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

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Clause 12: Final meeting

65.     Clause 12 provides for the youth offender panel to call a final meeting towards the end of the period specified by the referral order in order to review the young offender's overall compliance with the agreed contract.

66.     If the youth offender panel is satisfied that the contract is being successfully completed the order will be discharged as from the end of the period. If the panel is not so satisfied, the young offender will be referred back to court for re-sentencing. The young offender must be provided with the panel's decision in writing.

Clause 13 and Schedule 1: Referral back to court

67.     The sanction for a young offender's non-compliance with a contract is for him or her to be sent back to court for re-sentencing. A referral back to court can be triggered by failure to attend a meeting; failure to agree a contract; refusal to sign a contract; or failure to meet the requirements of an agreed contract. The mechanics of the referral back procedure are contained in Part I of Schedule 1.

68.     Schedule 1 stipulates that the appropriate court to which the young offender is to be referred back (and which will carry out the re-sentencing) is the youth court or, where the young offender has reached the age of 18, the adult magistrates' court. The youth offender panel will send a report to the court by way of notification. The court will then require the young offender to attend court for a hearing by issuing a summons or warrant as appropriate.

69.     At such a hearing the court must consider the circumstances of the young offender's referral back to the court. The court must then make a finding of fact in respect of the report submitted by the youth offender panel.

70.     Where the court is satisfied that the referral back was justified, paragraph 5 empowers the court to revoke the referral order and to sentence the young offender afresh, with the same sentencing options as would be available if he or she had not already been sentenced. The court should have consider the report of the youth offender panel and take into account the extent to which the young offender may have complied with the contract up to the point of the referral back, and the reason for the referral back, in reaching a decision on a fresh sentence. The offender will have a right of appeal to the Crown Court against the sentence imposed.

71.     It is hoped that inappropriate referrals back to the court will be rare, but where (for example) the court finds that an alleged breach is unsubstantiated or that a breach has indeed occurred but that it was a minor issue given the particular circumstances of the case, it should not revoke the referral order. In that event the youth offender panel should continue to try to negotiate a contract where one has yet to be agreed. Any contract agreed before the referral back to court will have continued in force during the resulting court proceedings with the panel continuing to monitor the young offender's progress and compliance.

72.     Part II of Schedule 1 provides for cases where a young offender who, having been referred by a court to a youth offender panel, is part-way through the referral period when he finds himself back before a court charged with a further offence. Where that offence (and any other further offences for which he is being sentenced on that occasion) occurred before the referral order was made, the court may sentence the offender for the further offence (or offences) by way of an extension to the existing referral period. Since any extension to the order must not extend its overall length beyond the maximum period of 12 months, this sentencing option will not be available where the original referral was for a full 12 months. Similarly, since the power of referral relates to young offenders aged from 10 to 17, this sentencing option will not be available if the young offender has reached the age of 18.

73.     The option to extend an existing referral order also applies where a court is dealing with a further offence committed after the order had been made, although this course of action is only likely to be appropriate in exceptional circumstances. Paragraph 12 of Schedule 1 requires the court to take account of any exceptional circumstances and, where they lead the court to make an extension of the original referral order, to give reasons for doing so in open court. The court's decision should be in line with the youth justice system's principal aim of preventing offending by children and young people.

74.     The Secretary of State may vary the cases in which extensions to referral orders may be imposed by way of sentence for further convictions. Any such amendment would be made by regulations subject to the affirmative resolution procedure (i.e. Parliament will be asked to discuss and approve it).

75.     The requirements of a youth offending contract under a referral order are incompatible with a custodial sentence and may interfere with aspects of other orders. Where a court decides to sentence in respect of further convictions otherwise than by extending an existing referral order, paragraph 14 of Schedule 1 creates a duty to revoke the referral order. This, in turn, will cause the contract drawn up with the youth offender panel to expire.

76.     In these circumstances, the court may re-sentence the offender for the offence in respect of which the revoked referral order was made. But in doing so the court must take into account how far the young offender may have already complied with the contract.

77.     The only exception to the use of the power of revocation is the case where the court gives an absolute discharge for the further offence as then there will be no difficulty with the existing referral order continuing to stand.

Clause 14: Functions of youth offending teams

78.     Clause 14 (along with paragraph 22 of Schedule 3) adds to the functions of youth offending teams, originally set by the Crime and Disorder Act 1998, to take account of their specific new responsibilities in respect of referral orders (which include the setting up of youth offender panels and the keeping of records of an offender's compliance with the terms of his contract).

Part II: Measures for facilitating giving of evidence or information for purposes of criminal proceedings

Chapter I: Special Measures directions in case of vulnerable or intimidated witnesses

Clauses 16 and 17: Eligible witnesses

79.     It is intended that witnesses other than the accused (who already has the benefit of a number of procedural safeguards) should be eligible for special measures to assist them in giving evidence in criminal proceedings if:

  • they are under 17;

  • they suffer from a mental disorder, mental impairment or significant learning disability which the court considers likely to affect the quality of their evidence;

  • they suffer from a physical disorder or disability which the court considers likely to affect the quality of their evidence; or

  • the court is satisfied that the witnesses are likely, because of their own circumstances and the circumstances relating to the case (clause 17(2)), to suffer fear or distress in giving evidence to an extent that is expected to affect its quality.

80.     A witness under the age of 17 is always to be considered eligible (although clause 21 provides for measures to continue when a witness turns 17 before the end of the trial). Otherwise, in deciding eligibility the court must take witnesses' own views about their status into account. Complainants of sexual offences should be presumed to be eligible unless the court is satisfied that in the particular circumstances, and after considering the views of the complainant, special measures are not necessary.

81.     It is intended that the court will authorise special measures (see clause 19) if it takes the view that a measure or measures will be likely to improve the quality of evidence given by witnesses whose evidence, without the measures, is likely to range

  • from being unintelligible (in that the witness would not meet the tests for competence and intelligibility given in clauses 50 and 52: "to understand questions put to him as a witness and give answers to them which can be understood")

  • to being of lesser quality than it otherwise could be, by virtue of the circumstances which make the witness eligible for the measures.

'Quality' means more than intelligibility: it encompasses completeness, accuracy and being able to address the questions put and give answers which can be understood (both individually and when taken together).

Clause 18: Special measures available to eligible witnesses

82.     Subsection (1) of this clause provides that the special measures set out in clauses 22 to 29 are available to eligible witnesses, subject to an exception in respect of examination of the witness through an intermediary (clause 28) and the use by the witness of a communication device (clause 29), which are not available to a witness eligible solely on the ground of fear or distress. The court will continue to have a common law discretion to make measures available to disguise the identity of witnesses in the wholly exceptional circumstances (such as where a public interest immunity certificate has been granted) of a witness's identity needing to be kept secret in court.

83.     Subsection (2) provides that the courts will not be able to award any of the special measures until notified by the Secretary of State that a particular measure or group of measures is available in their area: this will allow for piloting and phased implementation of the measures.

84.     The Secretary of State will be able to make new special measures available, and amend or remove others, by orders subject to the affirmative resolution procedure (i.e. the orders will have to be discussed and approved by Parliament) (subsection (4)).

Clause 19: Special measures direction relating to an eligible witness

85.     This clause describes what the court must consider when it decides, on application from either the prosecution or the defence, or of its own choosing, whether special measures might be appropriate for a witness. These are:

  • eligibility under clause 16 or 17; and

  • whether any of the special measures available would improve the witness's evidence (subsection (2)) in the circumstances of the case (including the witness's own views and any likely inhibition to the evidence being tested effectively) and, if so, which ones.

86.     The direction must give detailed instruction about where, when and how the measures specified must be provided (subsection (4)).

87.     The inherent discretion of the court to offer these or other measures to witnesses who do not qualify as eligible, or who need measures for reasons other than age, incapacity, fear or distress, is unaffected.

Clause 20: Further provisions about directions: general

88.     This clause provides that special measures directions are to be binding until the end of the trial, although the court can alter or end a direction if it seems to be in the interests of justice to do so or if the party (prosecution or defence) that made the original special measures application can show that there has been a significant change of circumstances. Neither party may apply to the court for the variation or discharge of measures originally applied for by the other.

89.     This provision is intended to create some certainty for witnesses, by encouraging the parties to make applications for special measures as early as possible and by preventing continued reapplications on grounds the court has already found unpersuasive.

90.     New special measures directions would be needed if, after the verdict, witness testimony were needed for a Newton hearing (to settle the factual basis upon which sentence will be passed), a retrial or appeal proceedings.

91.     Subsection (5) is intended to ensure that there is a written record of the court's reasons for giving, altering or discontinuing a direction or refusing an application. It is intended that it should be clear to all parties what decision has been made and why it was made.

92.     It is intended to use the rule-making powers in subsection (6):

  • to enable applications that are not contested by the other side to be decided by the court without a hearing;

  • to prevent the renewal of an unsuccessful application under this clause except where there has been a material change of circumstances;

  • so that expert witnesses can give evidence about whether a witness will benefit from special measures;

  • to govern the way that confidential and sensitive information connected with applications for special measures is dealt with.

Clause 21: Special provisions relating to young witnesses

93.     This clause imposes special obligations on the court in dealing with witnesses under the age of 17 in cases where certain of the measures have been made available to the court.

94.     Subsections (2) to (5) require a court to direct that any videotaped recording of evidence in chief from a witness under 17 be admitted at trial. If a witness under 17 has to appear at trial in order to give further evidence or provide clarification, the court should also direct that the witness is to be able to give all that evidence by live link (see notes on clause 23 for further details of this measure). The only reasons for the court not to make such directions will be that the video recording is inadmissible because of a procedural or technical defect, that the Secretary of State has not yet made the relevant measures available in that area or that the court is satisfied that, in the particular case, the measures are not needed by the witness.

95.     Subsection (6) provides that where a witness has turned 17 before he begins to give evidence and is not eligible for special measures for any other reason, then the direction will be revoked. But if the witness turns 17 after he has begun to give evidence, the special measures he has been provided with will continue to apply. The intention is to reduce confusion for the witness and the court.

96.     Subsections (7) to (9) provide that if a witness gave video-recorded evidence in chief or was cross-examined on video before the trial at a time when he was still under 17, the video recording will still be admissible as evidence if the witness has since turned 17.

Clause 22: Screening witness from accused

97.     It is intended that subsection (2) will ensure, when a screen has been authorised to shield the witness from seeing the accused, that the witness will still be able to be seen by the persons judging the case (whether judge, magistrates or jury) and by at least one legal representative of each party to the case (i.e. the prosecution and each defendant).

Clause 23: Evidence by live link

98.     This clause provides for witnesses to give evidence by live link. This would usually mean a closed circuit television link, but the clause is drafted sufficiently widely to include any technology with the same effect within its meaning.

99.     Subsections (2) and (3) are intended to create a presumption that a witness who gives evidence by live link for a part of the proceedings will continue to give evidence via this means throughout.

100.     Subsections (5) and (6) describe how temporary facilities may be made available to magistrates' courts for the purposes of hearing evidence by live link.

Clause 24: Evidence given in private

101.     This clause allows the courtroom to be cleared of spectators while a witness gives evidence. The measure will only be available in a case involving a sexual offence or when the court is persuaded that someone has tried to intimidate, or is likely to try to intimidate, the witness. The direction will describe individuals or groups of people, rather than areas of the court, and will mostly affect those in the public gallery and the press gallery. It will be open to the court to exclude members of the press, although it is expected that they would normally be allowed to remain.

Clause 25: Removal of wigs and gowns

102.     This measure can apply to the judiciary as well as legal representatives.

Clause 26: Video recorded evidence in chief

103.     This clause provides that a video recorded interview can take the place of a witness's evidence in chief, both at trial and for the purposes of committal proceedings (subsection (10)).

104.     Subsections (2) and (3) allow for the exclusion of recordings if the interests of justice so require and for the editing of recordings. In deciding whether to allow only an edited recording to be used in evidence, a court will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

105.     Subsection (4) provides that where a direction has been made for a recording to be shown to the court, the court can later exclude the recording if there is not enough information available about how and where the recording was made or if the witness who made the recording is not available for further questioning (whether by video, in court or by live link) and the parties have not agreed that this is unnecessary.

106.     The video recording (as edited, in a case where that is required) will form the whole of a witness's evidence in chief unless:

  • the witness is asked to give evidence about matters not covered in the recorded interview; or

  • the court gives permission for the witness to be asked further questions about matters not covered adequately in the recorded interview. Subsections (5)(b) and (7) provide that the court can give such permission on its own initiative or on an application by one of the parties if that party can show that there has been a material change of circumstances since the direction to admit the video recording was made.

107.     If the witness is asked to give further evidence, subsection (9) provides that the court may direct that the evidence should be given by live link and, as in other circumstances where live link is provided, that temporary facilities may be authorised for the purpose.

108.     It is intended that when a video recording is made of an interview with a witness aged 14 or over then, in anticipation of an application being made for a direction under this clause, the witness should be asked to make an affirmation at the beginning of the interview unless an affirmation would be wholly inappropriate. Where an affirmation is not made the evidence admitted will be evidence given unsworn.

Clause 27: Video recorded cross-examination or re-examination

109.     This clause provides that, where a witness has already given his or her main evidence on video, he or she may be cross-examined before trial with the cross-examination, and any re-examination, being recorded on video for use at trial.

110.     The video-recorded cross-examination would not take place in the physical presence of the accused, although he would have to be able to see and hear the cross-examination and be able to communicate with his legal representative.

111.     The video-recorded cross-examination may, but need not, take place in the physical presence of the trial judge or magistrates and the defence and prosecution legal representatives. However, all these people do have to be able to see and hear the witness being cross-examined and to be able to communicate with any persons present in the room with the witness (such as an intermediary).

112.     As with video-recorded evidence in chief, a video recording of a cross-examination made in accordance with the court's direction may afterwards be excluded if any rules of court governing the cross-examination have not been complied with (subsection (4)).

113.     Subsections (5) and (6) provide that witnesses who have been cross-examined on video are not to be cross-examined again unless the court makes a direction permitting another video-recorded cross-examination. It will only do so if the subject of the proposed cross-examination is relevant to the trial and something which the party seeking to cross-examine did not know about at the time of the original cross-examination (and could not have reasonably found out about by then).

Clause 28: Examination of witness through intermediary

114.     This clause provides for witnesses to be questioned and to give evidence through an intermediary. An intermediary is someone approved by the court to communicate and, if necessary, explain to the witness questions being asked by the court, the defence and the prosecution and to then communicate and explain the answers the witness gives in reply.

115.     It is intended that an intermediary will be a specialist - through training or circumstances - in communicating with a witness who has particular difficulty understanding questions or framing evidence coherently. An intermediary might also have specific skills to overcome specific communication problems, such as those caused by deafness, although it is not intended that this measure should interfere in any way with existing arrangements (which are administrative rather than turning on any power of the court to make an order or give leave) for the provision in court of interpreters for the deaf.

116.     The judge or magistrates and at least one legal representative for both the prosecution and the defence must be able to see and hear the witness giving evidence and be able to communicate with the intermediary. The jury will also be able to see and hear the witness unless the evidence is being video-recorded (in which case they will see the recording when it is shown to them later).

117.     Where intermediaries are used at a very early stage of an investigation or proceedings, and subsequently an application is made for a video recording of an interview in which they were involved to be admitted as evidence, that direction can be given despite the judge, magistrates or legal representatives not having been present. But the intermediary who was involved must still gain the court's approval before the recording can be admitted.

118.     Intermediaries will have to declare that they will perform their function faithfully. They will have the same obligation as foreign language interpreters (whose services are not a measure for which this clause provides) not to wilfully make false or misleading statements to the witness or the court. If they do make such statements they will commit an offence under the Perjury Act 1911.

Clause 29: Aids to communication

119.     The communication aids intended to be made available by a special measures direction under this clause are those which give assistance in overcoming physical difficulties with understanding or answering the questions put, such as sign boards and communication aids for the disabled. It is not intended to cover devices for the purpose of disguising speech.

Clause 30: Status of evidence given under this Chapter

120.     This clause provides that evidence given using any of the special measures in this Bill - for example, by video-recording or live link - shall be treated as if it was given orally in court in the usual way. This means that it will have the same weight as it would have if it were actually given orally in court.

Clause 31: Warning to jury

121.     This clause provides for the jury to be warned, if the judge thinks it necessary, that the making available of special measures to a witness should not prejudice the conclusions they might draw about the accused. This will be particularly relevant where, for example, intimidated witnesses are screened from the accused: this must not be taken as justifying a conclusion that the accused is dangerous.

Chapter II: Protection of witness from cross-examination by accused in person

122.     The clauses in this Chapter prohibit unrepresented defendants from cross-examining adult complainants and child witnesses in trials for certain offences. They also give courts the power to prohibit cross-examination of witnesses by unrepresented defendants in other circumstances, according to the criteria set out in clause 35.

Clause 33: Complainants in proceedings for sexual offences

123.     This clause provides that defendants charged with rape or other sexual offences who choose to conduct their own defence may not themselves cross-examine the alleged victim of the offence. It also extends the prohibition to any other offence with which the defendant is charged in the proceedings.

Clause 34: Complainants and other witnesses who are children

124.     This clause replaces and extends the provision under section 34A of the Criminal Justice Act 1988 which prohibits unrepresented defendants from cross-examining child witnesses in certain cases. Unrepresented defendants will not now be permitted to cross-examine in person a child who is the alleged victim or a witness to the commission of the offence. The offences covered are kidnapping, false imprisonment and abduction, as well as the offences formerly covered by section 34A.

125.     Subsection (2) provides that the prohibition will extend to witnesses whose age when they gave their evidence in chief (e.g. by means of video-recording or earlier in the trial) meant that they then counted as children even if by the time of the cross-examination they have grown beyond the age limit.

126.     Subsection (4) sets out the age limits below which witnesses are deemed to be children for the purposes of this clause in relation to the offence which they have witnessed. Following the example of sections 32 and 34A of the Criminal Justice Act 1988, clause 34 sets the age limit at 17 for sexual offences and 14 for other offences.

Clauses 35 and 36: Direction prohibiting accused from cross-examining particular witness

127.     Clause 35 gives the court the power to prohibit unrepresented defendants from cross-examining witnesses in cases not covered by clauses 33 and 34 if the court is satisfied that the circumstances of the witness and the case merit it and that a prohibition would not be contrary to the interests of justice.

128.     Clause 36 provides that a direction under clause 35 is to be binding unless and until the court considers that the direction should be discharged in the interests of justice. The court will have to record its reasons for making, refusing or discharging directions.

129.     It is intended that rules of court made in reliance on clause 36(5) will make provision, amongst other things, for expert evidence to be heard in connection with applications and for the handling of confidential and sensitive information.

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