Coroners and Justice Bill

House of Commons

Session 2008 - 09
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Coroners and Justice Bill

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 3 — Vulnerable and intimidated witnesses
51

(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,
and
(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
intermediary”).
(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
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.

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
to at least one of them.
(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.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links
52

(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
accused).
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
33BA(3), or
(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
intermediary”.
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
“18”.
30
Chapter 4
Live links
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
begins; and

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links
53

(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
police station)—
(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
preliminary hearing)—
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
direction),
(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
following it), and
(iv)
in paragraph (d), for “any other reason” substitute “any reason”,
and
(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”.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links
54

(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
and
(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
seized and retained.
(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
an offence.
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
an offence.
40

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links
55

(4)
Nothing may be retained for either of the purposes mentioned in
subsection (3) if a photograph or copy would be sufficient for that
purpose.
(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,

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 4 — Live links
56

to attend it through a live link from the place at which the person is
being held.
(4)
Such a direction—
(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
live link.
(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
that way.
(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
proceedings.
(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
begins; and
(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
(a)
in subsection (1)—
(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;”,
and
45
““enforcement hearing” means a hearing under section 82
of the Magistrates’ Courts Act 1980 to consider the

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 5 — Miscellaneous
57

issuing of a warrant of committal or to inquire into a
person’s means;”.
(3)
In the title of Part 3A of that Act, for “and Sentencing” substitute “,
Sentencing and other”.
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);”.
Chapter 5
10
Miscellaneous
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
conduct).
Immunity etc
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)
is amended as follows.
(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
either way”, and
(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