Cross-examination on behalf of accused
38Defence representation for purposes of cross-examination
(1)This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.
(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 [1996 c. 25.] Criminal Procedure and Investigations Act 1996 (disclosure of material in connection with criminal proceedings), or
(b)the [1997 c. 39.] 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 36 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 [1990 c. 41.] Courts and Legal Services Act 1990) in relation to the proceedings before the court.
39Warning to jury
(1)Where on a trial on indictment an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36, 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 38(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 38 applies for the purposes of this section as it applies for the purposes of section 38.
40Funding of defence representation
(1)In section 19(3) of the [1985 c. 23.] 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 38(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 [1988 c. 34.] 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 38(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 38(4) of that Act).”