Companion Website

Police Law 11th Edition

7. The Law of Evidence

Chapter 7

Witnesses who are eligible for special measures p 224

In (a) in the second paragraph on p 224, 'under eighteen' is prospectively substituted for 'under seventeen' by the Coroners and Justice Act 2009 (C&JA 2009), s 98. In consequence, the references to 'under seventeen' in the penultimate and last paragraphs on p 224, and in the penultimate paragraph on p 226, are prospectively amended to 'under eighteen'.

Insert the following text before the penultimate paragraph on p 224:

'Under the YJCEA 1999, s 17(5), as prospectively amended by C&JA 2009, s 99, 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 unless the witness has by virtue of s 17(5) informed the court of the witness's wish not to be so eligible. For the purposes of s 17(5) an offence is a relevant offence if it is an offence described in Sch 1A, added by C&JA 2009, Sch 14, viz:

1. Murder, or manslaughter, in a case where it is alleged that a firearm or knife was used to cause the death in question, or in a case where it is alleged that:
1. the accused was carrying a firearm or knife at any time during the commission of the offence, and
2. 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;
2. An offence under the Offences against the Person Act 1861, s 18, 20, 38 or 47 (see Chapter 28) in a case where it is alleged that a firearm or knife was used to commit the offence in question, or in a case where it is alleged that:
1. the accused was carrying a firearm or knife at any time during the commission of the offence, and
2. 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;
3. An offence under the Prevention of Crime Act 1953, s 1 (having offensive weapon in public place);
4. An offence under the Firearms Act 1968, s 1, 2(1), 3, 4, 5(1), 5(1A), 16, 16A, 17, 18, 19, 20, 21, 21A or 24A (see Chapter 24);
5. An offence under the Criminal Justice Act 1988, s 139 (having article with blade or point in public place), or s 139A (having article with blade or point (or offensive weapon) on school premises);
6. An offence under the Violent Crime Reduction Act 2006, s 28 (using someone to mind a weapon) or s 32 (sales of all weapons by way of trade or business to be face to face) or s 36 (manufacture, import and sale of realistic imitation firearms).

The reference in (a) and (b) to an offence ("offence A") includes-

1. a reference to an attempt or conspiracy to commit offence A in a case where it is alleged that the attempt or conspiracy was to commit offence A in a manner or circumstances described in (a) or (b);
2. a reference to an offence under the Serious Crime Act 2007, Part 2 (encouraging or assisting crime) in relation to which offence A is the offence (or one of them) 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 (a) or (b); and
3. 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 (a) or (b).

A reference in (c) - (f) to an offence ("offence A") includes-

1. a reference to an attempt or conspiracy to commit offence A;
2. a reference to an offence under the Serious Crime Act 2007, Part 2 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed, and
3. a reference to aiding, abetting, counselling or procuring the commission of offence A.'

YJCEA 1999, s 21 is prospectively amended by C&JA 2009, s 100, as follows.

The last sentence of the first paragraph and the whole of the second paragraph on p 225 are prospectively deleted and there is prospectively substituted in their place the following text:

'If the witness informs the court of the witness's wish that the rule should not apply or should apply only in part, the primary 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.

Where as a consequence of all or part of the primary rule being disapplied under this new provision 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 provision for the witness to be screened from the accused when giving the evidence or that part of it. However, this screening requirement is subject to two limitations:

1. if the witness informs the court of the witness's wish that the requirement should not apply, the requirement should 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
2. 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).'

In making a decision under the italicised provisions, the court must take into account the following factors (and any others it considers relevant)-

1. the age and maturity of the witness;
2. the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements of the primary rule or (as the case may be) in accordance with a screening requirement;
3. the relationship (if any) between the witness and the accused;
4. the witness's social and cultural background and ethnic origins;
5. the nature and alleged circumstances of the offence to which the proceedings relate.'

C&JA 2009, s 101 prospectively adds a new section, s 22A, to YJCEA 1999. Section 22A makes special provisions relating to the trial of a sexual offence (or a sexual offence and other offences) in the Crown Court where the complainant is a witness in the proceedings and is not under 18 at the time of the hearing. (If the complainant is under 18, YJCEA 1999, s 21 applies). Section 22A does not apply to trials in a magistrates' court. Where it applies, s 22A establishes a rule in favour of admitting the complainant's video recorded evidence-in-chief. It does not mean that such evidence is inadmissible in a magistrates' court, but merely that there is no rule in favour of admitting it.

The operation of s 22A is as follows:

1. If a party to the proceedings applies for a special measures direction in relation to the complainant, that party may request that the direction provide for a video recording of an interview of the complainant to be admitted as evidence-in-chief of the complainant.
2. If the court determines that the complainant is eligible for assistance by virtue of s 16 (see (b) in the second paragraph on p 224 of the text) or s 17 (see p 224 of the text), it must give such a special measures direction in relation to the complainant, unless:
1. it considers that in the interests of justice the recording should not be admitted; or
2. it is satisfied that compliance with such a direction 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).

In the penultimate sentence of (5) on p 226 of the text (video recorded evidence-in-chief), the words 'otherwise than in court' are prospectively replaced by 'in any recording admissible under (6) below' by C&JA 2009, Sch 21. The last sentence of (5) ('The witness may not . . .') is prospectively substituted by C&JA 2009, s 103. The prospectively substituted text is:

'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.'

Evidence of vulnerable accused p 227

Add the above heading and the following text at the end of the text under this heading.

C&JA 2009, s 104 prospectively adds a new section, s 33BA, under the above heading. When in force it will enable a court to direct an accused's evidence to be given through an 'intermediary' (see p 226 of the text) where the accused:

1. is under 18 and 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; or
2. 18 or over and the accused suffers from a mental disorder or otherwise has a significant impairment of intelligence and social function, and is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court.

The judge or magistrates, and at least one legal representative for each side, should be able to see and hear the accused communicate with the intermediary. The jury must be able to see and hear the accused. An intermediary must declare that he will faithfully perform his function.

Where the accused is at a police station p 229

CDA 1998, s 57C, has been amended by the C&JA 2009, s 106, so as:

1. to delete the penultimate sentence under this heading about the need to obtain the accused's consent; and
2. to insert a requirement that a live link direction may not be given under s 57C unless the court is satisfied that it is not contrary to the interests of justice to give the direction.

These amendments are currently only in force in the following local justice areas:

1. in London: Barking and Dagenham; Barnet; Bexley; Brent; Bromley; Camden and Islington; City of London; City of Westminster; Croydon; Ealing; Enfield; Greenwich and Lewisham; Hackney and Tower Hamlets; Hammersmith and Fulham and Kensington and Chelsea; Haringey; Harrow Gore; Havering; Hillingdon; Hounslow; Kingston-upon-Thames; Lambeth and Southwark; Merton; Newham; Redbridge; Richmond-upon-Thames; Sutton; Waltham Forest; and Wandsworth; and
2. in Kent: Central Kent; East Kent; and North Kent. [SI 2009/3253]

Evidence by means of a video recording in other circumstances than 'special measures' p 230

The second sentence of the last paragraph under this heading ('Where such a recording . . ') is prospectively deleted by the C&JA 2009, s 111.

Child complainants and other witnesses who are children p 230

The reference to 'under seventeen' in the material in the last paragraph under this heading is prospectively amended by C&JA 2009, s 105, so as to read 'under eighteen'.

Proof of convictions and acquittals p 236

At the end of the first paragraph on p 237, delete 'when in force'. [SI 2009/3164]

PACE, ss 73 and 74 are prospectively extended so as to apply to convictions and (s 73 only) acquittals of a court in another EU member state by the C&JA 2009, Sch 17.

Witness anonymity p 238

The provisions of the Criminal Evidence (Witness Anonymity) Act 2008 (CEWAA 2008) referred to in the text have been repealed by the Coroners and Justice Act 2009 (C&JA 2009), Sch 23 and replaced by ss 86-95 of that Act. Those provisions re-enact CEWAA 2008 with some modifications. In consequence the text on pp 238-241 should be amended as follows:

In the first paragraph on p 239 delete the second and third sentences and substitute 'C&JA 2009 (replacing CEWAA 2008) provides for the making of witness anonymity orders in criminal proceedings, giving a court power to order that the identity of a witness is withheld from the accused in such proceedings.'

Change 'Under s 2' in the last sentence of the first paragraph on p 239 to 'Under C&JA 2009, s 86.'

'Nothing in s 3 authorises' at the beginning of the third paragraph on p 239 is replaced by the following words: 'The specification of these measures does not affect the generality of a court's powers to require measures to protect a witness's anonymity. However, the statutory provisions do not authorise'.

In the third paragraph on p 239 change 's 3' to 'CJA 2009, s 87'. Replace 'except as required by subsection 2(a) or 3(a)' at the end of this paragraph with 'except as required by the duty to inform the court (and, where relevant, the prosecutor) of the identity of the witness'.

Substitute for Condition C on p 240:

'Condition C is that the importance of the witness's testimony is such that in the interests of justice the witness ought to testify and-

1. the witness would not testify if the proposed order were not made, or
2. there would be real harm to the public interest if the witness were to testify without the proposed order being made.'

Change 'Section 5' in the line after condition C to 'C&JA 2009, s 89'.

In the first line of (f) on p 241, change 'witness's identity' to 'witness'.

In the first line under the heading Warning the jury, change 's 7' to 'C&JA 2009, s 90.'

Other previous statements of a witness p 250

In (c) in the third paragraph under this heading, the words 'and the complaint was made as soon as could reasonably be expected after the alleged conduct' are deleted by C&JA 2009, s 112.

Condition (d) p 267

In relation to s 103, C&JA 2009, Sch 17 prospectively amends s 103 so as to provide that, where:

1. an accused has been convicted of an offence under the law of any country outside England and Wales ('the previous offence'),
2. the previous offence would constitute an offence under the law of England and Wales ('the corresponding offence') if it were done in England and Wales at the time of the trial for the offence with which the defendant is now charged ('the current offence'),

then for the purpose of determining if the previous offence and the current offence are the same description or category:

1. the previous offence is of the same description as the current offence if the corresponding offence is of that same description, as set out in the penultimate sentence on p 267 of the text;
2. the previous offence is of the same category as the current offence if the current offence and the corresponding offence belong to the same category of offences as prescribed by order (see the last sentence on p 267 and the associated text on pp 267-269).

C&JA 2009, Sch 17 also makes similar provision in respect of a conviction of an offence under a foreign service law which would constitute an offence under the law of England and Wales or a service offence if done in England and Wales by a member of HM forces.

Compulsory disclosure by accused p273

After the words 'on which he intends to rely in his defence' in the tenth line delete '(when the relevant provision is in force). [SI 2008/2712]