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The Criminal Evidence (Northern Ireland) Order 1999

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This is the original version (as it was originally made).

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Witnesses eligible for assistance on grounds of age or incapacity

4.—(1) For the purposes of this Part a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this Article—

(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 paragraph (2).

(2) The circumstances falling within this paragraph are—

(a)that the witness—

(i)suffers from mental disorder within the meaning of the [1986 NI 4.] Mental Health (Northern Ireland) Order 1986, 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 paragraph (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 Article 7(2) in relation to the witness.

(4) In determining whether a witness falls within paragraph (1)(b) the court must consider any views expressed by the witness.

(5) In this Part 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

5.—(1) For the purposes of this Part a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this paragraph 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 paragraph (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 (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this paragraph unless the witness has informed the court of the witness’s wish not to be so eligible by virtue of this paragraph.

Special measures available to eligible witnesses

6.—(1) For the purposes of this Part—

(a)the provision which may be made by a special measures direction by virtue of each of Articles 11 to 18 is a special measure available in relation to a witness eligible for assistance by virtue of Article 4; and

(b)the provision which may be made by such a direction by virtue of each of Articles 11 to 16 is a special measure available in relation to a witness eligible for assistance by virtue of Article 5;

but this paragraph has effect subject to paragraph (2).

(2) Where (apart from this paragraph) a special measure would, in accordance with paragraph (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 district in which it appears to the court that the proceedings will take place, and

(b)the notice has not been withdrawn.

(3) In paragraph (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.

(4) The withdrawal of a notice under that paragraph relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness’s evidence has been made by the court before the notice is withdrawn.

(5) The Secretary of State may by order make such amendments of this Part as he considers appropriate for altering the special measures which, in accordance with paragraph (1)(a) or (b), are available in relation to a witness eligible for assistance by virtue of Article 4 or (as the case may be) Article 5, 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 Articles, or

(ii)of any new measure, or

(c)by the removal of any measure.

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