidence of the facts contained within it as if it were oral evidence provided the witness who made it is called to give evidence in the relevant proceedings, states that he or she made the previous statement and believes it to be true, and one of the following also applies:

  • subsection (5) - the statement describes or identifies a person, place or thing:

  • subsection (6) - the statement was made when matters were fresh in the witness’s memory and he or she cannot reasonably be expected to remember the matters stated;

  • subsection (7) - the statement consists of a complaint by the victim of the alleged offence which satisfies various requirement including the requirement that it was made as soon as could reasonably be expected after the alleged conduct.

495.     Clause 95 amends section 120(7) so as to remove the requirement that “the complaint was made as soon as could reasonably be expected after the alleged conduct”. Provided the other criteria for admissibility set out in section 120(7) are met, such complaints will be admissible regardless of when they were made.

Clause 96: Powers in respect of offenders who assist investigations and prosecutions

496.     The 2005 Act creates a statutory framework to clarify and strengthen common law provisions that provide for immunity and sentence reductions for defendants who co-operate in the investigation and prosecution of others who may have committed criminal offences. Section 71 of the Act confers on a “specified prosecutor” (as defined in section 71(4)) power to grant a person immunity from prosecution. Section 72 of the 2005 Act confers on specified prosecutors power to give an undertaking that any information which a person provides will not be used against that person in any criminal proceedings, or proceedings under Part 5 of the POCA, which are brought in England and Wales or Northern Ireland. Section 73 gives specified prosecutors power to enter into a written agreement with a defendant to provide assistance in relation to an offence and for the court to take into account the assistance given or offered when determining the sentencing to impose on the defendant. There is also a power in section 74 for specified prosecutors to refer a case back to the court where a defendant benefits from a sentence reduction but then reneges on the agreement to provide assistance.

497.     Subsections (2) and (5) of clause 96 amend section 71(1) and section 72(1) of the 2005 Act to provide that these provisions can only be used for the investigation or prosecution of serious criminal offences. While a person who assists the authorities under these powers can be offered immunity or a restricted use undertaking or sentence reduction agreement for any offence, the assistance must be in relation to the investigation or prosecution of an offence that is capable of being tried in the Crown Court (it is either an indictable offence or triable either way).

498.     Subsection (3) amends section 71 of the 2005 Act by adding the FSA and the Secretary of State for Business Enterprise and Regulatory Reform to the list of “specified prosecutors” who can use the powers set out in sections 71 to 74 of the 2005 Act.

499.     Subsection (4) adds new subsections (6A) to (6C) to section 71 of the 2005 Act. New subsection (6C) provides that the power of the FSA and BERR to grant immunity from prosecution under section 71 in any case is subject to the consent of the Attorney General. This reflects the fact that the other “specified prosecutors” under the 2005 Act are superintended by the Attorney General and the Attorney General is consulted before any grant of immunity is made by a superintended prosecutor. The requirement that the FSA and BERR obtain the Attorney General’s consent before granting immunity under section 71 is aimed at putting FSA and BERR in a comparable position to the other “specified prosecutors” when granting immunity under section 71 of the 2005 Act.

500.     New subsection (6A) provides that BERR and the FSA may delegate the powers in sections 71 to 74 of the 2005 Act within their respective organisations only to one prosecutor (or a nominated deputy in that person’s absence). New subsection (6B) disapplies the normal arrangements for discharging the functions of the FSA in order to ensure that these powers are delegated only in the circumstances set out in new subsection (6A).

501.     Subsection (7) introduces a new section 75B which provides the Attorney General with the power to issue guidance to all the “specified prosecutors” on the use of the powers set out at sections 71 to 74 of the 2005 Act.

Clause 97: Bail: assessment of risk of committing an offence causing injury

502.     Clause 97 amends Schedule 1 to the Bail Act 1976.

503.     Subsection (2) provides that a defendant who is charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk that, if released on bail, he or she would commit an offence that would be likely to cause physical or mental injury to another person.

504.     Subsection (3)(a) provides that, in deciding whether it is of the opinion that there is no such significant risk, the court must have regard to any relevant considerations in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976.

505.     Subsection (3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. It provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.

Clause 98: Bail decisions in murder cases to be made by a Crown Court judge

506.     Clause 98 provides that a person who is charged with murder (including one charged with murder and other offences - subsection (6)) may not be granted bail except by a judge of the Crown Court. The power of magistrates to consider bail in murder cases, whether at the first hearing or after a breach of an existing bail condition, is thus removed.

507.     Subsection (3) provides where a person charged with murder appears, or is brought before, a magistrates’ court, a bail decision cases must be made by a judge of the Crown Court as soon as reasonably practicable, and in any event within 48 hours (excluding public holidays - subsection (7)) beginning with the day after person’s appearance in the magistrates’ court.

508.     Subsection (4) provides that the person must if necessary be committed in custody to the Crown Court to enable a bail decision to be made, and subsection (5) that it is immaterial whether he or she is at the same time sent for trial or remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998. That section generally requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrates’ court to the Crown Court forthwith.

Clause 99: Indictment of offenders

509.     The need for clause 99 arises from the decision of the House of Lords in R v Clarke, R v McDaid [2008] UKHL 8. Under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the 1933 Act), a bill of indictment becomes an indictment upon which a trial on indictment may proceed only once the bill has been signed by a proper officer of the court. Where a trial proceeds without a bill of indictment having been signed, the House of Lords confirmed in these cases that those proceedings and any subsequent conviction and sentence will be invalid as signature of the bill of indictment is a necessary prerequisite to the Crown Court obtaining jurisdiction to try the case.

510.     Clause 99 removes from section 2 of the 1933 Act the requirement that a bill of indictment be signed by the proper officer of the court with the result that the bill becomes an indictment on being preferred (subsection (1)(a) and (b)). Subsection (1)(c) inserts into section 2 of the 1933 Act three new subsections which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial proper, that is, when the jury has been sworn. (For this purpose a preparatory hearing does not mark the start of trial.)

511.     Subsection (1)(d) and (2) make consequential amendments.

512.     Paragraph 17 of Schedule 20 provides that, for the purposes of any proceedings before a court after the Bill is passed, the amendments are deemed always to have had effect. They apply even if the proceedings (including appeals) have begun before the Bill was passed.

Part 4 - Sentencing

Clause 100 and Schedule 13: Sentencing Council for England and Wales

513.     This clause establishes the Sentencing Council for England and Wales and introduces Schedule 13 which sets out details of the Council’s organisation and membership. Clause 117 abolishes the Sentencing Advisory Panel and the Sentencing Guidelines Council

514.     Schedule 13 sets out the constitution of the Council, and makes provision about the appointment of the chair and members, exclusion from membership, terms of appointment of members, remuneration of members and proceedings of the Council.

515.     The Sentencing Council will consist of 14 members, of whom eight are judicial members and six are non-judicial members.

516.     The judicial members will be appointed by the Lord Chief Justice with the agreement of the Lord Chancellor.

517.     The non-judicial members will be appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.

518.     The Lord Chief Justice will appoint, with the agreement of the Lord Chancellor, one of the judicial members to chair the Council. The Lord Chancellor will appoint one of the non-judicial members as Deputy Chair, with the agreement of the Lord Chief Justice.

519.     The eight judicial members will consist of two ordinary judges of the Court of Appeal, a High Court judge, two Circuit judges, a District Judge (Magistrates’ Courts) and two lay justices.

520.     The Lord Chancellor will appoint as non-judicial members individuals with experience in one or more of the following areas: criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research in criminal law or criminology, statistics.

521.     The Lord Chancellor can nominate a representative with experience of sentencing policy to attend and speak at Council meetings.

522.     The Lord Chancellor can make an order with the agreement of the Lord Chief Justice to cover terms of office, re-appointment and removal of members.

523.     The Lord Chancellor can make an order with the agreement of the Lord Chief Justice to govern the proceedings of the Council.

524.     The Council’s actions will remain valid even if there is a vacancy on the Council or there was a defect in the appointments procedure.

525.     The Lord Chancellor may pay appropriate remuneration and expenses.

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Prepared: 15 January 2009