The Criminal Procedure Rules 2020

[F1 Content of intermediary’s report E+W

18.32.— (1) An intermediary’s report must, in every case—

(a) give details of the intermediary’s qualifications, relevant experience and any accreditation;

(b) identify the commissioner of the report;

(c) identify those from whom the intermediary has obtained information material to the report;

(d) list the documents received or inspected by the intermediary which contained such information and give an indication of their content;

(e) give the date or dates on which the intermediary met the witness or defendant, as the case may be, for the purpose of preparing the report;

(f) describe the nature and duration of the intermediary’s assessment, or assessments, of the witness or defendant;

(g) by reference to examples drawn from the intermediary’s assessment of the witness or defendant explain why in this particular case intermediary assistance is necessary;

(h) include an evaluation of—

(i) the impact of any condition or conditions which, whether in isolation or together, may adversely affect the witness’ or the defendant’s ability to communicate, and

(ii) the extent, if any, to which that impact may be exacerbated by the trial;

(i) if the intermediary is not able to reach an evaluation without qualifying it, state the qualification;

(j) report the views of the witness or defendant, as the case may be, on receiving the assistance of an intermediary;

(k) include in a summary of the intermediary’s conclusions any recommendation, with reasons, for—

(i) the approval or appointment of an intermediary,

(ii) the manner and duration of any questioning of the witness or defendant, as the case may be, and

(iii) arrangements for the way in which the intermediary, if approved or appointed, should participate; and

(l) contain a statement that the intermediary—

(i) understands an intermediary’s duty to the court, and

(ii) will comply with that duty if approved or appointed.

(2) Where the intermediary is asked to evaluate a defendant’s communication needs the report must also—

(a) include an evaluation of the extent to which any measures or arrangements beside the appointment of an intermediary will facilitate the defendant’s effective participation in the trial; and

(b) in the summary of the intermediary’s conclusions include any recommendation, with reasons, for—

(i) the duration and purpose of any appointment of an intermediary, and

(ii) other measures or arrangements to help the defendant to participate effectively in the trial.]

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 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 1999(2) 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 Act(3), 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 Act(4), 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(5), 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(6) 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(7), 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.

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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 Act(8). See rules 18.8 to 18.13.

[F3 Intermediary for a defendant

In order to ensure the defendant’s effective participation in his or her trial the court has an inherent power to appoint an intermediary to facilitate that participation, including during the giving of evidence by the defendant.]

Textual Amendments

F1 Rule 18.27-18.32 and cross-headings inserted (5.4.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2(b), 9(k)

F2 Words in Pt. 18 note omitted (8.2.2021) by virtue of The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2, 9(m)(i) (with rule 3)

F3 Words in Pt. 18 inserted (5.4.2021) by The Criminal Procedure (Amendment) Rules 2021 (S.I. 2021/40), rules 2(b), 9(m)(ii)

(1)

1999 c. 23.

(2)

1999 c. 23; section 17 was amended by section 99 of the Coroners and Justice Act 2009 (c. 25), paragraphs 1 and 2 of the Schedule to S.I. 2013/554 and section 46 of the Modern Slavery Act 2015 (c. 30).

(3)

1999 c. 23; sections 21 and 22 were amended by sections 98, 100 and 178 of, and Part 3 of Schedule 23 to, the Coroners and Justice Act 2009 (c. 25).

(4)

1999 c. 23; section 22A was inserted by section 101 of the Coroners and Justice Act 2009 (c. 25).

(5)

1999 c. 23; section 33A was inserted by section 47 of the Police and Justice Act 2006 (c. 48).

(6)

1999 c. 23; section 33BA is inserted by section 104 of the Coroners and Justice Act 2009 (c. 25), with effect from a date to be appointed.

(7)

2009 c. 25.

(8)

1999 c. 23; section 24 was amended by paragraph 385 of Schedule 8 to, and Schedule 10 to, the Courts Act 2003 (c. 39) and section 102(1) of the Coroners and Justice Act 2009 (c. 25).