23.3.—(1) The court may decide whether to impose or discharge a prohibition against cross-examination under section 36 of the Youth Justice and Criminal Evidence Act 1999—
(a)at a hearing, in public or in private, or without a hearing;
(b)in a party’s absence, if that party—
(i)applied for the prohibition or discharge, or
(ii)has had at least 14 days in which to make representations.
(2) The court must announce, at a hearing in public before the witness gives evidence, the reasons for a decision—
(a)to impose or discharge such a prohibition; or
(b)to refuse to do so.
[Note. See section 37 of the Youth Justice and Criminal Evidence Act 1999(1).]
23.4.—(1) This rule applies where under section 36 of the Youth Justice and Criminal Evidence Act 1999 the prosecutor wants the court to prohibit the cross-examination of a witness by a defendant in person.
(2) The prosecutor must—
(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
(b)serve the application on—
(i)the court officer,
(ii)the defendant who is the subject of the application, and
(iii)any other defendant, unless the court otherwise directs.
(3) The application must—
(a)report any views that the witness has expressed about whether he or she is content to be cross-examined by the defendant in person;
(b)identify—
(i)the nature of the questions likely to be asked, having regard to the issues in the case,
(ii)any relevant behaviour of the defendant at any stage of the case, generally and in relation to the witness,
(iii)any relationship, of any nature, between the witness and the defendant,
(iv)any other defendant in the case who is subject to such a prohibition in respect of the witness, and
(v)any special measures direction made in respect of the witness, or for which an application has been made;
(c)explain why the quality of evidence given by the witness on cross-examination—
(i)is likely to be diminished if no such prohibition is imposed, and
(ii)would be likely to be improved if it were imposed; and
(d)explain why it would not be contrary to the interests of justice to impose the prohibition.
[Note. The Practice Direction sets out a form of application for use in connection with this rule.]
23.5.—(1) A party who wants the court to discharge a prohibition against cross-examination which the court imposed under section 36 of the Youth Justice and Criminal Evidence Act 1999 must—
(a)apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
(b)serve the application on—
(i)the court officer, and
(ii)each other party.
(2) The applicant must—
(a)explain what material circumstances have changed since the prohibition was imposed; and
(b)ask for a hearing, if the applicant wants one, and explain why it is needed.
[Note. Under section 37 of the Youth Justice and Criminal Evidence Act 1999, the court can discharge a prohibition against cross-examination which it has imposed—
(a)on application, if there has been a material change of circumstances; or
(b)on its own initiative.
The Practice Direction sets out a form of application for use in connection with this rule.]
23.6.—(1) This rule applies where—
(a)an applicant serves an application for the court to impose a prohibition against cross-examination, or for the discharge of such a prohibition; and
(b)the application includes information that the applicant thinks ought not be revealed to another party.
(2) The applicant must—
(a)omit that information from the part of the application that is served on that other party;
(b)mark the other part to show that, unless the court otherwise directs, it is only for the court; and
(c)in that other part, explain why the applicant has withheld that information from that other party.
(3) Any hearing of an application to which this rule applies—
(a)must be in private, unless the court otherwise directs; and
(b)if the court so directs, may be, wholly or in part, in the absence of a party from whom information has been withheld.
(4) At any hearing of an application to which this rule applies—
(a)the general rule is that the court must consider, in the following sequence—
(i)representations first by the applicant and then by each other party, in all the parties’ presence, and then
(ii)further representations by the applicant, in the absence of a party from whom information has been withheld; but
(b)the court may direct other arrangements for the hearing.
[Note. See section 37 of the Youth Justice and Criminal Evidence Act 1999.]
23.7.—(1) This rule applies where a party wants to make representations about—
(a)an application under rule 23.4 for a prohibition against cross-examination;
(b)an application under rule 23.5 for the discharge of such a prohibition; or
(c)a prohibition or discharge that the court proposes on its own initiative.
(2) Such a party 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 prohibition or discharge that the court proposes; and
(c)ask for a hearing, if that party wants one, and explain why it is needed.
(3) Representations against a prohibition must explain in what respect the conditions for imposing it are not met.
(4) Representations against the discharge of a prohibition must explain why it should not be discharged.
(5) Where representations include information that the person making them thinks ought not be revealed to another party, that person must—
(a)omit that information from the representations served on that other party;
(b)mark the information to show that, unless the court otherwise directs, it is only for the court; and
(c)with that information include an explanation of why it has been withheld from that other party.
23.8.—(1) The court may—
(a)shorten or extend (even after it has expired) a time limit under rule 23.4 (Application to prohibit cross-examination), rule 23.5 (Application to discharge prohibition imposed by the court) or rule 23.7 (Representations in response); and
(b)allow an application or representations required by any of those rules to be made in a different form to one set out in the Practice Direction, or to be made orally.
(2) A person who wants an extension of time must—
(a)apply when serving the application or representations for which it is needed; and
(b)explain the delay.
1999 c. 23; section 37 was amended by section 109 of, and paragraph 384(e) of Schedule 8 to, the Courts Act 2003 (c. 39).