The Armed Forces (Service Court Rules) (Amendment) Rules 2022

Amendments to Court Martial rules

11.  After rule 93 (special measures direction relating to eligible witness) insert—

“Special provisions relating to a child witness

93A.—(1) Where the judge advocate is considering giving a special measures direction under rule 93(1) in relation to a child witness, the judge advocate must—

(a)first have regards to paragraphs (2) to (6) below; and

(b)then have regard to rule 93(1);

and if the judge advocate is required by paragraphs (2) to (6) to give such a direction, any special measure which must be provided for in the direction under paragraph (2) or (4) is to be treated for the purposes of rule 93(1)(b), as it then applies to the witness, as one which is likely to improve the quality of evidence given by the witness (whether on its own or in combination with any other special measure).

(2) The primary rule in the case of a child witness is that the judge advocate must give a special measures direction in relation to the witness which provides for any relevant recording to be admitted under section 27 of the 1999 Act (video recorded evidence in chief).

(3) The primary rule is subject to the following limitations—

(a)the requirement contained in paragraph (2) has effect subject to rule 95(1);

(b)if the witness informs the judge advocate of the witness’s wish that the primary rule should not apply or should apply only in part, the rule does not apply to the extent that the judge advocate 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 judge advocate is satisfied that compliance with it would not be likely to improve the quality of the witness’s evidence (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).

(4) Where as a consequence of all or part of the primary rule being disapplied under paragraph (3)(b) a witness’s evidence or any part of it would fall to be given as testimony in court, the judge advocate must give a special measures direction making such provision as is described in section 23 of the 1999 Act (screening witness from the accused) for the evidence or that part of it.

(5) The requirement in paragraph (4) is subject to the following limitations—

(a)if the witness informs the judge advocate of the witness’s wish that the requirement in paragraph (4) should not apply, the requirement does not apply to the extent that the judge advocate 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 judge advocate is satisfied that making such a provision would not be likely to improve the quality of the witness’s evidence (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).

(6) In making a decision under paragraph (3)(b) or (5)(a), the judge advocate 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 paragraph (2) or (as the case may be) in accordance with the requirements in paragraph (4);

(c)the relationship (if any) between the witness and the defendant;

(d)the witness’s social and cultural background and ethnic origins;

(e)the nature of the alleged circumstances of the offence to which the proceedings relate.

(7) Where a special measures direction is given in relation to a child witness who is not also an eligible witness in accordance with rule 90(2), then—

(a)subject to paragraph (8) 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 18.

(8) Where a special measures direction is given in relation to a child witness who is not also an eligible witness in accordance with rule 90(2) and—

(a)the direction provides—

(i)for any relevant recording to be admitted under section 27 of the 1999 Act as evidence in chief of the witness; or

(ii)for the special measure available under section 28 of the 1999 Act (video recorded cross-examination or re-examination) 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 18 when the video recording is made for the purposes of section 28;

then, so far as it provides as mentioned in sub-paragraph (a)(i) or (ii) above, the direction shall continue to have effect even though the witness subsequently attains that age.

(9) In this rule—

(a)a witness is a “child witness” if the witness is an eligible witness by reason of rule 90(1) (whether or not the witness is an eligible witness by reason of any other provision of rule 90 or 91); and

(b)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.

Extension of provisions of rule 93A to certain witnesses over 18

93B.—(1) Rule 93(1) and 93A(1) to (3) and (6), so far as relating to the giving of a direction complying with the requirement contained in rule 93A(2), apply to a qualifying witness in respect of a relevant recording made in relation to the witness, as they apply to a child witness (within the meaning of rule 93A).

(2) In this rule—

(a)a witness (other than the defendant) is a “qualifying witness” if the witness—

(i)is not an eligible witness, but

(ii)was under the age of 18 when the relevant recording was made in relation to the witness; and

(b)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.

Special provisions relating to sexual offences

93C.—(1) This rule applies where in proceedings relating to a sexual offence or an offence of human trafficking for sexual exploitation (or to such an offence and other offences) the complainant in respect of that offence is a witness in the proceedings.

(2) This rule does not apply if the offence is a summary offence.

(3) This rule does not apply if the complainant is an eligible witness by reason of rule 90(1) (whether or not the complainant is an eligible witness by reason of any other provision of rule 90 or 91).

(4) If a party to the proceedings makes an application 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 of the 1999 Act (video recorded evidence in chief).

(5) Paragraph (6) applies if—

(a)a party to the proceedings makes a request under paragraph (4) with respect to the complainant; and

(b)the judge advocate determines for the purposes of rule 93(1) that the complainant is eligible for assistance by virtue of rule 90(2) or 91.

(6) The judge advocate must —

(a)first have regard to paragraphs (7) to (9); and

(b)then have regard to rule 93(1);

and if the judge advocate is required by paragraphs (7) to (9) to give such a direction, any special measure which must be provided for in the direction under paragraph (2) is to be treated for the purposes of rule 93(1)(b), as it then applies to the witness, as one which is likely to improve the quality of evidence given by the witness (whether on its own or in combination with any other special measure).

(7) The judge advocate must give a special measures direction in relation to the complainant that provides for any relevant recording to be admitted under section 27 of the 1999 Act.

(8) The requirement in paragraph (7) has effect subject to rule 95(1).

(9) The requirement in paragraph (7) does not apply to the extent that the judge advocate is satisfied that compliance with it would not be likely to improve the quality of the complainant’s evidence (whether because the application to that evidence or one or more other special measures available in relation to the complainant would have that result or for any other reason).

(10) In this rule—

(a)an “offence of human trafficking for sexual exploitation” is an offence under section 42 (criminal conduct) as respects which the corresponding offence under the law of England and Wales is—

(i)an offence under section 2 of the Modern Slavery Act 2015 (human trafficking)(1) committed with a view to exploitation that includes behaviour within section 3(3) of that Act (meaning of exploitation);

(ii)an offence of attempting or conspiring to commit an offence mentioned in sub-paragraph (i); or

(iii)an offence under Part 2 of the Serious Crime Act 2007 where the offence (or one of the offences) which the offender intended or believed would be committed is an offence mentioned in sub-paragraph (i);

(b)a sexual offence or offence of human trafficking for sexual exploitation is a summary offence if the corresponding offence in respect of that offence for the purposes of section 42 is a summary offence under the law of England and Wales;

(c)a “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.”.