House of Lords - Explanatory Note
Youth Justice And Criminal Evidence Bill [H.L.] [H.L.] - continued          House of Lords

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Clause 37: Defence representation for purposes of cross-examination

130.     This clause makes provision for representatives to be appointed to conduct cross-examinations on behalf, or in the interests, of unrepresented defendants. If a defendant is banned from cross-examining in person, the court will ask him to select a legal representative to carry out the cross-examination.

131.     If the defendant does not select a legal representative, the court will have to consider whether it is necessary, in the interests of justice, for the witness's evidence to be tested. If it decides that it is, it will appoint a legal representative with rights of audience in the court to cross-examine in the interests of the defendant.

132.     It is intended that rules of court will cover, among other things, how a legal representative appointed by the court would be given evidence or other material relating to the proceedings so that he could test the evidence (subsections (6) and (7)).

Clause 38: Warning to jury

133.     If under clause 37 the court appoints a legal representative to act in the interests of the defendant, this clause requires the judge to consider warning the jury that the witness's evidence may not have been tested as fully as it might otherwise have been. The judge must also consider warning the jury about not drawing prejudicial inferences from the fact that the accused has been prevented from cross-examining in person.

Clause 39: Funding of defence representation

134.     This clause covers payment of legal aid to, and the expenses of, legal representatives appointed by a court to cross-examine in the interests of a defendant. Where a defendant is banned from personally cross-examining, he will be eligible for legal aid on the same means-tested basis as other defendants in criminal cases. Court-appointed legal representatives will be paid from central funds rather than from legal aid.

Chapter III: Protection of complainants in proceedings for sexual offences

135.     The clauses in this Chapter restrict the circumstances, in rape or certain sexual offence cases (as listed in clause 57), in which the defence can introduce evidence or ask questions about the complainant's sexual behaviour before or after the alleged offence occurred. This includes sexual behaviour or experience with any person (including the accused). "Complainant" is defined in clause 58(1) as meaning a person against or in relation to whom an offence was (or is alleged to have been) committed.

136.     If the defence wishes to introduce evidence or ask questions about the complainant's sexual behaviour, it will have to make an application to the court. The prosecution will be warned of the general grounds of the application and will have an opportunity to oppose it. The court will then consider whether or not to grant leave (which may only be granted on the strictly controlled grounds set out in clause 40).

Clause 40: Restrictions on evidence or questions about complainant's sexual history

137.     Subsections (2)-(6) provide for the circumstances in which the court may allow evidence to be admitted about the complainant's sexual behaviour or questions to be asked with a view to eliciting such evidence.

138.     The court may only grant leave:

  • If the evidence or questioning relates to any issue which has to be proved in the case other than an issue as to whether the complainant consented (subsection (3)(a)). Thus, for an offence where consent is an issue, this means that if the defendant claims that at the time of the alleged offence he honestly believed that the complainant was consenting, even though he now accepts she was not, sexual behaviour evidence could be introduced.

  • If the issue that is being argued in the case is whether the complainant consented and the evidence or questioning relates to behaviour within 24 hours of the alleged offence (subsection (3)(b)). The complainant's sexual behaviour at any other time is considered to be irrelevant to consent on the occasion of the alleged offence.

  • If the evidence or questioning that the defence wishes to introduce is intended to dispute evidence that the prosecution have introduced about the complainant's sexual behaviour (subsection (5)). This is based on the principle that there should be "equality of arms" between the two sides: the defence must be able to challenge the prosecution's evidence. It must go no further than to directly contradict or explain claims on behalf of the complainant.

139.     In allowing such evidence to be introduced, the court must be satisfied not only that one of these criteria is met but also that, if the sexual behaviour evidence were not heard, the jury or magistrate in the case might make an unsafe decision on an issue falling to be proved in the case.

140.     Subsection (4) provides that if the defence seek to introduce questioning or evidence purportedly under subsection (3) - by claiming that it relates to an issue falling to be proved in the case - but the court considers that its real main purpose is to undermine or diminish the complainant's credibility, the court will not allow it. But it is not intended that evidence which seeks to do no more than show that the complainant has a history of making unproved complaints of sexual offences should be treated as being evidence about sexual behaviour.

141.     Subsection (6) provides that any evidence or questioning about sexual behaviour that is allowed will have to relate to a specific instance, or instances, of such behaviour.

Clause 41: Interpretation and application of clause 40

142.     Clause 41 (as well as assisting with the interpretation of clause 40) provides that the Secretary of State may by order, subject to the affirmative resolution procedure (i.e. both Houses of Parliament must debate and approve any order), add or remove offences to or from the list of offences which are sexual offences for the purposes of clause 40.

Clause 42: Procedure on applications under clause 40

143.     Subsection (1) provides that applications to the court for permission to introduce sexual history evidence will be made in the absence of the public, the press, the jury (if any) and all witnesses (other than the accused). Any other party to the trial will be allowed to be present when an application is being made in order to be able to make representations to the court about whether the application should be allowed.

144.     Subsection (2) provides that the court will have to record its decision to allow or refuse an application and specify the extent to which it is allowing evidence to be introduced into the trial or questions to be asked. This is to ensure that it is clear to the defence, the prosecution and the witness what decision has been made.

Chapter IV: Reporting restrictions

145.     The clauses in this Chapter clarify the legislation which currently restricts the media identification of juveniles involved in the legal process and extend the restrictions back to the point at which an allegation is made that an offence has been committed. New restrictions are provided on the reporting of the names of intimidated witnesses and on the making of special directions. The revised provisions ensure that restrictions imposed by courts in England and Wales or Northern Ireland will be enforceable throughout the United Kingdom, including in Scotland. For each restriction a procedure is provided for the making of applications for the lifting of the restriction.

146.     As the law stands, reporting restrictions (except in sexual offence cases) only apply to proceedings in a court. Except in those cases, the current legislation does not extend back beyond the beginning of court proceedings. This exposes potentially vulnerable children and young persons to identification by the media. For example, juveniles who have been suspected and/or arrested, but not charged, do not enjoy the same protection from identification as those who have been charged.

147.     Clauses 43 and 44 build on the restrictions imposed by sections 39 and 49 of the Children and Young Persons Act 1933 (as amended by subsequent legislation) on the reporting of information likely to identify young people involved in court proceedings.

148.     Schedule 2 makes section 49 of the 1933 Act enforceable in Northern Ireland (as well as in England and Wales and Scotland). The effect of this change, together with the inclusion of Northern Ireland in clauses 43 and 44, is that it will now be an offence anywhere in the United Kingdom to publish details leading to the identification of young people involved in a case triable in England and Wales, or Northern Ireland, where restrictions have effect.

Clause 43: Restrictions on reporting alleged offences involving persons under 18

149.     Clause 43 provides that whenever an allegation is first made that an offence has been committed against the law of England and Wales or Northern Ireland (or that a person subject to armed forces law has committed a corresponding offence anywhere else in the world), no information enabling the identification of any person involved in the offence who is less than 18 years old may be reported by the media. This would remove the existing gap between allegation and either laying an information before a magistrate or charging.

150.     The restriction lasts until the individual turns 18 or a court order dispenses with the restrictions in the interests of justice (subsection(6)) or the offence becomes the subject of criminal proceedings. In the latter case, the restrictions under clause 44, or under section 49 of the Children and Young Persons Act 1933, should then apply.

151.     Material which is particularly likely to identify a juvenile, such as the juvenile's name, address or image or the identity of the juvenile's school or place of work, is listed in the clause. But all material likely to lead to identification is subject to the restriction (subsections (2) and (5)).

152.     Paragraph 6 of Schedule 5 provides that the restrictions apply in respect of previously unpublished information leading to the identification of young persons involved in alleged offences committed at any time in the past.

153.     In Schedule 2, section 49 of the Children and Young Persons Act 1933 is amended to bring it into line with the changes made by clause 43. The restrictions that will apply during proceedings will be similar in form to the restrictions which come into play immediately following an allegation, although the definition of a witness goes wider to encompass any witness in the proceedings.

154.     Section 49(8) is amended to allow a single justice to dispense with the restrictions following the conviction of a child or young person (paragraph 3(6)). Previously, a single justice could only dispense with the restrictions if he thought they were against the interests of the young person or if the young person had escaped from, or was avoiding, lawful custody.

155.     Paragraph 3(9) extends the territorial influence of the restrictions in section 49 to England, Wales, Scotland and Northern Ireland. This means that publications in Scotland and Northern Ireland will not be able to report any material likely to lead to the identification of a minor concerned in criminal proceedings in England and Wales. But reports of proceedings in courts in Scotland or Northern Ireland courts will not become subject to section 49.

Clause 44: Power to restrict reporting of criminal proceedings involving persons under 18

156.     Clause 44 gives courts power to impose a prohibition on reporting information leading to the identification of a witness, victim or defendant under the age of 18, but it applies to a wider category of witness than clause 43 (i.e. any witness, not just witnesses to the commission of the offence). It only applies once proceedings have started, whether in a court in England and Wales or Northern Ireland or in a service court. It does not apply to proceedings in youth courts or to any other proceedings where the automatic restrictions imposed by section 49 of the 1933 Act (or the corresponding Northern Ireland provision) have effect. The imposition of restrictions under the clause is at the discretion of the court.

157.     If the court so wishes, it can choose to impose no restrictions at all or direct that the reporting ban is to have effect with specified exceptions. The restrictions will apply until the person reaches the age of 18 unless in the meantime the court decides to lift or relax them.

158.     The clause replaces, in respect of criminal proceedings, section 39 of the Children and Young Persons Act 1933. Section 39 is, however, not repealed but is amended by paragraph 2 of Schedule 2 so that it will now relate solely to non-criminal proceedings. But section 39 will continue to apply in criminal cases begun prior to the date on which the change comes into force.

Clause 45: Power to restrict reports about certain adult witnesses in criminal proceedings

159.     Clause 45 allows a court to impose restrictions on reporting information leading to the identification of an adult witness involved in criminal proceedings, if the court considers that the measure is needed because of the witness's fear or distress at giving evidence or co-operating with the party calling him. Neither "fear" nor "distress" is intended to cover a disinclination to give evidence on account of there being a prospect of embarrassing publicity.

160.     Witnesses qualifying for restrictions under this clause will be suffering the type of fear or distress that might make them eligible also for special measures under Chapter I, although it is not intended that everyone eligible by virtue of fear or distress for special measures will also be considered eligible for the protection of a reporting direction.

Clause 46: Restrictions on reporting directions under Chapter I or II

161.     Clause 46 prevents the reporting of cases from covering - until the end of the proceedings (subsection (6)) - matters in connection with special measures directions under Chapter I or directions under clause 35 prohibiting the accused from cross-examining in person any particular witness.     The court may lift this restriction but must consider, in the event of any representations by the accused against doing so, whether doing so would be in the interests of justice (subsections (4) and (5)).

Clauses 48 and 49: Offences where reporting restrictions not complied with

162.     Clause 48 describes the offences created by the new reporting restrictions and specifies who can commit them, the defences allowed and the penalties which may be imposed on conviction. Restrictions relating to offences or proceedings in England and Wales or Northern Ireland, or to armed forces offences or proceedings, will be enforceable throughout the United Kingdom.

163.     The types of publication caught are described in clause 58(1) and are intended to include written reports (including those available on the internet), speeches, television broadcasts (whether analogue or digital) and any other type of communication addressed to the public.

164.     Clause 49 provides for the separate prosecution of individuals who might otherwise be protected by a claim of corporate liability for an offence.

Chapter V: Competence of witnesses and capacity to be sworn

165.     The clauses in this Chapter reform the law about who is to be considered competent to give evidence in criminal proceedings and about when evidence may be given unsworn.

Clause 50 and Schedule 3: General rule of competence

166.     The general rule, set out in this clause, is that all people, whatever their age, are competent to act as witnesses unless they cannot understand questions asked of them in court and answer them in a manner which can be understood (with, if necessary, the assistance of special measures under Chapter I).

167.     Subsection (4) provides the only exception to the general rule: that a defendant is not competent to give evidence for the prosecution in his own trial (nor is any co-defendant in the proceedings).

168.     The new general rule renders obsolete the existing rules on the competence of husbands and wives to give evidence for or against each other. Those rules are contained in section 80 of the Police and Criminal Evidence Act 1984 which, accordingly, is amended by paragraph 12 of Schedule 3 (so as to become a provision solely about the compellability of husbands and wives who are competent to give evidence). Those amendments, taken together with clause 50, will reverse the unintended effects of section 80(1) and (4) of the Police and Criminal Evidence Act 1984. As a result, in future no-one who is a defendant in a trial will be a competent witness for the prosecution in respect of any offence in that trial until such time as he either pleads guilty, is convicted or the charges against him are dropped.

169.     At present, section 80 of the Police and Criminal Evidence Act 1984 appears to provide that where a husband and wife are co-defendants in a case, but they are charged with different offences, each is a competent witness for the prosecution in respect of any offences with which he or she is not charged. This contrasts with co-defendants who are not married, who would not be competent for the prosecution in respect of offences with which they are not charged.

170.     Section 80 also appears to create the following situation in a case involving many charges if a married couple H and W are co-defendants along with a third co-defendant T. Spouse W can be a prosecution witness against T if T is charged with an offence jointly with spouse H. But W cannot be a prosecution witness against T if T, although being tried in the same trial as H, is not charged with any offence jointly with H. This result was not the intention of the legislation.

Clause 51: Determining whether a witness is competent

171.     This clause provides for how a witness's competence is to be determined if it is questioned by the prosecution, the defence or the court itself.

172.     When the court assesses the witness's competence, subsection (3) provides that the court is to take into account any special measures it has granted, or is planning to grant, under Chapter I (including, for example, communication aids or the giving of evidence through an intermediary). This is to avoid a potential witness being judged not to be competent to be a witness if the availability of special measures would enable him or her to understand questions and give answers which can be understood.

173.     If the witness needs to be questioned, subsection (6) provides that the questions will be asked by the court (not by the parties). Any such questioning will be done in the presence of both the prosecution and the defence. The court will be allowed to ask for expert advice about the witness's competence.

Clause 52: Determining whether witnesses are to be sworn

174.     This clause sets out how a court is to decide whether a witness should swear an oath to tell the truth before giving evidence. Here, as in legislation, references to swearing an oath include making an affirmation. Subsection (1) provides that the question of whether a witness is eligible to take the oath may be raised by either party to the proceedings - i.e. prosecution or defence - or by the court itself.

175.     Subsection (2)(a) provides that no witness under the age of 14 is to be sworn. A witness of 14 or over is only eligible to be sworn if he understands the solemnity of a criminal trial and that taking an oath places a particular responsibility on him to tell the truth. If no evidence is offered suggesting that the witness does not understand those two matters, subsection (3) sets up a presumption that the witness is to be sworn if he is 14 or over.

176.     Subsections (5) - (7) provide that, as with considerations of competence, the question of whether a witness should be sworn is to be considered in the absence of any jury (but in the presence of both the prosecution and the defence) and that expert evidence can be received.

Clauses 53 and 54: Unsworn evidence

177.     Clause 53 provides that anyone who is competent to be a witness but not permitted to give evidence on oath may give evidence unsworn (whereas at present a person aged 14 or over who cannot be sworn is not able to give evidence). Clause 54 describes the penalties for giving false unsworn evidence.

178.     Subsection (5) of clause 53 provides that convicted offenders will not be successful if they appeal against their convictions solely on the ground that a witness gave evidence unsworn when it should have been sworn.

Chapter VI: Inferences from silence

Clause 55: Inferences in cases where no access to legal advice at police station etc.

179.     This clause amends the inferences from silence provisions in the Criminal Justice and Public Order Act 1994, to prohibit the drawing of inferences from silence when a suspect is questioned at a police station (or other authorised places of detention) while denied access to legal advice.

180.     The effect of these provisions will be to bring the law into compliance with the judgement of the European Court of Human Rights in the case of John Murray v United Kingdom, which held that there was a breach of Article 6 of the Convention as a result of denying the applicant access to legal advice in circumstances where inferences could be drawn from his silence during police questioning.

181.     Subsection (5) empowers the Secretary of State to designate by regulation places of detention other than a police station. This is to take account of detention by other investigators such as HM Customs and Excise.

Chapter VII: General provisions

Clause 56: Application of Part II to service courts

182.     It is intended that Part II will apply to proceedings before courts-martial, Standing Civilian Courts and the Courts-Martial Appeal Court. Subsection (1) gives the Secretary of State power to make an order making Chapters I, II, III and V apply to such proceedings (with any modifications he specifies). Subsection (2) means that Chapter IV will apply to such proceedings but subject to any modifications which the Secretary of State may specify. For example, where a provision of Part II only applies if a certain offence is involved, the modifications could include the specifying of the corresponding offences under armed forces law. Subsection (3) ensures that the existing power under section 39 of the Criminal Justice and Public Order Act 1994 to apply the rules about inferences from silence to service court proceedings will be capable of being used to apply those rules as amended by clause 55.

Clauses 57 and 58: Interpretation of Part II

183.     Clause 57(2) provides that references to any offence in Part II include not only aiding, abetting, counselling, inciting or procuring the commission of the offence, or conspiring to commit it, but also (for example) aiding or abetting an attempt to commit the offence.

184.     The definition of "court" in clause 58(1) means that in Chapters IV and V references to a court include, where appropriate, a Divisional Court of the High Court or the House of Lords.

185.     The definition of "publication" in clause 58(1) is drawn from the Contempt of Court Act 1981 and the related definition of "relevant programme" covers most radio and television programmes transmitted from or to the United Kingdom.

Part III: Final provisions

186.     Clause 59 requires the Secretary of State to make the orders and regulations provided for throughout the Bill by statutory instrument. Statutory instruments are subordinate legislation. They may be subject to affirmative resolution procedure, by which each House of Parliament in turn is asked to debate and approve their content, or negative resolution procedure, by which both Houses are offered the opportunity to ask for a debate and vote. Some statutory instruments, such as orders specifying the date upon which provisions of the Bill are to come into force, may be subject to neither procedure.

187.     Clause 60 provides for making rules of court about the provisions in the Bill. Rules of court contain detailed rules of procedure, have the force of legislation and will enable the courts properly to implement the Bill.

188.     Clause 61 provides that Orders in Council under the Northern Ireland Act 1998 which make for Northern Ireland provision corresponding to anything contained in Chapters I to III, V and VI of Part II are to be subject to the negative resolution procedure (i.e. each House of Parliament will be given the opportunity to veto the Order) instead of the procedure to which they would otherwise be subject under section 85 of the 1998 Act.

189.     Clause 62 and Schedules 3 to 5 provide for minor and consequential amendments (Schedule 3), repeals of existing legislation which is superseded by the Bill or spent (Schedule 4) and transitional arrangements in respect of investigations or proceedings part-way through at the time the Act will commence (Schedule 5).

190.     Paragraphs 1, 9 and 11 to 14 of Schedule 3 relate to Chapter V of Part II of the Bill. Paragraphs 2, 3(3) and 18 of Schedule 3 relate to Chapter IV of Part II. Paragraphs 3(2), 4 to 8, 10, 15, 17 and 19 to 24 relate to Part I of the Bill.

191.     Clause 63 enables the Secretary of State to fix various dates for bringing the Bill (once enacted) into force (subsection (2)). It is intended that the introduction of the measures in the Act will be staggered, to allow time for adequate arrangements to be put in place across England and Wales and for new practices to be developed and tested in pilot areas.

192.     Clause 63 also provides that the provisions about reporting restrictions will be enforceable in all parts of the United Kingdom, even though an individual restriction will relate to an offence or court proceedings in a particular part of teh United Kingdom (subsection (4)). Subsection (6) ensures that (with the exceptions specified) any amendment or repeal to other legislation provided for in the Bill becomes part of the law of the same territories as have as part of their law the original legislation. Subsection (7) provides for Chapter IV of Part II and clause 56 to apply to courts-martial and other service courts wherever in the world they may be held.

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Prepared: 4 december 1998