Youth Justice and Criminal Evidence Act 1999
An Act to provide for the referral of offenders under 18 to youth offender panels; to make provision in connection with the giving of evidence or information for the purposes of criminal proceedings; to amend section 51 of the Criminal Justice and Public Order Act 1994; to make pre-consolidation amendments relating to youth justice; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Part I Referrals to youth offender panels
Referral orders
F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Youth offender panels
F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Youth offender contracts
F88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Further court proceedings
F1313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplementary
F1414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part II Giving of evidence or information for purposes of criminal proceedings
Chapter I Special measures directions in case of vulnerable and intimidated witnesses
Preliminary
16 Witnesses eligible for assistance on grounds of age or incapacity.
(1)
For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—
(a)
if under the age of F1618 at the time of the hearing; or
(b)
if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).
(2)
The circumstances falling within this subsection are—
(a)
that the witness—
(i)
suffers from mental disorder within the meaning of the M1Mental Health Act 1983, or
(ii)
otherwise has a significant impairment of intelligence and social functioning;
(b)
that the witness has a physical disability or is suffering from a physical disorder.
(3)
In subsection (1)(a) “the time of the hearing”, in relation to a witness, means the time when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness.
(4)
In determining whether a witness falls within subsection (1)(b) the court must consider any views expressed by the witness.
(5)
In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.
17 Witnesses eligible for assistance on grounds of fear or distress about testifying.
(1)
For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this subsection if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.
(2)
In determining whether a witness falls within subsection (1) the court must take into account, in particular—
(a)
the nature and alleged circumstances of the offence to which the proceedings relate;
(b)
the age of the witness;
(c)
such of the following matters as appear to the court to be relevant, namely—
(i)
the social and cultural background and ethnic origins of the witness,
(ii)
the domestic and employment circumstances of the witness, and
(iii)
any religious beliefs or political opinions of the witness;
(d)
any behaviour towards the witness on the part of—
(i)
the accused,
(ii)
members of the family or associates of the accused, or
(iii)
any other person who is likely to be an accused or a witness in the proceedings.
(3)
In determining that question the court must in addition consider any views expressed by the witness.
(4)
Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness’ wish not to be so eligible by virtue of this subsection.
F17(5)
A witness in proceedings relating to a relevant offence (or to a relevant offence and any other offences) is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.
(6)
For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.
(7)
The Secretary of State may by order amend Schedule 1A.
18 Special measures available to eligible witnesses.
(1)
For the purposes of this Chapter—
(a)
the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and
(b)
the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17;
but this subsection has effect subject to subsection (2).
(2)
Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless—
(a)
the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and
(b)
the notice has not been withdrawn.
(3)
In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.
(4)
The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness’s evidence has been made by the court before the notice is withdrawn.
(5)
The Secretary of State may by order make such amendments of this Chapter as he considers appropriate for altering the special measures which, in accordance with subsection (1)(a) or (b), are available in relation to a witness eligible for assistance by virtue of section 16 or (as the case may be) section 17, whether—
(a)
by modifying the provisions relating to any measure for the time being available in relation to such a witness,
(b)
by the addition—
(i)
(with or without modifications) of any measure which is for the time being available in relation to a witness eligible for assistance by virtue of the other of those sections, or
(ii)
of any new measure, or
(c)
by the removal of any measure.
Special measures directions
19 Special measures direction relating to eligible witness.
(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.
20 Further provisions about directions: general.
(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)
F18Criminal 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.
21 Special provisions relating to child witnesses.
(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);
F19(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 F20(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); F21...
F22(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).
F23(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).
F24(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.
F25(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F25(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F25(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 F2618.
(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 F2718 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.
22 Extension of provisions of section 21 to certain witnesses over F2818.
(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 F2918 when a relevant recording was made;
F30(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.
F31(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).
F3222ASpecial provisions relating to sexual offences
(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.
Special measures
23 Screening witness from accused.
(1)
A special measures direction may provide for the witness, while giving testimony or being sworn in court, to be prevented by means of a screen or other arrangement from seeing the accused.
(2)
But the screen or other arrangement must not prevent the witness from being able to see, and to be seen by—
(a)
the judge or justices (or both) and the jury (if there is one);
(b)
legal representatives acting in the proceedings; and
(c)
any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
(3)
Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(b) is to be regarded as satisfied in relation to those representatives if the witness is able at all material times to see and be seen by at least one of them.
24 Evidence by live link.
(1)
A special measures direction may provide for the witness to give evidence by means of a live link.
F33(1A)
Such a direction may also provide for a specified person to accompany the witness while the witness is giving evidence by live link.
(1B)
In determining who may accompany the witness, the court must have regard to the wishes of the witness.
(2)
Where a direction provides for the witness to give evidence by means of a live link, the witness may not give evidence in any other way without the permission of the court.
(3)
The court may give permission for the purposes of subsection (2) 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 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.
(4)
In subsection (3) “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.
F34(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F34(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F34(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8)
In this Chapter “live link” means a live television link or other arrangement whereby a witness, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the persons specified in section 23(2)(a) to (c).
25 Evidence given in private.
(1)
A special measures direction may provide for the exclusion from the court, during the giving of the witness’s evidence, of persons of any description specified in the direction.
(2)
The persons who may be so excluded do not include—
(a)
the accused,
(b)
legal representatives acting in the proceedings, or
(c)
any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
(3)
A special measures direction providing for representatives of news gathering or reporting organisations to be so excluded shall be expressed not to apply to one named person who—
(a)
is a representative of such an organisation, and
(b)
has been nominated for the purpose by one or more such organisations,
unless it appears to the court that no such nomination has been made.
(4)
A special measures direction may only provide for the exclusion of persons under this section where—
(a)
the proceedings relate to a sexual offence; or
(b)
it appears to the court that there are reasonable grounds for believing that any person other than the accused has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.
(5)
Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of news gathering or reporting organisations) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.
26 Removal of wigs and gowns.
A special measures direction may provide for the wearing of wigs or gowns to be dispensed with during the giving of the witness’s evidence.
27 Video recorded evidence in chief.
(1)
A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness.
(2)
A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.
(3)
In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
(4)
Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if—
(a)
it appears to the court that—
(i)
the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and
(ii)
the parties to the proceedings have not agreed that there is no need for the witness to be so available; or
(b)
any F35Criminal Procedure Rules requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court.
(5)
Where a recording is admitted under this section—
(a)
the witness must be called by the party tendering it in evidence, unless—
(i)
a special measures direction provides for the witness’s evidence on cross-examination to be given F36in any recording admissible under section 28, or
(ii)
the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and
F37(b)
the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness's recorded testimony.
(6)
Where in accordance with subsection (2) a special measures direction provides for part only of a recording to be admitted under this section, references in subsections (4) and (5) to the recording or to the witness’s recorded testimony are references to the part of the recording or testimony which is to be so admitted.
(7)
The court may give permission for the purposes of subsection F38subsection (5)(b) 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 by a party to the proceedings, F39... or
(b)
of its own motion.
F40(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9)
F43(9A)
If the court directs under subsection (9) that evidence is to be given by live link, it may also make such provision in that direction as it could make under section 24(1A) in a special measures direction.
F44(10)
A magistrates’ court inquiring into an offence as examining justices under section 6 of the M2Magistrates’ Courts Act 1980 may consider any video recording in relation to which it is proposed to apply for a special measures direction providing for it to be admitted at the trial in accordance with this section.
(11)
Nothing in this section affects the admissibility of any video recording which would be admissible apart from this section.
28 Video recorded cross-examination or re-examination.
(1)
Where a special measures direction provides for a video recording to be admitted under section 27 as evidence in chief of the witness, the direction may also provide—
(a)
for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and
(b)
for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.
(2)
Such a recording must be made in the presence of such persons as F45Criminal Procedure Rules or the direction may provide and in the absence of the accused, but in circumstances in which—
(a)
the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and
(b)
the accused is able to see and hear any such examination and to communicate with any legal representative acting for him.
(3)
Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(a) and (b) are to be regarded as satisfied in relation to those representatives if at all material times they are satisfied in relation to at least one of them.
(4)
Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if any requirement of subsection (2) or F46Criminal Procedure Rules or the direction has not been complied with to the satisfaction of the court.
(5)
Where in pursuance of subsection (1) a recording has been made of any examination of the witness, the witness may not be subsequently cross-examined or re-examined in respect of any evidence given by the witness in the proceedings (whether in any recording admissible under section 27 or this section or otherwise than in such a recording) unless the court gives a further special measures direction making such provision as is mentioned in subsection (1)(a) and (b) in relation to any subsequent cross-examination, and re-examination, of the witness.
(6)
The court may only give such a further direction if it appears to the court—
(a)
that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of subsection (1), of a matter which that party could not with reasonable diligence have ascertained by then, or
(b)
that for any other reason it is in the interests of justice to give the further direction.
(7)
Nothing in this section shall be read as applying in relation to any cross-examination of the witness by the accused in person (in a case where the accused is to be able to conduct any such cross-examination).
29 Examination of witness through intermediary.
(1)
A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).
(2)
The function of an intermediary is to communicate—
(a)
to the witness, questions put to the witness, and
(b)
to any person asking such questions, the answers given by the witness in reply to them,
and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
(3)
Any examination of the witness in pursuance of subsection (1) must take place in the presence of such persons as F47Criminal Procedure Rules or the direction may provide, but in circumstances in which—
(a)
the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the intermediary, and
(b)
(except in the case of a video recorded examination) the jury (if there is one) are able to see and hear the examination of the witness.
(4)
Where two or more legal representatives are acting for a party to the proceedings, subsection (3)(a) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them.
(5)
A person may not act as an intermediary in a particular case except after making a declaration, in such form as may be prescribed by F48Criminal Procedure Rules, that he will faithfully perform his function as intermediary.
(6)
Subsection (1) does not apply to an interview of the witness which is recorded by means of a video recording with a view to its admission as evidence in chief of the witness; but a special measures direction may provide for such a recording to be admitted under section 27 if the interview was conducted through an intermediary and—
(a)
that person complied with subsection (5) before the interview began, and
(b)
the court’s approval for the purposes of this section is given before the direction is given.
(7)
Section 1 of the M3Perjury Act 1911 (perjury) shall apply in relation to a person acting as an intermediary as it applies in relation to a person lawfully sworn as an interpreter in a judicial proceeding; and for this purpose, where a person acts as an intermediary in any proceeding which is not a judicial proceeding for the purposes of that section, that proceeding shall be taken to be part of the judicial proceeding in which the witness’s evidence is given.
30 Aids to communication.
A special measures direction may provide for the witness, while giving evidence (whether by testimony in court or otherwise), to be provided with such device as the court considers appropriate with a view to enabling questions or answers to be communicated to or by the witness despite any disability or disorder or other impairment which the witness has or suffers from.
Supplementary
31 Status of evidence given under Chapter I.
(1)
Subsections (2) to (4) apply to a statement made by a witness in criminal proceedings which, in accordance with a special measures direction, is not made by the witness in direct oral testimony in court but forms part of the witness’s evidence in those proceedings.
(2)
The statement shall be treated as if made by the witness in direct oral testimony in court; and accordingly—
(a)
it is admissible evidence of any fact of which such testimony from the witness would be admissible;
(b)
it is not capable of corroborating any other evidence given by the witness.
(3)
Subsection (2) applies to a statement admitted under section 27 or 28 which is not made by the witness on oath even though it would have been required to be made on oath if made by the witness in direct oral testimony in court.
(4)
In estimating the weight (if any) to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn (as to the accuracy of the statement or otherwise).
(5)
Nothing in this Chapter (apart from subsection (3)) affects the operation of any rule of law relating to evidence in criminal proceedings.
(6)
Where any statement made by a person on oath in any proceeding which is not a judicial proceeding for the purposes of section 1 of the M4Perjury Act 1911 (perjury) is received in evidence in pursuance of a special measures direction, that proceeding shall be taken for the purposes of that section to be part of the judicial proceeding in which the statement is so received in evidence.
(7)
Where in any proceeding which is not a judicial proceeding for the purposes of that Act—
(a)
a person wilfully makes a false statement otherwise than on oath which is subsequently received in evidence in pursuance of a special measures direction, and
(b)
the statement is made in such circumstances that had it been given on oath in any such judicial proceeding that person would have been guilty of perjury,
he shall be guilty of an offence and liable to any punishment which might be imposed on conviction of an offence under section 57(2) (giving of false unsworn evidence in criminal proceedings).
(8)
In this section “statement” includes any representation of fact, whether made in words or otherwise.
32 Warning to jury.
Where on a trial on indictment F49with a jury evidence has been given in accordance with a special measures direction, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused.
33 Interpretation etc. of Chapter I.
(1)
In this Chapter—
“eligible witness” means a witness eligible for assistance by virtue of section 16 or 17;
“live link” has the meaning given by section 24(8);
“quality”, in relation to the evidence of a witness, shall be construed in accordance with section 16(5);
“special measures direction” means (in accordance with section 19(5)) a direction under section 19.
(2)
In this Chapter references to the special measures available in relation to a witness shall be construed in accordance with section 18.
(3)
In this Chapter references to a person being able to see or hear, or be seen or heard by, another person are to be read as not applying to the extent that either of them is unable to see or hear by reason of any impairment of eyesight or hearing.
(4)
In the case of any proceedings in which there is more than one accused—
(a)
any reference to the accused in sections 23 to 28 may be taken by a court, in connection with the giving of a special measures direction, as a reference to all or any of the accused, as the court may determine, and
(b)
any such direction may be given on the basis of any such determination.
F50Chapter 1AUse of live link for evidence of certain accused persons
33ALive link directions
(1)
This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
(2)
The court may, on the application of the accused, give a live link direction if it is satisfied—
(a)
that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused, and
(b)
that it is in the interests of justice for the accused to give evidence through a live link.
(3)
A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
(4)
Where the accused is aged under 18 when the application is made, the conditions are that—
(a)
his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning, and
(b)
use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
(5)
Where the accused has attained the age of 18 at that time, the conditions are that—
(a)
he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function,
(b)
he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court, and
(c)
use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
(6)
While a live link direction has effect the accused may not give oral evidence before the court in the proceedings otherwise than through a live link.
(7)
The court may discharge a live link direction at any time before or during any hearing to which it applies if it appears to the court to be in the interests of justice to do so (but this does not affect the power to give a further live link direction in relation to the accused).
The court may exercise this power of its own motion or on an application by a party.
(8)
The court must state in open court its reasons for—
(a)
giving or discharging a live link direction, or
(b)
refusing an application for or for the discharge of a live link direction,
and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings.
33BSection 33A: meaning of “live link”
(1)
In section 33A “live link” means an arrangement by which the accused, while absent from the place where the proceedings are being held, is able—
(a)
to see and hear a person there, and
(b)
to be seen and heard by the persons mentioned in subsection (2),
and for this purpose any impairment of eyesight or hearing is to be disregarded.
(2)
The persons are—
(a)
the judge or justices (or both) and the jury (if there is one),
(b)
where there are two or more accused in the proceedings, each of the other accused,
(c)
legal representatives acting in the proceedings, and
(d)
any interpreter or other person appointed by the court to assist the accused.
33CSaving
Nothing in this Chapter affects—
(a)
any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or
(b)
the operation of any rule of law relating to evidence in criminal proceedings.
Chapter II Protection of witnesses from cross-examination by accused in person
General prohibitions
34 Complainants in proceedings for sexual offences.
No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—
(a)
in connection with that offence, or
(b)
in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
35 Child complainants and other child witnesses.
(1)
No person charged with an offence to which this section applies may in any criminal proceedings cross-examine in person a protected witness, either—
(a)
in connection with that offence, or
(b)
in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
(2)
For the purposes of subsection (1) a “protected witness” is a witness who—
(a)
either is the complainant or is alleged to have been a witness to the commission of the offence to which this section applies, and
(b)
either is a child or falls to be cross-examined after giving evidence in chief (whether wholly or in part)—
(i)
by means of a video recording made (for the purposes of section 27) at a time when the witness was a child, or
(ii)
in any other way at any such time.
(3)
The offences to which this section applies are—
(a)
any offence under—
F51(i)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F51(ii)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F51(iii)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F51(iv)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F52(iva)
any of sections 33 to 36 of the Sexual Offences Act 1956,
(v)
the M5Protection of Children Act 1978;F53 or
(vi)
Part 1 of the Sexual Offences Act 2003 F54or any relevant superseded enactment;
(b)
kidnapping, false imprisonment or an offence under section 1 or 2 of the M6Child Abduction Act 1984;
(c)
any offence under section 1 of the M7Children and Young Persons Act 1933;
(d)
any offence (not within any of the preceding paragraphs) which involves an assault on, or injury or a threat of injury to, any person.
F55(3A)
In subsection (3)(a)(vi) “relevant superseded enactment” means—
(a)
any of sections 1 to 32 of the Sexual Offences Act 1956;
(b)
the Indecency with Children Act 1960;
(c)
the Sexual Offences Act 1967;
(d)
section 54 of the Criminal Law Act 1977.
(4)
In this section “child” means—
(a)
where the offence falls within subsection (3)(a), a person under the age of F5618; or
(b)
where the offence falls within subsection (3)(b), (c) or (d), a person under the age of 14.
(5)
For the purposes of this section “witness” includes a witness who is charged with an offence in the proceedings.
Prohibition imposed by court
36 Direction prohibiting accused from cross-examining particular witness.
(1)
This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—
(a)
the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b)
the court of its own motion raises the issue whether such a direction should be given.
(2)
If it appears to the court—
(a)
that the quality of evidence given by the witness on cross-examination—
(i)
is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and
(ii)
would be likely to be improved if a direction were given under this section, and
(b)
that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.
(3)
In determining whether subsection (2)(a) applies in the case of a witness the court must have regard, in particular, to—
(a)
any views expressed by the witness as to whether or not the witness is content to be cross-examined by the accused in person;
(b)
the nature of the questions likely to be asked, having regard to the issues in the proceedings and the defence case advanced so far (if any);
(c)
any behaviour on the part of the accused at any stage of the proceedings, both generally and in relation to the witness;
(d)
any relationship (of whatever nature) between the witness and the accused;
(e)
whether any person (other than the accused) is or has at any time been charged in the proceedings with a sexual offence or an offence to which section 35 applies, and (if so) whether section 34 or 35 operates or would have operated to prevent that person from cross-examining the witness in person;
(f)
any direction under section 19 which the court has given, or proposes to give, in relation to the witness.
(4)
For the purposes of this section—
(a)
“witness”, in relation to an accused, does not include any other person who is charged with an offence in the proceedings; and
(b)
any reference to the quality of a witness’s evidence shall be construed in accordance with section 16(5).
37 Further provisions about directions under section 36.
(1)
Subject to subsection (2), a direction has binding effect from the time it is made until the witness to whom it applies is discharged.
In this section “direction” means a direction under section 36.
(2)
The court may discharge a 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)
The court must state in open court its reasons for—
(a)
giving, or
(b)
refusing an application for, or for the discharge of, or
(c)
discharging,
a direction and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings.
(5)
F57Criminal 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 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 discharging, 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.
Cross-examination on behalf of accused
38 Defence representation for purposes of cross-examination.
(1)
This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.
(2)
Where it appears to the court that this section applies, it must—
(a)
invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and
(b)
require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
(3)
If by the end of the period mentioned in subsection (2)(b) either—
(a)
the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or
(b)
no notification has been received by the court and it appears to the court that no legal representative is to so act,
the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused.
(4)
If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.
(5)
A person so appointed shall not be responsible to the accused.
(6)
F58Criminal Procedure Rules may make provision—
(a)
as to the time when, and the manner in which, subsection (2) is to be complied with;
(b)
in connection with the appointment of a legal representative under subsection (4), and in particular for securing that a person so appointed is provided with evidence or other material relating to the proceedings.
(7)
F58Criminal Procedure Rules made in pursuance of subsection (6)(b) may make provision for the application, with such modifications as are specified in the rules, of any of the provisions of—
(a)
Part I of the M8Criminal Procedure and Investigations Act 1996 (disclosure of material in connection with criminal proceedings), or
(b)
the M9Sexual Offences (Protected Material) Act 1997.
(8)
For the purposes of this section—
(a)
any reference to cross-examination includes (in a case where a direction is given under section 36 after the accused has begun cross-examining the witness) a reference to further cross-examination; and
(b)
“qualified legal representative” means a legal representative who has a right of audience (within the meaning of the M10Courts and Legal Services Act 1990) in relation to the proceedings before the court.
39 Warning to jury.
(1)
Where on a trial on indictment F59with a jury an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced—
(a)
by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person;
(b)
where the witness has been cross-examined by a legal representative appointed under section 38(4), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the accused’s own legal representative.
(2)
Subsection (8)(a) of section 38 applies for the purposes of this section as it applies for the purposes of section 38.
40 Funding of defence representation.
(1)
“(e)
to cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.”
F60(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter III Protection of complainants in proceedings for sexual offences
41 Restriction on evidence or questions about complainant’s sexual history.
(1)
If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a)
no evidence may be adduced, and
(b)
no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2)
The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a)
that subsection (3) or (5) applies, and
(b)
that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3)
This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a)
that issue is not an issue of consent; or
(b)
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c)
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i)
to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii)
to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
(4)
For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5)
This subsection applies if the evidence or question—
(a)
relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b)
in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6)
For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
(7)
Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a)
it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b)
it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(8)
Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
42 Interpretation and application of section 41.
(1)
In section 41—
(a)
“relevant issue in the case” means any issue falling to be proved by the prosecution or defence in the trial of the accused;
(b)
“issue of consent” means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented);
(c)
“sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and
(d)
subject to any order made under subsection (2), “sexual offence” shall be construed in accordance with section 62.
(2)
The Secretary of State may by order make such provision as he considers appropriate for adding or removing, for the purposes of section 41, any offence to or from the offences which are sexual offences for the purposes of this Act by virtue of section 62.
(3)
Section 41 applies in relation to the following proceedings as it applies to a trial, namely—
(a)
F61proceedings before a magistrates’ court inquiring into an offence as examining justices,
(b)
F62the hearing of an application under paragraph 5(1) of Schedule 6 to the M12Criminal Justice Act 1991 (application to dismiss charge following notice of transfer of case to Crown Court),
(c)
the hearing of an application under paragraph 2(1) of Schedule 3 to the M13Crime and Disorder Act 1998 (application to dismiss charge by person sent for trial under section 51 F63or 51A of that Act),
(d)
any hearing held, between conviction and sentencing, for the purpose of determining matters relevant to the court’s decision as to how the accused is to be dealt with, and
(e)
the hearing of an appeal,
and references (in section 41 or this section) to a person charged with an offence accordingly include a person convicted of an offence.
43 Procedure on applications under section 41.
(1)
An application for leave shall be heard in private and in the absence of the complainant.
In this section “leave” means leave under section 41.
(2)
Where such an application has been determined, the court must state in open court (but in the absence of the jury, if there is one)—
(a)
its reasons for giving, or refusing, leave, and
(b)
if it gives leave, the extent to which evidence may be adduced or questions asked in pursuance of the leave,
and, if it is a magistrates’ court, must cause those matters to be entered in the register of its proceedings.
(3)
F64Criminal Procedure Rules may make provision—
(a)
requiring applications for leave to specify, in relation to each item of evidence or question to which they relate, particulars of the grounds on which it is asserted that leave should be given by virtue of subsection (3) or (5) of section 41;
(b)
enabling the court to request a party to the proceedings to provide the court with information which it considers would assist it in determining an application for leave;
(c)
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, parties to the proceedings.
Chapter IV Reporting restrictions
Reports relating to persons under 18
44 Restrictions on reporting alleged offences involving persons under 18.
(1)
This section applies (subject to subsection (3)) where a criminal investigation has begun in respect of—
(a)
an alleged offence against the law of—
(i)
England and Wales, or
(ii)
Northern Ireland; or
(b)
an alleged civil offence (other than an offence falling within paragraph (a)) committed (whether or not in the United Kingdom) by a person subject to service law.
(2)
No matter relating to any person involved in the offence shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person involved in the offence.
(3)
The restrictions imposed by subsection (2) cease to apply once there are proceedings in a court (whether a court in England and Wales, a service court or a court in Northern Ireland) in respect of the offence.
(4)
For the purposes of subsection (2) any reference to a person involved in the offence is to—
(a)
a person by whom the offence is alleged to have been committed; or
(b)
if this paragraph applies to the publication in question by virtue of subsection (5)—
(i)
a person against or in respect of whom the offence is alleged to have been committed, or
(ii)
a person who is alleged to have been a witness to the commission of the offence;
except that paragraph (b)(i) does not include a person in relation to whom section 1 of the M14Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.
(5)
Subsection (4)(b) applies to a publication if—
(a)
where it is a relevant programme, it is transmitted, or
(b)
in the case of any other publication, it is published,
on or after such date as may be specified in an order made by the Secretary of State.
F65(5A)
In the application of this section to Northern Ireland, the reference in subsection (5) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.
(6)
The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a)
his name,
(b)
his address,
(c)
the identity of any school or other educational establishment attended by him,
(d)
the identity of any place of work, and
(e)
any still or moving picture of him.
(7)
Any appropriate criminal court may by order dispense, to any extent specified in the order, with the restrictions imposed by subsection (2) in relation to a person if it is satisfied that it is necessary in the interests of justice to do so.
(8)
However, when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person.
(9)
In subsection (7) “appropriate criminal court” means—
(a)
in a case where this section applies by virtue of subsection (1)(a)(i) or (ii), any court in England and Wales or (as the case may be) in Northern Ireland which has any jurisdiction in, or in relation to, any criminal proceedings (but not a service court unless the offence is alleged to have been committed by a person subject to service law);
(b)
in a case where this section applies by virtue of subsection (1)(b), any court falling within paragraph (a) or a service court.
(10)
The power under subsection (7) of a magistrates’ court in England and Wales may be exercised by a single justice.
(11)
In the case of a decision of a magistrates’ court in England and Wales, or a court of summary jurisdiction in Northern Ireland, to make or refuse to make an order under subsection (7), the following persons, namely—
(a)
any person who was a party to the proceedings on the application for the order, and
(b)
with the leave of the Crown CourtF66, or in Northern Ireland a county court, any other person,
(12)
On such an appeal the Crown Court F68or in Northern Ireland a county court—
(a)
may make such order as is necessary to give effect to its determination of the appeal; and
(b)
may also make such incidental or consequential orders as appear to it to be just.
(13)
In this section—
(a)
“civil offence” means an act or omission which, if committed in England and Wales, would be an offence against the law of England and Wales;
(b)
any reference to a criminal investigation, in relation to an alleged offence, is to an investigation conducted by police officers, or other persons charged with the duty of investigating offences, with a view to it being ascertained whether a person should be charged with the offence;
(c)
any reference to a person subject to service law is to—
F69(i)
a person subject to service law within the meaning of the Armed Forces Act 2006; or
(ii)
a civilian subject to service discipline within the meaning of that Act.
45 Power to restrict reporting of criminal proceedings involving persons under 18.
(1)
This section applies (subject to subsection (2)) in relation to—
(a)
any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland; and
(b)
any proceedings (whether in the United Kingdom or elsewhere) in any service court.
(2)
This section does not apply in relation to any proceedings to which section 49 of the M15Children and Young Persons Act 1933 applies.
(3)
The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.
(4)
The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied that it is necessary in the interests of justice to do so.
(5)
The court or an appellate court may also by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied—
(a)
that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(b)
that it is in the public interest to remove or relax that restriction;
but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(6)
When deciding whether to make—
(a)
a direction under subsection (3) in relation to a person, or
(b)
an excepting direction under subsection (4) or (5) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,
the court or (as the case may be) the appellate court shall have regard to the welfare of that person.
(7)
For the purposes of subsection (3) any reference to a person concerned in the proceedings is to a person—
(a)
against or in respect of whom the proceedings are taken, or
(b)
who is a witness in the proceedings.
(8)
The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a)
his name,
(b)
his address,
(c)
the identity of any school or other educational establishment attended by him,
(d)
the identity of any place of work, and
(e)
any still or moving picture of him.
(9)
A direction under subsection (3) may be revoked by the court or an appellate court.
(10)
An excepting direction—
(a)
may be given at the time the direction under subsection (3) is given or subsequently; and
(b)
may be varied or revoked by the court or an appellate court.
(11)
In this section “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal.
Reports relating to adult witnesses
46 Power to restrict reports about certain adult witnesses in criminal proceedings.
(1)
This section applies where—
(a)
in any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland, or
(b)
in any proceedings (whether in the United Kingdom or elsewhere) in any service court,
a party to the proceedings makes an application for the court to give a reporting direction in relation to a witness in the proceedings (other than the accused) who has attained the age of 18.
In this section “reporting direction” has the meaning given by subsection (6).
(2)
If the court determines—
(a)
that the witness is eligible for protection, and
(b)
that giving a reporting direction in relation to the witness is likely to improve—
(i)
the quality of evidence given by the witness, or
(ii)
the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
the court may give a reporting direction in relation to the witness.
(3)
For the purposes of this section a witness is eligible for protection if the court is satisfied—
(a)
that the quality of evidence given by the witness, or
(b)
the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings.
(4)
In determining whether a witness is eligible for protection the court must take into account, in particular—
(a)
the nature and alleged circumstances of the offence to which the proceedings relate;
(b)
the age of the witness;
(c)
such of the following matters as appear to the court to be relevant, namely—
(i)
the social and cultural background and ethnic origins of the witness,
(ii)
the domestic and employment circumstances of the witness, and
(iii)
any religious beliefs or political opinions of the witness;
(d)
any behaviour towards the witness on the part of—
(i)
the accused,
(ii)
members of the family or associates of the accused, or
(iii)
any other person who is likely to be an accused or a witness in the proceedings.
(5)
In determining that question the court must in addition consider any views expressed by the witness.
(6)
For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness’s lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.
(7)
The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6)) include in particular—
(a)
the witness’s name,
(b)
the witness’s address,
(c)
the identity of any educational establishment attended by the witness,
(d)
the identity of any place of work, and
(e)
any still or moving picture of the witness.
(8)
In determining whether to give a reporting direction the court shall consider—
(a)
whether it would be in the interests of justice to do so, and
(b)
the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.
(9)
The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction if—
(a)
it is satisfied that it is necessary in the interests of justice to do so, or
(b)
it is satisfied—
(i)
that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(ii)
that it is in the public interest to remove or relax that restriction;
but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(10)
A reporting direction may be revoked by the court or an appellate court.
(11)
An excepting direction—
(a)
may be given at the time the reporting direction is given or subsequently; and
(b)
may be varied or revoked by the court or an appellate court.
(12)
In this section—
(a)
“appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;
(b)
references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively);
(c)
references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.
Reports relating to directions under F70Chapter I or IIF70Chapter 1, 1A or 2
47 Restrictions on reporting directions under F71Chapter I or IIF71Chapter 1, 1A or 2.
(1)
Except as provided by this section, no publication shall include a report of a matter falling within subsection (2).
(2)
The matters falling within this subsection are—
(a)
a direction under section 19F72, 33A or 36 or an order discharging, or (in the case of a direction under section 19) varying, such a direction;
F73(aa)
a direction under Article 7 or 24 of the Criminal Evidence (Northern Ireland) Order 1999 or an order discharging, or (in the case of a direction under Article 7) varying, such a direction;
(b)
proceedings—
(i)
on an application for such a direction or order, or
(ii)
where the court acts of its own motion to determine whether to give or make any such direction or order.
(3)
The court dealing with a matter falling within subsection (2) may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of that matter.
(4)
Where—
(a)
there is only one accused in the relevant proceedings, and
(b)
he objects to the making of an order under subsection (3),
the court shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
(5)
Where—
(a)
there are two or more accused in the relevant proceedings, and
(b)
one or more of them object to the making of an order under subsection (3),
the court shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
(6)
Subsection (1) does not apply to the inclusion in a publication of a report of matters after the relevant proceedings 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.
(7)
In this section “the relevant proceedings” means the proceedings to which any such direction as is mentioned in subsection (2) relates or would relate.
(8)
Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of matter in a publication.
Other restrictions
48 Amendments relating to other reporting restrictions.
Schedule 2, which contains amendments relating to reporting restrictions under—
(a)
the M16Children and Young Persons Act 1933,
(b)
the M17Sexual Offences (Amendment) Act 1976,
(c)
the M18Sexual Offences (Northern Ireland) Order 1978,
(d)
the M19Sexual Offences (Amendment) Act 1992, and
(e)
the M20Criminal Justice (Northern Ireland) Order 1994,
shall have effect.
Offences
49 Offences under Chapter IV.
(1)
This section applies if a publication—
(a)
includes any matter in contravention of section 44(2) or of a direction under section 45(3) or 46(2); or
(b)
includes a report in contravention of section 47.
(2)
Where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical is guilty of an offence.
(3)
Where the publication is a relevant programme—
(a)
any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and
(b)
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
is guilty of an offence.
(4)
In the case of any other publication, any person publishing it is guilty of an offence.
(5)
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6)
Proceedings for an offence under this section in respect of a publication falling within subsection (1)(b) may not be instituted—
(a)
in England and Wales otherwise than by or with the consent of the Attorney General, or
(b)
in Northern Ireland otherwise than by or with the consent of the Attorney General for Northern Ireland.
50 Defences.
(1)
Where a person is charged with an offence under section 49 it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included the matter or report in question.
(2)
Where—
(a)
a person is charged with an offence under section 49, and
(b)
the offence relates to the inclusion of any matter in a publication in contravention of section 44(2),
it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun.
(3)
Where—
(a)
paragraphs (a) and (b) of subsection (2) apply, and
(b)
the contravention of section 44(2) does not relate to either—
(i)
the person by whom the offence mentioned in that provision is alleged to have been committed, or
(ii)
(where that offence is one in relation to which section 1 of the M21Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence,
it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 44(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence.
(4)
Subsection (5) applies where—
(a)
paragraphs (a) and (b) of subsection (2) apply, and
(b)
the contravention of section 44(2) relates to a person (“the protected person”) who is neither—
(i)
the person mentioned in subsection (3)(b)(i), nor
(ii)
a person within subsection (3)(b)(ii) who is under the age of 16.
(5)
In such a case it shall be a defence, subject to subsection (6), to prove that written consent to the inclusion of the matter in question in the publication had been given—
(a)
by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
(b)
by the protected person, if that person was aged 16 or 17 at that time,
and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
(6)
The defence provided by subsection (5) is not available if—
(a)
(where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—
(i)
was given to the appropriate recipient by any other appropriate person or by the protected person, and
(ii)
was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
(b)
subsection (8) applies.
(7)
Where—
(a)
a person is charged with an offence under section 49, and
(b)
the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 46(2),
it shall be a defence, unless subsection (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(8)
Written consent is not a defence if it is proved that any person interfered—
(a)
with the peace or comfort of the person giving the consent, or
(b)
(where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,
with intent to obtain the consent.
(9)
In this section—
“an appropriate person” means (subject to subsections (10) to (12))—
(a)
in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or
(b)
in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the M22Children (Scotland) Act 1995) in relation to the protected person;
“guardian”, in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of—
(a)
(in England and Wales) the M23Children Act 1989, or
(b)
(in Northern Ireland) the M24Children (Northern Ireland) Order 1995.
(10)
Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a)
a representative of that authority, or
(b)
a parent or guardian of the protected person with whom the protected person is allowed to live.
(11)
Where the protected person is (within the meaning of the M25Children (Northern Ireland) Order 1995) a child who is looked after by an authority, “an appropriate person” means a person who is—
(a)
an officer of that authority, or
(b)
a parent or guardian of the protected person with whom the protected person is allowed to live.
(12)
Where the protected person is (within the meaning of section 17(6) of the M26Children (Scotland) Act 1995) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a)
a representative of that authority, or
(b)
a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.
(13)
However, no person by whom the offence mentioned in section 44(2) is alleged to have been committed is, by virtue of subsections (9) to (12), an appropriate person for the purposes of this section.
(14)
In this section “the appropriate recipient”, in relation to a notice under subsection (6)(a), means—
(a)
the person to whom the notice giving consent was given,
(b)
(if different) the person by whom the matter in question was published, or
(c)
any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;
and for this purpose “person” includes a body of persons and a partnership.
51 Offences committed by bodies corporate or Scottish partnerships.
(1)
If an offence under section 49 committed by a body corporate is proved—
(a)
to have been committed with the consent or connivance of, or
(b)
to be attributable to any neglect on the part of,
an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2)
In subsection (1) “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(3)
If the affairs of a body corporate are managed by its members, “director” in subsection (2) means a member of that body.
(4)
Where an offence under section 49 is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Supplementary
52 Decisions as to public interest for purposes of Chapter IV.
(1)
Where for the purposes of any provision of this Chapter it falls to a court to determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).
(2)
Those matters are—
(a)
the interest in each of the following—
(i)
the open reporting of crime,
(ii)
the open reporting of matters relating to human health or safety, and
(iii)
the prevention and exposure of miscarriages of justice;
(b)
the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and
(c)
any views expressed—
(i)
by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 (“the protected person”), or
(ii)
by a person within that paragraph who has attained that age.
(3)
In subsection (2) “an appropriate person”, in relation to the protected person, has the same meaning as it has for the purposes of section 50.
Chapter V Competence of witnesses and capacity to be sworn
Competence of witnesses
53 Competence of witnesses to give evidence.
(1)
At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2)
Subsection (1) has effect subject to subsections (3) and (4).
(3)
A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—
(a)
understand questions put to him as a witness, and
(b)
give answers to them which can be understood.
(4)
A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5)
In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
54 Determining competence of witnesses.
(1)
Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised—
(a)
by a party to the proceedings, or
(b)
by the court of its own motion,
shall be determined by the court in accordance with this section.
(2)
It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.
(3)
In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give, in relation to the witness.
(4)
Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
(5)
Expert evidence may be received on the question.
(6)
Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
Giving of sworn or unsworn evidence
55 Determining whether witness to be sworn.
(1)
Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised—
(a)
by a party to the proceedings, or
(b)
by the court of its own motion,
shall be determined by the court in accordance with this section.
(2)
The witness may not be sworn for that purpose unless—
(a)
he has attained the age of 14, and
(b)
he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
(3)
The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party).
(4)
If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b).
(5)
Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one).
(6)
Expert evidence may be received on the question.
(7)
Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
(8)
For the purposes of this section a person is able to give intelligible testimony if he is able to—
(a)
understand questions put to him as a witness, and
(b)
give answers to them which can be understood.
56 Reception of unsworn evidence.
(1)
Subsections (2) and (3) apply to a person (of any age) who—
(a)
is competent to give evidence in criminal proceedings, but
(b)
(by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings.
(2)
The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.
(3)
A deposition of unsworn evidence given by a person to whom this subsection applies may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.
(4)
A court in criminal proceedings shall accordingly receive in evidence any evidence given unsworn in pursuance of subsection (2) or (3).
(5)
Where a person (“the witness”) who is competent to give evidence in criminal proceedings gives evidence in such proceedings unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of any of sections 2(1), 13(1) and 16(1) of the Criminal Appeal Act 1968 (grounds for allowing appeals) by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath).
57 Penalty for giving false unsworn evidence.
(1)
This section applies where a person gives unsworn evidence in criminal proceedings in pursuance of section 56(2) or (3).
(2)
If such a person wilfully gives false evidence in such circumstances that, had the evidence been given on oath, he would have been guilty of perjury, he shall be guilty of an offence and liable on summary conviction to—
(a)
imprisonment for a term not exceeding 6 months, or
(b)
a fine not exceeding £1,000,
or both.
(3)
In relation to a person under the age of 14, subsection (2) shall have effect as if for the words following “on summary conviction” there were substituted “
to a fine not exceeding £250
”
.
Chapter VI Restrictions on use of evidence
Additional restrictions
58 Inferences from silence not permissible where no prior access to legal advice.
(1)
Sections 34 and 36 to 38 of the M27Criminal Justice and Public Order Act 1994 (inferences from accused’s silence) shall be amended as follows.
(2)
“(2A)
Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.”
(3)
“(4A)
Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.”
(4)
“(3A)
Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.”
(5)
“(2A)
In each of sections 34(2A), 36(4A) and 37(3A) “authorised place of detention” means—
(a)
a police station; or
(b)
any other place prescribed for the purposes of that provision by order made by the Secretary of State;
and the power to make an order under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
59 Restriction on use of answers etc. obtained under compulsion.
Schedule 3, which amends enactments providing for the use of answers and statements given under compulsion so as to restrict in criminal proceedings their use in evidence against the persons giving them, shall have effect.
Removal of restriction
60 Removal of restriction on use of evidence from computer records.
Section 69 of the M28Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.
Chapter VII General
61 Application of Part II to service courts.
(1)
The Secretary of State may by order direct that any provision of—
(a)
Chapters I to III and V, or
(b)
sections 62, 63 and 65 so far as having effect for the purposes of any of those Chapters,
shall apply, subject to such modifications as he may specify, to any proceedings before a service court.
(2)
Chapter IV (and sections 62, 63 and 65 so far as having effect for the purposes of that Chapter) shall have effect for the purposes of proceedings before a service court subject to any modifications which the Secretary of State may by order specify.
(3)
The power to make an order under section 39 of the M29Criminal Justice and Public Order Act 1994 (power to apply sections 34 to 38 to the armed forces) in relation to any provision of sections 34 to 38 of that Act shall be exercisable in relation to any provision of those sections as amended by section 58 above.
62 Meaning of “sexual offence” and other references to offences.
F74(1)
In this Part “sexual offence” means any offence under Part 1 of the Sexual Offences Act 2003 F75or any relevant superseded offence.
F76(1A)
In subsection (1) “relevant superseded offence” means—
(a)
rape or burglary with intent to rape;
(b)
an offence under any of sections 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.);
(c)
an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.);
(d)
an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14);
(e)
an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).
(2)
In this Part any reference (including a reference having effect by virtue of this subsection) to an offence of any description (“the substantive offence”) is to be taken to include a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, the substantive offence.
63 General interpretation etc. of Part II.
(1)
In this Part (except where the context otherwise requires)—
“accused”, in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not he has been convicted);
“the complainant”, in relation to any offence (or alleged offence), means a person against or in relation to whom the offence was (or is alleged to have been) committed;
“court” (except in Chapter IV or V or subsection (2)) means a magistrates’ court, the Crown Court or the criminal division of the Court of Appeal;
“legal representative” means F77a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act);
“picture” includes a likeness however produced;
“the prosecutor” means any person acting as prosecutor, whether an individual or body;
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings;
“relevant programme” means a programme included in a programme service, within the meaning of the M30Broadcasting Act 1990;
“service court” means—
(a)
F78the Court Martial;
(b)
the Service Civilian Court; or
(c)
the Court Martial Appeal Court
“video recording” means any recording, on any medium, from which a moving image may by any means be produced, and includes the accompanying sound-track;
“witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings.
(2)
Nothing in this Part shall affect any power of a court to exclude evidence at its discretion (whether by preventing questions being put or otherwise) which is exercisable apart from this Part.
Part III Final provisions
64 Regulations and orders.
(1)
Any power of the Secretary of State to make any F79. . . order under this Act shall be exercised by statutory instrument.
(2)
(3)
No F79. . . order shall be made under—
F83(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
unless a draft of the F79. . .order has been laid before, and approved by a resolution of, each House of Parliament.
(4)
Any F79. . . order made by the Secretary of State under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit.
F84(5)
Any power of the Department of Justice in Northern Ireland to make an order under this Act shall be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979.
(6)
No order shall be made by the Department of Justice under section 44(5) unless a draft of it has been laid before, and approved by a resolution of, the Northern Ireland Assembly (and subsection (3) above shall not apply to the making of any order by the Department of Justice).
(7)
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (6) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.
(8)
Any order made by the Department of Justice under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Department of Justice thinks fit.
65 General supplementary provisions.
(1)
F85Criminal Procedure Rules may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Act (and nothing in this Act shall be taken to affect the generality of any enactment conferring power to make such rules).
F86(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
For the purposes of this Act the age of a person shall be taken to be that which it appears to the court to be after considering any available evidence.
66 Corresponding provisions for Northern Ireland.
(1)
An Order in Council under section 85 of the M31Northern Ireland Act 1998 (provision dealing with certain reserved matters) which contains a statement that it is made only for purposes corresponding to the purposes of any of the relevant provisions of this Act—
(a)
shall not be subject to the procedures set out in subsections (3) to (8) of that section; but
(b)
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(2)
In subsection (1) “the relevant provisions of this Act” means—
(a)
Chapters I to III of Part II;
(b)
section 47;
(c)
sections 49 to 51 so far as having effect for the purposes of section 47;
(d)
Chapters V to VII of Part II (other than section 59); and
(e)
this Part.
(3)
“(1)
An Order in Council under paragraph 1(1)(b) of Schedule 1 to the M32Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is made only for purposes corresponding to the purposes of any of the relevant provisions of this Act—
(a)
shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament), but
(b)
shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
67 Minor, consequential and pre-consolidation amendments, repeals and transitional provisions.
(1)
The minor and consequential amendments specified in Schedule 4 shall have effect.
F87(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
The enactments specified in Schedule 6 (which include certain spent enactments) are repealed or revoked to the extent specified.
(4)
The transitional provisions and savings in Schedule 7 shall have effect.
68 Short title, commencement and extent.
(1)
This Act may be cited as the Youth Justice and Criminal Evidence Act 1999.
(2)
For the purposes of the M33Scotland Act 1998, any provision of this Act which extends to Scotland shall be taken to be a pre-commencement enactment within the meaning of that Act.
(3)
Subject to subsection (4), this Act shall not come into force until such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes or different areas.
F88(3A)
In relation to the coming into force of any provision of this Act for the purposes of the law of Northern Ireland, the reference in subsection (3) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.
(4)
The following provisions come into force on the day on which this Act is passed—
(a)
section 6(4);
(b)
the provisions of Chapters I to IV of Part II for the purpose only of the exercise of any power to make rules of court;
(c)
section 40(1);
(d)
sections 58(5) and 61(2) for the purpose only of the exercise of any power to make an order;
(e)
section 61(1) and (3), sections 62 to 66 and this section.
(5)
Subject to subsections (6) to (9) this Act extends to England and Wales only.
(6)
Subject to subsection (9), the following provisions extend also to Scotland and Northern Ireland—
(a)
the provisions of Chapter IV of Part II and section 63 so far as having effect for the purposes of those provisions;
(b)
the provisions of paragraph 6 of Schedule 7 and paragraph 1 of that Schedule so far as having effect for the purposes of those provisions; and
(c)
sections 59, 61 and 64 and this section.
F89(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8)
Section 66 extends to Northern Ireland only.
(9)
The extent of any amendment, repeal or revocation made by this Act is the same as that of the enactment amended, repealed or revoked, except that—
(a)
the amendments made by Schedule 2 in section 49 of the M34Children and Young Persons Act 1933 and in the M35Sexual Offences (Amendment) Act 1992 extend to England and Wales, Scotland and Northern Ireland;
(b)
the repeal by Schedule 6 of section 62 of the M36Criminal Procedure and Investigations Act 1996 does not extend to Northern Ireland.
F90(10)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F91SCHEDULE 1
Part I Referral back to appropriate court
Introductory
1
(1)
This Part of this Schedule applies where a youth offender panel refers an offender back to the appropriate court under section 7(2), 10(2) or (3), 11(5), (8) or (10) or 12(4).
(2)
For the purposes of this Part of this Schedule and the provisions mentioned in sub-paragraph (1) the appropriate court is—
(a)
in the case of an offender under the age of 18 at the time when (in pursuance of the referral back) he first appears before the court, a youth court acting for the petty sessions area in which it appears to the youth offender panel that the offender resides or will reside; and
(b)
otherwise, a magistrates’ court (other than a youth court) acting for that area.
Mode of referral back to court
2
The panel shall make the referral by sending a report to the appropriate court explaining why the offender is being referred back to it.
Bringing the offender before the court
3
(1)
Where the appropriate court receives such a report, the court shall cause the offender to appear before it.
(2)
For the purpose of securing the attendance of the offender before the court, a justice acting for the petty sessions area for which the court acts may—
(a)
issue a summons requiring the offender to appear at the place and time specified in it, or
(b)
if the report is substantiated on oath, issue a warrant for the offender’s arrest.
(3)
Any summons or warrant issued under sub-paragraph (2) shall direct the offender to appear or be brought before the appropriate court.
(4)
Section 4 of the M37Summary Jurisdiction (Process) Act 1881 (execution of process of English courts in Scotland) shall apply to any process issued under sub-paragraph (2) as it applies to process issued under the M38Magistrates’ Courts Act 1980.
Detention and remand of arrested offender
4
(1)
Where the offender is arrested in pursuance of a warrant under paragraph 3(2) and cannot be brought immediately before the appropriate court—
(a)
the person in whose custody he is may make arrangements for his detention in a place of safety (within the meaning given by section 107(1) of the M39Children and Young Persons Act 1933) for a period of not more than 72 hours from the time of the arrest (and it shall be lawful for him to be detained in pursuance of the arrangements); and
(b)
that person shall within that period bring him before a court which—
(i)
if he is under the age of 18 when he is brought before the court, shall be a youth court, and
(ii)
if he has then attained that age, shall be a magistrates’ court other than a youth court.
(2)
Sub-paragraphs (3) to (5) apply where the court before which the offender is brought under sub-paragraph (1)(b) (“the alternative court”) is not the appropriate court.
(3)
The alternative court may direct that he is to be released forthwith or remand him.
(4)
Section 128 of the M40Magistrates’ Courts Act 1980 (remand in custody or on bail) shall have effect where the alternative court has power under sub-paragraph (3) to remand the offender as if the court referred to in subsections (1)(a), (3), (4)(a) and (5) were the appropriate court.
(5)
“or
(d)
if he is under the age of 18, remand him to accommodation provided by or on behalf of a local authority (within the meaning of the M41Children Act 1989) and, if it does so, shall designate as the authority who are to receive him the local authority for the area in which it appears to the court that he resides or will reside;”.
Power of court where it upholds panel’s decision
5
(1)
If it is proved to the satisfaction of the appropriate court as regards any decision of the panel which resulted in the offender being referred back to the court—
(a)
that, so far as the decision relied on any finding of fact by the panel, the panel was entitled to make that finding in the circumstances, and
(b)
that, so far as the decision involved any exercise of discretion by the panel, the panel reasonably exercised that discretion in the circumstances,
the court may exercise the power conferred by sub-paragraph (2).
(2)
That power is a power to revoke the referral order (or each of the referral orders).
(3)
The revocation under sub-paragraph (2) of a referral order has the effect of revoking any related order under paragraph 11 or 12.
(4)
Where any order is revoked under sub-paragraph (2) or by virtue of sub-paragraph (3), the appropriate court may deal with the offender in accordance with sub-paragraph (5) for the offence in respect of which the revoked order was made.
(5)
In so dealing with the offender for such an offence, the appropriate court—
(a)
may deal with him in any manner in which (assuming section 1 had not applied) he could have been dealt with for that offence by the court which made the order; and
(b)
shall have regard to—
(i)
the circumstances of his referral back to the court; and
(ii)
where a contract has taken effect under section 8 between the offender and the panel, the extent of his compliance with the terms of the contract.
(6)
The appropriate court may not exercise the powers conferred by sub-paragraph (2) or (4) unless the offender is present before it; but those powers are exercisable even if, in a case where a contract has taken effect under section 8, the period for which the contract has effect has expired (whether before or after the referral of the offender back to the court).
F92(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appeal
6
Where the court in exercise of the power conferred by paragraph 5(4) deals with the offender for an offence, the offender may appeal to the Crown Court against the sentence.
Court not revoking referral order or orders
7
(1)
This paragraph applies—
(a)
where the appropriate court decides that the matters mentioned in paragraphs (a) and (b) of paragraph 5(1) have not been proved to its satisfaction; or
(b)
where, although by virtue of paragraph 5(1) the appropriate court—
(i)
is able to exercise the power conferred by paragraph 5(2), or
(ii)
would be able to do so if the offender were present before it,
the court (for any reason) decides not to exercise that power.
(2)
If either—
(a)
no contract has taken effect under section 8 between the offender and the panel, or
(b)
a contract has taken effect under that section but the period for which it has effect has not expired,
the offender shall continue to remain subject to the referral order (or orders) in all respects as if he had not been referred back to the court.
(3)
If—
(a)
a contract had taken effect under section 8, but
(b)
the period for which it has effect has expired (otherwise than by virtue of section 9(6)),
the court shall make an order declaring that the referral order (or each of the referral orders) is discharged.
Exception where court satisfied as to completion of contract
8
If, in a case where the offender is referred back to the court under section 12(4), the court decides (contrary to the decision of the panel) that the offender’s compliance with the terms of the contract has, or will have, been such as to justify the conclusion that he has satisfactorily completed the contract, the court shall make an order declaring that the referral order (or each of the referral orders) is discharged.
Discharge of extension orders
9
The discharge under paragraph 7(3) or 8 of a referral order has the effect of discharging any related order under paragraph 11 or 12.
Part II Further convictions during referral
Extension of referral for further offences
10
(1)
Paragraphs 11 and 12 apply where, at a time when an offender under the age of 18 is subject to referral, a youth court or other magistrates’ court (“the relevant court”) is dealing with him for an offence in relation to which paragraphs (a) to (c) of section 1(1) are applicable.
(2)
But paragraphs 11 and 12 do not apply unless the offender’s compliance period is less than 12 months.
Extension where further offences committed pre-referral
11
If—
(a)
the occasion on which the offender was referred to the panel is the only other occasion on which it has fallen to a court in the United Kingdom to deal with the offender for any offence or offences, and
(b)
the offender committed the offence mentioned in paragraph 10, and any associated offence, before he was referred to the panel,
the relevant court may sentence the offender for the offence by making an order extending his compliance period.
Extension where further offence committed after referral
12
(1)
If—
(a)
paragraph 11(a) applies, but
(b)
the offender committed the offence mentioned in paragraph 10, or any associated offence, after he was referred to the panel,
the relevant court may sentence the offender for the offence by making an order extending his compliance period, but only if the requirements of sub-paragraph (2) are complied with.
(2)
Those requirements are that the court must—
(a)
be satisfied, on the basis of a report made to it by the relevant body, that there are exceptional circumstances which indicate that, even though the offender has re-offended since being referred to the panel, extending his compliance period is likely to help prevent further re-offending by him; and
(b)
state in open court that it is so satisfied and why it is.
(3)
In sub-paragraph (2) “the relevant body” means the panel to which the offender has been referred or, if no contract has yet taken effect between the offender and the panel under section 8, the specified team.
Provisions supplementary to paragraphs 11 and 12
13
(1)
An order under paragraph 11 or 12, or two or more orders under one or other of those paragraphs made in respect of associated offences, must not so extend the offender’s compliance period as to cause it to exceed twelve months.
(2)
Sub-paragraphs (3) to (5) apply where the relevant court makes an order under paragraph 11 or 12 in respect of the offence mentioned in paragraph 10; but sub-paragraphs (3) to (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 or 14.
(3)
The relevant court may not deal with the offender for that offence in any of the prohibited ways specified in section 4(4).
(4)
The relevant court—
(a)
shall, in respect of any associated offence, either—
(i)
sentence the offender by making an order under the same paragraph, or
(ii)
make an order discharging him absolutely; and
(b)
may not deal with the offender for any associated offence in any of those prohibited ways.
(5)
The relevant court may not, in connection with the conviction of the offender for the offence or any associated offence, make any such order as is mentioned in section 4(5).
(6)
For the purposes of paragraphs 11 and 12 any occasion on which the offender was discharged absolutely in respect of the offence, or each of the offences, for which he was being dealt with shall be disregarded.
(7)
Any occasion on which, in criminal proceedings in England and Wales or Northern Ireland, the offender was bound over to keep the peace or to be of good behaviour shall be regarded for those purposes as an occasion on which it fell to a court in the United Kingdom to deal with the offender for an offence.
(8)
The Secretary of State may by regulations make such amendments of paragraphs 10 to 12 and this paragraph as he considers appropriate for altering in any way the descriptions of offenders in the case of which an order extending the compliance period may be made; and subsection (4) of section 2 shall apply in relation to regulations under this sub-paragraph as it applies in relation to regulations under subsection (3) of that section.
Further convictions which lead to revocation of referral
14
(1)
This paragraph applies where, at a time when an offender is subject to referral, a court in England and Wales deals with him for an offence (whether committed before or after he was referred to the panel) by making an order other than—
(a)
an order under paragraph 11 or 12, or
(b)
an order discharging him absolutely.
(2)
In such a case the order of the court shall have the effect of revoking—
(a)
the referral order (or orders), and
(b)
any related order or orders under paragraph 11 or 12.
(3)
Where any order is revoked by virtue of sub-paragraph (2), the court may, if appears to the court that it would be in the interests of justice to do so, deal with the offender for the offence in respect of which the revoked order was made in any manner in which (assuming section 1 had not applied) he could have been dealt with for that offence by the court which made the order.
(4)
When dealing with the offender under sub-paragraph (3) the court shall, where a contract has taken effect between the offender and the panel under section 8, have regard to the extent of his compliance with the terms of the contract.
F93(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interpretation
15
(1)
For the purposes of this Part of this Schedule an offender is for the time being subject to referral if—
(a)
a referral order has been made in respect of him and that order has not, or
(b)
two or more referral orders have been made in respect of him and any of those orders has not,
been discharged (whether by virtue of section 12(3) or under paragraph 7(3) or 8) or revoked (whether under paragraph 5(2) or by virtue of paragraph 14(2)).
(2)
In this Part of this Schedule “compliance period”, in relation to an offender who is for the time being subject to referral, means the period for which (in accordance with section 9) any youth offender contract taking effect in his case under section 8 has (or would have) effect.
F94SCHEDULE 1ARelevant offences for the purposes of section 17
Murder and manslaughter
1
Murder in a case where it is alleged that a firearm or knife was used to cause the death in question.
2
Manslaughter in a case where it is alleged that a firearm or knife was used to cause the death in question.
3
Murder or manslaughter in a case (other than a case falling within paragraph 1 or 2) where it is alleged that—
(a)
the accused was carrying a firearm or knife at any time during the commission of the offence, and
(b)
a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.
Offences against the Person Act 1861 (c. 100)
4
An offence under section 18 of the Offences against the Person Act 1861 (wounding with intent to cause grievous bodily harm etc) in a case where it is alleged that a firearm or knife was used to cause the wound or harm in question.
5
An offence under section 20 of that Act (malicious wounding) in a case where it is alleged that a firearm or knife was used to cause the wound or inflict the harm in question.
6
An offence under section 38 of that Act (assault with intent to resist arrest) in a case where it is alleged that a firearm or knife was used to carry out the assault in question.
7
An offence under section 47 of the Offences against the Person Act 1861 (assault occasioning actual bodily harm) in a case where it is alleged that a firearm or knife was used to inflict the harm in question.
8
An offence under section 18, 20, 38 or 47 of the Offences against the Person Act 1861 in a case (other than a case falling within any of paragraphs 4 to 7) where it is alleged that—
(a)
the accused was carrying a firearm or knife at any time during the commission of the offence, and
(b)
a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.
Prevention of Crime Act 1953 (c. 14)
9
An offence under section 1 of the Prevention of Crime Act 1953 (having an offensive weapon in a public place).
Firearms Act 1968 (c. 27)
10
An offence under section 1 of the Firearms Act 1968 (requirement of firearm certificate).
11
An offence under section 2(1) of that Act (possession etc of a shot gun without a certificate).
12
An offence under section 3 of that Act (business and other transactions with firearms and ammunition).
13
An offence under section 4 of that Act (conversion of weapons).
14
An offence under section 5(1) of that Act (weapons subject to general prohibition).
15
An offence under section 5(1A) of that Act (ammunition subject to general prohibition).
16
An offence under section 16 of that Act (possession with intent to injure).
17
An offence under section 16A of that Act (possession with intent to cause fear of violence).
18
An offence under section 17 of that Act (use of firearm to resist arrest).
19
An offence under section 18 of that Act (carrying firearm with criminal intent).
20
An offence under section 19 of that Act (carrying firearm in a public place).
21
An offence under section 20 of that Act (trespassing with firearm).
22
An offence under section 21 of that Act (possession of firearms by person previously convicted of crime).
23
An offence under section 21A of that Act (firing an air weapon beyond premises).
24
An offence under section 24A of that Act (supplying imitation firearms to minors).
Criminal Justice Act 1988 (c. 33)
25
An offence under section 139 of the Criminal Justice Act 1988 (having article with blade or point in public place).
26
An offence under section 139A of that Act (having article with blade or point (or offensive weapon) on school premises).
Violent Crime Reduction Act 2006 (c. 38)
27
An offence under section 28 of the Violent Crime Reduction Act 2006 (using someone to mind a weapon).
28
An offence under section 32 of that Act (sales of air weapons by way of trade or business to be face to face).
29
An offence under section 36 of that Act (manufacture, import and sale of realistic imitation firearms).
General
30
A reference in any of paragraphs 1 to 8 to an offence (“offence A”) includes—
(a)
a reference to an attempt to commit offence A in a case where it is alleged that it was attempted to commit offence A in the manner or circumstances described in that paragraph,
(b)
a reference to a conspiracy to commit offence A in a case where it is alleged that the conspiracy was to commit offence A in the manner or circumstances described in that paragraph,
(c)
a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed in a case where it is alleged that the person intended or believed offence A would be committed in the manner or circumstances described in that paragraph, and
(d)
a reference to aiding, abetting, counselling or procuring the commission of offence A in a case where it is alleged that offence A was committed, or the act or omission charged in respect of offence A was done or made, in the manner or circumstances described in that paragraph.
31
A reference in any of paragraphs 9 to 29 to an offence (“offence A”) includes—
(a)
a reference to an attempt to commit offence A,
(b)
a reference to a conspiracy to commit offence A,
(c)
a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed, and
(d)
a reference to aiding, abetting, counselling or procuring the commission of offence A.
Interpretation
32
In this Schedule—
“firearm” has the meaning given by section 57 of the Firearms Act 1968;
“knife” has the meaning given by section 10 of the Knives Act 1997.
SCHEDULE 2 Reporting restrictions: miscellaneous amendments
Children and Young Persons Act 1933 (c.12)
1
The Children and Young Persons Act 1933 has effect subject to the following amendments.
F952
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
(1)
Section 49 (restrictions on reports of proceedings in which children or young persons concerned) is amended as follows.
(2)
“(1)
No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings.”
(3)
“(3)
In this section “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings.
(3A)
The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a)
his name,
(b)
his address,
(c)
the identity of any school or other educational establishment attended by him,
(d)
the identity of any place of work, and
(e)
any still or moving picture of him.”
(4)
“if he is—
(a)
a person against or in respect of whom the proceedings are taken, or
(b)
a person called, or proposed to be called, to give evidence in the proceedings.”
(5)
In subsection (4A), for “requirements of this section” substitute “
restrictions imposed by subsection (1) above
”
.
(6)
In subsection (8), after “subsection” insert “
(4A) or
”
.
(7)
“(9)
If a publication includes any matter in contravention of subsection (1) above, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
(a)
where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b)
where the publication is a relevant programme—
(i)
any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and
(ii)
any person having functions in relation to the programme corresponding to those of an editor of a newspaper;
(c)
in the case of any other publication, any person publishing it.
(9A)
Where a person is charged with an offence under subsection (9) above it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included the matter in question.
(9B)
If an offence under subsection (9) above committed by a body corporate is proved—
(a)
to have been committed with the consent or connivance of, or
(b)
to be attributable to any neglect on the part of,
an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(9C)
In subsection (9B) above “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(9D)
If the affairs of a body corporate are managed by its members, “director” in subsection (9C) above means a member of that body.
(9E)
Where an offence under subsection (9) above is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
(8)
““picture” includes a likeness however produced;
“relevant programme” means a programme included in a programme service, within the meaning of the M42Broadcasting Act 1990;”.
(9)
“(12)
This section extends to England and Wales, Scotland and Northern Ireland, but no reference in this section to any court includes a court in Scotland.
(13)
In its application to Northern Ireland, this section has effect as if—
(a)
in subsection (1) for the reference to the age of 18 there were substituted a reference to the age of 17;
(b)
subsection (2)(c) and (d) were omitted;
(c)
in subsection (4A)—
(i)
in paragraph (d) for the reference to F96section 62(3) of the Powers of Criminal Courts (Sentencing) Act 2000 there were substituted a reference to Article 50(3) of the M43Criminal Justice (Children) (Northern Ireland) Order 1998; and
(ii)
in paragraph (e) for the references to a detention and training order and to F97section 103(6)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 there were substituted references to a juvenile justice centre order and to Article 40(2) of the M44Criminal Justice (Children) (Northern Ireland) Order 1998;
(d)
in subsection (5) for references to a court (other than the reference in paragraph (b)) there were substituted references to a court or the Secretary of State;
(e)
in subsection (7)—
(i)
for the references to the Director of Public Prosecutions there were substituted references to the Director of Public Prosecutions for Northern Ireland; and
(ii)
in paragraph (b) for the reference to any legal representative of the child or young person there were substituted a reference to any barrister or solicitor acting for the child or young person;
(f)
subsections (8) and (10) were omitted; and
(g)
in subsection (11)—
(i)
the definition of “legal representative” were omitted; and
(ii)
for the references to F98the Powers of Criminal Courts (Sentencing) Act 2000 there were substituted references to Article 2(2) of the M45Criminal Justice (Northern Ireland) Order 1996.
(14)
References in this section to a young person concerned in proceedings are, where the proceedings are in a court in Northern Ireland, to a person who has attained the age of 14 but is under the age of 17.”
(10)
The amendments made by this paragraph do not apply to the inclusion of matter in a publication if—
(a)
where the publication is a relevant programme, it is transmitted, or
(b)
in the case of any other publication, it is published,
before the coming into force of this paragraph.
Sexual Offences (Amendment) Act 1976 (c.82)
4
(1)
The Sexual Offences (Amendment) Act 1976 has effect subject to the following amendments.
(2)
Omit sections 4 and 5 (which provide for the anonymity of complainants in rape etc. cases and are superseded by the amendments made by this Schedule to the M46Sexual Offences (Amendment) Act 1992).
(3)
In section 7(6) (extent), for the words after “Scotland” substitute “
or Northern Ireland.
”
Sexual Offences (Northern Ireland) Order 1978 (N.I.15)
5
In the M47Sexual Offences (Northern Ireland) Order 1978, omit Articles 6 and 7 (which provide for the anonymity of complainants in rape offence cases and are superseded by the amendments made by this Schedule to the Sexual Offences (Amendment) Act 1992).
Sexual Offences (Amendment) Act 1992 (c.34)
6
The Sexual Offences (Amendment) Act 1992 has effect subject to the following amendments.
7
(1)
Section 1 (anonymity of victims of certain sexual offences) is amended as follows.
(2)
In subsection (1), for the words from “neither the name” to the end of paragraph (b) substitute “
no matter relating to that person shall during that person’s lifetime be included in any publication
”
.
(3)
In subsection (2), for the words after “complainant’s lifetime” substitute “
be included in any publication.
”
(4)
“(3)
This section—
(a)
does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and
(b)
in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3.
(3A)
The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a)
the person’s name,
(b)
the person’s address,
(c)
the identity of any school or other educational establishment attended by the person,
(d)
the identity of any place of work, and
(e)
any still or moving picture of the person.”
(5)
In subsection (4), for “publication or inclusion in a relevant programme” substitute “
inclusion in a publication
”
.
8
(1)
Section 2 (offences to which Act applies) is amended as follows.
(2)
“against the law of England and Wales—
(aa)
rape;
(ab)
burglary with intent to rape;”.
(3)
In subsection (1)(e), for “(a)” substitute “
(aa)
”
.
(4)
“(h)
aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (aa) to (e) and (g);”.
(5)
“(n)
section 17 (abduction of woman by force).”
(6)
“(3)
This Act applies to the following offences against the law of Northern Ireland—
(a)
rape;
(b)
burglary with intent to rape;
(c)
any offence under any of the following provisions of the M48Offences against the Person Act 1861—
(i)
section 52 (indecent assault on a female);
(ii)
section 53 so far as it relates to abduction of a woman against her will;
(iii)
section 61 (buggery);
(iv)
section 62 (attempt to commit buggery, assault with intent to commit buggery or indecent assault on a male);
(d)
any offence under any of the following provisions of the M49Criminal Law Amendment Act 1885—
(i)
section 3 (procuring unlawful carnal knowledge of woman by threats, false pretences or administering drugs);
(ii)
section 4 (unlawful carnal knowledge, or attempted unlawful carnal knowledge, of a girl under 14);
(iii)
section 5 (unlawful carnal knowledge of a girl under 17);
(e)
any offence under any of the following provisions of the M50Punishment of Incest Act 1908—
(i)
section 1 (incest, attempted incest by males);
(ii)
section 2 (incest by females over 16);
(f)
any offence under section 22 of the M51Children and Young Persons Act (Northern Ireland) 1968 (indecent conduct towards child);
(g)
any offence under Article 9 of the M52Criminal Justice (Northern Ireland) Order 1980 (inciting girl under 16 to have incestuous sexual intercourse);
(h)
any offence under any of the following provisions of the M53Mental Health (Northern Ireland) Order 1986—
(i)
Article 122(1)(a) (unlawful sexual intercourse with a woman suffering from severe mental handicap);
(ii)
Article 122(1)(b) (procuring a woman suffering from severe mental handicap to have unlawful sexual intercourse);
(iii)
Article 123 (unlawful sexual intercourse by hospital staff, etc. with a person receiving treatment for mental disorder);
(i)
any attempt to commit any of the offences mentioned in paragraphs (a) to (h);
(j)
any conspiracy to commit any of those offences;
(k)
any incitement of another to commit any of those offences;
(l)
aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (i) and (k).”
9
(1)
Section 3 (power to displace reporting restrictions under section 1) is amended as follows.
(2)
In subsection (6)(b) (meaning of “judge”), after “Crown Court” insert “
in England and Wales.
”
(3)
“(6A)
In its application to Northern Ireland, this section has effect as if—
(a)
in subsections (1) and (2) for any reference to the judge there were substituted a reference to the court; and
(b)
subsection (6) were omitted.”
10
“(8)
In its application to Northern Ireland, this section has effect as if—
(a)
subsection (1) were omitted;
(b)
for references to a section 10 offence there were substituted references to an offence under section 1 of the M54Punishment of Incest Act 1908 (incest by a man) or an attempt to commit that offence;
(c)
for references to a section 11 offence there were substituted references to an offence under section 2 of that Act (incest by a woman) or an attempt to commit that offence; and
(d)
for references to a section 12 offence there were substituted references to an offence under section 61 of the M55Offences against the Person Act 1861 (buggery) or an attempt to commit that offence.”
11
(1)
Section 5 (offences) is amended as follows.
(2)
“(1)
If any matter is included in a publication in contravention of section 1, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—
(a)
where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;
(b)
where the publication is a relevant programme—
(i)
any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and
(ii)
any person having functions in relation to the programme corresponding to those of an editor of a newspaper;
(c)
in the case of any other publication, any person publishing it.”
(3)
In subsection (2) (defence where victim consented to publication)—
(a)
for “publication of any matter or the inclusion of any matter in a relevant programme” substitute “
inclusion of any matter in a publication
”
, and
(b)
omit “or programme”.
(4)
In subsection (3) (cases where written consent not a defence), at the end insert “
, or that person was under the age of 16 at the time when it was given.
”
(5)
In subsection (4) (Attorney General’s consent to prosecution), at the end insert “
if the offence is alleged to have been committed in England and Wales or of the Attorney General for Northern Ireland if the offence is alleged to have been committed in Northern Ireland.
”
(6)
In subsection (5) (defence for person unaware of inclusion of prohibited matter), for the words from “or programme” onwards substitute “
included the matter in question.
”
(7)
“(5A)
Where—
(a)
a person is charged with an offence under this section, and
(b)
the offence relates to the inclusion of any matter in a publication in contravention of section 1(1),
it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the allegation in question had been made.”
(8)
“(8)
Where an offence under this section is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
12
(1)
Section 6 (interpretation) is amended as follows.
(2)
““publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings;”.
(3)
“accusation—
(a)
that an offence of conspiracy or incitement of another to commit an offence mentioned in section 2(1)(aa) to (d) or (3)(a) to (h) has been committed, or
(b)
that an offence of aiding, abetting, counselling or procuring the commission of an offence of incitement of another to commit an offence mentioned in section 2(1)(aa) to (d) or (3)(a) to (h) has been committed,
the ”.
(4)
In subsection (3) (time when person is accused of an offence), in paragraph (a) after “is laid” insert “
, or (in Northern Ireland) a complaint is made,
”
.
13
(1)
Section 7 (application of Act to courts-martial) is amended as follows.
(2)
In subsection (1) (Act to apply with modifications where in pursuance of armed forces law a person is charged with an offence to which the Act applies), after “applies” insert “
by virtue of section 2(1)
”
.
(3)
In subsection (2) (modifications with which Act applies to courts-martial)—
(a)
omit paragraph (b);
(b)
“(c)
in section 3(1) any reference to a judge, in relation to the person charged with the offence, shall be read as a reference to the judge advocate appointed to conduct proceedings under section 3(1) relating to the offence (whether or not also appointed to conduct other preliminary proceedings relating to the offence);”;
(c)
in paragraph (d), for “court” substitute “
judge advocate appointed to be a member of the court-martial
”
; and
(d)
omit paragraph (e) except for the word “and” at the end.
14
“(6)
This Act extends to England and Wales, Scotland and Northern Ireland.
(7)
This Act, so far as it relates to proceedings before a court-martial or the Courts-Martial Appeal Court, applies to such proceedings wherever they may take place (whether in the United Kingdom or elsewhere).”
Criminal Justice (Northern Ireland) Order 1994 (N.I.15)
15
In the M56Criminal Justice (Northern Ireland) Order 1994, omit Articles 19 to 24 (which provide for the anonymity of victims of certain sexual offences and are superseded by the amendments made by this Schedule to the M57Sexual Offences (Amendment) Act 1992).
SCHEDULE 3 Restriction on use of answers etc. obtained under compulsion
Insurance Companies Act 1982 (c.50)
1
The Insurance Companies Act 1982 is amended as follows.
2
“(6)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(7)
Subsection (6) above applies to any offence other than—
(a)
an offence under section 71(1)(b) or (3) below;
(b)
an offence under section 5 of the M58Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of the M59Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the M60Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
3
“(5A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(5B)
Subsection (5A) above applies to any offence other than—
(a)
an offence under section 71(1)(b), (3) or (4) below;
(b)
an offence under section 5 of the M61Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of the M62Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the M63Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
Companies Act 1985 (c.6)
F994
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1005
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1016
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Insolvency Act 1986 (c.45)
7
(1)
Section 433 of the Insolvency Act 1986 (admissibility in evidence of statements of affairs etc.) is amended as follows.
(2)
That section is renumbered as subsection (1) of that section.
(3)
“(2)
However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(3)
Subsection (2) applies to any offence other than—
(a)
an offence under section 22(6), 47(6), 48(8), 66(6), 67(8), 95(8), 98(6), 99(3)(a), 131(7), 192(2), 208(1)(a) or (d) or (2), 210, 235(5), 353(1), 354(1)(b) or (3) or 356(1) or (2)(a) or (b) or paragraph 4(3)(a) of Schedule 7;
(b)
an offence which is—
(i)
created by rules made under this Act, and
(ii)
designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;
(c)
an offence which is—
(i)
created by regulations made under any such rules, and
(ii)
designated for the purposes of this subsection by such regulations;
(d)
an offence under section 1, 2 or 5 of the M64Perjury Act 1911 (false statements made on oath or made otherwise than on oath); or
(e)
an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).
(4)
Regulations under subsection (3)(b)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.”
Company Directors Disqualification Act 1986 (c.46)
8
(1)
Section 20 of the Company Directors Disqualification Act 1986 (admissibility in evidence of statements) is amended as follows.
(2)
That section is renumbered as subsection (1) of that section.
(3)
“(2)
However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(3)
Subsection (2) applies to any offence other than—
(a)
an offence which is—
(i)
created by rules made for the purposes of this Act under the Insolvency Act, and
(ii)
designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;
(b)
an offence which is—
(i)
created by regulations made under any such rules, and
(ii)
designated for the purposes of this subsection by such regulations;
(c)
an offence under section 5 of the M65Perjury Act 1911 (false statements made otherwise than on oath); or
(d)
an offence under section 44(2) of the M66Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath).
(4)
Regulations under subsection (3)(a)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.”
Building Societies Act 1986 (c.53)
9
“(5A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the answer may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(5B)
Subsection (5A) above applies to any offence other than—
(a)
an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath);
(b)
an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath); or
(c)
an offence under Article 7 or 10 of the M67Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).”
Financial Services Act 1986 (c.60)
10
The Financial Services Act 1986 is amended as follows.
11
“(5A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(5B)
Subsection (5A) above applies to any offence other than—
(a)
an offence under subsection (10) or section 200(1) below;
(b)
an offence under section 5 of the M68Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of the M69Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the M70Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
12
“(6A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(6B)
Subsection (6A) above applies to any offence other than—
(a)
an offence under section 200(1) below;
(b)
an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath);
(c)
an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath); or
(d)
an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).”
Companies (Northern Ireland) Order 1986 (N.I.6)
F10213
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10214
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10215
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Banking Act 1987 (c.22)
16
The Banking Act 1987 is amended as follows.
17
“(12A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(12B)
Subsection (12A) above applies to any offence other than—
(a)
an offence under subsection (11) above or section 94(1)(a) below;
(b)
an offence under section 5 of the M71Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of M72the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
18
“(10A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(10B)
Subsection (10A) above applies to any offence other than—
(a)
an offence under subsection (9)(c) above or section 94(4) below;
(b)
an offence under section 5 of the M73Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of the M74Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the M75Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
19
“(5A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(5B)
Subsection (5A) above applies to any offence other than—
(a)
an offence under subsection (4) above or section 94(1)(a) below;
(b)
an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath);
(c)
an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath); or
(d)
an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).”
Criminal Justice Act 1987 (c.38)
20
“(8AA)
However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.”
Companies Act 1989 (c.40)
21
“(6A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(6B)
Subsection (6A) applies to any offence other than—
(a)
an offence under section 85;
(b)
an offence under section 2 or 5 of the M76Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath);
(c)
an offence under section 44(1) or (2) of the M77Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath); or
(d)
an offence under Article 7 or 10 of the M78Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).”
Companies (Northern Ireland) Order 1989 (N.I.18)
F10322
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Insolvency (Northern Ireland) Order 1989 (N.I.19)
23
(1)
Article 375 of the M79Insolvency (Northern Ireland) Order 1989 (admissibility in evidence of statements of affairs etc.) is amended as follows.
(2)
That Article is renumbered as paragraph (1) of that Article.
(3)
“(2)
However, in criminal proceedings in which any such person is charged with an offence to which this paragraph applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(3)
Paragraph (2) applies to any offence other than—
(a)
an offence under Article 34(6), 57(6), 58(8), 81(7), 84(5), 85(3)(a), 111(7), 162(2), 172(1)(a) or (d) or (2), 174, 199(5), 324(1), 325(1)(b) or (5) or 327(1) or (3)(a) or (b);
(b)
an offence which is—
(i)
created by rules made under this Order, and
(ii)
designated for the purposes of this paragraph by such rules or by regulations;
(c)
an offence which is—
(i)
created by regulations made under any such rules, and
(ii)
designated for the purposes of this paragraph by such regulations; or
(d)
an offence under Article 3, 7 or 10 of the M80Perjury (Northern Ireland) Order 1979 (false statements made on oath or made otherwise than on oath).
(4)
Regulations under paragraph (3)(b)(ii) shall after being made be laid before the Assembly.”
Friendly Societies Act 1992 (c.40)
24
“(5A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(5B)
Subsection (5A) above applies to any offence other than—
(a)
an offence under section 2 or 5 of the M81Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath);
(b)
an offence under section 44(1) or (2) of the M82Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath); or
(c)
an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).”
Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)
25
“(5A)
However, the statement may not be used against that person by virtue of paragraph (b) of subsection (5) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.”
Proceeds of Crime (Northern Ireland) Order 1996 (N.I.9)
26
“(b)
on his prosecution for some other offence where evidence relating to any such answer or information is adduced, or a question relating to it is asked, by or on behalf of that person; or”.
SCHEDULE 4 Minor and consequential amendments
Criminal Evidence Act 1898 (c.36)
1
(1)
Section 1 of the Criminal Evidence Act 1898 (competence of accused as witness for the defence) is amended as follows.
(2)
Omit the words from the beginning to “Provided as follows:—”.
(3)
In paragraph (a) of the proviso—
(a)
for “so charged” substitute “
charged in criminal proceedings
”
; and
(b)
for “in pursuance of this Act” substitute “
in the proceedings
”
.
(4)
In paragraph (e) of the proviso—
(a)
for “and being a witness in pursuance of this Act” substitute “
in criminal proceedings who is called as a witness in the proceedings
”
; and
(b)
for “the offence charged” substitute “
any offence with which he is charged in the proceedings
”
.
F104(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
In paragraph (g) of the proviso, for “called as a witness in pursuance of this Act” substitute “
charged in criminal proceedings who is called as a witness in the proceedings
”
.
(7)
Paragraphs (a), (e), (f) and (g) of the proviso shall be respectively numbered as subsections (1), (2), (3) and (4) of the section.
Children and Young Persons Act 1933 (c.12)
2
(1)
The Children and Young Persons Act 1933 has effect subject to the following amendments.
(2)
In section 37(1) (power to clear court, where child or young person giving evidence, of persons other than bona fide representatives of newspapers or news agencies), for “newspaper or news agency” substitute “
news gathering or reporting organisation
”
.
(3)
In section 47(2)(c) (bona fide representatives of newspapers or news agencies entitled to be present at sitting of youth court), for “newspapers or news agencies” substitute “
news gathering or reporting organisations
”
.
Children and Young Persons Act 1963 (c.37)
3
In section 57(3) of the M84Children and Young Persons Act 1963 (which provides for sections 39 and 49 of the Children and Young Persons Act 1933 to extend to Scotland), for “sections 39 and 49”, in both places, substitute “
section 39
”
.
Criminal Appeal Act 1968 (c.19)
4
(1)
The Criminal Appeal Act 1968 has effect subject to the following amendments.
F105(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
In section 31(1)(b) (power to give directions exercisable by single judge), for “section 4(4) of the M85Sexual Offences (Amendment) Act 1976” substitute “
section 3(4) of the M86Sexual Offences (Amendment) Act 1992
”
.
Children and Young Persons Act 1969 (c.54)
F1065
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rehabilitation of Offenders Act 1974 (c.53)
6
(1)
Section 5 of the Rehabilitation of Offenders Act 1974 is amended as follows.
(2)
In Table A in subsection (2), in the entry relating to fines or other sentences subject to rehabilitation under that Act, for “, (4A) to (8)” substitute “
to (8)
”
.
(3)
“(4B)
Where in respect of a conviction a referral order (within the meaning of Part I of the Youth Justice and Criminal Evidence Act 1999) is made in respect of the person convicted, the rehabilitation period applicable to the sentence shall be—
(a)
if a youth offender contract takes effect under section 8 of that Act between him and a youth offender panel, the period beginning with the date of conviction and ending on the date when (in accordance with section 9 of that Act) the contract ceases to have effect;
(b)
if no such contract so takes effect, the period beginning with the date of conviction and having the same length as the period for which such a contract would (ignoring any order under paragraph 11 or 12 of Schedule 1 to that Act) have had effect had one so taken effect.
(4C)
Where in respect of a conviction an order is made in respect of the person convicted under paragraph 11 or 12 of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 (extension of period for which youth offender contract has effect), the rehabilitation period applicable to the sentence shall be—
(a)
if a youth offender contract takes effect under section 8 of that Act between the offender and a youth offender panel, the period beginning with the date of conviction and ending on the date when (in accordance with section 9 of that Act) the contract ceases to have effect;
(b)
if no such contract so takes effect, the period beginning with the date of conviction and having the same length as the period for which, in accordance with the order, such a contract would have had effect had one so taken effect.”
Magistrates’ Courts Act 1980 (c.43)
7
The Magistrates’ Courts Act 1980 has effect subject to the following amendments.
8
F107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
“and
(f)
warrants of arrest issued under paragraph 3(2) of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 (offender referred to court by youth offender panel).”
Criminal Justice Act 1982 (c.48)
10
In section 72(1) of the Criminal Justice Act 1982 (accused to give evidence on oath), after “if he gives evidence, he shall do so” insert “
(subject to sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999)
”
.
Mental Health Act 1983 (c.20)
11
“shall not—
(a)
pass sentence of imprisonment or impose a fine or make a probation order in respect of the offence,
(b)
if the order under this section is a hospital order, make a referral order (within the meaning of Part I of the Youth Justice and Criminal Evidence Act 1999) in respect of the offence, or
(c)
make in respect of the offender any such order as is mentioned in section 7(7)(b) of the M87Children and Young Persons Act 1969 or section 58 of the M88Criminal Justice Act 1991,
but the court may make any other order which it ”.
Police and Criminal Evidence Act 1984 (c.33)
12
The Police and Criminal Evidence Act 1984 has effect subject to the following amendments.
13
(1)
Section 80 (competence and compellability of accused’s spouse) is amended as follows.
(2)
Omit subsections (1) and (8).
(3)
“(2)
In any proceedings the wife or husband of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.
(2A)
In any proceedings the wife or husband of a person charged in the proceedings shall, subject to subsection (4) below, be compellable—
(a)
to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or
(b)
to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.
(3)
In relation to the wife or husband of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if—
(a)
it involves an assault on, or injury or a threat of injury to, the wife or husband or a person who was at the material time under the age of 16;
(b)
it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c)
it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.
(4)
No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings.
(4A)
References in this section to a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).”
(4)
In subsection (5), omit “competent and” and, in the side-note, omit “Competence and”.
14
“80A Rule where accused’s spouse not compellable.
The failure of the wife or husband of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution.”
Criminal Justice Act 1988 (c.33)
15
The Criminal Justice Act 1988 has effect subject to the following amendments.
F10816
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
In section 34(3) (unsworn evidence may corroborate other evidence), for “section 52 of the Criminal Justice Act 1991” substitute “
section 56 of the Youth Justice and Criminal Evidence Act 1999
”
.
Companies (Northern Ireland) Order 1989 (N.I.18)
F109F11018
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Insolvency (Northern Ireland) Order 1989 (N.I.19)
19
In Article 2(2) of the M89Insolvency (Northern Ireland) Order 1989 (interpretation), in the definition of “regulations” for “Article 359(5)” substitute “
Articles 359(5) and 375(3)(b)(ii)
”
.
Criminal Justice Act 1991 (c.53)
F11120
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criminal Justice and Public Order Act 1994 (c.33)
21
The Criminal Justice and Public Order Act 1994 has effect subject to the following amendments.
22
(1)
Section 51 (intimidation etc. of witnesses, jurors and others) is amended as follows.
(2)
“(1)
A person commits an offence if—
(a)
he does an act which intimidates, and is intended to intimidate, another person (“the victim”),
(b)
he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and
(c)
he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.
(2)
A person commits an offence if—
(a)
he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person,
(b)
he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed (“the victim”), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and
(c)
he does or threatens to do it because of that knowledge or belief.
(3)
For the purposes of subsections (1) and (2) it is immaterial that the act is or would be done, or that the threat is made—
(a)
otherwise than in the presence of the victim, or
(b)
to a person other than the victim.”
(3)
In subsection (8) (presumption in proceedings for offence under subsection (2))—
(a)
“within the relevant period—
(a)
he did an act which harmed, and was intended to harm, another person, or
(b)
intending to cause another person fear of harm, he threatened to do an act which would harm that other person,
and that he did the act, or (as the case may be) threatened to do the act, ”; and
(b)
after “to have done the act” insert “
or (as the case may be) threatened to do the act
”
.
23
“(7A)
This section applies as respects a warrant issued under paragraph 3(2) of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 (warrant for arrest of offender referred back to court by youth offender panel) as it applies to a warrant issued in England or Wales for the arrest of a person charged with an offence.”
24
In Schedule 11 (repeals), the entry relating to section 57(4) of the M90Children and Young Persons Act 1969 shall be treated as, and as always having been, an entry relating to section 57(4) of the M91Children and Young Persons Act 1963.
Crime and Disorder Act 1998 (c.37)
25
The Crime and Disorder Act 1998 has effect subject to the following amendments.
F11226
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F11327
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
“(k)
the implementation of referral orders within the meaning of Part I of the Youth Justice and Criminal Evidence Act 1999.”
F11429
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F11530
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F116SCHEDULE 5
Children and Young Persons Act 1969 (c.54)
1
The Children and Young Persons Act 1969 has effect subject to the following amendments.
2
“(14)
In this section “make reparation” means make reparation for the offence otherwise than by the payment of compensation.”
3
(1)
Section 15 (variation and discharge of supervision orders) is amended as follows.
(2)
In subsection (3)(b) (magistrates’ powers of re-sentence on breach of supervision order), for “relevant court” substitute “
magistrates’ court
”
.
(3)
“(8A)
Where a supervision order has been made on appeal, for the purposes of subsection (3) above it shall be deemed—
(a)
if it was made on an appeal brought from a magistrates’ court, to have been made by that magistrates’ court;
(b)
if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;
and, in relation to a supervision order made on appeal, subsection (3)(b) above shall have effect as if the words “if the order had not been made” were omitted and subsection (5) above shall have effect as if the words “if it had not made the order” were omitted.”
4
(1)
Section 16 (provisions supplementary to section 15) is amended as follows.
(2)
In subsection (3A), for “(3C)” substitute “
(4A)
”
.
(3)
Omit subsections (3B) and (3C).
(4)
In subsection (4), at the beginning insert “
Subject to subsection (4A) of this section,
”
.
(5)
“(4A)
Where a supervised person has attained the age of eighteen at the time when he is brought before a justice under subsection (3) of this section, or has attained that age at a time when (apart from this subsection) a youth court could exercise its powers under subsection (4) of this section in respect of him, he shall not be remanded to local authority accommodation but may instead be remanded—
(a)
to a remand centre, if the justice or youth court has been notified that such a centre is available for the reception of persons under this subsection; or
(b)
to a prison, if the justice or youth court has not been so notified.
(4B)
A court or justice remanding a person to local authority accommodation under this section shall designate, as the authority who are to receive him, the authority named in the supervision order.”
Crime and Disorder Act 1998 (c.37)
5
The Crime and Disorder Act 1998 has effect subject to the following amendments.
6
(1)
Section 74 (duties and powers of court in relation to detention and training orders) is amended as follows.
(2)
“(2)
Subject to subsections (3) and (4A) below, a court making a detention and training order may order that its term shall commence on the expiration of the term of any other detention and training order made by that or any other court.”
(3)
“(4A)
A court making a detention and training order shall not order that its term shall commence on the expiration of the term of a detention and training order under which the period of supervision has already begun (under section 76(1) below).
(4B)
Where a detention and training order (“the new order”) is made in respect of an offender who is subject to a detention and training order under which the period of supervision has begun (“the old order”), the old order shall be disregarded in determining—
(a)
for the purposes of subsection (3) above whether the effect of the new order would be that the offender would be subject to detention and training orders for a term which exceeds 24 months; and
(b)
for the purposes of subsection (4) above whether the term of the detention and training orders to which the offender would (apart from that subsection) be subject exceeds 24 months.”
(4)
“(5A)
Where a court proposes to make detention and training orders in respect of an offender for two or more offences—
(a)
subsection (5) above shall not apply, but
(b)
in determining the total term of the detention and training orders it proposes to make in respect of the offender, the court shall take account of the total period for which he has been remanded in custody in connection with any of those offences, or any other offence the charge for which was founded on the same facts or evidence.
(5B)
Once a period of remand has, under subsection (5) or (5A) above, been taken account of in relation to a detention and training order made in respect of an offender for any offence or offences, it shall not subsequently be taken account of (under either of those subsections) in relation to such an order made in respect of the offender for any other offence or offences.”
(5)
In subsection (6), for “The reference in subsection (5) above” substitute “
Any reference in subsection (5) or (5A) above
”
.
(6)
In subsection (8), omit “this section or”.
7
In section 75(5) (alteration of release of offender subject to detention and training order), for “the youth court” substitute “
a youth court
”
.
8
“(5)
An offender may appeal to the Crown Court against any order made under subsection (3)(a) or (b) above.”
9
“(2A)
Subsection (1)(a) above has effect subject to section 78(3)(a) above and subsection (2)(a) above has effect subject to section 40(4)(b) of the 1991 Act.”
10
(1)
Paragraph 3 of Schedule 5 (failure to comply with reparation and action plan orders) is amended as follows.
(2)
In sub-paragraph (2)(b), for “youth court” substitute “
magistrates’ court
”
.
(3)
Omit sub-paragraph (3).
(4)
“(9)
Where a reparation order or action plan order has been made on appeal, for the purposes of this paragraph it shall be deemed—
(a)
if it was made on an appeal brought from a magistrates’ court, to have been made by that magistrates’ court;
(b)
if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;
and, in relation to a reparation order or action plan order made on appeal, sub-paragraph (2)(b) above shall have effect as if the words “if the order had not been made” were omitted and sub-paragraph (5) above shall have effect as if the words “if it had not made the order” were omitted.”
11
(1)
Paragraph 4 of that Schedule (presence of offender in court, remands, etc.) is amended as follows.
(2)
In sub-paragraph (5)(b), for “(6)” substitute “
(7A)
”
.
(3)
Omit sub-paragraph (6).
(4)
In sub-paragraph (7), at the beginning insert “
Subject to sub-paragraph (7A) below,
”
.
(5)
“(7A)
Where the offender is aged 18 or over at the time when he is brought before a youth court other than the appropriate court under sub-paragraph (4) above, or is aged 18 or over at a time when (apart from this sub-paragraph) the appropriate court could exercise its powers under sub-paragraph (7) above in respect of him, he shall not be remanded to local authority accommodation but may instead be remanded—
(a)
to a remand centre, if the court has been notified that such a centre is available for the reception of persons under this sub-paragraph; or
(b)
to a prison, if it has not been so notified.”
12
Omit paragraph 5(6) of that Schedule.
SCHEDULE 6 Repeals
Reference | Short title or title | Extent of repeal or revocation |
|---|---|---|
61 & 62 Vict. c. 36. | Criminal Evidence Act 1898. | In section 1, the words from the beginning to “Provided as follows:—”. |
23 & 24 Geo. 5 c. 12. | Children and Young Persons Act 1933. | Section 38. |
12, 13 & 14 Geo. 6 c. 88. | Registered Designs Act 1949. | Section 17(11). |
1955 c. 18. | Army Act 1955. | Section 93(1B) and (2). |
1955 c. 19. | Air Force Act 1955. | Section 93(1B) and (2). |
1957 c. 53. | Naval Discipline Act 1957. | Section 60(2) and (3). |
1963 c. 37. | Children and Young Persons Act 1963. | Section 57(2) and (4). |
1968 c. 19. | Criminal Appeal Act 1968. | In section 10(2)(b), the words “, a referral order within the meaning of Part I of the Youth Justice and Criminal Evidence Act 1999 (referral to youth offender panel)”. |
1968 c. 20. | Courts-Martial (Appeals) Act 1968. | In section 36(1), the words “section 4(4) of the Sexual Offences (Amendment) Act 1976 as adapted by section 5(1)(d) of that Act or”. |
1968 c. 60. | Theft Act 1968. | In section 30(2), the words from “and a person bringing” onwards. |
1969 c. 54. | Children and Young Persons Act 1969. | Section 16(3B) and (3C). |
1976 c. 52. | Armed Forces Act 1976. | In Schedule 3, in paragraph 3(2), the words from “or direct that” onwards. |
1976 c. 82. | Sexual Offences (Amendment) Act 1976. | Sections 2 to 5. In section 7(4), the words from “except that” onwards. Section 7(5). |
1977 c. 37. | Patents Act 1977. | Section 32(12). |
S.I. 1978/460 (N.I. 5). | Sexual Offences (Northern Ireland) Order 1978. | In Article 1(2), the words from “and Articles 6 and 8” onwards. Articles 6 and 7. |
1978 c. 23. | Judicature (Northern Ireland) Act 1978. | In Part II of Schedule 5, the amendment of the Sexual Offences (Northern Ireland) Order 1978. |
1979 c. 2. | Customs and Excise Management Act 1979. | Section 75A(6)(b). In section 118A(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. |
1980 c. 43. | Magistrates’ Courts Act 1980. | In section 125(4)(c)(iii), the “and” at the end. In section 126(d), the “and” at the end. In Schedule 7, paragraph 148. |
1981 c. 55. | Armed Forces Act 1981. | In Schedule 2, paragraph 9. |
1984 c. 60. | Police and Criminal Evidence Act 1984. | Sections 69 and 70. Section 80(1). In section 80(5), the words “competent and”. Section 80(8). In section 82(1), in the definition of “proceedings”, in paragraph (a) the words after “court-martial” and, in paragraph (b)(i), the words “so constituted”. Schedule 3. |
1985 c. 9. | Companies Act 1985. | In section 709(3), the words from “In England and Wales” onwards. |
1988 c. 33. | Criminal Justice Act 1988. | In section 23(1), paragraph (c) and the “and” preceding it. In section 24(1), paragraph (c) and the “and” preceding it. In section 32(1), paragraph (b) and the “or” preceding it. Section 32(2), (3A) to (3E) and (6). Section 32A. Section 33A. Section 34A. Section 158(2) to (4). In Schedule 13, in paragraph 8, sub-paragraph (2)(b) and the “and” preceding it and, in sub-paragraph (3), “, (2)”. In Schedule 15, paragraph 53. |
1990 c. 42. | Broadcasting Act 1990. | In Schedule 20, paragraphs 26 and 27. |
1991 c. 53. | Criminal Justice Act 1991. | Section 52. Section 54. Section 55(2)(b), (4), (6) and (7). In Schedule 9, paragraphs 3 and 7. In Schedule 11, paragraph 1 and, in paragraph 37, the words from “and, in subsection (3)” onwards. |
1992 c. 34. | Sexual Offences (Amendment) Act 1992. | In section 5(2), the words “or programme”. In section 6(1), the definition of “written publication” and the “and” preceding it. In section 7(2), paragraph (b) and paragraph (e) except for the “and” at the end. Section 7(3). |
1994 c. 9. | Finance Act 1994. | In section 22(2)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. In Schedule 7, in paragraph 1(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. |
1994 c. 23. | Value Added Tax Act 1994. | In Schedule 11, in paragraph 6(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. |
1994 c. 33. | Criminal Justice and Public Order Act 1994. | Section 50. In Schedule 9, paragraphs 11(1)(a), 13 and 33. In Schedule 10, paragraphs 32, 35(3) and 36. |
S.I. 1994/2795 (N.I. 15). | Criminal Justice (Northern Ireland) Order 1994. | Article 2(3). Article 18(3). Articles 19 to 24. |
1995 c. 35. | Criminal Appeal Act 1995. | In Schedule 2, paragraph 16(2)(b) and (3). |
1995 c. 38. | Civil Evidence Act 1995. | In Schedule 1, paragraph 10. |
1996 c. 8. | Finance Act 1996. | In Schedule 5, in paragraph 2(6)(a), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. |
1996 c. 25. | Criminal Procedure and Investigations Act 1996. | Section 62. In Schedule 1, paragraphs 23, 27 and 33. |
1996 c. 46. | Armed Forces Act 1996. | In Schedule 1, paragraph 107(a). |
1998 c. 37. | Crime and Disorder Act 1998. | In section 74(8), the words “this section or”. In Schedule 5, paragraphs 3(3), 4(6) and 5(6). |
S.I. 1998/1504 (N.I. 9). | Criminal Justice (Children) (Northern Ireland) Order 1998. | Article 22. |
1999 c. 23. | Youth Justice and Criminal Evidence Act 1999. | Section 4(7)(d) except for the “or” at the end. In section 15(1), in the definition of “custodial sentence”, the words from “a sentence of detention in” to “1994,”. In Schedule 1, paragraphs 5(7) and 14(5). In Schedule 4, paragraph 4(2). |
SCHEDULE 7 Transitional provisions and savings
Interpretation
1
(1)
In this Schedule—
“the 1988 Act” means the M92Criminal Justice Act 1988;
“commencement date”, in relation to any provisions of this Act and proceedings of any description, means the date on which those provisions come into force in relation to such proceedings;
“continuing proceedings” (except in paragraph 3) means proceedings instituted before the commencement date;
“existing special measures power” means any power of the court to make an order or give leave, in the exercise of its inherent jurisdiction, for the taking of measures in relation to a witness which are similar to those which could be provided for by a special measures direction.
(2)
For the purposes of this Schedule—
(a)
proceedings other than proceedings on appeal are to be taken to be instituted at the time when they would be taken to be instituted for the purposes of Part I of the M93Prosecution of Offences Act 1985 in accordance with section 15(2) of that Act; and
(b)
proceedings on appeal are to be taken to be instituted at the time when the notice of appeal is given or (as the case may be) the reference under section 9 or 11 of the M94Criminal Appeal Act 1995 is made.
(3)
Expressions used in this Schedule which are also used in Part II of this Act have the same meaning in this Schedule as in that Part.
Referral orders under Part I
F1172
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Special measures under Chapter I of Part II
3
(1)
A special measures direction may be given in relation to a witness in continuing proceedings unless the court has before the specified date—
(a)
given leave in relation to the witness in connection with those proceedings under section 32 (evidence through television links) or section 32A (video recordings of testimony of child witnesses) of the 1988 Act, or
(b)
exercised any existing special measures power in relation to the witness in connection with those proceedings.
(2)
The repeals made by this Act shall not affect the continued operation in relation to a witness in continuing proceedings of section 32 or 32A of the 1988 Act where before the specified date leave was given in relation to the witness in connection with those proceedings by virtue of section 32(1)(b) or section 32A, as the case may be.
(3)
Nothing in this Act affects the continued operation in relation to a witness in continuing proceedings of any order made or leave given under any existing special measures power exercised by the court before the specified date in relation to the witness in connection with those proceedings.
(4)
In this paragraph—
(a)
“continuing proceedings” means proceedings instituted before the specified date;
(b)
“the specified date”, in relation to a witness in any proceedings, means such date as may be specified by the Secretary of State in a notice given to the court in question under section 18(2), where the date is expressed to apply—
(i)
for the purposes of this paragraph, and
(ii)
in relation to any description of witnesses and proceedings within which the witness and the proceedings fall.
Protection of witnesses from cross-examination by accused in person
4
Nothing in Chapter II of Part II applies in relation to proceedings instituted before the commencement date for that Chapter.
Protection of complainants in proceedings for sexual offences
5
(1)
Nothing in Chapter III of Part II applies in relation to continuing proceedings in which leave has been given before the commencement date for that Chapter—
(a)
under section 2 of the M95Sexual Offences (Amendment) Act 1976, or
(b)
(in the case of proceedings to which section 2 does not apply) in the exercise of any similar power of the court exercisable by virtue of its inherent jurisdiction.
(2)
Nothing in this Act affects the continued operation of any leave so given in relation to any such proceedings.
Reporting restrictions
6
(1)
Section 44 applies in relation to an alleged offence whether the criminal investigation into it is begun before or after the coming into force of that section.
(2)
The restrictions imposed by subsection (2) of section 44 do not apply to the inclusion of matter in a publication if—
(a)
where the publication is a relevant programme, it is transmitted, or
(b)
in the case of any other publication, it is published,
before the coming into force of that section.
(3)
Nothing in section 45 or 46 applies in relation to proceedings instituted before the commencement date for that section.
(4)
In sub-paragraph (3) the reference to the institution of proceedings shall be construed—
(a)
in the case of proceedings in England in Wales (other than proceedings before a service court), in accordance with paragraph 1(2);
(b)
in the case of proceedings in Northern Ireland (other than proceedings before a service court), in accordance with sub-paragraph (5);
(c)
in the case of proceedings before a service court (wherever held) in accordance with sub-paragraph (6).
(5)
In the case of proceedings falling within sub-paragraph (4)(b)—
(a)
proceedings other than proceedings on appeal are to be taken to be instituted—
(i)
where a justice of the peace issues a summons under Article 20 of the M96Magistrates’ Courts (Northern Ireland) Order 1981, when the complaint for the offence is made;
(ii)
where a justice of the peace issues a warrant for the arrest of any person under that Article, when the complaint for the offence is made;
(iii)
where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of the charge;
(iv)
where an indictment is presented under the authority of section 2(2)(c), (d), (e) or (f) of the M97Grand Jury (Abolition) Act (Northern Ireland) 1969, when the indictment is presented to the court;
and where the application of this paragraph would result in there being more than one time for the institution of the proceedings, they shall be taken to have been instituted at the earliest of those times; and
(b)
proceedings on appeal are to be taken to be instituted at the time when the notice of appeal is given or (as the case may be) the reference under section 10 or 12 of the M98Criminal Appeal Act 1995 is made.
(6)
In the case of proceedings falling within sub-paragraph (4)(c)—
(a)
proceedings other than proceedings on appeal are to be taken to be instituted when F118the charge is brought under section 122 of the Armed Forces Act 2006; and
F119(b)
proceedings on appeal are to be taken to be instituted—
(i)
in the case of an appeal under the Court Martial Appeals Act 1968, when the application for leave to appeal is lodged in accordance with section 9 of that Act;
(ii)
in the case of an appeal under section 285 of the Armed Forces Act 2006 (except one for which leave is required), when the notice of appeal is given;
(iii)
in the case of an appeal under that section for which leave is required, when the application for leave to appeal is lodged;
(iv)
in the case of a reference under section 34 of the Court Martial Appeals Act 1968 or section 12A or 12B of the Criminal Appeal Act 1995, when the reference is made.
Competence of witnesses and capacity to be sworn
7
Nothing in Chapter V of Part II applies in relation to proceedings instituted before the commencement date for that Chapter.
Inferences from silence
8
The amendments made by section 58—
(a)
apply only to proceedings instituted on or after the commencement date for that section; but
(b)
so apply whether the relevant failure or refusal on the part of the accused took place before or after that date.