The Criminal Procedure Rules 2010

Representations in response

29.22.—(1) This rule applies where a party or, where the case is over, a witness, wants to make representations about—

(a) an application for a witness anonymity order;

(b) an application for the variation or discharge of such an order; or

(c) a variation or discharge that the court proposes on its own initiative.

(2) Such a party or witness must—

(a) serve the representations on—

(i) the court officer, and

(ii) each other party;

(b) do so not more than 14 days after, as applicable—

(i) service of the application, or

(ii) notice of the variation or discharge that the court proposes; and

(c) ask for a hearing, if that party or witness wants one.

(3) Where representations include information that the person making them thinks might reveal the witness’ identity, that person must—

(a) omit that information from the representations served on a defendant;

(b) mark the information to show that it is only for the court (and for the prosecutor, if relevant); and

(c) with that information include an explanation of why it has been withheld.

(4) Representations against a witness anonymity order must explain why the conditions for making the order are not met.

(5) Representations against the variation or discharge of such an order must explain why it would not be appropriate to vary or discharge it, taking account of the conditions for making an order.

(6) A prosecutor’s representations in response to an application by a defendant must include all information available to the prosecutor that is relevant to the conditions and considerations specified by sections 88 and 89 of the Coroners and Justice Act 2009.

Summary of eligibility for measures to which this Part applies

Special measures direction

Under section 16 of the Youth Justice and Criminal Evidence Act 1999(1), a witness is eligible for the assistance of a special measures direction given under section 19 of that Act if—

(a) the witness is under 17 (under 18, when the Coroners and Justice Act 2009 comes into force); or

(b) the witness has—

(i) a mental disorder, or a significant impairment of intelligence and social functioning, or

(ii) a physical disability or disorder

and the court considers that the completeness, coherence and accuracy (the ‘quality’) of evidence given by the witness is likely to be diminished by reason of those circumstances.

Under section 17 of the 1999 Act, a witness is eligible for such assistance if—

(a) the court is satisfied that the quality of evidence given by the witness is likely to be diminished because of his or her fear or distress in connection with giving evidence, taking account particularly of—

(i) the circumstances of the offence,

(ii) the witness’ age, social and cultural background, ethnic origins, domestic and employment circumstances, religious beliefs or political opinions,

(iii) any behaviour towards the witness on the part of the defendant, the defendant’s family or associates, or any other potential defendant or witness, and

(iv) the witness’ own views;

(b) the witness is the complainant in respect of a sexual offence, and has not declined such assistance; or

(c) (when the Coroners and Justice Act 2009 comes into force) the offence is one of a list of offences involving weapons, and the witness has not declined such assistance.

Section 28 of the 1999 Act (video recorded cross-examination or re-examination) is not yet in force. With that exception, all the special measures listed in rule 29.1 potentially are available where the witness is eligible for assistance under section 16 of the Act. Those numbered (i) to (v) are available where the witness is eligible for assistance under section 17.

As a general rule, but with exceptions, the court must give a special measures direction—

(a) under section 21 or 22 of the 1999 Act, where the witness—

(i) is under 17 (under 18, when the Coroners and Justice Act 2009 comes into force), or

(ii) was under that age when interviewed

whether or not an application for a direction is made;

(b) (when the Coroners and Justice Act 2009 comes into force) under section 22A of the 1999 Act, where an application is made in the Crown Court for the evidence of a witness who is the complainant of a sexual offence to be admitted by means of a video recording of an interview with the witness in the place of examination-in-chief.

Defendant’s evidence direction

Under section 33A of the 1999 Act, the court can allow a defendant to give evidence by live link, or (when the Coroners and Justice Act 2009 comes into force) under section 33BA can allow a defendant to give evidence through an intermediary, if—

(a) the defendant—

(i) is under 18, and the defendant’s ability to participate effectively as a witness giving oral evidence is compromised by his or her level of intellectual ability or social functioning; or

(ii) suffers from a mental disorder or some other significant impairment of intelligence and social functioning and cannot participate effectively as a witness giving oral evidence for that reason;

(b) the use of a live link—

(i) would enable the defendant to participate more effectively, and

(ii) is in the interests of justice;

(c) the examination of the defendant through an intermediary is necessary to ensure that the defendant receives a fair trial.

Witness anonymity order

Under section 86 of the Coroners and Justice Act 2009, a witness anonymity order is an order that specifies measures to be taken to ensure that the identity of a witness is not disclosed, such as withholding the witness’ name from materials disclosed to a party to the proceedings, the use of a pseudonym, the screening of the witness from view, the modulation of the witness’ voice, and the prohibition of questions that might reveal his or her identity. Before making such an order, the court must—

(a) be satisfied that three conditions prescribed by the Act are met (section 88 of the 2009 Act); and

(b) have regard to considerations specified by the Act (section 89 of the 2009 Act).

(1)

1999 c. 23.