The Armed Forces (Court Martial) Rules 2009

CHAPTER 6U.K.Special measures directions

Interpretation of Chapter 6U.K.

89.—(1) In this Chapter—

“eligible witness” means a witness eligible for assistance by virtue of rule 90 or 91;

“intermediary” has the same meaning as in section 29 of the 1999 Act;

[F1“modern slavery offence” means an offence under section 42 as respects which the corresponding offence under the law of England and Wales is—

“sexual offence” means an offence under section 42 as respects which the corresponding offence under the law of England and Wales is—

“special measures direction” means a direction providing for one or more of the special measures available in relation to a witness to apply to evidence given by the witness;

“the special measures provisions” means the provisions of Chapter 1 of Part 2 of the 1999 Act applied by an order under section 61(1) of that Act.

(2) In this Chapter—

(a)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); and

(b)references to the special measures available in relation to a witness are to be construed in accordance with rule 92.

Witnesses eligible for assistance on grounds of age or incapacityU.K.

90.—(1) A witness is eligible for assistance by virtue of this rule if the witness is under the age of 18 at the time when it falls to the judge advocate to consider whether to give a special measures direction in relation to the witness.

(2) A witness is also eligible for assistance by virtue of this rule if the judge advocate considers that the quality of evidence given by the witness is likely to be diminished because the witness—

(a)suffers from mental disorder within the meaning of the Mental Health Act 1983 M2;

(b)otherwise has a significant impairment of intelligence and social functioning; or

(c)has a physical disability or is suffering from a physical disorder.

Witnesses eligible for assistance on grounds of fear or distress about testifyingU.K.

91.—(1) A witness (other than a defendant) is eligible for assistance by virtue of this rule if the judge advocate 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) A witness is also eligible for assistance by virtue of this rule if—

[F3(a)the proceedings are in respect of—

(i)a sexual offence;

(ii)a modern slavery offence; or

(iii)any other offence where it is alleged that the behaviour of the defendant amounted to domestic abuse];

(b)the witness is a complainant in respect of that offence; and

(c)the witness has not informed the court of the witness's wish not to be so eligible.

Special measures availableU.K.

92.—(1) Where a witness (other than a defendant) is eligible for assistance by virtue of rule 90, the special measures available in relation to him are those for which provision is made by sections 23 [F4and 25 to 30] of the 1999 Act.

(2) Where a witness is eligible for assistance by virtue of rule 91, the special measures available in relation to him are those for which provision is made by sections 23 and [F525 to 28] of that Act.

(3) Where a defendant is eligible for assistance by virtue of rule 90, the special measures available in relation to him are those for which provision is made by sections 29 and 30 of that Act.

[F6(4) In a domestic abuse case a special measure for which provision is made by any of sections 23 and 25 to 28 of the 1999 Act is only available under paragraph (2) if section 62 of the Domestic Abuse Act 2021 (special measures in criminal proceedings for offences involving domestic abuse) is in force for the purposes of that section of the 1999 Act.

(5) In this rule “domestic abuse case” means proceedings falling within rule 91(2)(a) by virtue only of paragraph (iii) of that sub-paragraph.]

Special measures direction relating to eligible witnessU.K.

93.—(1) Subject to the special measures provisions and this Chapter, a judge advocate may give a special measures direction in relation to a witness if—

(a)the witness is an eligible witness; and

(b)any of the special measures available in relation to the witness (or any combination of them) would, in the judge advocate's opinion, be likely to improve the quality of evidence given by the witness.

(2) 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.

(3) In determining whether any special measure or measures would be likely to improve the quality of evidence given by the witness, and if so whether to give a direction providing for the measure or measures to apply, a judge advocate 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) Where there are two or more defendants—

(a)any reference to the defendant in the special measures provisions may be taken, in connection with the giving of a special measures direction, as a reference to all or any of the defendants, as the judge advocate may determine; and

(b)any such direction may be given on the basis of any such determination.

(5) A special measures direction may provide for one or more special measures to apply in combination with a direction under rule 18 (live links), and for the purposes of this Chapter a measure would be likely to improve the quality of the witness's evidence if, were it combined with such a direction, it would be likely to do so.

(6) A judge advocate may give a special measures direction—

(a)on an application made by a party to the proceedings; or

(b)of the judge advocate's own motion.

(7) A judge advocate who gives, or refuses an application for, a special measures direction must state in open court his reasons for doing so.

(8) Nothing in this Chapter is to be regarded as affecting any power of the court or a judge advocate to make an order or give leave of any description—

(a)in relation to a witness who is not an eligible witness; or

(b)in relation to an eligible witness, where the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness.

[F7Special provisions relating to a child witnessU.K.

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 18U.K.

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 offencesU.K.

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) 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.]

Evidence given in privateU.K.

94.  A special measures direction may not provide for the exclusion of persons under section 25 of the 1999 Act unless—

[F8(a)the proceedings are in respect of—

(i)a sexual offence,

(ii)a modern slavery offence, or

(iii)any other offence where it is alleged that the behaviour of the defendant amounted to domestic abuse]; or

(b)it appears to the judge advocate that there are reasonable grounds for believing that any person other than a defendant has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.

Video recorded evidence in chiefU.K.

95.—(1) A special measures direction may not provide for a video recording, or a part of such a recording, to be admitted under section 27 of the 1999 Act if the judge advocate 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.

(2) In considering for the purposes of paragraph (1) whether any part of a recording should not be so admitted, the judge advocate must consider whether any prejudice to a defendant 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.

(3) Where a special measures direction provides for a recording to be admitted under section 27 of the 1999 Act, the judge advocate may nevertheless subsequently direct that it is not to be so admitted if—

(a)it appears to the judge advocate 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)rule 98 has not been complied with to the satisfaction of the judge advocate.

(4) Paragraph (3) is without prejudice to rule 99 (power to vary or discharge special measures direction).

(5) Where a recording is admitted under section 27 of the 1999 Act—

[F9(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 in any recording admissible under section 28 of the 1999 Act (video recorded cross-examination or re-examination), or

(ii)the parties to the proceedings have agreed that there is no need for the witness to be called; 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 judge advocate, has been dealt with adequately in the witness's recorded testimony; or

(ii)without the leave of the judge advocate, as to any other matter which, in the opinion of the judge advocate, is dealt with in that testimony.

(6) Where a special measures direction provides for part only of a recording to be admitted under section 27 of the 1999 Act, references in paragraphs (3) and (4) 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 judge advocate may give leave for the purposes of paragraph (5)(b)(ii) if it appears to him 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; or

(b)of his own motion.

[F10Video recorded cross-examination or re-examinationU.K.

95A.—(1) Where a special measures direction provides for a video recording to be admitted under section 28 of the 1999 Act (video recorded cross-examination or re-examination), such a recording must be made in the presence of such persons as the direction may provide and in the absence of the defendant, but in circumstances in which—

(a)the judge advocate and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made; and

(b)the defendant is able to see and hear any such examination and to communicate with any legal representative acting for the defendant (and for this purpose any impairment of eyesight or hearing is to be disregarded).

(2) Where two or more legal representatives are acting for a party to the proceedings, paragraph (1)(a) and (b) are to be regarded as satisfied in relation to those representatives if at all material times they are satisfied in relation to at least one of them.

(3) Where a special measures direction provides for a recording to be admitted under section 28 of the 1999 Act, the judge advocate may nevertheless subsequently direct that it is not to be so admitted if any requirement of paragraph (1), these Rules or the direction has not been complied with to the satisfaction of the judge advocate.

(4) Where in pursuance of section 28(1) of the 1999 Act a recording has been made of any examination of the witness, the witness may not be subsequently cross-examined or re-examined in respect of any evidence given by the witness in the proceedings (whether in any recording admissible under section 27 (video recorded examination in chief) or 28 of the 1999 Act or otherwise than in such a recording) unless the judge advocate gives a further special measures direction making such provision as is mentioned in section 28(1)(a) and (b) of the 1999 Act in relation to any subsequent cross-examination, and re-examination, of the witness.

(5) The judge advocate may only give such a further direction if it appears to the judge advocate—

(a)that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of section 28(1) of the 1999 Act, of a matter which that party could not with reasonable diligence have ascertained by then; or

(b)that for any other reason it is in the interests of justice to give further direction.

(6) Nothing in this rule shall be read as applying in relation to any cross-examination of the witness by the defendant in person (in a case where the defendant is to be able to conduct any such cross-examination).]

Examination of witness through intermediaryU.K.

96.—(1) Any examination of a witness conducted in pursuance of a provision included in a special measures direction by virtue of section 29(1) of the 1999 Act (examination of witness through intermediary) must take place—

(a)in the presence of such persons as the direction may provide; and

(b)in circumstances in which the members of the court, and legal representatives acting in the proceedings, are able to see and hear the examination of the witness and to communicate with the intermediary (and for this purpose any impairment of eyesight or hearing is to be disregarded).

(2) Where two or more legal representatives are acting for a party to the proceedings, paragraph (1)(b) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them.

(3) Before an intermediary begins to act, he shall make a declaration in the following form:

“I solemnly, sincerely and truly declare that I will well and faithfully communicate the questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.”

(4) In this rule “the intermediary” has the same meaning as in section 29 of the 1999 Act.

Application for special measures direction: generalU.K.

97.—(1) An application for a special measures direction must be made in writing to the court administration officer, unless a judge advocate gives leave for it to be made orally.

(2) A written application must specify—

(a)unless the application is made by a defendant and does not relate to evidence in support of an alibi, the name and date of birth of the witness in relation to whom it is made;

(b)the special measure or measures sought;

(c)where the application is for a direction including provision by virtue of section 27 of the 1999 Act (video recorded evidence in chief), the information mentioned in rule 98(4);

(d)the grounds on which the applicant asserts—

(i)that the witness is an eligible witness; and

(ii)that the measure or measures will improve the quality of the witness's evidence; and

(e)the views of the witness as to the matters specified in accordance with sub-paragraph (d).

(3) In paragraph (2)(a) “evidence in support of an alibi” has the same meaning as in article 7 of the CPIA Order.

(4) A written application must be made, and a copy served on all other parties to the proceedings—

(a)where the application is made by the Director, not more than 14 days after the Director serves advance information in respect of the charge to which the proposed evidence relates;

(b)where the application is made by a defendant, not more than 14 days after the Director complies or purports to comply with article 4 of the CPIA Order.

(5) Notwithstanding paragraph (4), a judge advocate may at his discretion consider a written application made outside the period of 14 days there mentioned.

(6) Where a written application has been made, a judge advocate may—

(a)grant the application without a hearing; or

(b)direct a hearing.

(7) But the application may not be granted without a hearing unless—

(a)at least 14 days have elapsed since the application was served on each other party to the proceedings, and

(b)no other party has served notice on the court administration officer that he opposes the application.

(8) Any party to the proceedings—

(a)may attend a hearing of the application, and be heard;

(b)may, with leave of the judge advocate, adduce evidence (including expert evidence) at the hearing.

Application for special measures direction permitting admission of video recorded evidence in chiefU.K.

98.—(1) This rule applies where an application is made for a special measures direction including provision by virtue of section 27 of the 1999 Act.

(2) The application must be accompanied by a copy of the video recording which (or part of which) it is proposed to tender in evidence.

(3) Where the application is made by the Director, he must at the same time serve on each defendant a copy of that recording.

(4) The application must include the following information—

(a)the date on which the recording was made;

(b)the times at which the recording commenced and finished, including details of any interruptions;

(c)the address of the premises where the recording was made, and the usual function of those premises;

(d)in relation to each person present at any point during, or immediately before, the recording—

(i)the name, age and occupation of the person;

(ii)the time for which he was present; and

(iii)his relationship (if any) to the witness;

(e)in relation to the equipment used for the recording—

(i)a description of the equipment;

(ii)the number of cameras used;

(iii)whether the cameras were fixed or mobile;

(iv)the number and location of the microphones;

(v)the video format used; and

(vi)whether it offered single or multiple recording facilities and, if so, which were used; and

(f)if the recording is a copy—

(i)the location of the master recording; and

(ii)details of when and by whom the copy was made.

(5) Where the applicant is a defendant and the application is granted, the applicant must, not later than the close of the case for the prosecution, serve on each other party to the proceedings a copy of the video recording which (or part of which) it is proposed to tender in evidence under the direction.

Variation or discharge of special measures directionU.K.

99.—(1) A judge advocate may vary or discharge a special measures direction if it appears to him to be in the interests of justice to do so.

(2) A judge advocate may exercise the power conferred by paragraph (1)—

(a)on an application made by a party to the proceedings; or

(b)of the judge advocate's own motion.

(3) An application under this rule must be made in writing to the court administration officer, unless—

(a)a judge advocate gives leave for it to be made orally; or

(b)paragraph (8) applies.

(4) A copy of a written application under this rule must be served on each other party to the proceedings.

(5) Where a written application has been made under this rule, a judge advocate may—

(a)grant the application without a hearing; or

(b)direct a hearing.

(6) But the application may not be granted without a hearing unless—

(a)at least 14 days have elapsed since the application was served on each other party to the proceedings; and

(b)no other party has served notice on the court administration officer that he opposes the application.

(7) Rule 97(8) applies in relation to a hearing of the application as it applies in relation to a hearing of an application for a special measures direction.

(8) Where the direction was made on the application of a defendant and includes provision for the admission of a video recording which had not been served on the Director, the Director may make an oral application without leave.

(9) A judge advocate who varies or discharges, or refuses an application for the variation or discharge of, a special measures direction must state in open court his reasons for doing so.

(10) In this rule, references to the variation of a special measures direction include the further variation of a direction previously varied.

Warning to lay membersU.K.

100.  Where in proceedings with lay members evidence has been given in accordance with a special measures direction, the judge advocate must give the lay members such warning (if any) as he considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice any defendant.