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

(The document as of February, 2008)

-- Back --

Page 5

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

(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 [1968 c. 19.] 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 [1994 c. 33.] Criminal Justice and Public Order Act 1994 (inferences from accused's silence) shall be amended as follows.

(2) In section 34 (effect of accused's failure to mention facts when questioned or charged), after subsection (2) there shall be inserted--

" (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) In section 36 (effect of accused's failure or refusal to account for objects, substances or marks), after subsection (4) there shall be inserted--

" (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) In section 37 (effect of accused's failure or refusal to account for presence at a particular place), after subsection (3) there shall be inserted--

" (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) In section 38 (interpretation), after subsection (2) there shall be inserted--

" (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 [1984 c. 60.] Police 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 [1994 c. 33.] Criminal 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

(1) In this Part "sexual 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 [1956 c. 69.] Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.);

(c) an offence under section 128 of the [1959 c. 72.] 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 [1960 c. 33.] Indecency with Children Act 1960 (indecent conduct towards child under 14);

(e) an offence under section 54 of the [1977 c. 45.] 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 any authorised advocate or authorised litigator (as defined by section 119(1) of the [1990 c. 41.] Courts and Legal Services Act 1990);
"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 [1990 c. 42.] Broadcasting Act 1990;
"service court" means--
(a)
a court-martial constituted under the [1955 c. 18.] Army Act 1955, the [1955 c. 19.] Air Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957 or a disciplinary court constituted under section 52G of the Naval Discipline Act 1957,
(b)
the Courts-Martial Appeal Court, or
(c)
a Standing Civilian 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 regulations or order under this Act shall be exercised by statutory instrument.

(2) A statutory instrument containing any regulations or order under section 6(4) or 61(1) or (2) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) No regulations or order shall be made under--

(a) section 2(3), 18(5), 42(2) or 44(5), or

(b) paragraph 13(8) of Schedule 1,

unless a draft of the regulations or order has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any regulations or 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.

65 General supplementary provisions

(1) Rules of court 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).

(2) In this Act "rules of court" means--

(a) Magistrates' Courts Rules;

(b) Crown Court Rules;

(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 [1998 c. 47.] Northern 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;

(d) Chapters V to VII of Part II (other than section 59); and

(e) this Part.

(3) Until the day appointed under section 3 of the Northern Ireland Act 1998 for the commencement of Parts II and III of that Act, this section shall have effect with the substitution for subsection (1) of the following--

" (1) An Order in Council under paragraph 1(1)(b) of Schedule 1 to the [1974 c. 28.] Northern 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.

(2) Schedule 5 (which contains pre-consolidation amendments relating to youth justice) shall have effect.

(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 [1998 c. 46.] Scotland 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.

(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;

(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

(7) Paragraph 3(4) of Schedule 1 extends also to Scotland.

(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 [1933 c. 12.] Children and Young Persons Act 1933 and in the [1992 c. 34.] Sexual Offences (Amendment) Act 1992 extend to England and Wales, Scotland and Northern Ireland;

(b) the repeal by Schedule 6 of section 62 of the [1996 c. 25.] Criminal Procedure and Investigations Act 1996 does not extend to Northern Ireland.

(10) The following provisions, namely--

(a) Chapter IV of Part II, so far as it relates to proceedings before a service court (within the meaning of Part II), and

(b) section 61,

apply to such proceedings wherever they may take place (whether in the United Kingdom or elsewhere).

SCHEDULES

Section 13.

SCHEDULE 1 Youth offender panels: further court proceedings

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 [1881 c. 24.] Summary 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 [1980 c. 43.] Magistrates' 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 [1933 c. 12.] Children 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 [1980 c. 43.] Magistrates' 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) That section shall have effect where the alternative court has power to so remand him, or the appropriate court has (by virtue of sub-paragraph (4)) power to further remand him, as if in subsection (1) there were inserted after paragraph (c) " 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 [1989 c. 41.] Children 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).

(7) Where, in exercise of the powers conferred by sub-paragraph (4), the appropriate court deals with the offender for an offence by committing him to the Crown Court for sentence, sub-paragraph (5) applies in relation to his being dealt with by the Crown Court, but as if--

(a) the reference to the appropriate court were to the Crown Court; and

(b) the reference in paragraph (b)(i) to the court were to the appropriate court.

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.

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

-- Back --

Stat