Legislation – The Criminal Procedure Rules 2020

This rule applies where a party wants to make representations about an application for a live link direction or for the discharge of such a direction.

(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 10 business days after service of the application; and

(c)

ask for a hearing, if that party wants one, and explain why it is needed.

(3)

Representations against a direction or discharge must explain, as applicable, why the conditions prescribed by the Criminal Justice Act 1988 or the Criminal Justice Act 2003 are not met.

Summary of eligibility for measures to which this Part applies

Special measures direction

Under section 16 of the Youth Justice and Criminal Evidence Act 1999417, 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 18; 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 1999418 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)

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 18.1 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 Act419, where the witness—

(i)

is under 18, or

(ii)

was under that age when interviewed

whether or not an application for a direction is made;

(b)

under section 22A of the 1999 Act420, 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 Act421, 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 33BA422 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 2009423, 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).

Live link direction

Under section 32 of the Criminal Justice Act 1988, the court can allow a witness who is outside the United Kingdom to give evidence by live link—

(a)

in proceedings in a youth court, or on appeal from such proceedings; or

(b)

at a trial in the Crown Court, or on appeal from such a trial.

Under section 51 of the Criminal Justice Act 2003, on an application or on its own initiative, the court can allow a witness who is in the United Kingdom, but outside the building in which the proceedings are held, to give evidence by live link. The court must be satisfied that that is in the interests of the efficient or effective administration of justice.

The Criminal Justice (European Investigation Order) Regulations 2017 give effect in the United Kingdom to Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. Under regulation 6 of the 2017 Regulations the court can make an order specifying one or more ‘investigative measures’ that are to be carried out in a State listed in Schedule 2 to those Regulations (a ‘participating State’). One such measure is hearing in proceedings in England and Wales, by live video or, potentially, audio link (described in the Regulations as ‘videoconference or other audio visual transmission’ and as ‘telephone conference’ respectively), a witness who is in a participating State. See also regulations 6(4)(c) and 14 of the 2017 Regulations, and regulation 9 which governs the transmission of an order to the participating State.

Under regulations 6(4)(b) and 11 of the 2017 Regulations any such measure must be one that could have been ordered or undertaken under the same conditions in a similar domestic case; but under regulation 11(5) that does not require the court to take into account any provision of domestic law imposing a procedural requirement which the court considers cannot effectively be applied when making a European investigation order for the measure concerned.

If a witness is eligible for the assistance of a special measures direction (as to which, see the note above), the court can allow the witness to give evidence by live link under sections 19 and 24 of the 1999 Act424. See rules 18.8 to 18.13.