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

back to previous text
 
 
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.
Further provisions about directions: general.     20. - (1) Subject to subsection (2) and section 21(6), a special measures direction has binding effect from the time it is made until the proceedings for the purposes of which it is made are either-
 
 
    (a) determined (by acquittal, conviction or otherwise), or
 
    (b) abandoned,
  in relation to the accused or (if there is more than one) in relation to each of the accused.
 
      (2) The court may discharge or vary (or further vary) a special measures 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) Nothing in section 23(2) and (3), 26(4) to (7) or 27(4) to (6) is to be regarded as affecting the power of the court to vary or discharge a special measures direction under subsection (2).
 
      (5) The court must state in open court its reasons for-
 
 
    (a) giving or varying,
 
    (b) refusing an application for, or for the variation or discharge of, or
 
    (c) discharging,
  a special measures direction and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.
 
      (6) 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 special measures 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 varying or discharging, such 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.
Special provisions relating to young witnesses.     21. - (1) Subsection (2) applies where the court, in making a determination for the purposes of section 19(2), determines that a witness 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).
 
      (2) In such a case the court must (subject to subsection (5)) give a special measures direction in relation to the witness which complies with subsections (3) and (4) (whether or not it also provides for any other special measure to apply in relation to the witness).
 
      (3) Subject to section 26(2), the direction shall provide for the measure available under section 26 to apply in relation to the witness in respect of any video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
 
      (4) The direction shall-
 
 
    (a) where it makes provision under subsection (3), provide for the witness's evidence (to the extent that it may, in conformity with section 26(5)(b), be given otherwise than by means of the video recording) to be given by means of a live link in accordance with section 23;
 
    (b) in any other case, provide for the witness's evidence to be given by means of a live link in accordance with that section.
      (5) The court is not required to give a special measures direction which complies with subsection (3) or (as the case may be) subsection (4) if-
 
 
    (a) the court is satisfied that to do so 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); or
 
    (b) the measure referred to in that subsection is (by virtue of section 18(2)) not available in relation to the witness.
      (6) Where a special measures direction is given in relation to a witness who is an eligible witness by reason only of section 16(1)(a), then-
 
 
    (a) subject to subsection (7) 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.
 
      (7) Where-
 
 
    (a) a special measures direction provides for the measure available under section 26 or 27 to apply in relation to a witness who is an eligible witness by reason only of section 16(1)(a), and
 
    (b) if the measure in question is that available under section 27, the witness is still under the age of 17 when the relevant recording is made,
  the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.
 
      (8) Where a witness in criminal proceedings (other than the accused)-
 
 
    (a) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but
 
    (b) was under the age of 17 when a video recording of an interview was made with a view to its admission as evidence in chief of the witness,
  subsections (2), (3) and (5) above, so far as relating to the making of a direction complying with subsection (3), shall apply in relation to the witness in respect of that recording as they apply in relation to a witness falling within subsection (1) in respect of a video recording falling within subsection (3).
 
      (9) Where a direction is given in pursuance of subsection (3), as it applies by virtue of subsection (8), it shall have effect in accordance with section 20(1).
 
 
Special measures
Screening witness from accused.     22. - (1) A special measures direction may provide for the witness, while giving testimony or being sworn in court, to be prevented by means of a screen or other arrangement from seeing the accused.
 
      (2) But the screen or other arrangement must not prevent the witness from being able to see, and to be seen by-
 
 
    (a) the judge or justices (or both) and the jury (if there is one);
 
    (b) legal representatives acting in the proceedings; and
 
    (c) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
      (3) Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(b) is to be regarded as satisfied in relation to those representatives if the witness is able at all material times to see and be seen by at least one of them.
 
Evidence by live link.     23. - (1) A special measures direction may provide for the witness to give evidence by means of a live link.
 
      (2) Where a direction provides for the witness to give evidence by means of a live link, the witness may not give evidence in any other way without the permission of the court.
 
      (3) The court may give permission for the purposes of subsection (2) 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 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.
      (4) In subsection (3) "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.
      (5) Where in proceedings before a magistrates' court-
 
 
    (a) evidence is to be given by means of a live link in accordance with a special measures direction, but
 
    (b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which that court can (apart from this subsection) lawfully sit,
  the court may sit for the purposes of the whole or any part of those proceedings at a place where such facilities are available and which has been appointed for the purposes of this subsection by the justices acting for the petty sessions area for which the court acts.
 
      (6) A place appointed under subsection (5) may be outside the petty sessions area for which it is appointed; but (if so) it is to be regarded as being in that area for the purpose of the jurisdiction of the justices acting for that area.
 
      (7) In this section "petty-sessional court-house" has the same meaning as in the Magistrates' Courts Act 1980 and "petty sessions area" has the same meaning as in the Justices of the Peace Act 1997.
 
      (8) In this Chapter "live link" means a live television link or other arrangement whereby a witness, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the persons specified in section 22(2)(a) to (c).
 
 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 March 1999