Office of Public Sector Information
PART II continued CHAPTER I continued
A special measures direction may provide for the witness, while giving evidence (whether by testimony in court or otherwise), to be provided with such device as the court considers appropriate with a view to enabling questions or answers to be communicated to or by the witness despite any disability or disorder or other impairment which the witness has or suffers from.
(1) Subsections (2) to (4) apply to a statement made by a witness in criminal proceedings which, in accordance with a special measures direction, is not made by the witness in direct oral testimony in court but forms part of the witness’s evidence in those proceedings.
(2) The statement shall be treated as if made by the witness in direct oral testimony in court; and accordingly—
(a) it is admissible evidence of any fact of which such testimony from the witness would be admissible;
(b) it is not capable of corroborating any other evidence given by the witness.
(3) Subsection (2) applies to a statement admitted under section 27 or 28 which is not made by the witness on oath even though it would have been required to be made on oath if made by the witness in direct oral testimony in court.
(4) In estimating the weight (if any) to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn (as to the accuracy of the statement or otherwise).
(5) Nothing in this Chapter (apart from subsection (3)) affects the operation of any rule of law relating to evidence in criminal proceedings.
(6) Where any statement made by a person on oath in any proceeding which is not a judicial proceeding for the purposes of section 1 of the [1911 c. 6.] Perjury Act 1911 (perjury) is received in evidence in pursuance of a special measures direction, that proceeding shall be taken for the purposes of that section to be part of the judicial proceeding in which the statement is so received in evidence.
(7) Where in any proceeding which is not a judicial proceeding for the purposes of that Act—
(a) a person wilfully makes a false statement otherwise than on oath which is subsequently received in evidence in pursuance of a special measures direction, and
(b) the statement is made in such circumstances that had it been given on oath in any such judicial proceeding that person would have been guilty of perjury,
he shall be guilty of an offence and liable to any punishment which might be imposed on conviction of an offence under section 57(2) (giving of false unsworn evidence in criminal proceedings).
(8) In this section “statement” includes any representation of fact, whether made in words or otherwise.
Where on a trial on indictment evidence has been given in accordance with a special measures direction, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused.
(1) In this Chapter—
“eligible witness” means a witness eligible for assistance by virtue of section 16 or 17;
“live link” has the meaning given by section 24(8);
“quality”, in relation to the evidence of a witness, shall be construed in accordance with section 16(5);
“special measures direction” means (in accordance with section 19(5)) a direction under section 19.
(2) In this Chapter references to the special measures available in relation to a witness shall be construed in accordance with section 18.
(3) In this Chapter references to a person being able to see or hear, or be seen or heard by, another person are to be read as not applying to the extent that either of them is unable to see or hear by reason of any impairment of eyesight or hearing.
(4) In the case of any proceedings in which there is more than one accused—
(a) any reference to the accused in sections 23 to 28 may be taken by a court, in connection with the giving of a special measures direction, as a reference to all or any of the accused, as the court may determine, and
(b) any such direction may be given on the basis of any such determination.
No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
(1) No person charged with an offence to which this section applies may in any criminal proceedings cross-examine in person a protected witness, either—
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
(2) For the purposes of subsection (1) a “protected witness” is a witness who—
(a) either is the complainant or is alleged to have been a witness to the commission of the offence to which this section applies, and
(b) either is a child or falls to be cross-examined after giving evidence in chief (whether wholly or in part)—
(i) by means of a video recording made (for the purposes of section 27) at a time when the witness was a child, or
(ii) in any other way at any such time.
(3) The offences to which this section applies are—
(a) any offence under—
(i) the [1956 c. 69.] Sexual Offences Act 1956,
(ii) the [1960 c. 33.] Indecency with Children Act 1960,
(iii) the [1967 c. 60.] Sexual Offences Act 1967,
(iv) section 54 of the [1977 c. 45.] Criminal Law Act 1977, or
(v) the [1978 c. 37.] Protection of Children Act 1978;
(b) kidnapping, false imprisonment or an offence under section 1 or 2 of the [1984 c. 37.] Child Abduction Act 1984;
(c) any offence under section 1 of the [1933 c. 12.] Children and Young Persons Act 1933;
(d) any offence (not within any of the preceding paragraphs) which involves an assault on, or injury or a threat of injury to, any person.
(4) In this section “child” means—
(a) where the offence falls within subsection (3)(a), a person under the age of 17; or
(b) where the offence falls within subsection (3)(b), (c) or (d), a person under the age of 14.
(5) For the purposes of this section “witness” includes a witness who is charged with an offence in the proceedings.
(1) This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—
(a) the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b) the court of its own motion raises the issue whether such a direction should be given.
(2) If it appears to the court—
(a) that the quality of evidence given by the witness on cross-examination—
(i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and
(ii) would be likely to be improved if a direction were given under this section, and
(b) that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.
(3) In determining whether subsection (2)(a) applies in the case of a witness the court must have regard, in particular, to—
(a) any views expressed by the witness as to whether or not the witness is content to be cross-examined by the accused in person;
(b) the nature of the questions likely to be asked, having regard to the issues in the proceedings and the defence case advanced so far (if any);
(c) any behaviour on the part of the accused at any stage of the proceedings, both generally and in relation to the witness;
(d) any relationship (of whatever nature) between the witness and the accused;
(e) whether any person (other than the accused) is or has at any time been charged in the proceedings with a sexual offence or an offence to which section 35 applies, and (if so) whether section 34 or 35 operates or would have operated to prevent that person from cross-examining the witness in person;
(f) any direction under section 19 which the court has given, or proposes to give, in relation to the witness.
(4) For the purposes of this section—
(a) “witness”, in relation to an accused, does not include any other person who is charged with an offence in the proceedings; and
(b) any reference to the quality of a witness’s evidence shall be construed in accordance with section 16(5).
(1) Subject to subsection (2), a direction has binding effect from the time it is made until the witness to whom it applies is discharged.
In this section “direction” means a direction under section 36.
(2) The court may discharge a direction if it appears to the court to be in the interests of justice to do so, and may do so either—
(a) on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or
(b) of its own motion.
(3) In subsection (2) “the relevant time” means—
(a) the time when the direction was given, or
(b) if a previous application has been made under that subsection, the time when the application (or last application) was made.
(4) The court must state in open court its reasons for—
(a) giving, or
(b) refusing an application for, or for the discharge of, or
(c) discharging,
a direction and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.
(5) Rules of court may make provision—
(a) for uncontested applications to be determined by the court without a hearing;
(b) for preventing the renewal of an unsuccessful application for a direction except where there has been a material change of circumstances;
(c) for expert evidence to be given in connection with an application for, or for discharging, a direction;
(d) for the manner in which confidential or sensitive information is to be treated in connection with such an application and in particular as to its being disclosed to, or withheld from, a party to the proceedings.
(1) This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.
(2) Where it appears to the court that this section applies, it must—
(a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and
(b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
(3) If by the end of the period mentioned in subsection (2)(b) either—
(a) the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or
(b) no notification has been received by the court and it appears to the court that no legal representative is to so act,
the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused.
(4) If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.
(5) A person so appointed shall not be responsible to the accused.
(6) Rules of court may make provision—
(a) as to the time when, and the manner in which, subsection (2) is to be complied with;
(b) in connection with the appointment of a legal representative under subsection (4), and in particular for securing that a person so appointed is provided with evidence or other material relating to the proceedings.
(7) Rules of court made in pursuance of subsection (6)(b) may make provision for the application, with such modifications as are specified in the rules, of any of the provisions of—
(a) Part I of the [1996 c. 25.] Criminal Procedure and Investigations Act 1996 (disclosure of material in connection with criminal proceedings), or
(b) the [1997 c. 39.] Sexual Offences (Protected Material) Act 1997.
(8) For the purposes of this section—
(a) any reference to cross-examination includes (in a case where a direction is given under section 36 after the accused has begun cross-examining the witness) a reference to further cross-examination; and
(b) “qualified legal representative” means a legal representative who has a right of audience (within the meaning of the [1990 c. 41.] Courts and Legal Services Act 1990) in relation to the proceedings before the court.
(1) Where on a trial on indictment an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced—
(a) by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person;
(b) where the witness has been cross-examined by a legal representative appointed under section 38(4), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the accused’s own legal representative.
(2) Subsection (8)(a) of section 38 applies for the purposes of this section as it applies for the purposes of section 38.
(1) In section 19(3) of the [1985 c. 23.] Prosecution of Offences Act 1985 (regulations authorising payments out of central funds), after paragraph (d) there shall be inserted—
“(e) to cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.”
(2) In section 21(3) of the [1988 c. 34.] Legal Aid Act 1988 (cases where, subject to means, representation must be granted), after paragraph (d) there shall be inserted—
“(e) where a person is prevented from conducting any cross-examination as mentioned in section 38(1) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination), for conducting the cross-examination on behalf of that person (otherwise than as a person appointed under section 38(4) of that Act).”
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(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,
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
(7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(1) In section 41—
(a) “relevant issue in the case” means any issue falling to be proved by the prosecution or defence in the trial of the accused;
(b) “issue of consent” means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented);
(c) “sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and
(d) subject to any order made under subsection (2), “sexual offence” shall be construed in accordance with section 62.
(2) The Secretary of State may by order make such provision as he considers appropriate for adding or removing, for the purposes of section 41, any offence to or from the offences which are sexual offences for the purposes of this Act by virtue of section 62.
(3) Section 41 applies in relation to the following proceedings as it applies to a trial, namely—
(a) proceedings before a magistrates' court inquiring into an offence as examining justices,
(b) the hearing of an application under paragraph 5(1) of Schedule 6 to the [1991 c. 53.] Criminal Justice Act 1991 (application to dismiss charge following notice of transfer of case to Crown Court),
(c) the hearing of an application under paragraph 2(1) of Schedule 3 to the [1998 c. 37.] Crime and Disorder Act 1998 (application to dismiss charge by person sent for trial under section 51 of that Act),
(d) any hearing held, between conviction and sentencing, for the purpose of determining matters relevant to the court’s decision as to how the accused is to be dealt with, and
(e) the hearing of an appeal,
and references (in section 41 or this section) to a person charged with an offence accordingly include a person convicted of an offence.
(1) An application for leave shall be heard in private and in the absence of the complainant.
In this section “leave” means leave under section 41.
(2) Where such an application has been determined, the court must state in open court (but in the absence of the jury, if there is one)—
(a) its reasons for giving, or refusing, leave, and
(b) if it gives leave, the extent to which evidence may be adduced or questions asked in pursuance of the leave,
and, if it is a magistrates' court, must cause those matters to be entered in the register of its proceedings.
(3) Rules of court may make provision—
(a) requiring applications for leave to specify, in relation to each item of evidence or question to which they relate, particulars of the grounds on which it is asserted that leave should be given by virtue of subsection (3) or (5) of section 41;
(b) enabling the court to request a party to the proceedings to provide the court with information which it considers would assist it in determining an application for leave;
(c) for the manner in which confidential or sensitive information is to be treated in connection with such an application, and in particular as to its being disclosed to, or withheld from, parties to the proceedings.
(1) This section applies (subject to subsection (3)) where a criminal investigation has begun in respect of—
(a) an alleged offence against the law of—
(i) England and Wales, or
(ii) Northern Ireland; or
(b) an alleged civil offence (other than an offence falling within paragraph (a)) committed (whether or not in the United Kingdom) by a person subject to service law.
(2) No matter relating to any person involved in the offence shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person involved in the offence.
(3) The restrictions imposed by subsection (2) cease to apply once there are proceedings in a court (whether a court in England and Wales, a service court or a court in Northern Ireland) in respect of the offence.
(4) For the purposes of subsection (2) any reference to a person involved in the offence is to—
(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 (5)—
(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 [1992 c. 34.] Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.
(5) 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.
(6) The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) his name,
(b) his address,
(c) the identity of any school or other educational establishment attended by him,
(d) the identity of any place of work, and
(e) any still or moving picture of him.
(7) Any appropriate criminal court may by order dispense, to any extent specified in the order, with the restrictions imposed by subsection (2) in relation to a person if it is satisfied that it is necessary in the interests of justice to do so.
(8) However, when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person.
(9) In subsection (7) “appropriate criminal court” means—
(a) in a case where this section applies by virtue of subsection (1)(a)(i) or (ii), any court in England and Wales or (as the case may be) in Northern Ireland which has any jurisdiction in, or in relation to, any criminal proceedings (but not a service court unless the offence is alleged to have been committed by a person subject to service law);
(b) in a case where this section applies by virtue of subsection (1)(b), any court falling within paragraph (a) or a service court.
(10) The power under subsection (7) of a magistrates' court in England and Wales may be exercised by a single justice.
(11) In the case of a decision of a magistrates' court in England and Wales, or a court of summary jurisdiction in Northern Ireland, to make or refuse to make an order under subsection (7), the following persons, namely—
(a) any person who was a party to the proceedings on the application for the order, and
(b) with the leave of the Crown Court, any other person,
may, in accordance with rules of court, appeal to the Crown Court against that decision or appear or be represented at the hearing of such an appeal.
(12) On such an appeal the Crown Court—
(a) may make such order as is necessary to give effect to its determination of the appeal; and
(b) may also make such incidental or consequential orders as appear to it to be just.
(13) In this section—
(a) “civil offence” means an act or omission which, if committed in England and Wales, would be an offence against the law of England and Wales;
(b) any reference to a criminal investigation, in relation to an alleged offence, is to an investigation conducted by police officers, or other persons charged with the duty of investigating offences, with a view to it being ascertained whether a person should be charged with the offence;
(c) any reference to a person subject to service law is to—
(i) a person subject to military law, air-force law or the [1957 c. 53.] Naval Discipline Act 1957, or
(ii) any other person to whom provisions of Part II of the [1955 c. 18.] Army Act 1955, Part II of the [1955 c. 19.] Air Force Act 1955 or Parts I and II of the [1957 c. 53.] Naval Discipline Act 1957 apply (whether with or without any modifications).
(1) This section applies (subject to subsection (2)) in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland; and
(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.
(2) This section does not apply in relation to any proceedings to which section 49 of the [1933 c. 12.] Children and Young Persons Act 1933 applies.
(3) The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.
Youth Justice and Criminal Evidence Act 1999