The Criminal Evidence (Northern Ireland) Order 1999

Special provisions relating to child witnesses

9.—(1) For the purposes of this Article—

(a) a witness in criminal proceedings is a “child witness” if he is an eligible witness by reason of Article 4(1)(a) (whether or not he is an eligible witness by reason of any other provision of Article 4 or 5);

(b) a child witness is “in need of special protection” if the offence (or any of the offences) to which the proceedings relate is—

(i) an offence falling within Article 23(3)(a) (sexual offences), or

(ii) an offence falling within Article 23(3)(b), (c) or (d) (kidnapping, assaults etc.); 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 Article 7(2), determines that a witness in criminal proceedings is a child witness, the court must—

(a) first have regard to paragraphs (3) to (7); and

(b) then have regard to Article 7(2);

and for the purposes of Article 7(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this Article shall be treated as if they were measures determined by the court, pursuant to Article 7(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 Article 15 (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 Article 12.

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

(a) the requirement contained in paragraph (3)(a) or (b) has effect subject to the availability (within the meaning of Article 6(2)) of the special measure in question in relation to the witness;

(b) the requirement contained in paragraph (3)(a) also has effect subject to Article 15(2); 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).

(5) However, paragraph (4)(c) does not apply in relation to a child witness in need of special protection.

(6) Where a child witness is in need of special protection by virtue of paragraph (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in paragraph (3)(a) must in addition provide for the special measure available under Article 16 (video recorded cross-examination or re-examination) to apply in relation to—

(a) any cross-examination of the witness otherwise than by the accused in person, and

(b) any subsequent re-examination.

(7) The requirement contained in paragraph (6) has effect subject to the following limitations—

(a) it has effect subject to the availability (within the meaning of Article 6(2)) of that special measure in relation to the witness; and

(b) it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.

(8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of Article 4(1)(a), then—

(a) subject to paragraph (9), 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 17.

(9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of Article 4(1)(a) and—

(a) the direction provides—

(i) for any relevant recording to be admitted under Article 15 as evidence in chief of the witness, or

(ii) for the special measure available under Article 16 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 17 when the video recording is made for the purposes of Article 16,

then, so far as it provides as mentioned in sub-paragraph (a)(i) or (ii), the direction shall continue to have effect in accordance with Article 8(1) even though the witness subsequently attains that age.