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Part IIU.K. Giving of evidence or information for purposes of criminal proceedings

Chapter IE+W Special measures directions in case of vulnerable and intimidated witnesses

Modifications etc. (not altering text)

C1Pt. 2 Chs. 1-3 amended (1.9.2001) by 2001 c. 17, s. 57(2) (with ss. 56(2), 63(2), 78); S.I. 2001/2161, art. 2

C2Pt. 2 Ch. 1 applied (with modifications) by 1998 c. 37, s. 1I(2)(3) (as inserted (1.7.2005) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 143, 178(8); S.I. 2005/1521, art. 3(1)(s))

C3Pt. 2 Ch. 1 applied (with modifications) (20.10.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 31(1)-(3), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/2590, art. 3(a)

C4Pt. 2 Ch. 1 applied (with modifications) (23.3.2015) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 16(1)-(3), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2015/373, art. 4(a)

C5Pt. 2 Ch. 1 applied (with modifications) (26.5.2016) by Psychoactive Substances Act 2016 (c. 2), s. 33(1)(2), 63(2); S.I. 2016/553, reg. 2

C6Pt. 2 Ch. 1 applied (with modifications) (1.12.2020) by Sentencing Act 2020 (c. 17), ss. 340(1)(2), 416(1) (with ss. 2, 398(1), 406, Sch. 27); S.I. 2020/1236, reg. 2

Special measures directionsE+W

19 Special measures direction relating to eligible witness.E+W

(1)This section applies where in any criminal proceedings—

(a)a party to the proceedings makes an application for the court to give a direction under this section in relation to a witness in the proceedings other than the accused, or

(b)the court of its own motion raises the issue whether such a direction should be given.

(2)Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court must then—

(a)determine whether any of the special measures available in relation to the witness (or any combination of them) would, in its opinion, be likely to improve the quality of evidence given by the witness; and

(b)if so—

(i)determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far as practicable the quality of such evidence; and

(ii)give a direction under this section providing for the measure or measures so determined to apply to evidence given by the witness.

(3)In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court must consider all the circumstances of the case, including in particular—

(a)any views expressed by the witness; and

(b)whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings.

(4)A special measures direction must specify particulars of the provision made by the direction in respect of each special measure which is to apply to the witness’s evidence.

(5)In this Chapter “special measures direction” means a direction under this section.

(6)Nothing in this Chapter is to be regarded as affecting any power of a court to make an order or give leave of any description (in the exercise of its inherent jurisdiction or otherwise)—

(a)in relation to a witness who is not an eligible witness, or

(b)in relation to an eligible witness where (as, for example, in a case where a foreign language interpreter is to be provided) the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness.

Modifications etc. (not altering text)

Commencement Information

I1S. 19 wholly in force at 24.7.2002; Pt. II Chs. 1-4 (ss. 16-52) in force for certain purposes at Royal Assent, see s. 68(4); s. 19 in force in so far as not already in force at 24.7.2002 by S.I. 2002/1739, art. 2(a)

20 Further provisions about directions: general.E+W

(1)Subject to subsection (221.) and section 21(8), a special measures direction has binding effect from the time it is made until the proceedings for the purposes of which it is made are either—

(a)determined (by acquittal, conviction or otherwise), or

(b)abandoned,

in relation to the accused or (if there is more than one) in relation to each of the accused.

(2)The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so, and may do so either—

(a)on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

(b)of its own motion.

(3)In subsection (2) “the relevant time” means—

(a)the time when the direction was given, or

(b)if a previous application has been made under that subsection, the time when the application (or last application) was made.

(4)Nothing in section 24(2) and (3), 27(4) to (7) or 28(4) to (6) is to be regarded as affecting the power of the court to vary or discharge a special measures direction under subsection (2).

(5)The court must state in open court its reasons for—

(a)giving or varying,

(b)refusing an application for, or for the variation or discharge of, or

(c)discharging,

a special measures direction and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings.

(6)[F1Criminal Procedure Rules] may make provision—

(a)for uncontested applications to be determined by the court without a hearing;

(b)for preventing the renewal of an unsuccessful application for a special measures direction except where there has been a material change of circumstances;

(c)for expert evidence to be given in connection with an application for, or for varying or discharging, such a direction;

(d)for the manner in which confidential or sensitive information is to be treated in connection with such an application and in particular as to its being disclosed to, or withheld from, a party to the proceedings.

Textual Amendments

F1Words in s. 20(6) substituted (1.9.2004) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 384(a); S.I. 2004/2066, art. 2(c)(xix) (with art. 3)

Modifications etc. (not altering text)

Commencement Information

I2S. 20 wholly in force at 24.7.2002; Pt. II Chs. 1-4 (ss. 16-52) in force for certain purposes at Royal Assent, see s. 68(4): s. 20 in force in so far as not already in force at 24.7.2002 by S.I. 2002/1739, art. 2(a)

21 Special provisions relating to child witnesses.E+W

(1)For the purposes of this section—

(a)a witness in criminal proceedings is a “child witness” if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);

F2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(c)a “relevant recording”, in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

(2)Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must—

(a)first have regard to subsections (3) to [F3(4C)] below; and

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

and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.

(3)The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—

(a)it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief); and

(b)it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 24.

(4)The primary rule is subject to the following limitations—

(a)the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

(b)the requirement contained in subsection (3)(a) also has effect subject to section 27(2); F4...

[F5(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]

(c)the rule 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 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).

[F6(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).]

[F7(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.]

F8(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then—

(a)subject to subsection (9) below, and

(b)except where the witness has already begun to give evidence in the proceedings,

the direction shall cease to have effect at the time when the witness attains the age of [F918].

(9)Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and—

(a)the direction provides—

(i)for any relevant recording to be admitted under section 27 as evidence in chief of the witness, or

(ii)for the special measure available under section 28 to apply in relation to the witness, and

(b)if it provides for that special measure to so apply, the witness is still under the age of [F1018] when the video recording is made for the purposes of section 28,

then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I3S. 21 wholly in force at 24.7.2002; Pt. II Chs. 1-4 (ss. 16-52) in force for certain purposes at Royal Assent, see s. 68(4); s. 20 in force in so far as not already in force at 24.7.2002 by S.I. 2002/1739, art. 2(a)

22 Extension of provisions of section 21 to certain witnesses over [F1118].E+W

(1)For the purposes of this section—

(a)a witness in criminal proceedings (other than the accused) is a “qualifying witness” if he—

(i)is not an eligible witness at the time of the hearing (as defined by section 16(3)), but

(ii)was under the age of [F1218] when a relevant recording was made;

F13(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(c)a “relevant recording”, in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

[F14(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).]

Textual Amendments

F12Word in s. 22(1)(a)(ii) substituted (27.6.2011) by Coroners and Justice Act 2009 (c. 25), ss. 98(4)(b), 182(5) (with s. 180, Sch. 22 para. 23); S.I. 2011/1452, art. 2(a)

Modifications etc. (not altering text)

Commencement Information

I4S. 22 wholly in force at 24.7.2002; Pt. II Chs. 1-4 (ss. 16-52) in force for certain purposes at Royal Assent, see s. 68(4); s. 22 in force in so far as not already in force at 24.7.2002 by S.I. 2002/1739, art. 2(a)

[F1522ASpecial provisions relating to sexual offencesE+W

(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.]

Textual Amendments