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 2 — Anonymity of witnesses
44

76
Discharge or variation after proceedings
(1)
This section applies if—
(a)
a court has made a witness anonymity order in relation to a witness in
criminal proceedings (“the old proceedings”), and
(b)
the old proceedings have come to an end.
5
(2)
The court that made the order may discharge or vary (or further vary) the order
if it appears to the court to be appropriate to do so in view of—
(a)
the provisions of sections 72 and 73 that apply to the making of a
witness anonymity order, and
(b)
such other matters as the court considers relevant.
10
(3)
The court may do so—
(a)
on an application made by a party to the old proceedings if there has
been a material change of circumstances since the relevant time, or
(b)
on an application made by the witness if there has been a material
change of circumstances since the relevant time.
15
(4)
The court may not determine an application made to it under subsection (3)
unless in the case of each of the parties to the old proceedings and the
witness—
(a)
it has given the person the opportunity to be heard, or
(b)
it is satisfied that it is not reasonably practicable to communicate with
20
the person.
(5)
Subsection (4) does not prevent the court hearing one or more of the persons
mentioned in that subsection in the absence of a person who was a defendant
in the old proceedings and that person’s legal representatives, if it appears to
the court to be appropriate to do so in the circumstances of the case.
25
(6)
“The relevant time” means—
(a)
the time when the old proceedings came to an end, or
(b)
if a previous application has been made under subsection (3), the time
when the application (or the last application) was made.
77
Discharge or variation by appeal court
30
(1)
This section applies if—
(a)
a court has made a witness anonymity order in relation to a witness in
criminal proceedings (“the trial proceedings”), and
(b)
a defendant in the trial proceedings has in those proceedings—
(i)
been convicted,
35
(ii)
been found not guilty by reason of insanity, or
(iii)
been found to be under a disability and to have done the act
charged in respect of an offence.
(2)
The appeal court may in proceedings on or in connection with an appeal by the
defendant from the trial proceedings discharge or vary (or further vary) the
40
order if it appears to the court to be appropriate to do so in view of—
(a)
the provisions of sections 72 and 73 that apply to the making of a
witness anonymity order, and
(b)
such other matters as the court considers relevant.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
45

(3)
The appeal court may not discharge or vary the order unless in the case of each
party to the trial proceedings—
(a)
it has given the person the opportunity to be heard, or
(b)
it is satisfied that it is not reasonably practicable to communicate with
the person.
5
(4)
But subsection (3) does not prevent the appeal court hearing one or more of the
parties to the trial proceedings in the absence of a person who was a defendant
in the trial proceedings and that person’s legal representatives, if it appears to
the court to be appropriate to do so in the circumstances of the case.
(5)
In this section a reference to the doing of an act includes a reference to a failure
10
to act.
(6)
“Appeal court” means—
(a)
the Court of Appeal,
(b)
the Court of Appeal in Northern Ireland, or
(c)
the Court Martial Appeal Court.
15
Service courts
78
Special provisions for service courts
(1)
Subsections (2) and (3) apply in relation to a service court consisting of a judge
advocate and other members.
(2)
Any decision falling to be made by the court under sections 70 to 76 is to be
20
made by the judge advocate alone.
(3)
If any evidence is given by a witness in criminal proceedings before the court
at a time when a witness anonymity order applies to the witness, the judge
advocate must give the other members such warning as the judge advocate
considers appropriate to ensure that the fact that the order was made in
25
relation to the witness does not prejudice the defendant.
Public interest immunity
79
Public interest immunity
Nothing in this Chapter affects the common law rules as to the withholding of
information on the grounds of public interest immunity.
30
The Criminal Evidence (Witness Anonymity) Act 2008
80
Power to make orders under the 2008 Act
Sections 1 to 9 and 14 of the Criminal Evidence (Witness Anonymity) Act 2008
(c. 15) cease to have effect.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
46

Interpretation
81
Interpretation of this Chapter
In this Chapter—
“court” means—
(a)
in relation to England and Wales, a magistrates’ court, the
5
Crown Court or the criminal division of the Court of Appeal,
(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;
10
“criminal proceedings” means—
(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;
15
(b)
in relation to the High Court in Northern Ireland, proceedings
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
20
offence consisting of a trial or other hearing at which evidence
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);
25
“prosecutor” means any person acting as prosecutor, whether an
individual or body;
“service court” means—
(a)
the Court Martial established by the Armed Forces Act 2006
(c. 52),
30
(b)
the Summary Appeal Court established by that Act,
(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;
35
“witness”, in relation to any criminal proceedings, means any person
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 70.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses
47

Chapter 3
Vulnerable and intimidated witnesses
Special measures for vulnerable and intimidated witnesses
82
Eligibility for special measures: age of child witnesses
(1)
The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as
5
follows.
(2)
In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute
“18”.
(3)
In section 21 (special provisions relating to child witnesses)—
(a)
in subsection (8), for “17” substitute “18”, and
10
(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”.
83
Eligibility for special measures: offences involving weapons
15
(1)
The Youth Justice and Criminal Evidence Act 1999 is amended as 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
20
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)
For the purposes of subsection (5) an offence is a relevant offence if it is
an offence described in Schedule 1A.
25
(7)
The Secretary of State may by order amend Schedule 1A.”
(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.
84
Special measures directions for child witnesses
30
(1)
Section 21 of the Youth Justice and Criminal Evidence Act 1999 (special
provisions relating to child witnesses) is amended in accordance with
subsections (2) to (7).
(2)
In subsection (1) (definitions), omit paragraph (b) (child witnesses in need of
special protection) (but not the “and” following it).
35
(3)
In subsection (2) (determining contents of direction), for “(7)” substitute “(4C)”.
(4)
In subsection (4) (limitations on primary rule)—

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses
48

(a)
omit the “and” at the end of paragraph (b), and
(b)
after paragraph (b) insert—
“(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
5
is satisfied that not complying with the rule would not
diminish the quality of the witness’s evidence; and”.
(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
10
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
section 23 for the evidence or that part of it.
(4B)
The requirement in subsection (4A) is subject to the following
limitations—
15
(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
satisfied that not complying with it would not diminish the
quality of the witness’s evidence; and
20
(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
practicable (whether because the application to that evidence of
one or more other special measures available in relation to the
25
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
take into account the following factors (and any others it considers
relevant)—
30
(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
requirements in subsection (3) or (as the case may be) in
accordance with the requirement in subsection (4A);
35
(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
proceedings relate.”
(7)
Omit subsections (5) to (7).
40
(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
(b)
for subsection (2) substitute—
“(2)
Subsections (2) to (4) and (4C) of section 21, so far as relating to
45
the giving of a direction complying with the requirement
contained in section 21(3)(a), apply to a qualifying witness in

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses
49

respect of the relevant recording as they apply to a child witness
(within the meaning of that section).”
85
Special provisions relating to sexual offences
After section 22 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)
insert—
5
“22A
Special provisions relating to sexual offences
(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.
10
(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,
15
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)
20
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—
25
(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
30
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
35
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
40
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).

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses
50

(10)
In this section “relevant recording”, in relation to a complainant, is a
video recording of an interview of the complainant made with a view
to its admission as the evidence in chief of the complainant.”
86
Evidence by live link: presence of supporter
(1)
In section 24 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)
5
(evidence by live link), after subsection (1) insert—
“(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.”
10
(2)
In section 27 of that Act (video recorded evidence in chief), after subsection (9)
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.”
15
87
Video recorded evidence in chief: supplementary testimony
(1)
Section 27 of the Youth Justice and Criminal Evidence Act 1999 (video recorded
evidence in chief) is amended as follows.
(2)
In subsection (5) (consequences of admitting video recording), for paragraph
(b) substitute—
20
“(b)
the witness may not without the permission of the court give
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)—
25
(a)
for “subsection (5)(b)(ii)” substitute “subsection (5)(b)”, and
(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
30
(5)(b)(ii)” substitute “subsection (5)(b)”.
Evidence of certain accused persons
88
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
35
(1)
This section applies to any proceedings (whether in a magistrates’ court
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—