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Coroners and Justice Act 2009

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This is the original version (as it was originally enacted).

Special measures for vulnerable and intimidated witnesses

98Eligibility for special measures: age of child witnesses

(1)The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as follows.

(2)In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute “18”.

(3)In section 21 (special provisions relating to child witnesses)—

(a)in subsection (8), for “17” substitute “18”, and

(b)in subsection (9)(b), for “17” substitute “18”.

(4)In section 22 (extension of section 21 to certain witnesses)—

(a)in the title, for “17” substitute “18”, and

(b)in subsection (1)(a)(ii), for “17” substitute “18”.

99Eligibility for special measures: offences involving weapons

(1)The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2)In section 17 (witnesses eligible for assistance on grounds of fear or distress about testifying), after subsection (4) add—

(5)A witness in proceedings relating to a relevant offence (or to a relevant offence and any other offences) is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness’s wish not to be so eligible by virtue of this subsection.

(6)For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.

(7)The Secretary of State may by order amend Schedule 1A.

(3)In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after “section” insert “17(7),”.

(4)Before Schedule 2 insert the Schedule 1A set out in Schedule 14 to this Act.

100Special measures directions for child witnesses

(1)Section 21 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special provisions relating to child witnesses) is amended in accordance with subsections (2) to (7).

(2)In subsection (1) (definitions), omit paragraph (b) (child witnesses in need of special protection) (but not the “and” following it).

(3)In subsection (2) (determining contents of direction), for “(7)” substitute “(4C)”.

(4)In subsection (4) (limitations on primary rule)—

(a)omit the “and” at the end of paragraph (b), and

(b)after paragraph (b) insert—

(ba)if the witness informs the court of the witness’s wish that the rule should not apply or should apply only in part, the rule does not apply to the extent that the court is satisfied that not complying with the rule would not diminish the quality of the witness’s evidence; and.

(5)After subsection (4) insert—

(4A)Where as a consequence of all or part of the primary rule being disapplied under subsection (4)(ba) a witness’s evidence or any part of it would fall to be given as testimony in court, the court must give a special measures direction making such provision as is described in section 23 for the evidence or that part of it.

(4B)The requirement in subsection (4A) is subject to the following limitations—

(a)if the witness informs the court of the witness’s wish that the requirement in subsection (4A) should not apply, the requirement does not apply to the extent that the court is satisfied that not complying with it would not diminish the quality of the witness’s evidence; and

(b)the requirement does not apply to the extent that the court is satisfied that making such a provision 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).

(6)After subsection (4B) (inserted by subsection (5)) insert—

(4C)In making a decision under subsection (4)(ba) or (4B)(a), the court must take into account the following factors (and any others it considers relevant)—

(a)the age and maturity of the witness;

(b)the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements in subsection (3) or (as the case may be) in accordance with the requirement in subsection (4A);

(c)the relationship (if any) between the witness and the accused;

(d)the witness’s social and cultural background and ethnic origins;

(e)the nature and alleged circumstances of the offence to which the proceedings relate.

(7)Omit subsections (5) to (7).

(8)In section 22 of that Act (extension of provisions of section 21)—

(a)in subsection (1), omit paragraph (b) (but not the “and” following it), and

(b)for subsection (2) substitute—

(2)Subsections (2) to (4) and (4C) of section 21, so far as relating to the giving of a direction complying with the requirement contained in section 21(3)(a), apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section).

101Special provisions relating to sexual offences

After section 22 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert—

22ASpecial provisions relating to sexual offences

(1)This section applies where in criminal proceedings relating to a sexual offence (or to a sexual offence and other offences) the complainant in respect of that offence is a witness in the proceedings.

(2)This section does not apply if the place of trial is a magistrates’ court.

(3)This section does not apply if the complainant is an eligible witness by reason of section 16(1)(a) (whether or not the complainant is an eligible witness by reason of any other provision of section 16 or 17).

(4)If a party to the proceedings makes an application under section 19(1)(a) for a special measures direction in relation to the complainant, the party may request that the direction provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief).

(5)Subsection (6) applies if—

(a)a party to the proceedings makes a request under subsection (4) with respect to the complainant, and

(b)the court determines for the purposes of section 19(2) that the complainant is eligible for assistance by virtue of section 16(1)(b) or 17.

(6)The court must—

(a)first have regard to subsections (7) to (9); and

(b)then have regard to section 19(2);

and for the purposes of section 19(2), as it then applies to the complainant, any special measure required to be applied in relation to the complainant by virtue of this section is to be treated as if it were a measure determined by the court, pursuant to section 19(2)(a) and (b)(i), to be one that (whether on its own or with any other special measures) would be likely to maximise, so far as practicable, the quality of the complainant’s evidence.

(7)The court must give a special measures direction in relation to the complainant that provides for any relevant recording to be admitted under section 27.

(8)The requirement in subsection (7) has effect subject to section 27(2).

(9)The requirement in subsection (7) does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the complainant’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 complainant would have that result or for any other reason).

(10)In this section “relevant recording”, in relation to a complainant, is a video recording of an interview of the complainant made with a view to its admission as the evidence in chief of the complainant.

102Evidence by live link: presence of supporter

(1)In section 24 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (evidence by live link), after subsection (1) insert—

(1A)Such a direction may also provide for a specified person to accompany the witness while the witness is giving evidence by live link.

(1B)In determining who may accompany the witness, the court must have regard to the wishes of the witness.

(2)In section 27 of that Act (video recorded evidence in chief), after subsection (9) insert—

(9A)If the court directs under subsection (9) that evidence is to be given by live link, it may also make such provision in that direction as it could make under section 24(1A) in a special measures direction.

103Video recorded evidence in chief: supplementary testimony

(1)Section 27 of the Youth Justice and Criminal Evidence Act 1999 (video recorded evidence in chief) is amended as follows.

(2)In subsection (5) (consequences of admitting video recording), for paragraph (b) substitute—

(b)the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness’s recorded testimony.

(3)In subsection (7) (giving permission for additional testimony)—

(a)for “subsection (5)(b)(ii)” substitute “subsection (5)(b)”, and

(b)in paragraph (a) (requirement of a material change of circumstances since the relevant time), omit from “if there” to “relevant time,”.

(4)Omit subsection (8) (definition of “the relevant time”).

(5)In subsection (9) (supplementary testimony by live link), for “subsection (5)(b)(ii)” substitute “subsection (5)(b)”.

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