|
| |
|
(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, |
| |
| |
(b) | that making the direction is necessary in order to ensure that the |
| |
accused receives a fair trial. |
| 5 |
(3) | A direction under this subsection is a direction that provides for any |
| |
examination of the accused to be conducted through an interpreter or |
| |
other person approved by the court for the purposes of this section (“an |
| |
| |
(4) | The function of an intermediary is to communicate— |
| 10 |
(a) | to the accused, questions put to the accused, and |
| |
(b) | to any person asking such questions, the answers given by the |
| |
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. |
| 15 |
(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 |
| |
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 |
| 20 |
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 |
| |
impairment of intelligence and social function, and |
| |
(b) | the accused is for that reason unable to participate effectively in |
| 25 |
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 |
| |
under subsection (3) must take place in the presence of such persons as |
| |
Criminal Procedure Rules or the direction under subsection (3) may |
| 30 |
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 |
| |
accused and to communicate with the intermediary, |
| |
(b) | the jury (if there is one) are able to see and hear the examination |
| 35 |
| |
(c) | any other person charged in the same proceedings as the |
| |
accused is able to see and hear the examination of the accused. |
| |
| For the purposes of this subsection any impairment of eyesight or |
| |
hearing is to be disregarded. |
| 40 |
(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 |
| |
| |
(9) | A person may not act as an intermediary in a particular case except |
| 45 |
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. |
| |
|
| |
|
| |
|
(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 |
| 5 |
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 |
| |
| 10 |
(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 |
| 15 |
motion or on an application by a party. |
| |
(4) | The court must state in open court its reasons for— |
| |
(a) | giving, varying or discharging a direction under section |
| |
| |
(b) | refusing an application for, or for the variation or discharge of, |
| 20 |
a direction under section 33BA(3), |
| |
| and, if it is a magistrates’ court, it must cause those reasons to be |
| |
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 |
| |
| 25 |
Witnesses protected from cross-examination by accused in person |
| |
89 | Age of child complainant |
| |
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 |
| |
| 30 |
| |
| |
90 | 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 |
| 35 |
custody), after subsection (6) add— |
| |
“(7) | The following functions of a magistrates’ court under this section may |
| |
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 |
| 40 |
| |
|
| |
|
| |
|
(c) | requiring or permitting a person to attend by live link a hearing |
| |
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— |
| 5 |
“(6A) | A live link direction under this section may not be given unless |
| |
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 |
| 10 |
hearing), omit “before or”, and |
| |
(d) | in subsection (9) (representations about use of live link), omit |
| |
paragraph (a) (and the “and” following it). |
| |
(4) | In section 57D (continued use of live link for sentencing hearing following a |
| |
| 15 |
(a) | in subsection (2) (conditions for use of live link)— |
| |
(i) | omit paragraph (b) (but not the “and” following it), and |
| |
(ii) | in paragraph (c), for “it” to the end substitute “the accused |
| |
continuing to attend through the live link is not contrary to the |
| |
interests of justice.”, and |
| 20 |
(b) | in subsection (3) (conditions for giving oral evidence by live link), omit |
| |
paragraph (a) (and the “and” following it). |
| |
(5) | In section 57E (use of live link in sentencing hearings)— |
| |
(a) | in subsection (5) (conditions for giving live link direction), omit |
| |
paragraph (a) (and the “and” following it), and |
| 25 |
(b) | in subsection (7) (conditions for giving oral evidence by live link), omit |
| |
paragraph (a) (and the “and” following it). |
| |
91 | Answering to live link bail |
| |
(1) | The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows. |
| |
(2) | In section 46ZA (persons granted live link bail)— |
| 30 |
(a) | in subsection (3) (accused persons who answer to live link bail and are |
| |
treated as in police detention)— |
| |
(i) | omit paragraph (a) (persons not intending to consent to live link |
| |
| |
(ii) | in paragraph (b), for “at any such time” substitute “at any time |
| 35 |
before the beginning of proceedings in relation to a live link |
| |
direction under section 57C of the Crime and Disorder Act 1998 |
| |
in relation to the accused person,”, |
| |
(iii) | omit paragraph (c) (persons not giving consent during |
| |
proceedings in relation to a live link direction) (but not the “or” |
| 40 |
| |
(iv) | in paragraph (d), for “any other reason” substitute “any reason”, |
| |
| |
(b) | in subsection (4) (effect of subsection (3) applying to a person), for “any |
| |
of paragraphs (a) to (d) of subsection (3) apply” substitute “paragraph |
| 45 |
(b) or (d) of subsection (3) applies”. |
| |
|
| |
|
| |
|
(3) | In section 46A (power of arrest for failure to answer police bail), in subsection |
| |
(1ZA) (such failure includes leaving police station without informing a |
| |
constable that intend not to consent to live link direction), in paragraph (b) |
| |
omit from “, without informing” to the end. |
| |
| 5 |
92 | Searches of persons answering to live link bail |
| |
(1) | After section 54A of the Police and Criminal Evidence Act 1984 (c. 60) insert— |
| |
“54B | Searches of persons answering to live link bail |
| |
(1) | A constable may search at any time— |
| |
(a) | any person who is at a police station to answer to live link bail; |
| 10 |
| |
(b) | any article in the possession of such a person. |
| |
(2) | If the constable reasonably believes a thing in the possession of the |
| |
person ought to be seized on any of the grounds mentioned in |
| |
subsection (3), the constable may seize and retain it or cause it to be |
| 15 |
| |
(3) | The grounds are that the thing— |
| |
(a) | may jeopardise the maintenance of order in the police station; |
| |
(b) | may put the safety of any person in the police station at risk; or |
| |
(c) | may be evidence of, or in relation to, an offence. |
| 20 |
(4) | The constable may record or cause to be recorded all or any of the |
| |
things seized and retained pursuant to subsection (2). |
| |
(5) | An intimate search may not be carried out under this section. |
| |
(6) | The constable carrying out a search under subsection (1) must be of the |
| |
same sex as the person being searched. |
| 25 |
(7) | In this section “live link bail” means bail granted under Part 4 of this Act |
| |
subject to the duty mentioned in section 47(3)(b). |
| |
54C | Power to retain articles seized |
| |
(1) | Except as provided by subsections (2) and (3), a constable may retain a |
| |
thing seized under section 54B until the time when the person from |
| 30 |
whom it was seized leaves the police station. |
| |
(2) | A constable may retain a thing seized under section 54B in order to |
| |
establish its lawful owner, where there are reasonable grounds for |
| |
believing that it has been obtained in consequence of the commission of |
| |
| 35 |
(3) | If a thing seized under section 54B may be evidence of, or in relation to, |
| |
an offence, a constable may retain it— |
| |
(a) | for use as evidence at a trial for an offence; or |
| |
(b) | for forensic examination or for investigation in connection with |
| |
| 40 |
|
| |
|
| |
|
(4) | Nothing may be retained for either of the purposes mentioned in |
| |
subsection (3) if a photograph or copy would be sufficient for that |
| |
| |
(5) | Nothing in this section affects any power of a court to make an order |
| |
under section 1 of the Police (Property) Act 1897. |
| 5 |
(6) | The references in this section to anything seized under section 54B |
| |
include anything seized by a person to whom paragraph 27A of |
| |
Schedule 4 to the Police Reform Act 2002 applies.” |
| |
(2) | In section 46A of that Act (power of arrest for failure to answer to police bail), |
| |
after subsection (1ZA) insert— |
| 10 |
“(1ZB) | The reference in subsection (1) to a person who fails to attend at a police |
| |
station at the time appointed for the person to do so includes a |
| |
reference to a person who— |
| |
(a) | attends at a police station to answer to bail granted subject to the |
| |
duty mentioned in section 47(3)(b), but |
| 15 |
(b) | refuses to be searched under section 54B.” |
| |
(3) | In Part 3 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers exercisable |
| |
by detention officers), after paragraph 27 insert— |
| |
“Searches of persons answering to live link bail |
| |
27A (1) | Where a designation applies this paragraph to any person, that |
| 20 |
person has the powers of a constable under section 54B of the 1984 |
| |
Act (searches of persons answering to live link bail)— |
| |
(a) | to carry out a search of any person attending a police station |
| |
in the relevant police area; and |
| |
(b) | to seize or retain articles found on such a search. |
| 25 |
(2) | Anything seized by a person under the power conferred by sub- |
| |
paragraph (1) must be delivered to a constable as soon as practicable |
| |
and in any case before the person from whom the thing was seized |
| |
leaves the police station.” |
| |
93 | Use of live link in certain enforcement hearings |
| 30 |
(1) | After section 57E of the Crime and Disorder Act 1998 (c. 37) insert— |
| |
“57F | Use of live link in certain enforcement hearings |
| |
(1) | This section applies where— |
| |
(a) | a confiscation order is made against a person; and |
| |
(b) | the amount required to be paid under the order is not paid |
| 35 |
when it is required to be paid. |
| |
(2) | If it appears to the court before which an enforcement hearing relating |
| |
to the confiscation order is to take place that it is likely that the person |
| |
will be held in custody at the time of the hearing, the court may give a |
| |
live link direction under this section in relation to that hearing. |
| 40 |
(3) | A live link direction under this section is a direction requiring the |
| |
person, if the person is being held in custody at the time of the hearing, |
| |
|
| |
|
| |
|
to attend it through a live link from the place at which the person is |
| |
| |
| |
(a) | may be given by the court of its own motion or on an |
| |
application by a party; and |
| 5 |
(b) | may be given in relation to all subsequent enforcement hearings |
| |
before the court or to such hearing or hearings as may be |
| |
specified or described in the direction. |
| |
(5) | The court may rescind a live link direction under this section at any |
| |
time before or during a hearing to which it relates. |
| 10 |
(6) | The court may not give or rescind a live link direction under this section |
| |
(whether at a hearing or otherwise) unless the parties to the |
| |
proceedings have been given the opportunity to make representations. |
| |
(7) | If a hearing takes place in relation to the giving or rescinding of such a |
| |
direction, the court may require or permit any party to the proceedings |
| 15 |
who wishes to make representations in relation to the giving or |
| |
rescission of a live link direction under this section to do so through a |
| |
| |
(8) | The person may not give oral evidence while attending a hearing |
| |
through a live link by virtue of this section unless the court is satisfied |
| 20 |
that it is not contrary to the interests of justice for the person to give it |
| |
| |
(9) | If in a case where it has power to do so a court decides not to give a live |
| |
link direction under this section, it must— |
| |
(a) | state in open court its reasons for not doing so; and |
| 25 |
(b) | cause those reasons to be entered in the register of its |
| |
| |
(10) | The following functions of a magistrates’ court under this section may |
| |
be discharged by a single justice— |
| |
(a) | giving a live link direction under this section; |
| 30 |
(b) | rescinding a live link direction before a preliminary hearing |
| |
| |
(c) | requiring or permitting a person to attend by live link a hearing |
| |
about a matter within paragraph (a) or (b).” |
| |
(2) | In section 57A of that Act (introductory)— |
| 35 |
| |
(i) | in paragraph (a), after “an offence” insert “and enforcement |
| |
hearings relating to confiscation orders”, and |
| |
(ii) | in paragraph (b), for “and 57E” substitute “, 57E and 57F”, and |
| |
(b) | in subsection (3), at the appropriate place insert— |
| 40 |
““confiscation order” means an order made under— |
| |
(a) | section 71 of the Criminal Justice Act 1988; |
| |
(b) | section 2 of the Drug Trafficking Act 1994; or |
| |
(c) | section 6 of the Proceeds of Crime Act 2002;”, |
| |
| 45 |
““enforcement hearing” means a hearing under section 82 |
| |
of the Magistrates’ Courts Act 1980 to consider the |
| |
|
| |
|
| |
|
issuing of a warrant of committal or to inquire into a |
| |
| |
(3) | In the title of Part 3A of that Act, for “and Sentencing” substitute “, |
| |
| |
94 | Direction of registrar for appeal hearing by live link |
| 5 |
In section 31A of the Criminal Appeal Act 1968 (c. 19) (powers of the Court of |
| |
Appeal under Part 1 of that Act that are exercisable by the registrar), in |
| |
subsection (2), after paragraph (a) insert— |
| |
“(aa) | to give a live link direction under section 22(4);”. |
| |
| 10 |
| |
Evidence by video recording |
| |
95 | Effect of admission of video recording |
| |
In section 138 of the Criminal Justice Act 2003 (c. 44) (video evidence: further |
| |
provisions), omit subsection (1) (no evidence in chief on matter dealt with |
| 15 |
adequately in recorded account). |
| |
Evidence of previous complaints |
| |
96 | Admissibility of evidence of previous complaints |
| |
In section 120(7) of the Criminal Justice Act 2003 (third condition for admitting |
| |
previous statement of witness as evidence of matter stated of which oral |
| 20 |
evidence of witness would be admitted), omit paragraph (d) (requirement that |
| |
complaint be made as soon as could reasonably be expected after the alleged |
| |
| |
| |
97 | Powers in respect of offenders who assist investigations and prosecutions |
| 25 |
(1) | Chapter 2 of Part 2 of the Serious Organised Crime and Police Act 2005 (c. 15) |
| |
| |
(2) | In section 71 (assistance by offender: immunity from prosecution), in |
| |
subsection (1) (immunity notice)— |
| |
(a) | for “any offence” substitute “an indictable offence or an offence triable |
| 30 |
| |
(b) | after “prosecution”, in second place it occurs, insert “for any offence”. |
| |
(3) | In subsection (4) of that section (specified prosecutors)— |
| |
(a) | after paragraph (d) insert— |
| |
“(da) | the Financial Services Authority; |
| 35 |
|
| |
|