Youth Justice and Criminal Evidence Act 1999 (c. 23)

(The document as of February, 2008)

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(b) the panel may decide to end the meeting and refer the offender back to that court.

(6) Where a variation in the terms of the contract is agreed between the offender and the panel, the panel shall cause a written record of the variation to be produced forthwith--

(a) in language capable of being readily understood by, or explained to, the offender; and

(b) for signature by him.

(7) Any such variation shall take effect once the record has been signed--

(a) by the offender, and

(b) by a member of the panel on behalf of the panel;

and the panel shall cause a copy of the record to be given or sent to the offender.

(8) If at a progress meeting--

(a) any such variation is agreed but the offender does not sign the record produced in pursuance of subsection (6), and

(b) his failure to do so appears to the panel to be unreasonable,

the panel may end the meeting and refer the offender back to the appropriate court.

(9) Section 8(2) to (4) shall apply in connection with what may be provided for by the terms of the contract as varied under this section as they apply in connection with what may be provided for by the terms of a programme of behaviour of the kind mentioned in section 8(1).

(10) Where the panel has discussed with the offender such a request as is mentioned in subsection (4)(d), the panel may, if it is satisfied that there is (or is soon to be) such a change in circumstances as is mentioned in subsection (3)(a)(ii), decide to end the meeting and refer the offender back to the appropriate court.

12 Final meeting

(1) Where the compliance period in the case of a youth offender contract is due to expire, the specified team shall arrange for the holding, before the end of that period, of a meeting of the panel under this section ("the final meeting").

(2) At the final meeting the panel shall--

(a) review the extent of the offender's compliance to date with the terms of the contract; and

(b) decide, in the light of that review, whether his compliance with those terms has been such as to justify the conclusion that, by the time the compliance period expires, he will have satisfactorily completed the contract;

and the panel shall give the offender written confirmation of its decision.

(3) Where the panel decides that the offender's compliance with the terms of the contract has been such as to justify that conclusion, the panel's decision shall have the effect of discharging the referral order (or orders) as from the end of the compliance period.

(4) Otherwise the panel shall refer the offender back to the appropriate court.

(5) Nothing in section 7(2) prevents the panel from making the decision mentioned in subsection (3) in the offender's absence if it appears to the panel to be appropriate to do that instead of exercising either of its powers under section 7(2).

(6) Section 7(2)(a) does not permit the final meeting to be adjourned (or re-adjourned) to a time falling after the end of the compliance period.

(7) In this section "the compliance period" in relation to a youth offender contract means the period for which the contract has effect in accordance with section 9.

Further court proceedings

13 Offender referred back to court or convicted while subject to referral order

Schedule 1, which--

(a) in Part I makes provision for what is to happen when a youth offender panel refers an offender back to the appropriate court, and

(b) in Part II makes provision for what is to happen when an offender is convicted of further offences while for the time being subject to a referral order,

shall have effect.

Supplementary

14 Functions of youth offending teams

(1) The functions of a youth offending team responsible for implementing a referral order include, in particular, arranging for the provision of such administrative staff, accommodation or other facilities as are required by the youth offender panel established in pursuance of the order.

(2) During the period for which a youth offender contract between a youth offender panel and an offender has effect--

(a) the specified team shall make arrangements for supervising the offender's compliance with the terms of the contract; and

(b) the person who is the member of the panel referred to in section 6(3)(a) shall ensure that records are kept of the offender's compliance (or non-compliance) with those terms.

(3) In implementing referral orders a youth offending team shall have regard to any guidance given from time to time by the Secretary of State.

15 Interpretation of Part I

(1) In this Part--

"the appropriate court" shall be construed in accordance with paragraph 1(2) of Schedule 1;
"custodial sentence" means a sentence of detention in a young offender institution, a secure training order under section 1 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994, a detention and training order within the meaning given by section 73(3) of the [1998 c. 37.] Crime and Disorder Act 1998 or a sentence of detention under section 53(3) of the [1933 c. 12.] Children and Young Persons Act 1933;
"hospital order" has the meaning given in section 37 of the [1983 c. 20.] Mental Health Act 1983;
"meeting", in relation to a youth offender panel, shall be construed in accordance with section 6(7);
"referral order" means (in accordance with section 1(5)) an order under section 1(2) or (3);
"the specified team", in relation to an offender to whom a referral order applies (or two or more associated referral orders apply), means the youth offending team for the time being specified in the order (or orders);
"youth offending team" means a team established under section 39 of the Crime and Disorder Act 1998.

(2) For the purposes of this Part an offence is associated with another if the offender falls to be dealt with for it at the same time as he is dealt with for the other offence (whether or not he is convicted of the offences at the same time or by or before the same court).

(3) References in this Part to a referral order being associated with another shall be construed in accordance with section 3(7).

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 17 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 [1983 c. 20.] Mental 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;

(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.

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

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 (2) 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

a special measures direction and, if it is a magistrates' court, must cause them to be entered in the register of its proceedings.

(6) Rules of court 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);

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

(i) an offence falling within section 35(3)(a) (sexual offences etc.), or

(ii) an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); and

(c) a "relevant recording", in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

(2) Where the court, in making a determination for the purposes of 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 (7) 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); and

(c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).

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

(6) Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 28 (video recorded cross-examination or re-examination) to apply in relation to--

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

(b) any subsequent re-examination.

(7) The requirement contained in subsection (6) has effect subject to the following limitations--

(a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and

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

(8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of 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 17.

(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 17 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 17

(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 17 when a relevant recording was made;

(b) a qualifying witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is--

(i) an offence falling within section 35(3)(a) (sexual offences etc.), or

(ii) an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); 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.

(2) Subsections (2) to (7) of section 21 shall apply as follows in relation to a qualifying witness--

(a) subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);

(b) subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and

(c) subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).

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

(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.

(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.

(5) Where in proceedings before a magistrates' court--

(a) evidence is to be given by means of a live link in accordance with a special measures direction, but

(b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which that court can (apart from this subsection) lawfully sit,

the court may sit for the purposes of the whole or any part of those proceedings at a place where such facilities are available and which has been appointed for the purposes of this subsection by the justices acting for the petty sessions area for which the court acts.

(6) A place appointed under subsection (5) may be outside the petty sessions area for which it is appointed; but (if so) it is to be regarded as being in that area for the purpose of the jurisdiction of the justices acting for that area.

(7) In this section "petty-sessional court-house" has the same meaning as in the [1980 c. 43.] Magistrates' Courts Act 1980 and "petty sessions area" has the same meaning as in the [1997 c. 25.] Justices of the Peace Act 1997.

(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

(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 rules of court 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 otherwise than by testimony in court, or

(ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and

(b) the witness may not give evidence in chief otherwise than by means of the recording--

(i) as to any matter which, in the opinion of the court, has been dealt with adequately in the witness's recorded testimony, or

(ii) without the permission of the court, as to any other matter which, in the opinion of the court, is dealt with in that 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 (5)(b)(ii) 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.

(8) In subsection (7) "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.

(9) The court may, in giving permission for the purposes of subsection (5)(b)(ii), direct that the evidence in question is to be given by the witness by means of a live link; and, if the court so directs, subsections (5) to (7) of section 24 shall apply in relation to that evidence as they apply in relation to evidence which is to be given in accordance with a special measures direction.

(10) A magistrates' court inquiring into an offence as examining justices under section 6 of the [1980 c. 43.] Magistrates' 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

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