Part 2: Criminal Evidence

Part 2 of the Act contains a range of measures designed to help young, disabled, vulnerable or intimidated witnesses give their best evidence in criminal proceedings. Giving evidence can be difficult for anyone; but for some witnesses, because of age or circumstance, it is unusually so. Some witnesses may find it so difficult to give evidence, because of disability or distress, that they give an incoherent account, do not mention relevant facts, or give less than a complete testimony. Some may even be too frightened to report that an offence may have been committed in the first place.

The special measures to be provided by the courts include:

• screens, to ensure that the witness cannot see the accused;

• giving evidence by live television link;

• excluding people from the courtroom, or galleries, so that evidence can be given in a more private setting;

• allowing as witnesses' evidence-in-chief a video-recorded interview with the witness; and,

• allowing as evidence pre-recorded videoed cross-examination.

Witnesses who have a disability and children will also be able to give evidence with the aid of:

• an approved intermediary; and,

• with the use of communication aids, such as alphabet boards.

The Act also:

• restricts an unrepresented defendant's ability in certain cases to personally cross-examine witnesses;

• restricts the circumstances in which evidence or questioning about a complainant's sexual behaviour may be admitted in a trial for rape and certain other sexual offences;

• further restricts the reporting or publishing of information that might lead to the identity of certain witnesses being revealed;

• redefines who is competent to give evidence; and

• provides that inferences cannot be drawn from a defendant's silence before he or she has been given the opportunity to consult a solicitor.

•  restricts the use of answers obtained under compulsory powers; and

• repeals section 69 of the Police and Criminal Evidence Act 1984 so that evidence from a computer will not have now to be certified to have been operating effectively at the time, and that it was used properly.

For further information please contact the:

Procedures and Victims Unit
Home Office
50 Queen Anne's Gate
London SW1H 9AT

E-mail pvu.ho@gtnet.gov.uk

Part 2: Summary of Chapters

Chapter 1

Makes a number of measures available to help witnesses (other than the accused) who might have difficulty giving evidence in criminal proceedings, or who might be reluctant to do so.

People eligible for special measures are those:

• under 17;

• who have a mental or physical disorder or disability which the court considers is likely to affect the quality of their evidence;

• whom the court is satisfied would be unable to give their best evidence to the court because of their fear and distress at the prospect of testifying. When considering whether a particular witness is eligible for special measures, the court would take into account the circumstances of the case, any relationship between the witness and the defendant and the defendant's conduct towards the witness

It will be for the court to determine whether a witness falls into any of these categories. A complainant of a sexual offence will be automatically eligible for special measures. The court could not consider them ineligible unless the complainant stated specifically that he or she did not want to be eligible.

The special measures that could be made available under the provisions contained in the Act, are:

• the provision of screens, to ensure that the witness cannot see the defendant;

• giving evidence by live television link;

• excluding people from the courtroom, or galleries, so that evidence can be given in a more private setting;

• removing wigs or gowns

• allowing a video-recorded interview with the witness to be admitted as evidence-in-chief; and,

• allowing pre-recorded videoed cross-examination to be admitted in place of live cross-examination.

Children, and witnesses who have a physical or mental disability will also be able to benefit from the following measures:

• the use of an approved intermediary; and,

• use of communication aids.

Either the prosecution or the defence will make an application for special measures on behalf of the witness at a pre-trial hearing. The court will then decide whether the witness qualifies for measures and what measures should apply. The court will also be able to make special measures available of its own motion ie. where no application has been made.
 
Applications may be made on the basis that a witness is eligible for more than one reason.

• Children's eligibility

The Act creates a category of witness: those requiring ‘special protection'. All child witnesses giving evidence in sexual or violent offence cases will be deemed to require ‘special protection'. In effect this creates three categories of child witness according to the severity of the offence, and the level of protection they will need when giving evidence in court.

• those giving evidence in cases other than those involving sexual or violent offences;

• those giving evidence in a case involving a sexual offence, and thus in need of special protection; and

• those giving evidence in a case involving an offence of violence, neglect or abduction (again, in need of special protection).

This will mean that all such witnesses will have a video recording made of their evidence in chief admitted, unless that would not be in the interests of justice.

Child witnesses in violent offence cases will then go on to give further evidence on live-link, if their video evidence-in-chief were admitted. Children in sexual offence cases will be cross-examined on video pre-trial unless they have told the court that they to not want to be cross-examined in this way. Procedures and facilities for this last measure are not yet in place and video recorded cross examination is not likely to be made available to witnesses until after other measures have been implemented.

Child witnesses giving evidence in cases other than those involving sexual or violent offences will normally have a video recording of their evidence-in-chief admitted and will give any further evidence, or cross-examination, via a live link at trial. It will be presumed that the witness will give evidence in this way unless it would not improve the quality of their evidence.

(The links below are to Hansard which is held on the Parliament website)
Lords committee stage: 1 February 1999
Lords Report stage: 2 March 1999
Commons committee stage: 17 June 1999
Commons committee stage: 22 June 1999

There will be a mandatory ban on the defendant personally cross-examining any witness in the following circumstances.

• where the witness is the alleged victim of a sexual offence (as defined in the Act); and,

• where the witness is a child who is either the alleged victim or another witness (including the co-defendant) in sexual offence cases, or cases of kidnapping or abduction, cruelty, or physical assault.

The court will also be given a power to ban cross-examination by an unrepresented defendant in person where it is satisfied that the circumstances of the witness and the offence merit it, provided that any such prohibition would not be against the interests of justice.

Where a defendant is prohibited from cross-examining a witness, whatever the reason, the court will invite the defendant to appoint a lawyer to conduct the cross -examination on his/her behalf. If the defendant does not do so, the court must consider whether it is nevertheless in the interests of justice for the witness's evidence to be tested. Where it concludes that this is necessary, the court will appoint a lawyer to test the witness's evidence in the interests of the defendant.

(The links below are to Hansard which is held on the Parliament website)
Lords committee stage: 1 February 1999
Lords committee stage: 8 February 1999
Lords Report stage: 2 March 1999
Commons committee stage: 22 June 1999

This amends the statutory framework within which questions or evidence about the complainant's previous sexual behaviour may be admitted in trials for rape and certain other sexual offences.

The Act states that sexual behaviour evidence will, as now, be admitted only by leave of the court. Leave to admit such evidence may only be granted:

• if the court is satisfied either that the evidence relates to a relevant issue at trial and that issue is not one of consent; or,

• if it is an issue of consent, the behaviour is alleged to have taken place at or about the same time as the event which forms the subject matter of the charge; or,

• if the evidence to be admitted is required to rebut evidence introduced by the prosecution.

The "issue of consent" means any issue relating to whether the complainant in fact consented to the incident that constituted the alleged offence. It does not include any issue as to whether the defendant believed that the complainant was consenting.

In order to be admitted, all questions or evidence must relate to specific instances of sexual behaviour. Unless the evidence or questioning is intended to rebut or explain prosecution evidence, the court must be satisfied that it main purpose is not to impugn the witness's credibility.

All questions and evidence must also be of significant evidential value: the court must be satisfied that to refuse leave would result in the jury, or the court, reaching an unsafe conclusion on a relevant issue at trial.

(The links below are to Hansard which is held on the Parliament website)
Lords committee stage: 8 February 1999
Lords report stage: 8 March 1999
Commons committee stage: 24 June 1999
Commons committee stage: 29 June 1999

This extends the restrictions on the reporting or publishing of information that would lead to the identification of alleged juvenile offenders and other witnesses to criminal offences. Restrictions will now apply from the beginning of a criminal investigation.

All restrictions will be enforceable throughout the UK. But restrictions on the reporting of information that would lead to the identification of child witnesses and victims of offences will not be commenced unless the Secretary of State tables an order to that effect. The order will be subject to affirmative resolution procedure (it must be debated in both Houses of Parliament).

The provisions in this chapter also extend the existing restrictions on the reporting or publishing of information about rape complainants to include complainants in certain other sexual offence cases.

Finally the courts are further empowered to impose similar reporting restrictions on the identification of certain other witnesses who may be vulnerable to intimidation. These restrictions may be lifted at the request of the witness, the court in the interests of justice.

The Act creates new offences in clause 48 for breach of restrictions, but also provides a variety of defences for breach.

Defence to all offences in clause 48: that the person charged did not know at the time of the alleged offence that the publication included something covered by a reporting restriction.

Defence to offence involving children and young people before the beginning of criminal proceedings: that the person charged did not know and had no reason to expect that a criminal investigation had begun.

Defence to offence involving young victims and witnesses to crimes, before the beginning of criminal proceedings: that the public interest demanded publication of the information and that because of that the restriction was substantial and unreasonable; and/or that the person charged had written consent from one of the child's parents or guardians, or from the child. (The parent must have been reminded to take the welfare of their child into account.)

 
The court will also be able to lift or partially lift any restriction if it is in the interests of justice.

(The links below are to Hansard which is held on the Parliament website)
Lords committee stage: 8 February 1999
Lords report stage: 8 March 1999
Commons committee stage: 29 June 1999

Provides that witnesses are competent to give evidence in court if they can understand the questions put to them and give answers that the court can understand. The Act allows competent adult witnesses to give evidence unsworn if necessary.

Amends the provisions in the Criminal Justice and Public Order Act 1994, prohibiting inferences being drawn from a suspect's silence before they have had the opportunity to consult a solicitor. It also restricts the use of evidence if it has been obtained under compulsory powers in financial legislation.

This Act also repeals section 69 of the Police and Criminal Act 1984 so that evidence from computer records no longer needs to be accompanied by certification that the computer was operating properly and that it was being used properly.

Remainder

The remainder ofthe Act covers procedural and technical issues relating to implementation, the Act's effect on other legislation and interpretation of the Act's provisions.