Youth Justice and Criminal Evidence Act 1999

Part I — Referrals to youth offender panels

Referral orders

General interpretation etc. of Part II.

1

The referral conditions

2

Making of referral orders: general

3

Making of referral orders: effect on court’s other sentencing powers

4

Making of referral orders: attendance of parents etc

5

Youth offender panels

Establishment of panels

6

Attendance at panel meetings

7

Youth offender contracts

First meeting: agreement of contract with offender

8

First meeting: duration of contract

9

First meeting: failure to agree contract

10

Progress meetings

11

Final meeting

12

Further court proceedings

Offender referred back to court or convicted while subject to referral order

13

Supplementary

Functions of youth offending teams

14

Interpretation of Part I

15

Part II — Giving of evidence or information for purposes of criminal proceedings

Chapter I — Special measures directions in case of vulnerable and intimidated witnesses

Preliminary

Witnesses eligible for assistance on grounds of age or incapacity

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• (1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—

• (a) if under the age of 18 at the time of the hearing; or

• (b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).

• (2) The circumstances falling within this subsection are—

• (a) that the witness—

• (i) suffers from mental disorder within the meaning of the Mental Health Act 1983, or

• (ii) otherwise has a significant impairment of intelligence and social functioning;

• (b) that the witness has a physical disability or is suffering from a physical disorder.

• (3) In subsection (1)(a) “the time of the hearing”, in relation to a witness, means the time when it falls to the court to make a determination for the purposes of section 19(2) in relation to the witness.

• (4) In determining whether a witness falls within subsection (1)(b) the court must consider any views expressed by the witness.

• (5) In this Chapter 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.

Witnesses eligible for assistance on grounds of fear or distress about testifying

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• (1) For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this subsection if 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.

• (2) In determining whether a witness falls within subsection (1) the court must take into account, in particular—

• (a) the nature and alleged circumstances of the offence to which the proceedings relate;

• (b) the age of the witness;

• (c) such of the following matters as appear to the court to be relevant, namely—

• (i) the social and cultural background and ethnic origins of the witness,

• (ii) the domestic and employment circumstances of the witness, and

• (iii) any religious beliefs or political opinions of the witness;

• (d) any behaviour towards the witness on the part of—

• (i) the accused,

• (ii) members of the family or associates of the accused, or

• (iii) any other person who is likely to be an accused or a witness in the proceedings.

• (3) In determining that question the court must in addition consider any views expressed by the witness.

• (4) Where the complainant in respect of a sexual offence or an offence under section 1 or 2 of the Modern Slavery Act 2015 an offence listed in subsection (4A) is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness’ wish not to be so eligible by virtue of this subsection.

• (4A) The offences are—

• (a) a sexual offence;

• (b) an offence under section 1 or 2 of the Modern Slavery Act 2015;

• (c) any other offence where it is alleged that the behaviour of the accused amounted to domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act).

• (5) 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 by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.

• (6) For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.

• (7) The Secretary of State may by order amend Schedule 1A.

Special measures available to eligible witnesses

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• (1) For the purposes of this Chapter—

• (a) the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and

• (b) the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17;

but this subsection has effect subject to subsection (2).

• (2) Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless—

• (a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and

• (b) the notice has not been withdrawn.

• (3) In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.

• (4) The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness’s evidence has been made by the court before the notice is withdrawn.

• (5) The Secretary of State may by order make such amendments of this Chapter as he considers appropriate for altering the special measures which, in accordance with subsection (1)(a) or (b), are available in relation to a witness eligible for assistance by virtue of section 16 or (as the case may be) section 17, whether—

• (a) by modifying the provisions relating to any measure for the time being available in relation to such a witness,

• (b) by the addition—

• (i) (with or without modifications) of any measure which is for the time being available in relation to a witness eligible for assistance by virtue of the other of those sections, or

• (ii) of any new measure, or

• (c) by the removal of any measure.

Special measures directions

Special measures direction relating to eligible witness

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• (1) This section applies where in any criminal proceedings—

• (a) a party to the proceedings makes an application for the court to give a direction under this section in relation to a witness in the proceedings other than the accused, or

• (b) the court of its own motion raises the issue whether such a direction should be given.

• (2) Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court must then—

• (a) determine whether any of the special measures available in relation to the witness (or any combination of them) would, in its opinion, be likely to improve the quality of evidence given by the witness; and

• (b) if so—

• (i) determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far as practicable the quality of such evidence; and

• (ii) give a direction under this section providing for the measure or measures so determined to apply to evidence given by the witness.

• (3) In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court 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) 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.

• (5) In this Chapter “special measures direction” means a direction under this section.

• (6) Nothing in this Chapter is to be regarded as affecting any power of a court to make an order or give leave of any description (in the exercise of its inherent jurisdiction or otherwise)—

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

• (b) in relation to an eligible witness where (as, for example, in a case where a foreign language interpreter is to be provided) the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness.

Further provisions about directions: general

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• (1) Subject to subsection (221.) and section 21(8), a special measures direction has binding effect from the time it is made until the proceedings for the purposes of which it is made are either—

• (a) determined (by acquittal, conviction or otherwise), or

• (b) abandoned,

in relation to the accused or (if there is more than one) in relation to each of the accused.

• (2) The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so, and may do so either—

• (a) on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

• (b) of its own motion.

• (3) In subsection (2) “the relevant time” means—

• (a) the time when the direction was given, or

• (b) if a previous application has been made under that subsection, the time when the application (or last application) was made.

• (4) Nothing in section 24(2) and (3), 27(4) to (7) or 28(4) to (6) is to be regarded as affecting the power of the court to vary or discharge a special measures direction under subsection (2).

• (5) The court must state in open court its reasons for—

• (a) giving or varying,

• (b) refusing an application for, or for the variation or discharge of, or

• (c) discharging,

a special measures direction and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings.

• (6) Criminal Procedure Rules may make provision—

• (a) for uncontested applications to be determined by the court without a hearing;

• (b) for preventing the renewal of an unsuccessful application for a special measures direction except where there has been a material change of circumstances;

• (c) for expert evidence to be given in connection with an application for, or for varying or discharging, such a direction;

• (d) for the manner in which confidential or sensitive information is to be treated in connection with such an application and in particular as to its being disclosed to, or withheld from, a party to the proceedings.

Special provisions relating to child witnesses

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• (1) For the purposes of this section—

• (a) a witness in criminal proceedings is a “child witness” if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

• (c) 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.

• (2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must—

• (a) first have regard to subsections (3) to (4C) below; and

• (b) then have regard to section 19(2);

and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.

• (3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—

• (a) it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief); and

• (b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 24.

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

• (a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

• (b) the requirement contained in subsection (3)(a) also has effect subject to section 27(2); ...

• (ba) if the witness informs the court of the witness's wish that the rule should not apply or should apply only in part, the 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; and

• (c) the rule does not apply to the extent that the court is satisfied that compliance with it 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).

• (4A) Where as a consequence of all or part of the primary rule being disapplied under subsection (4)(ba) 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 such provision as is described in section 23 for the evidence or that part of it.

• (4B) The requirement in subsection (4A) is subject to the following limitations—

• (a) if the witness informs the court of the witness's wish that the requirement in subsection (4A) should not apply, the requirement does 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

• (b) 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).

• (4C) In making a decision under subsection (4)(ba) or (4B)(a), the court 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 subsection (3) or (as the case may be) in accordance with the requirement in subsection (4A);

• (c) the relationship (if any) between the witness and the accused;

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

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

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then—

• (a) subject to subsection (9) 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.

• (9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and—

• (a) the direction provides—

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

• (ii) for the special measure available under section 28 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,