Youth Justice and Criminal Evidence Bill [H.L.] - continued        House of Lords
PART II, GIVING OF EVIDENCE OR INFORMATION FOR PURPOSES OF CRIMINAL PROCEEDINGS - continued
Special measures - continued

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Video recorded cross-examination or re-examination.     27. - (1) Where a special measures direction provides for a video recording to be admitted under section 26 as evidence in chief of the witness, the direction may also provide-
 
 
    (a) for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and
 
    (b) for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.
      (2) Such a recording must be made in the presence of such persons as rules of court or the direction may provide and in the absence of the accused, 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 witness and to communicate with the persons in whose presence the recording is being made, and
 
    (b) the accused is able to see and hear any such examination and to communicate with any legal representative acting for him.
      (3) Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(a) and (b) are to be regarded as satisfied in relation to those representatives if at all material times they are satisfied in relation to at least one of them.
 
      (4) Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so be so admitted if any requirement of subsection (2) or rules of court or the direction has not been complied with to the satisfaction of the court.
 
      (5) Where in pursuance of subsection (1) a recording has been made of any examination of the witness, the witness may not be subsequently cross-examined or re-examined in respect of any evidence given by the witness in the proceedings (whether in any recording admissible under section 26 or this section or otherwise than in such a recording) unless the court gives a further special measures direction making such provision as is mentioned in subsection (1)(a) and (b) in relation to any subsequent cross-examination, and re-examination, of the witness.
 
      (6) The court may only give such a further direction if it appears to the court that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of subsection (1), of a matter which that party could not with reasonable diligence have ascertained by then.
 
      (7) Nothing in this section shall be read as applying in relation to any cross-examination of the witness by the accused in person (in a case where the accused is to be able to conduct any such cross-examination).
 
Examination of witness through intermediary.     28. - (1) A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section ("an intermediary").
 
      (2) The function of an intermediary is to communicate and (if necessary) explain-
 
 
    (a) to the witness, questions put to the witness; and
 
    (b) to any person asking such questions, the answers given by the witness in reply to them.
      (3) Any examination of the witness in pursuance of subsection (1) must take place in the presence of such persons as rules of court or the direction may 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 witness and to communicate with the intermediary, and
 
    (b) (except in the case of a video recorded examination) the jury (if there is one) are able to see and hear the examination of the witness.
      (4) Where two or more legal representatives are acting for a party to the proceedings, subsection (3)(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.
 
      (5) A person may not act as an intermediary in a particular case except after making a declaration, in such form as may be prescribed by rules of court, that he will faithfully perform his function as intermediary.
 
      (6) Subsection (1) does not apply to an interview of the witness which is recorded by means of a video recording with a view to its admission as evidence in chief of the witness; but a special measures direction may provide for such a recording to be admitted under section 26 if the interview was conducted through an intermediary and-
 
 
    (a) that person complied with subsection (5) before the interview began, and
 
    (b) the court's approval for the purposes of this section is given before the direction is given.
      (7) Section 1 of the Perjury Act 1911 (perjury) shall apply 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; and for this purpose, where a person acts as an intermediary in any proceeding which is not a judicial proceeding for the purposes of that section, that proceeding shall be taken to be part of the judicial proceeding in which the witness's evidence is given.
 
Aids to communication.     29. 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 which the witness has or suffers from.
 
 
Supplementary
Status of evidence given under this Chapter.     30. - (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 26 or 27 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 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 54(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.
 
Warning to jury.     31. 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.
 
Interpretation etc. of Chapter I.     32. - (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 23(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 22 to 27 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.
 
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Prepared 4 December 1998