Guidance on prosecuting cases of racist and religious crime

Annex C - Speaking Up For Justice and the Youth Justice and Criminal Evidence Act 1999

Speaking Up for Justice, the report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system, was published in 1997. It made 78 recommendations for improvements to the criminal justice system, including the reporting of crime, identification of vulnerable or intimidated witnesses, and measures to assist witnesses before, during and after the trial.

Many of the recommendations of Speaking Up For Justice required legislation to bring them into effect. This legislation is contained in Part II of the Youth Justice and Criminal Evidence Act 1999.

The Act received Royal Assent in July 1999, but is being brought into effect by way of a phased programme of implementation.

The Act provides:

A definition of a vulnerable or intimidated witness;
A test to determine eligibility;
A range of special measures to assist eligible witnesses to give evidence;
Special provisions for child witnesses;
A new definition of competence;
A mandatory prohibition on cross-examination by defendants in person of complainants in sexual cases and of certain child witnesses, and a discretionary prohibition in the case of other witnesses;
Restrictions on cross-examination of a complainant in a sexual case about previous sexual behaviour;
Restrictions on media reporting.

Vulnerable or intimidated witness? - s16 and s.17

A vulnerable witness is a witness defined by section 16 YJCEA as being:

Under 17

A person in respect of whom the quality of evidence is likely to be diminished due to any of the following circumstances:

he or she suffers from a mental disorder;
he or she has a significant impairment of intelligence and social functioning;
he or she has a physical disability or suffering from a physical disorder.

An intimidated witness is a witness defined by section 17 YJCEA as being a witness in respect of whom:

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.

A vulnerable witness or an intimidated witness will be eligible for assistance if any of the criteria in sections 16 or 17 are satisfied.

Special measures available to eligible witnesses

The YJCEA provides a range of "special measures" which are intended to assist vulnerable or intimidated witnesses to give evidence.

The measures are:

Screens (s.23)
Evidence by live link (s.24)
Evidence in private (clearing the court in sexual cases or where there has been or may be intimidation) (s.25)
Removal of wigs and gowns (s.26)
Video recorded evidence in chief (s.27)
Video recorded cross-examination or re-examination (s.28)
Examination of witness through an intermediary (s.29)
Aids to communication (s.30)

The court will make a special measures direction on the application of the party calling the witness, or of its own motion where it considers that a special measure or measures would be likely to improve the quality of the evidence given by the witness (s.19).

NB. Intermediaries and communication aids are only available for vulnerable witnesses. BUT this does not affect the current arrangements for the provision of foreign language interpreters or interpreters or signers for the deaf.

Special provisions for child witnesses - (s.21)

The YJCEA makes special provisions for child witnesses.

It creates three categories of child witness:

Children giving evidence in a sexual offence case;
Children giving evidence in a case involving an offence of violence: abduction or neglect;
Children giving evidence in all other cases.

Children in categories a) and b) are "in need of special protection" and benefit from strong presumptions about how they will give evidence.

Children "in need of special protection" will have a video recorded statement admitted as their evidence in chief (if there is one).

Children in sexual cases will be cross-examined on video, (when available) unless they say they do not want to be.

Children in sexual cases who are not cross-examined on video and children in violence/abduction/neglect cases will be cross-examined via a live TV link.

Children in need of special protection are deemed eligible for the above measures without having to satisfy the test of "maximising quality of evidence".

Children in category c) - all other children - will have a video recorded statement admitted as their evidence in chief (if there is one) and will give further evidence or be cross-examined via a live TV link, unless the court considers such measures will not maximise the quality of the child's evidence.

Implementation

At the time of publication, not all special measures were in effect in all courts. A phased programme of implementation began on 24 July 2002 and thereafter, further implementation will be phased in following an evaluation of the first stage of implementation.

Crown Court: All measures available in the Crown Court from 24 July 2002 (with the exception of video recorded pre-trial cross-examination and intermediaries) are available for vulnerable (s.16) witnesses. Measures are available in the Crown Court from 24 July 2002 for intimidated (s.17) witnesses with the above exceptions and with the additional exception of video recorded evidence in chief. Video recorded evidence-in-chief of complainants in sexual offence cases is admissible in the Crown Court for cases where the police investigation began on, or after, 1st September 2007.

Magistrates' and Youth Courts: From 24 July 2002, the measures of TV links and video recorded evidence in chief are available for child witnesses in cases involving sexual offences, violence (including threats), abduction and cruelty (see below). From 3rd October 2005 TV links became nationally available for adult S16 and S17 witnesses.

NB. Pilot studies will be carried out before the measure of pre-trial video cross-examination is brought into effect.

Other provisions which came into effect on 24 July 2002: Other related provisions came into effect on 24 July 2002. These include:

Discretionary prohibition on cross-examination by a defendant in person of any witness where it appears to the court that the quality of evidence given by the witness on cross-examination would be likely to be diminished if the cross-examination were to be conducted by the defendant in person AND would be likely to be improved if a direction were given preventing it [s.36].
Restriction on media reporting of any matter relating to proceedings relating to an application for a special measures direction, or the fact of a special measures direction [s.47].
Competence of witnesses and the capacity to be sworn [ss.53-57].

Other provisions:

Prohibition on cross-examination by a defendant in person of a complainant in a case involving a sexual offence [s.34] - implemented 4th September 2000.
Prohibition on cross-examination by a defendant in person of a child witness (as defined by the Act) [s.35] -implemented 4th September 2000.
Restriction on the questioning of a complainant in a case involving a sexual offence about previous sexual behaviour [ss. 41- 43] - implemented 4th December 2000.
Discretionary power to restrict media reporting about adult witnesses in criminal proceedings where the witness is considered to be eligible for protection from media reporting on the grounds that the quality of evidence that they give, or the level of co-operation by the witness is likely to be diminished by reason of fear or distress about testifying, AND that making a direction is likely to improve quality of evidence or level of co-operation of the witness. This is still subject to a further interest of justice test and consideration of the wider public interest in avoiding substantial and unreasonable restrictions on reporting [s.46]. - Implemented on 7th October 2004.

Other provision not yet in force: At the date of publication, some provisions were not in force. These include:

Video recorded evidence-in -chief for S17 witnesses [s.27]. (Except for complainants in sexual offence cases tried in the Crown Court, where the police investigation began on or after 1st September 2007.)
Video recorded pre-trial cross-examination [s.28].
Intermediaries [s.29]. However, pilots are currently being held in the following areas pending national role out: Merseyside, Thames Valley, West Midlands, Norfolk, South Wales (Cardiff Crown Court and related magistrates court) and Devon and Cornwall (Plymouth Crown Court and related magistrates courts).

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