PART 29MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE
SECTION 6: LIVE LINK DIRECTIONS
[Note. The rules in Section 2 (general rules) also apply. The rules in this Section do not apply to an application for a special measures direction allowing a witness to give evidence by live link: as to which, see the rules in Section 3 (special measures directions).]
Exercise of court’s powers29.23
The court may decide whether to give or discharge a live link direction—
a
at a hearing, in public or in private, or without a hearing;
b
in a party’s absence, if that party—
i
applied for the direction or discharge, or
ii
has had at least 14 days in which to make representations.
Content of application for a live link direction29.24
An applicant for a live link direction must—
a
unless the court otherwise directs, identify the place from which the witness will give evidence;
b
if that place is in the United Kingdom, explain why it would be in the interests of the efficient or effective administration of justice for the witness to give evidence by live link;
c
if the applicant wants the witness to be accompanied by another person while giving evidence—
i
name that person, if possible, and
ii
explain why it is appropriate for the witness to be accompanied;
d
ask for a hearing, if the applicant wants one, and explain why it is needed.
Application to discharge a live link direction29.25
1
A party who wants the court to discharge a live link direction must—
a
apply in writing, as soon as reasonably practicable after becoming aware of the grounds for doing so; and
b
serve the application on—
i
the court officer, and
ii
each other party.
2
The applicant must—
a
explain what material circumstances have changed since the direction was given;
b
explain why it is in the interests of justice to discharge the direction; and
c
ask for a hearing, if the applicant wants one, and explain why it is needed.
Representations in response29.26
1
This rule applies where a party wants to make representations about—
a
an application for a live link direction;
b
an application for the discharge of such a direction; or
c
a direction or discharge that the court proposes on its own initiative.
2
Such a party must—
a
serve the representations on—
i
the court officer, and
ii
each other party;
b
do so not more than 14 days after, as applicable—
i
service of the application, or
ii
notice of the direction or discharge that the court proposes; and
c
ask for a hearing, if that party wants one, and explain why it is needed.
3
Representations against a direction or discharge must explain, as applicable, why the conditions prescribed by the Criminal Justice Act 1988 or the Criminal Justice Act 2003 are not met.
Summary of eligibility for measures to which this Part applies
Special measures direction
Under section 16 of the Youth Justice and Criminal Evidence Act 1999380, a witness is eligible for the assistance of a special measures direction given under section 19 of that Act if—
a
the witness is under 18; or
b
the witness has—
i
a mental disorder, or a significant impairment of intelligence and social functioning, or
ii
a physical disability or disorder
and the court considers that the completeness, coherence and accuracy (the ‘quality’) of evidence given by the witness is likely to be diminished by reason of those circumstances.
Under section 17 of the 1999381 Act, a witness is eligible for such assistance if—
a
the court is satisfied that the quality of evidence given by the witness is likely to be diminished because of his or her fear or distress in connection with giving evidence, taking account particularly of—
i
the circumstances of the offence,
ii
the witness’ age, social and cultural background, ethnic origins, domestic and employment circumstances, religious beliefs or political opinions,
iii
any behaviour towards the witness on the part of the defendant, the defendant’s family or associates, or any other potential defendant or witness, and
iv
the witness’ own views;
b
the witness is the complainant in respect of a sexual offence, and has not declined such assistance; or
c
the offence is one of a list of offences involving weapons, and the witness has not declined such assistance.
Section 28 of the 1999 Act (video recorded cross-examination or re-examination) is not yet in force. With that exception, all the special measures listed in rule 29.1 potentially are available where the witness is eligible for assistance under section 16 of the Act. Those numbered (i) to (v) are available where the witness is eligible for assistance under section 17.
As a general rule, but with exceptions, the court must give a special measures direction—
a
under section 21 or 22 of the 1999 Act382, where the witness—
i
is under 18, or
ii
was under that age when interviewed
whether or not an application for a direction is made;
b
under section 22A of the 1999 Act383, where an application is made in the Crown Court for the evidence of a witness who is the complainant of a sexual offence to be admitted by means of a video recording of an interview with the witness in the place of examination-in-chief.
Defendant’s evidence direction
Under section 33A of the 1999 Act384, the court can allow a defendant to give evidence by live link, or (when the Coroners and Justice Act 2009 comes into force) under section 33BA385 can allow a defendant to give evidence through an intermediary, if—
a
the defendant—
i
is under 18, and the defendant’s ability to participate effectively as a witness giving oral evidence is compromised by his or her level of intellectual ability or social functioning; or
ii
suffers from a mental disorder or some other significant impairment of intelligence and social functioning and cannot participate effectively as a witness giving oral evidence for that reason;
b
the use of a live link—
i
would enable the defendant to participate more effectively, and
ii
is in the interests of justice;
c
the examination of the defendant through an intermediary is necessary to ensure that the defendant receives a fair trial.
Witness anonymity order
Under section 86 of the Coroners and Justice Act 2009386, a witness anonymity order is an order that specifies measures to be taken to ensure that the identity of a witness is not disclosed, such as withholding the witness’ name from materials disclosed to a party to the proceedings, the use of a pseudonym, the screening of the witness from view, the modulation of the witness’ voice, and the prohibition of questions that might reveal his or her identity. Before making such an order, the court must—
a
be satisfied that three conditions prescribed by the Act are met (section 88 of the 2009 Act); and
b
have regard to considerations specified by the Act (section 89 of the 2009 Act).
Live link direction
Under section 32 of the Criminal Justice Act 1988, the court can allow a witness who is outside the United Kingdom to give evidence by live link—
a
in proceedings in a youth court, or on appeal from such proceedings; or
b
at a trial in the Crown Court, or on appeal from such a trial.
Under section 51 of the Criminal Justice Act 2003, on an application or on its own initiative, the court can allow a witness who is in the United Kingdom, but outside the building in which the proceedings are held, to give evidence by live link. The court must be satisfied that that is in the interests of the efficient or effective administration of justice.
If a witness is eligible for the assistance of a special measures direction (as to which, see the note above), the court can allow the witness to give evidence by live link under sections 19 and 24 of the 1999 Act387. Section 3 of this Part contains relevant rules.