House of Lords Amendments - Youth Justice and Criminal Evidence Bill [H.L.]

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Session 1998-99
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Amendments to the Youth Justice and Criminal Evidence Bill [H.L.]

Youth Justice and Criminal Evidence Bill [H.L.] -
Amendments to be debated in the House of Lords

COMMONS AMENDMENTS

[The page and line refer to Bill 74 as first printed for the Commons.]

Amendment
No.

Clause 1

1      Page 1, line 21, leave out ("may order the offender") and insert ("shall sentence the offender for the offence by ordering him")

2      Page 2, line 2, leave out ("order the offender") and insert ("sentence the offender for the offence by ordering him")

Clause 7

3      Page 7, line 15, at end insert--

    ("(  )  Where the panel allow any such person as is mentioned in subsection (4)(a) ("the victim") to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.")

Clause 17

4      Page 13, line 13, leave out ("section") and insert ("subsection")

5      Page 13, line 36, leave out from ("offence") to end of line 39 and insert ("(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.")

Clause 20

6      Page 15, line 29, leave out ("21(6)") and insert ("(Special provisions relating to child witnesses)(8)")

Clause 21

7      Leave out Clause 21

After Clause 21

8      Insert the following new Clause--

    (".--(1) For the purposes of this section--
(a)  a witness in criminal proceedings is a "child witness" if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);

(b)  a child witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is--

    (i)  an offence falling within section 34(3)(a) (sexual offences etc.), or

    (ii)  an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and

(c)  a "relevant recording", in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
    (2)  Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must--
(a)  first have regard to subsections (3) to (7) below; and

(b)  then have regard to section 19(2);
and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.

    (3)  The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements--
(a)  it must provide for any relevant recording to be admitted under section 26 (video recorded evidence in chief); and

(b)  it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 23.
    (4)  The primary rule is subject to the following limitations--
(a)  the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

(b)  the requirement contained in subsection (3)(a) also has effect subject to section 26(2); and

(c)  the rule does not apply to the extent that the court is satisfied that compliance with it 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 witness would have that result or for any other reason).
    (5)  However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.

    (6)  Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to--
(a)  any cross-examination of the witness otherwise than by the accused in person, and

(b)  any subsequent re-examination.
    (7)  The requirement contained in subsection (6) has effect subject to the following limitations--
(a)  it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and

(b)  it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.
    (8)  Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then--
(a)  subject to subsection (9) below, and

(b)  except where the witness has already begun to give evidence in the proceedings,
the direction shall cease to have effect at the time when the witness attains the age of 17.

    (9)  Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and--
(a)  the direction provides--

    (i)  for any relevant recording to be admitted under section 26 as evidence in chief of the witness, or

    (ii)  for the special measure available under section 27 to apply in relation to the witness, and

(b)  if it provides for that special measure to so apply, the witness is still under the age of 17 when the video recording is made for the purposes of section 27,
then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.") Special provisions relating to child witnesses.

9      Insert the following new Clause--

    (".--(1) For the purposes of this section--
(a)  a witness in criminal proceedings (other than the accused) is a "qualifying witness" if he--

    (i)  is not an eligible witness at the time of the hearing (as defined by section 16(3)), but

    (ii)  was under the age of 17 when a relevant recording was made;

(b)  a qualifying witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is--

    (i)  an offence falling within section 34(3)(a) (sexual offences etc.), or

    (ii)  an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and

(c)  a "relevant recording", in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
    (2)  Subsections (2) to (7) of section (Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness--
(a)  subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);

(b)  subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and

(c)  subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).")
Extension of provisions of section (Special provisions relating to child witnesses) to certain witnesses over 17.

Clause 29

10      Page 22, line 45, after ("disorder") insert ("or other impairment")

Clause 40

11      Page 29, leave out lines 13 to 16 and insert--
("(c)  it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar--

    (i)  to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

    (ii)  to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,

{jf48}that the similarity"){PA

Clause 41

12      Page 30, line 7, leave out ("other than") and insert ("but excluding (except in section 40(3)(c)(i) and (5)(a))")

Clause 42

13      Page 30, line 35, after ("court") insert ("(but in the absence of the jury, if there is one)")

14      Page 30, line 36, leave out ("decision to give, or refuse,") and insert ("reasons for giving, or refusing,")

Clause 43

15      Page 31, line 19, leave out ("when a minor shall while that person") and insert ("shall while he")

16      Page 31, line 24, leave out from beginning to ("cease") in line 28

17      Page 31, line 32, leave out from ("to") to end of line 40 and insert--
("(a)  a person by whom the offence is alleged to have been committed; or

(b)  if this paragraph applies to the publication in question by virtue of subsection (4A)--

    (i)  a person against or in respect of whom the offence is alleged to have been committed, or

    (ii)  a person who is alleged to have been a witness to the commission of the offence;
except that paragraph (b)(i) does not include a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.

    (4A)  Subsection (4)(b) applies to a publication if--
(a)  where it is a relevant programme, it is transmitted, or

(b)  in the case of any other publication, it is published,
on or after such date as may be specified in an order made by the Secretary of State.")

Clause 44

18      Page 33, line 13, leave out ("when a minor")

19      Page 33, leave out lines 40 to 42

Clause 49

20      Page 39, line 27, leave out subsection (9) and insert--

    ("(8A)  In this section--
an appropriate person" means (subject to subsections (8B) to (8D))--

    (a)  in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or

    (b)  in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the protected person;

guardian", in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of--
1995 c. 36.

    (a)  (in England and Wales) the Children Act 1989, or
1989 c. 41.

    (b)  (in Northern Ireland) the Children (Northern Ireland) Order 1995.
S.I. 1995/755 (N.I.  2).

    (8B)  Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, "an appropriate person" means a person who is--
(a)  a representative of that authority, or

(b)  a parent or guardian of the protected person with whom the protected person is allowed to live.
1989 c. 41.

    (8C)  Where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, "an appropriate person" means a person who is--
(a)  an officer of that authority, or

(b)  a parent or guardian of the protected person with whom the protected person is allowed to live.
S.I. 1995/755 (N.I.  2).

    (8D)  Where the protected person is (within the meaning of section 17(6) of the Children (Scotland) Act 1995) a child who is looked after by a local authority, "an appropriate person" means a person who is--
(a)  a representative of that authority, or

(b)  a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.")
1995 c. 36.

21      Page 39, line 43, leave out ("subsection (9)") and insert ("subsections (8A) to (8D)")

© Parliamentary copyright 1999
Prepared 14 July 1999

Amendment No.
	Clause 1
1	Page 1, line 21, leave out ("may order the offender") and insert ("shall sentence the offender for the offence by ordering him")
2	Page 2, line 2, leave out ("order the offender") and insert ("sentence the offender for the offence by ordering him")
	Clause 7
3	Page 7, line 15, at end insert-- ("( ) Where the panel allow any such person as is mentioned in subsection (4)(a) ("the victim") to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.")
	Clause 17
4	Page 13, line 13, leave out ("section") and insert ("subsection")
5	Page 13, line 36, leave out from ("offence") to end of line 39 and insert ("(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.")
	Clause 20
6	Page 15, line 29, leave out ("21(6)") and insert ("(Special provisions relating to child witnesses)(8)")
	Clause 21
7	Leave out Clause 21
	After Clause 21
8	Insert the following new Clause--
	(".--(1) For the purposes of this section-- (a) a witness in criminal proceedings is a "child witness" if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17); (b) a child witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is-- (i) an offence falling within section 34(3)(a) (sexual offences etc.), or (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and (c) a "relevant recording", in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness. (2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must-- (a) first have regard to subsections (3) to (7) below; and (b) then have regard to section 19(2); and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence. (3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements-- (a) it must provide for any relevant recording to be admitted under section 26 (video recorded evidence in chief); and (b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 23. (4) The primary rule is subject to the following limitations-- (a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness; (b) the requirement contained in subsection (3)(a) also has effect subject to section 26(2); and (c) the rule does not apply to the extent that the court is satisfied that compliance with it 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 witness would have that result or for any other reason). (5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection. (6) Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to-- (a) any cross-examination of the witness otherwise than by the accused in person, and (b) any subsequent re-examination. (7) The requirement contained in subsection (6) has effect subject to the following limitations-- (a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and (b) it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him. (8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then-- (a) subject to subsection (9) below, and (b) except where the witness has already begun to give evidence in the proceedings, the direction shall cease to have effect at the time when the witness attains the age of 17. (9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and-- (a) the direction provides-- (i) for any relevant recording to be admitted under section 26 as evidence in chief of the witness, or (ii) for the special measure available under section 27 to apply in relation to the witness, and (b) if it provides for that special measure to so apply, the witness is still under the age of 17 when the video recording is made for the purposes of section 27, then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.")	Special provisions relating to child witnesses.
9	Insert the following new Clause--
	(".--(1) For the purposes of this section-- (a) a witness in criminal proceedings (other than the accused) is a "qualifying witness" if he-- (i) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but (ii) was under the age of 17 when a relevant recording was made; (b) a qualifying witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is-- (i) an offence falling within section 34(3)(a) (sexual offences etc.), or (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and (c) a "relevant recording", in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness. (2) Subsections (2) to (7) of section (Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness-- (a) subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section); (b) subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and (c) subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).")	Extension of provisions of section (Special provisions relating to child witnesses) to certain witnesses over 17.
	Clause 29
10	Page 22, line 45, after ("disorder") insert ("or other impairment")
	Clause 40
11	Page 29, leave out lines 13 to 16 and insert-- ("(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar-- (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
	{jf48}that the similarity"){PA
	Clause 41
12	Page 30, line 7, leave out ("other than") and insert ("but excluding (except in section 40(3)(c)(i) and (5)(a))")
	Clause 42
13	Page 30, line 35, after ("court") insert ("(but in the absence of the jury, if there is one)")
14	Page 30, line 36, leave out ("decision to give, or refuse,") and insert ("reasons for giving, or refusing,")
	Clause 43
15	Page 31, line 19, leave out ("when a minor shall while that person") and insert ("shall while he")
16	Page 31, line 24, leave out from beginning to ("cease") in line 28
17	Page 31, line 32, leave out from ("to") to end of line 40 and insert-- ("(a) a person by whom the offence is alleged to have been committed; or (b) if this paragraph applies to the publication in question by virtue of subsection (4A)-- (i) a person against or in respect of whom the offence is alleged to have been committed, or (ii) a person who is alleged to have been a witness to the commission of the offence; except that paragraph (b)(i) does not include a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence. (4A) Subsection (4)(b) applies to a publication if-- (a) where it is a relevant programme, it is transmitted, or (b) in the case of any other publication, it is published, on or after such date as may be specified in an order made by the Secretary of State.")
	Clause 44
18	Page 33, line 13, leave out ("when a minor")
19	Page 33, leave out lines 40 to 42
	Clause 49
20	Page 39, line 27, leave out subsection (9) and insert-- ("(8A) In this section-- an appropriate person" means (subject to subsections (8B) to (8D))-- (a) in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or
	(b) in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the protected person; guardian", in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of--	1995 c. 36.
	(a) (in England and Wales) the Children Act 1989, or	1989 c. 41.
	(b) (in Northern Ireland) the Children (Northern Ireland) Order 1995.	S.I. 1995/755 (N.I. 2).
	(8B) Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, "an appropriate person" means a person who is-- (a) a representative of that authority, or (b) a parent or guardian of the protected person with whom the protected person is allowed to live.	1989 c. 41.
	(8C) Where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, "an appropriate person" means a person who is-- (a) an officer of that authority, or (b) a parent or guardian of the protected person with whom the protected person is allowed to live.	S.I. 1995/755 (N.I. 2).
	(8D) Where the protected person is (within the meaning of section 17(6) of the Children (Scotland) Act 1995) a child who is looked after by a local authority, "an appropriate person" means a person who is-- (a) a representative of that authority, or (b) a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.")	1995 c. 36.
21	Page 39, line 43, leave out ("subsection (9)") and insert ("subsections (8A) to (8D)")