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
Prohibition imposed by court - continued

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Further provisions about directions under section 35.     36. - (1) Subject to subsection (2), a direction has binding effect from the time it is made until the witness to whom it applies is discharged.
 
      In this section "direction" means a direction under section 35.
 
      (2) The court may discharge a 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) The court must state in open court its reasons for-
 
 
    (a) giving, or
 
    (b) refusing an application for, or for the discharge of, or
 
    (c) discharging,
  a direction and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.
 
      (5) 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 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 discharging, 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.
 
Cross-examination on behalf of accused
Defence representation for purposes of cross-examination.     37. - (1) This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 33, 34 or 35.
 
      (2) Where it appears to the court that this section applies, it must-
 
 
    (a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and
 
    (b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
      (3) If by the end of the period mentioned in subsection (2)(b) either-
 
 
    (a) the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or
 
    (b) no notification has been received by the court and it appears to the court that no legal representative is to so act,
  the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused.
 
      (4) If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.
 
      (5) A person so appointed shall not be responsible to the accused.
 
      (6) Rules of court may make provision-
 
 
    (a) as to the time when, and the manner in which, subsection (2) is to be complied with;
 
    (b) in connection with the appointment of a legal representative under subsection (4), and in particular for securing that a person so appointed is provided with evidence or other material relating to the proceedings.
      (7) Rules of court made in pursuance of subsection (6)(b) may make provision for the application, with such modifications as are specified in the rules, of any of the provisions of-
 
 
    (a) Part I of the Criminal Procedure and Investigations Act 1996 (disclosure of material in connection with criminal proceedings), or
 
    (b) the Sexual Offences (Protected Material) Act 1997.
      (8) For the purposes of this section-
 
 
    (a) any reference to cross-examination includes (in a case where a direction is given under section 35 after the accused has begun cross-examining the witness) a reference to further cross-examination; and
 
    (b) "qualified legal representative" means a legal representative who has a right of audience (within the meaning of the Courts and Legal Services Act 1990) in relation to the proceedings before the court.
Warning to jury.     38. - (1) Where on a trial on indictment an accused is prevented from cross-examining a witness in person by virtue of section 33, 34 or 35, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced-
 
 
    (a) by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person;
 
    (b) where the witness has been cross-examined by a legal representative appointed under section 37(4), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the accused's own legal representative.
      (2) Subsection (8)(a) of section 37 applies for the purposes of this section as it applies for the purposes of section 37.
 
Funding of defence representation.     39. - (1) In section 19(3) of the Prosecution of Offences Act 1985 (regulations authorising payments out of central funds), after paragraph (d) there shall be inserted-
 
 
    "(e) to cover the proper fee or costs of a legal representative appointed under section 37(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment."
      (2) In section 21(3) of the Legal Aid Act 1988 (cases where, subject to means, representation must be granted), after paragraph (d) there shall be inserted-
 
 
    "(e) where a person is prevented from conducting any cross-examination as mentioned in section 37(1) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination), for conducting the cross-examination on behalf of that person (otherwise than as a person appointed under section 37(4) of that Act)."
 
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