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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Evidence given in private.     24. - (1) A special measures direction may provide for the exclusion from the court, during the giving of the witness's evidence, of persons of any description specified in the direction.
 
      (2) The persons who may be so excluded do not include-
 
 
    (a) the accused,
 
    (b) legal representatives acting in the proceedings, or
 
    (c) any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness,
  but (without prejudice to the generality of subsection (1)) do include representatives of newspapers or news agencies.
 
      (3) A special measures direction may, however, only provide for the exclusion of persons under this section where-
 
 
    (a) the proceedings relate to a sexual offence; or
 
    (b) it appears to the court that there are reasonable grounds for believing that any person other than the accused has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.
      (4) A special measures direction shall not be taken to provide for the exclusion under this section of representatives of newspapers or news agencies except to the extent that it does so expressly.
 
      (5) Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of newspapers or news agencies) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.
 
Removal of wigs and gowns.     25. A special measures direction may provide for the wearing of wigs or gowns to be dispensed with during the giving of the witness's evidence.
 
Video recorded evidence in chief.     26. - (1) A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness.
 
      (2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.
 
      (3) In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
 
      (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 admitted if-
 
 
    (a) it appears to the court that-
 
      (i) the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and
 
      (ii) the parties to the proceedings have not agreed that there is no need for the witness to be so available; or
 
    (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court.
      (5) Where a recording is admitted under this section-
 
 
    (a) the witness must be called by the party tendering it in evidence, unless-
 
      (i) a special measures direction provides for the witness's evidence on cross-examination to be given otherwise than by testimony in court, or
 
      (ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and
 
    (b) the witness may not give evidence in chief otherwise than by means of the recording-
 
      (i) as to any matter which, in the opinion of the court, has been dealt with adequately in the witness's recorded testimony, or
 
      (ii) without the permission of the court, as to any other matter which, in the opinion of the court, is dealt with in that testimony.
      (6) Where in accordance with subsection (2) a special measures direction provides for part only of a recording to be admitted under this section, references in subsections (4) and (5) to the recording or to the witness's recorded testimony are references to the part of the recording or testimony which is to be so admitted.
 
      (7) The court may give permission for the purposes of subsection (5)(b)(ii) 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.
      (8) In subsection (7) "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.
      (9) The court may, in giving permission for the purposes of subsection (5)(b)(ii), direct that the evidence in question is to be given by the witness by means of a live link; and, if the court so directs, subsections (5) to (7) of section 23 shall apply in relation to that evidence as they apply in relation to evidence which is to be given in accordance with a special measures direction.
 
      (10) A magistrates' court inquiring into an offence as examining justices under section 6 of the Magistrates' Courts Act 1980 may consider any video recording in relation to which it is proposed to apply for a special measures direction providing for it to be admitted at the trial in accordance with this section.
 
      (11) Nothing in this section affects the admissibility of any video recording which would be admissible apart from this section.
 
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 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-
 
 
    (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,
  and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
 
      (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.
 
 
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Prepared 9 March 1999