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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

 
 

 
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