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

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  PART II
  GIVING OF EVIDENCE OR INFORMATION FOR PURPOSES OF CRIMINAL PROCEEDINGS
  CHAPTER I
  SPECIAL MEASURES DIRECTIONS IN CASE OF VULNERABLE AND INTIMIDATED WITNESSES
 
Preliminary
Witnesses eligible for assistance on grounds of age or incapacity.     16. - (1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section-
 
 
    (a) if under the age of 17 at the time of the hearing; or
 
    (b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).
      (2) The circumstances falling within this subsection are-
 
 
    (a) that the witness-
 
      (i) suffers from mental disorder within the meaning of the Mental Health Act 1983, or
 
      (ii) otherwise has a significant impairment of intelligence and social functioning;
 
    (b) that the witness has a physical disability or is suffering from a physical disorder.
      (3) In subsection (1)(a) "the time of the hearing", in relation to a witness, means the time when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness.
 
      (4) In determining whether a witness falls within subsection (1)(b) the court must consider any views expressed by the witness.
 
      (5) In this Chapter references to the quality of a witness's evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose "coherence" refers to a witness's ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.
 
Witnesses eligible for assistance on grounds of fear or distress about testifying.     17. - (1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.
 
      (2) In determining whether a witness falls within subsection (1) the court must take into account, in particular-
 
 
    (a) the nature and alleged circumstances of the offence to which the proceedings relate;
 
    (b) the age of the witness;
 
    (c) such of the following matters as appear to the court to be relevant, namely-
 
      (i) the social and cultural background and ethnic origins of the witness,
 
      (ii) the domestic and employment circumstances of the witness, and
 
      (iii) any religious beliefs or political opinions of the witness;
 
    (d) any behaviour towards the witness on the part of-
 
      (i) the accused,
 
      (ii) members of the family or associates of the accused, or
 
      (iii) any other person who is likely to be an accused or a witness in the proceedings.
      (3) In determining that question the court must in addition consider any views expressed by the witness.
 
      (4) Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence, the witness is to be treated in relation to those proceedings as eligible for assistance by virtue of this section unless the court is satisfied that the witness is not a person falling within subsection (1).
 
Special measures available to eligible witnesses.     18. - (1) For the purposes of this Chapter-
 
 
    (a) the provision which may be made by a special measures direction by virtue of each of sections 22 to 29 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and
 
    (b) the provision which may be made by such a direction by virtue of each of sections 22 to 27 is a special measure available in relation to a witness eligible for assistance by virtue of section 17;
  but this subsection has effect subject to subsection (2).
 
      (2) Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless-
 
 
    (a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and
 
    (b) the notice has not been withdrawn.
      (3) In subsection (2) "relevant arrangements" means arrangements for implementing the measure in question which cover the witness and the proceedings in question.
 
      (4) The Secretary of State may by order make such amendments of this Chapter as he considers appropriate for altering the special measures which, in accordance with subsection (1)(a) or (b), are available in relation to a witness eligible for assistance by virtue of section 16 or (as the case may be) section 17, whether-
 
 
    (a) by modifying the provisions relating to any measure for the time being available in relation to such a witness,
 
    (b) by the addition-
 
      (i) (with or without modifications) of any measure which is for the time being available in relation to a witness eligible for assistance by virtue of the other of those sections, or
 
      (ii) any new measure, or
 
    (c) by the removal of any measure.
 
Special measures directions
Special measures direction relating to eligible witness.     19. - (1) This section applies where in any criminal proceedings-
 
 
    (a) a party to the proceedings makes an application for the court to give a direction under this section in relation to a witness in the proceedings other than the accused, or
 
    (b) the court of its own motion raises the issue whether such a direction should be given.
      (2) Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court must then-
 
 
    (a) determine whether any of the special measures available in relation to the witness (or any combination of them) would, in its opinion, be likely to improve the quality of evidence given by the witness; and
 
    (b) if so-
 
      (i) determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far as practicable the quality of such evidence; and
 
      (ii) give a direction under this section providing for the measure or measures so determined to apply to evidence given by the witness.
      (3) In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court must consider all the circumstances of the case, including in particular-
 
 
    (a) any views expressed by the witness; and
 
    (b) whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings.
      (4) A special measures direction must specify particulars of the provision made by the direction in respect of each special measure which is to apply to the witness's evidence.
 
      (5) In this Chapter "special measures direction" means a direction under this section.
 
      (6) Nothing in this Chapter is to be regarded as affecting any power of a court to make an order or give leave of any description (in the exercise of its inherent jurisdiction or otherwise)-
 
 
    (a) in relation to a witness who is not an eligible witness, or
 
    (b) in relation to an eligible witness where (as, for example, in a case where a foreign language interpreter is to be provided) the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness.
 
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Prepared 9 February 1999