Coroners and Justice Act 2009

• (1) The Suicide Act 1961 (c. 60) is amended as follows.

• (2) In section 2 (criminal liability for complicity in another's suicide), for subsection (1) substitute—

(1) A person (“D”) commits an offence if— (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. (1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D. (1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs. (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.

• (3) In subsection (2) of that section, for “it” to the end substitute “ of a person it is proved that the deceased person committed suicide, and the accused committed an offence under subsection (1) in relation to that suicide, the jury may find the accused guilty of the offence under subsection (1). ”

• (4) After that section insert—

(2A) (1) If D arranges for a person (“D2”) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of this Act as having done it. (2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of this Act it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both). (3) A reference in this Act to a person (“P”) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide. (2B) A reference in this Act to an act includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.

Encouraging or assisting suicide (Northern Ireland)

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• (1) The Criminal Justice Act (Northern Ireland) 1966 (c. 20) is amended as follows.

• (2) In section 13 (criminal liability for complicity in another's suicide), for subsection (1) substitute—

(1) A person (“D”) commits an offence if— (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. (1A) The person referred to in subsection (1)(a) need not be a specific person (or class of persons) known to, or identified by, D. (1B) D may commit an offence under this section whether or not a suicide, or an attempt at suicide, occurs. (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.

• (3) In subsection (2) of that section, for “it” to the end substitute “ of a person it is proved that the deceased person committed suicide, and the person charged committed an offence under subsection (1) in relation to that suicide, the jury may find the person charged guilty of the offence under subsection (1). ”

• (4) After that section insert—

(13A) (1) If D arranges for a person (“D2”) to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated for the purposes of section 13 as having done it. (2) Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of section 13 and this section it is to be treated as so capable if the act would have been so capable had the facts been as D believed them to be at the time of the act or had subsequent events happened in the manner D believed they would happen (or both). (3) A reference in section 13 or this section to a person (“P”) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide. (13B) A reference in section 13 or 13A to an act includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.

Encouraging or assisting suicide: information society services

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Schedule 12 makes special provision in connection with the operation of section 2 of the Suicide Act 1961 (c. 60) and section 13 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) in relation to persons providing information society services within the meaning of that Schedule.

Chapter 2 — Images of children

Prohibited images

Possession of prohibited images of children

62

• (1) It is an offence for a person to be in possession of a prohibited image of a child.

• (2) A prohibited image is an image which—

• (a) is pornographic,

• (b) falls within subsection (6), and

• (c) is grossly offensive, disgusting or otherwise of an obscene character.

• (3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

• (4) Where (as found in the person's possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—

• (a) the image itself, and

• (b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.

• (5) So, for example, where—

• (a) an image forms an integral part of a narrative constituted by a series of images, and

• (b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

• (6) An image falls within this subsection if it—

• (a) is an image which focuses solely or principally on a child's genitals or anal region, or

• (b) portrays any of the acts mentioned in subsection (7).

• (7) Those acts are—

• (a) the performance by a person of an act of intercourse or oral sex with or in the presence of a child;

• (b) an act of masturbation by, of, involving or in the presence of a child;

• (c) an act which involves penetration of the vagina or anus of a child with a part of a person's body or with anything else;

• (d) an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person's body or with anything else;

• (e) the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);

• (f) the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

• (8) For the purposes of subsection (7), penetration is a continuing act from entry to withdrawal.

• (9) Proceedings for an offence under subsection (1) may not be instituted—

• (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;

• (b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Exclusion of classified film etc

63

• (1) Section 62(1) does not apply to excluded images.

• (2) An “excluded image” is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

• (3) But such an image is not an “excluded image” if—

• (a) it is contained in a recording of an extract from a classified work, and

• (b) it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

• (4) Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in subsection (3)(b) is to be determined by reference to—

• (a) the image itself, and

• (b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images;

and section 62(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

• (5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable to—

• (a) a defect caused for technical reasons or by inadvertence on the part of any person, or

• (b) the inclusion in the recording of any extraneous material (such as advertisements),

is to be disregarded.

• (6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 62 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

• (7) In this section—

• “classified work” means (subject to subsection (8)) a video work in respect of which a classification certificate has been issued by a designated authority (whether before or after the commencement of this section);

• “classification certificate” and “video work” have the same meaning as in the Video Recordings Act 1984 (c. 39);

• “designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act;

• “extract” includes an extract consisting of a single image;

• “pornographic” has the same meaning as in section 62;

• “recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

• (8) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.

Defences

64

• (1) Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—

• (a) that the person had a legitimate reason for being in possession of the image concerned;

• (b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;

• (c) that the person—

• (i) was sent the image concerned without any prior request having been made by or on behalf of the person, and

• (ii) did not keep it for an unreasonable time.

• (2) In this section “prohibited image” has the same meaning as in section 62.

Meaning of “image” and “child”

65

• (1) The following apply for the purposes of sections 62 to 64.

• (2) “Image” includes—

• (a) a moving or still image (produced by any means), or

• (b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

• (3) “Image” does not include an indecent photograph, or indecent pseudo-photograph, of a child.

• (4) In subsection (3) “indecent photograph” and “indecent pseudo-photograph” are to be construed—

• (a) in relation to England and Wales, in accordance with the Protection of Children Act 1978 (c. 37), and

• (b) in relation to Northern Ireland, in accordance with the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)).

• (5) “Child”, subject to subsection (6), means a person under the age of 18.

• (6) Where an image shows a person the image is to be treated as an image of a child if—

• (a) the impression conveyed by the image is that the person shown is a child, or

• (b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

• (7) References to an image of a person include references to an image of an imaginary person.

• (8) References to an image of a child include references to an image of an imaginary child.

Penalties

66

• (1) This section has effect where a person is guilty of an offence under section 62(1).

• (2) The offender is liable—

• (a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

• (b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine, or both.

• (3) “The relevant period” means—

• (a) in relation to England and Wales, the general limit in a magistrates’ court;

• (b) in relation to Northern Ireland, 6 months.

Entry, search, seizure and forfeiture

67

• (1) The following provisions of the Protection of Children Act 1978 (c. 37) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Act)—

• (a) section 4 (entry, search and seizure);

• (b) the Schedule (forfeiture of photographs).

• (2) The following provisions of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Order)—

• (a) Article 4 (entry, search and seizure);

• (b) the Schedule (forfeiture of photographs).

• (3) In this section “prohibited image of a child” means a prohibited image of a child to which section 62(1) applies.

Special rules relating to providers of information society services

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Schedule 13 makes special provision in connection with the operation of section 62(1) in relation to persons providing information society services within the meaning of that Schedule.

Indecent pseudo-photographs of children

Indecent pseudo-photographs of children: marriage etc

69

• (1) In section 1A of the Protection of Children Act 1978 (c. 37) (making of indecent photograph of child etc: marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

• (2) In section 160A of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child etc: marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

• (3) In Article 15A of the Criminal Justice (Evidence, etc) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

• (4) In Article 3B of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (marriage and other relationships), after “photograph”, in each place it occurs, insert “ or pseudo-photograph ”.

Chapter 3 — Other offences

Genocide, crimes against humanity and war crimes

70

• (1) The International Criminal Court Act 2001 (c. 17) is amended as follows.

• (2) In sections 53 and 60 (trial and punishment of main offences), after subsection (6) add—

(7) Subsections (5) and (6) are subject to section 65B (restriction of penalties in relation to retrospective application of certain offences).

• (3) After section 65 insert—

(65A) (1) Sections 51 and 58 apply to acts committed on or after 1 January 1991. (2) But those sections do not apply to a crime against humanity, or a war crime within article 8.2(b) or (e), committed by a person before 1 September 2001 unless, at the time the act constituting that crime was committed, the act amounted in the circumstances to a criminal offence under international law. (3) Section 52 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of England and Wales but for this section. (4) Section 59 applies to conduct in which a person engaged on or after 1 January 1991, and in subsections (2) and (3) of that section references to an offence include an act or conduct which would not constitute an offence under the law of Northern Ireland but for this section. (5) Any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence— (a) applies to conduct in which a person engaged on or after 1 January 1991, and (b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section. (6) But sections 52 and 59, and any enactment or rule of law relating to an offence ancillary to a relevant Part 5 offence, do not apply to— (a) conduct in which the person engaged before 1 September 2001, or (b) conduct in which the person engaged on or after that date which was ancillary to an act or conduct which— (i) was committed or engaged in before that date, and (ii) would not constitute a relevant Part 5 offence, or fall within section 52(2) or 59(2), but for this section, unless, at the time the person engaged in the conduct, it amounted in the circumstances to a criminal offence under international law. (7) Section 65, so far as it has effect in relation to relevant Part 5 offences— (a) applies to failures to exercise control of the kind mentioned in section 65(2) or (3) which occurred on or after 1 January 1991, and (b) applies even if the act or conduct constituting the relevant Part 5 offence would not constitute such an offence but for this section. (8) But section 65, so far as it has effect in relation to relevant Part 5 offences, does not apply to a failure to exercise control of the kind mentioned in section 65(2) or (3) which occurred before 1 September 2001 unless, at the time the failure occurred, it amounted in the circumstances to a criminal offence under international law. (9) In this section “relevant Part 5 offence” means an offence under section 51, 52, 58 or 59 or an offence ancillary to such an offence. (65B) (1) In the case of a pre-existing E&W offence committed before 1 September 2001, in section 53(6) “30 years” is to be read as “14 years”. (2) In the case of an offence of the kind mentioned in section 55(1)(d) which is ancillary to a pre-existing E&W offence committed before 1 September 2001, nothing in section 53(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act 1967. (3) In the case of a pre-existing NI offence committed before 1 September 2001, in section 60(6) “30 years” is to be read as “14 years”. (4) In the case of an offence of the kind mentioned in section 62(1)(d) which is ancillary to a pre-existing NI offence committed before 1 September 2001, nothing in section 60(5) and (6) disapplies the penalties provided for in sections 4 and 5 of the Criminal Law Act (Northern Ireland) 1967. (5) In this section— - “pre-existing E&W offence” means— 1. an offence under section 51 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969; 2. an offence under section 51 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions); 3. an offence of a kind mentioned in section 55(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above; - “pre-existing NI offence” means— 1. an offence under section 58 on account of an act constituting genocide, if at the time the act was committed it also amounted to an offence under section 1 of the Genocide Act 1969; 2. an offence under section 58 on account of an act constituting a war crime, if at the time the act was committed it also amounted to an offence under section 1 of the Geneva Conventions Act 1957 (grave breaches of the Conventions); 3. an offence of a kind mentioned in section 62(1)(a) to (c) which is ancillary to an offence within paragraph (a) or (b) above.

• (4) After section 67 insert—

(67A) (1) To the extent that it would not otherwise be the case, the following individuals are to be treated for the purposes of this Part as being resident in the United Kingdom— (a) an individual who has indefinite leave to remain in the United Kingdom; (b) any other individual who has made an application for such leave (whether or not it has been determined) and who is in the United Kingdom; (c) an individual who has leave to enter or remain in the United Kingdom for the purposes of work or study and who is in the United Kingdom; (d) an individual who has made an asylum claim, or a human rights claim, which has been granted; (e) any other individual who has made an asylum claim or human rights claim (whether or not the claim has been determined) and who is in the United Kingdom; (f) an individual named in an application for indefinite leave to remain, an asylum claim or a human rights claim as a dependant of the individual making the application or claim if— (i) the application or claim has been granted, or (ii) the named individual is in the United Kingdom (whether or not the application or claim has been determined); (g) an individual who would be liable to removal or deportation from the United Kingdom but cannot be removed or deported because of section 6 of the Human Rights Act 1998 or for practical reasons; (h) an individual— (i) against whom a decision to make a deportation order under section 5(1) of the Immigration Act 1971 by virtue of section 3(5)(a) of that Act (deportation conducive to the public good) has been made, (ii) who has appealed against the decision to make the order (whether or not the appeal has been determined), and (iii) who is in the United Kingdom; (i) an individual who is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 or who is liable to removal under section 10 of the Immigration and Asylum Act 1999; (j) an individual who is detained in lawful custody in the United Kingdom. (2) When determining for the purposes of this Part whether any other individual is resident in the United Kingdom regard is to be had to all relevant considerations including— (a) the periods during which the individual has been or intends to be in the United Kingdom, (b) the purposes for which the individual is, has been or intends to be in the United Kingdom, (c) whether the individual has family or other connections to the United Kingdom and the nature of those connections, and (d) whether the individual has an interest in residential property located in the United Kingdom. (3) In this section— - “asylum claim” means— 1. a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention for the claimant to be removed from, or required to leave, the United Kingdom, or 2. a claim that the claimant would face a real risk of serious harm if removed from the United Kingdom; - “Convention rights” means the rights identified as Convention rights by section 1 of the Human Rights Act 1998; - “detained in lawful custody” means— 1. detained in pursuance of a sentence of imprisonment, detention or custody for life or a detention and training order, 2. remanded in or committed to custody by an order of a court, 3. detained pursuant to an order under section 2 of the Colonial Prisoners Removal Act 1884 or a warrant under section 1 or 4A of the Repatriation of Prisoners Act 1984, 4. detained under Part 3 of the Mental Health Act 1983 or by virtue of an order under section 5 of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14 of the Criminal Appeal Act 1968 (hospital orders, etc), 5. detained by virtue of an order under Part 6 of the Criminal Procedure (Scotland) Act 1995 (other than an order under section 60C) or a hospital direction under section 59A of that Act, and includes detention by virtue of the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to which a person is subject by virtue of an order under section 59 of the Criminal Procedure (Scotland) Act 1995, or 6. detained under Part 3 of the Mental Health (Northern Ireland) Order 1986 or by virtue of an order under section 11 or 13(5A) of the Criminal Appeal (Northern Ireland) Act 1980; - “human rights claim” means a claim that to remove the claimant from, or to require the claimant to leave, the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with the person's Convention rights; - “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention; - “serious harm” has the meaning given by article 15 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted; and a reference to having leave to enter or remain in the United Kingdom is to be construed in accordance with the Immigration Act 1971. (4) This section applies in relation to any offence under this Part (whether committed before or after the coming into force of this section).

Slavery, servitude and forced or compulsory labour

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conspiracy

72

• (1) In section 1A of the Criminal Law Act 1977 (c. 45) (conspiracy to commit offences outside the United Kingdom)—

• (a) in the title and in subsection (2), for “the United Kingdom” substitute “ England and Wales ”, and

• (b) for subsection (14) substitute—

(14) Nothing in this section applies to an agreement entered into before 4 September 1998. (15) In relation to an agreement entered into during the period beginning with that date and ending with the commencement of section 72(1) of the Coroners and Justice Act 2009, this section applies as if in subsection (2) for “England and Wales” there were substituted “ the United Kingdom ”. (16) Nothing in this section imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.

• (2) In Article 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)) (conspiracy to commit offences outside the United Kingdom)—

• (a) in the title and in paragraph (2), for “the United Kingdom” substitute “ Northern Ireland ”, and

• (b) for paragraph (14) substitute—

(14) Nothing in this Article applies to an agreement entered into before 4 September 1998. (15) In relation to an agreement entered into during the period beginning with that date and ending with the commencement of section 72(2) of the Coroners and Justice Act 2009, this Article applies as if in paragraph (2) for “Northern Ireland” there were substituted “ the United Kingdom ”. (16) Nothing in this Article imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.

Abolition of common law libel offences etc

73

The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished—

• (a) the offences of sedition and seditious libel;

• (b) the offence of defamatory libel;

• (c) the offence of obscene libel.

Part 3 — Criminal evidence, investigations and procedure

Chapter 1 — Anonymity in investigations

Qualifying offences

74

• (1) An offence is a qualifying offence for the purposes of this Chapter if—

• (a) it is listed in subsection (2), and

• (b) the condition in subsection (3) is satisfied in relation to it.

• (2) The offences are—

• (a) murder;

• (b) manslaughter.

• (3) The condition in this subsection is that the death was caused by one or both of the following—

• (a) being shot with a firearm;

• (b) being injured with a knife.

• (4) The appropriate authoritymay by order amend this section—

• (a) so as to add an offence to or omit an offence from the list in subsection (2), or

• (b) so as to add, omit or modify a condition to be satisfied in relation to an offence.

• (5) In this section—

• “the appropriate authority” means, in relation to England and Wales, the Secretary of State and, in relation to Northern Ireland, the Department of Justice in Northern Ireland;

• “firearm”, in relation to England and Wales, has the meaning given by section 57 of the Firearms Act 1968 (c. 27) and, in relation to Northern Ireland, has the meaning given by Article 2 of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I. 3));

• “knife” has the meaning given by section 10 of the Knives Act 1997 (c. 21).

Qualifying criminal investigations

75

• (1) For the purposes of this Chapter a criminal investigation is a qualifying criminal investigation if it is conducted by an investigating authority wholly or in part with a view to ascertaining—

• (a) whether a person should be charged with a qualifying offence, or

• (b) whether a person charged with a qualifying offence is guilty of it.

• (2) The following are investigating authorities—

• (a) a police force in England and Wales;

• (b) the British Transport Police Force;

• (c) the National Crime Agency;

• (d) the Police Service of Northern Ireland.

• (3) The Secretary of State may by order amend subsection (2) so as to add or omit a body or other person.

• (4) The provision which may be included in an order under subsection (3) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

• (5) The power to make an order under subsection (3) is exercisable by the Department of Justice in Northern Ireland (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).

Investigation anonymity orders

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• (1) In this Chapter an “investigation anonymity order” is an order made by a justice of the peace in relation to a specified person prohibiting the disclosure of information—

• (a) that identifies the specified person as a person who is or was able or willing to assist a specified qualifying criminal investigation, or

• (b) that might enable the specified person to be identified as such a person.

• (2) The prohibition in an investigation anonymity order is subject to subsections (3) to (9).

• (3) An investigation anonymity order is not contravened by disclosure of such information as regards the specified person as is described in subsection (1), if the person disclosing the information does not know and has no reason to suspect that such an order has been made in relation to the specified person in connection with the specified qualifying criminal investigation.

• (4) An investigation anonymity order is not contravened by disclosure of such information as regards the specified person as is described in subsection (1)(b), if the person disclosing the information does not know and has no reason to suspect that the information disclosed is information that might enable the specified person to be identified as a person of the sort described in subsection (1)(a) in relation to the specified qualifying criminal investigation.

• (5) A person (“A”) who discloses to another person (“B”) that an investigation anonymity order has been made in relation to a person in connection with the criminal investigation of a qualifying offence does not contravene the order if the condition in subsection (6) is satisfied.

• (6) The condition is that A knows that B is aware that the person specified in the order is a person who is or was able or willing to assist a criminal investigation relating to the qualifying offence.

• (7) A person who discloses information to which an investigation anonymity order relates does not contravene the order if—

• (a) the disclosure is made to a person who is involved in the specified qualifying criminal investigation or in the prosecution of an offence to which the investigation relates, and

• (b) the disclosure is made for the purposes of the investigation or the prosecution of an offence to which the investigation relates.

• (8) An investigation anonymity order is not contravened by—

• (a) disclosure in pursuance of a requirement imposed by any enactment or rule of law, or

• (b) disclosure made in pursuance of an order of a court.

• (9) A person who discloses such information as regards another person as is described in subsection (1) may not rely on subsection (8) in a case where—

• (a) it might have been determined that the person was required or permitted to withhold the information (whether on grounds of public interest immunity or on other grounds), but

• (b) the person disclosed the information without there having been a determination as to whether the person was required or permitted to withhold the information.

Disclosure for the purposes of seeking such a determination is not a contravention of an investigation anonymity order.

• (10) It is an offence for a person to disclose information in contravention of an investigation anonymity order.

• (11) A person guilty of an offence under this section is liable—

• (a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;

• (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.

• (12) “The relevant period” means—

• (a) in relation to England and Wales, the general limit in a magistrates’ court;

• (b) in relation to Northern Ireland, 6 months.

• (13) In this section “specified” means specified in the investigation anonymity order concerned.

Applications

77

• (1) An application for an investigation anonymity order may be made to a justice of the peace by—

• (a) in a case where a police force in England and Wales is conducting the qualifying criminal investigation, the chief officer of police of the police force;

• (b) in a case where the British Transport Police Force is conducting the qualifying criminal investigation, the Chief Constable of the British Transport Police Force;

• (c) in a case where the National Crime Agency is conducting the qualifying criminal investigation, the Director General of the National Crime Agency;

• (d) in a case where the Police Service of Northern Ireland is conducting the qualifying criminal investigation, the Chief Constable of the Police Service of Northern Ireland;

• (e) the Director of Public Prosecutions;

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) the Director of Public Prosecutions for Northern Ireland.

• (2) An applicant for an investigation anonymity order is not required to give notice of the application to—

• (a) a person who is suspected of having committed or who has been charged with an offence to which the qualifying criminal investigation relates, or

• (b) such a person's legal representatives.

• (3) An applicant for an investigation anonymity order must (unless the justice of the peace directs otherwise) inform the justice of the identity of the person who would be specified in the order.

• (4) A justice of the peace may determine the application without a hearing.

• (5) If a justice of the peace determines an application for an investigation anonymity order without a hearing, the designated officer in relation to that justice must notify the applicant of the determination.

• (6) In the application of this section to Northern Ireland, the reference to the designated officer in relation to a justice of the peace is to be read as a reference to the clerk of petty sessions ....

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

• (8) The provision which may be included in an order under subsection (7) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

• (9) The power to make an order under subsection (7) is exercisable by the Department of Justice in Northern Ireland (and not by the Secretary of State) so far as it may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).

Conditions for making order

78

• (1) This section applies where an application is made for an investigation anonymity order to be made in relation to a person.

• (2) The justice of the peace may make such an order if satisfied that there are reasonable grounds for believing that the conditions in subsections (3) to (8) are satisfied.

• (3) The condition in this subsection is that a qualifying offence has been committed.

• (4) The condition in this subsection is that the person likely to have committed the qualifying offence (“the relevant person”) is a person who was aged at least 11 but under 30 at the time the offence was committed.

• (5) The condition in this subsection is that the relevant person is likely to have been a member of a group falling within subsection (6) at the time the offence was committed.

• (6) A group falls within this subsection if—

• (a) it is possible to identify the group from the criminal activities that its members appear to engage in, and

• (b) it appears that the majority of the persons in the group are aged at least 11 but under 30.

• (7) The condition in this subsection is that the person who would be specified in the order has reasonable grounds for fearing intimidation or harm if identified as a person who is or was able or willing to assist the criminal investigation as it relates to the qualifying offence.

• (8) The condition in this subsection is that the person who would be specified in the order—

• (a) is able to provide information that would assist the criminal investigation as it relates to the qualifying offence, and

• (b) is more likely than not, as a consequence of the making of the order, to provide such information.

• (9) If it is suspected that the qualifying offence was committed by 2 or more persons, it is sufficient for the purposes of subsection (2) that the justice is satisfied that there are reasonable grounds for believing that the conditions in subsections (3) to (8) are satisfied in relation to one person.

• (10) The appropriate authoritymay by order modify or repeal any of subsections (4) to (6) and (9).

• (11) The provision which may be included in an order under subsection (10) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision of this Chapter.

• (12) In subsection (10) “the appropriate authority” means, in relation to England and Wales, the Secretary of State and, in relation to Northern Ireland, the Department of Justice in Northern Ireland.

Appeal against refusal of order

79

• (1) Where a justice of the peace refuses an application for an investigation anonymity order, the applicant may appeal to a judge of the Crown Court against that refusal.

• (2) An applicant may not appeal under subsection (1) unless the applicant indicates—

• (a) in the application for the order, or

• (b) if there is a hearing of the application before the justice, at the hearing,

that the applicant intends to appeal a refusal.

• (3) If an applicant has indicated an intention to appeal a refusal, a justice of the peace who refuses an application for an investigation anonymity order must make the order as requested by the applicant.

• (4) An order made under subsection (3) has effect until the appeal is determined or otherwise disposed of.

• (5) The judge to whom an appeal is made must consider afresh the application for an investigation anonymity order and section 77(3) to (5) applies accordingly to the determination of the application by the judge.

• (6) In the application of section 77(5) by virtue of subsection (5), the reference in section 77(5) to the designated officer in relation to a justice of the peace is to be read—

• (a) in the case of an appeal made in England and Wales, as a reference to the appropriate officer of the Crown Court;

• (b) in the case of an appeal made in Northern Ireland, as a reference to the chief clerk ....

Discharge of order

80

• (1) A justice of the peace may discharge an investigation anonymity order if it appears to the justice to be appropriate to do so.

• (2) The justice may so discharge an investigation anonymity order on an application by—

• (a) the person on whose application the order was made;

• (b) the Director of Public Prosecutions;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) the Director of Public Prosecutions for Northern Ireland;

• (e) the person specified in the order.

• (3) An application may not be made under subsection (2) unless there has been a material change of circumstances since the relevant time.

• (4) Any person eligible to apply for the discharge of the order is entitled to be party to the proceedings on the application in addition to the applicant.

• (5) If an application to discharge an investigation anonymity order is made by a person other than the person specified in the order, the justice may not determine the application unless—

• (a) the person specified in the order has had an opportunity to oppose the application, or

• (b) the justice is satisfied that it is not reasonably practicable to communicate with the person.

• (6) A party to the proceedings may appeal to a judge of the Crown Court against the justice's decision.

• (7) If during the proceedings a party indicates an intention to appeal against a determination to discharge the investigation anonymity order, a justice of the peace who makes such a determination must provide for the discharge of the order not to have effect until the appeal is determined or otherwise disposed of.

• (8) “The relevant time” means—

• (a) the time when the order was made, or

• (b) if a previous application has been made under subsection (2), the time when the application (or the last application) was made.

Delegation of functions

81

• (1) A chief officer of police of a police force in England and Wales may authorise a person to exercise the chief officer's functions under this Chapter.

• (2) The Chief Constable of the British Transport Police Force may authorise a person to exercise the Chief Constable's functions under this Chapter.

• (3) The Director General of the National Crime Agency may authorise a person to exercise the Director General's functions under this Chapter.

• (4) The Chief Constable of the Police Service of Northern Ireland may authorise a person to exercise the Chief Constable's functions under this Chapter.

• (5) The Director of Public Prosecutions may authorise a person to exercise the Director's functions under this Chapter.

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

• (7) The Director of Public Prosecutions for Northern Ireland may authorise a person to exercise the Director's functions under this Chapter.

Public interest immunity

82

Nothing in this Chapter affects the common law rules as to the withholding of information on the grounds of public interest immunity.

Review

83

• (1) The Secretary of State must review the operation of this Chapterin England and Wales and prepare a report of that review.

• (2) The Secretary of State must lay a copy of the report before Parliament before the end of the period of 2 years beginning with the day on which section 77 comes into force.

• (3) The Department of Justice in Northern Ireland must review the operation of this Chapter in Northern Ireland and prepare a report of that review.

• (4) The Department of Justice must lay a copy of the report before the Northern Ireland Assembly before the end of the period of 2 years beginning with the day on which section 77 comes into force.

• (5) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (4) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.

Application to armed forces

84

• (1) Subject to subsection (2), nothing in this Chapter applies in relation to any investigation conducted with a view to its being ascertained whether a person should be charged with a service offence or whether a person charged with such an offence is guilty of it.

• (2) The Secretary of State may by order make as regards any investigation mentioned in subsection (1) provision equivalent to the provisions contained in this Chapter, subject to such modifications as the Secretary of State considers appropriate.

• (3) An order under this section may make provision in such way as the Secretary of State considers appropriate, and may in particular apply any of the provisions concerned, with or without modifications.

• (4) In this section—

• (a) “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52);

• (b) references to charges are to charges brought under Part 5 of that Act.

Interpretation of this Chapter

85

• (1) In this Chapter—

• “enactment” means an enactment contained in or in an instrument made by virtue of—an Act of Parliament,a Measure or Act of the National Assembly for Wales, orNorthern Ireland legislation;

• “investigation anonymity order” has the meaning given by section 76;

• “qualifying criminal investigation” has the meaning given by section 75;

• “qualifying offence” has the meaning given by section 74.

• (2) In the application of this Chapter to Northern Ireland—

• (a) references to a justice of the peace are to be read as references to a district judge (magistrates' courts);

• (b) references to a judge of the Crown Court are to be read as references to a county court judge.

Chapter 2 — Anonymity of witnesses

Witness anonymity orders

Witness anonymity orders

86

• (1) In this Chapter a “witness anonymity order” is an order made by a court that requires such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.

• (2) The kinds of measures that may be required to be taken in relation to a witness include measures for securing one or more of the following—

• (a) that the witness's name and other identifying details may be—

• (i) withheld;

• (ii) removed from materials disclosed to any party to the proceedings;

• (b) that the witness may use a pseudonym;

• (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness;

• (d) that the witness is screened to any specified extent;

• (e) that the witness's voice is subjected to modulation to any specified extent.

• (3) Subsection (2) does not affect the generality of subsection (1).

• (4) Nothing in this section authorises the court to require—

• (a) the witness to be screened to such an extent that the witness cannot be seen by—

• (i) the judge or other members of the court (if any), or

• (ii) the jury (if there is one);

• (b) the witness's voice to be modulated to such an extent that the witness's natural voice cannot be heard by any persons within paragraph (a)(i) or (ii).

• (5) In this section “specified” means specified in the witness anonymity order concerned.

Applications

87

• (1) An application for a witness anonymity order to be made in relation to a witness in criminal proceedings may be made to the court by the prosecutor or the defendant.

• (2) Where an application is made by the prosecutor, the prosecutor—

• (a) must (unless the court directs otherwise) inform the court of the identity of the witness, but

• (b) is not required to disclose in connection with the application—

• (i) the identity of the witness, or

• (ii) any information that might enable the witness to be identified,

to any other party to the proceedings or his or her legal representatives.

• (3) Where an application is made by the defendant, the defendant—

• (a) must inform the court and the prosecutor of the identity of the witness, but

• (b) (if there is more than one defendant) is not required to disclose in connection with the application—

• (i) the identity of the witness, or

• (ii) any information that might enable the witness to be identified,

to any other defendant or his or her legal representatives.

• (4) Accordingly, where the prosecutor or the defendant proposes to make an application under this section in respect of a witness, any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent—

• (a) the identity of the witness, or

• (b) any information that might enable the witness to be identified,

from being disclosed except as required by subsection (2)(a) or (3)(a).

• (5) “Relevant material” means any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them.

• (6) The court must give every party to the proceedings the opportunity to be heard on an application under this section.

• (7) But subsection (6) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

• (8) Nothing in this section is to be taken as restricting any power to make rules of court.

Conditions for making order

88

• (1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.

• (2) The court may make such an order only if it is satisfied that Conditions A to C below are met.

• (3) Condition A is that the proposed order is necessary—

• (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or

• (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

• (4) Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial.

• (5) 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—

• (a) the witness would not testify if the proposed order were not made, or

• (b) there would be real harm to the public interest if the witness were to testify without the proposed order being made.

• (6) In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness—

• (a) that the witness or another person would suffer death or injury, or

• (b) that there would be serious damage to property,

if the witness were to be identified.

Relevant considerations

89

• (1) When deciding whether Conditions A to C in section 88 are met in the case of an application for a witness anonymity order, the court must have regard to—

• (a) the considerations mentioned in subsection (2) below, and

• (b) such other matters as the court considers relevant.

• (2) The considerations are—

• (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

• (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;

• (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

• (d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;

• (e) whether there is any reason to believe that the witness—

• (i) has a tendency to be dishonest, or

• (ii) has any motive to be dishonest in the circumstances of the case,

having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;

• (f) whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

Warning to jury

90

• (1) Subsection (2) applies where, on a trial on indictment with a jury, any evidence has been given by a witness at a time when a witness anonymity order applied to the witness.

• (2) The judge must give the jury such warning as the judge considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.

Discharge and variation

Discharge or variation of order

91

• (1) A court that has made a witness anonymity order in relation to any criminal proceedings may in those proceedings subsequently discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of the provisions of sections 88 and 89 that apply to the making of an order.

• (2) The court may do so—

• (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) on its own initiative.

• (3) The court must give every party to the proceedings the opportunity to be heard—

• (a) before determining an application made to it under subsection (2);

• (b) before discharging or varying the order on its own initiative.

• (4) But subsection (3) does not prevent the court hearing one or more of the parties to the proceedings in the absence of a defendant in the proceedings and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

• (5) “The relevant time” means—

• (a) the time when the order was made, or

• (b) if a previous application has been made under subsection (2), the time when the application (or the last application) was made.

Discharge or variation after proceedings

92

• (1) This section applies if—

• (a) a court has made a witness anonymity order in relation to a witness in criminal proceedings (“the old proceedings”), and

• (b) the old proceedings have come to an end.

• (2) The court that made the order may discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of—

• (a) the provisions of sections 88 and 89 that apply to the making of a witness anonymity order, and

• (b) such other matters as the court considers relevant.

• (3) The court may do so—

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

• (b) on an application made by the witness if there has been a material change of circumstances since the relevant time.

• (4) The court may not determine an application made to it under subsection (3) unless in the case of each of the parties to the old proceedings and the witness—

• (a) it has given the person the opportunity to be heard, or

• (b) it is satisfied that it is not reasonably practicable to communicate with the person.

• (5) Subsection (4) does not prevent the court hearing one or more of the persons mentioned in that subsection in the absence of a person who was a defendant in the old proceedings and that person's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

• (6) “The relevant time” means—

• (a) the time when the old proceedings came to an end, or

• (b) if a previous application has been made under subsection (3), the time when the application (or the last application) was made.

Discharge or variation by appeal court

93

• (1) This section applies if—

• (a) a court has made a witness anonymity order in relation to a witness in criminal proceedings (“the trial proceedings”), and

• (b) a defendant in the trial proceedings has in those proceedings—

• (i) been convicted,

• (ii) been found not guilty by reason of insanity, or

• (iii) been found to be under a disability and to have done the act charged in respect of an offence.

• (2) The appeal court may in proceedings on or in connection with an appeal by the defendant from the trial proceedings discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of—

• (a) the provisions of sections 88 and 89 that apply to the making of a witness anonymity order, and

• (b) such other matters as the court considers relevant.

• (3) The appeal court may not discharge or vary the order unless in the case of each party to the trial proceedings—

• (a) it has given the person the opportunity to be heard, or

• (b) it is satisfied that it is not reasonably practicable to communicate with the person.

• (4) But subsection (3) does not prevent the appeal court hearing one or more of the parties to the trial proceedings in the absence of a person who was a defendant in the trial proceedings and that person's legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.

• (5) In this section a reference to the doing of an act includes a reference to a failure to act.

• (6) “Appeal court” means—

• (a) the Court of Appeal,

• (b) the Court of Appeal in Northern Ireland, or

• (c) the Court Martial Appeal Court.

Service courts

Special provisions for service courts

94

• (1) Subsections (2) and (3) apply in relation to a service court consisting of a judge advocate and other members.

• (2) Any decision falling to be made by the court under sections 86 to 92 is to be made by the judge advocate alone.

• (3) If any evidence is given by a witness in criminal proceedings before the court at a time when a witness anonymity order applies to the witness, the judge advocate must give the other members such warning as the judge advocate considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.

Public interest immunity

Public interest immunity

95

Nothing in this Chapter affects the common law rules as to the withholding of information on the grounds of public interest immunity.

The Criminal Evidence (Witness Anonymity) Act 2008

Power to make orders under the 2008 Act

96

Sections 1 to 9 and 14 of the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) cease to have effect.

Interpretation

Interpretation of this Chapter

97

• (1) In this Chapter—

• “court” means—in relation to England and Wales, a magistrates' court, the Crown Court or the criminal division of the Court of Appeal,in relation to Northern Ireland, a magistrates' court, the Crown Court, a county court exercising its criminal jurisdiction, the High Court or the Court of Appeal in Northern Ireland, ora service court;

• “criminal proceedings” means—in relation to a court within paragraph (a) or (b) above (other than the High Court in Northern Ireland), criminal proceedings consisting of a trial or other hearing at which evidence falls to be given;in relation to the High Court in Northern Ireland, proceedings relating to bail in respect of a person charged with or convicted of an offence where the proceedings consist of a hearing at which evidence falls to be given;in relation to a service court, proceedings in respect of a service offence consisting of a trial or other hearing at which evidence falls to be given;

• “the defendant”, in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not convicted);

• “prosecutor” means any person acting as prosecutor, whether an individual or body;

• “service court” means—the Court Martial established by the Armed Forces Act 2006 (c. 52),the Summary Appeal Court established by that Act,the Service Civilian Court established by that Act, orthe Court Martial Appeal Court;

• “service offence” has the meaning given by section 50(2) of the Armed Forces Act 2006 (c. 52);

• “witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence at the trial or hearing in question;

• “witness anonymity order” has the meaning given by section 86.

• (2) In the case of a witness anonymity order made by a magistrates' court in England and Wales or Northern Ireland, a thing authorised or required by section 91 or 92 to be done by the court by which the order was made may be done by any magistrates' court acting in the same local justice area, or for the same petty sessions district, as that court.

Chapter 3 — Vulnerable and intimidated witnesses

Special measures for vulnerable and intimidated witnesses

Eligibility for special measures: age of child witnesses

98

• (1) The Youth Justice and Criminal Evidence Act 1999 (c. 23) is amended as follows.

• (2) In section 16(1)(a) (witnesses eligible because under 17), for “17” substitute “ 18 ”.

• (3) In section 21 (special provisions relating to child witnesses)—

• (a) in subsection (8), for “17” substitute “ 18 ”, and

• (b) in subsection (9)(b), for “17” substitute “ 18 ”.

• (4) In section 22 (extension of section 21 to certain witnesses)—

• (a) in the title, for “17” substitute “ 18 ”, and

• (b) in subsection (1)(a)(ii), for “17” substitute “ 18 ”.

Eligibility for special measures: offences involving weapons

99

• (1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

• (2) In section 17 (witnesses eligible for assistance on grounds of fear or distress about testifying), after subsection (4) add—

(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.

• (3) In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after “section” insert “ 17(7), ”.

• (4) Before Schedule 2 insert the Schedule 1A set out in Schedule 14 to this Act.

Special measures directions for child witnesses

100

• (1) Section 21 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special provisions relating to child witnesses) is amended in accordance with subsections (2) to (7).

• (2) In subsection (1) (definitions), omit paragraph (b) (child witnesses in need of special protection) (but not the “and” following it).

• (3) In subsection (2) (determining contents of direction), for “(7)” substitute “ (4C) ”.

• (4) In subsection (4) (limitations on primary rule)—

• (a) omit the “and” at the end of paragraph (b), and

• (b) after paragraph (b) insert—

(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

.

• (5) After subsection (4) insert—

(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).

• (6) After subsection (4B) (inserted by subsection (5)) insert—

(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.

• (7) Omit subsections (5) to (7).

• (8) In section 22 of that Act (extension of provisions of section 21)—

• (a) in subsection (1), omit paragraph (b) (but not the “and” following it), and

• (b) for subsection (2) substitute—

(2) Subsections (2) to (4) and (4C) of section 21, so far as relating to the giving of a direction complying with the requirement contained in section 21(3)(a), apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section).

Special provisions relating to sexual offences

101

After section 22 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert—

(22A) (1) This section applies where in criminal proceedings relating to a sexual offence (or to a sexual offence and other offences) the complainant in respect of that offence is a witness in the proceedings. (2) This section does not apply if the place of trial is a magistrates' court. (3) This section does not apply if the complainant is an eligible witness by reason of section 16(1)(a) (whether or not the complainant is an eligible witness by reason of any other provision of section 16 or 17). (4) If a party to the proceedings makes an application under section 19(1)(a) 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 (video recorded evidence in chief). (5) Subsection (6) applies if— (a) a party to the proceedings makes a request under subsection (4) with respect to the complainant, and (b) the court determines for the purposes of section 19(2) that the complainant is eligible for assistance by virtue of section 16(1)(b) or 17. (6) The court must— (a) first have regard to subsections (7) to (9); and (b) then have regard to section 19(2); and for the purposes of section 19(2), as it then applies to the complainant, any special measure required to be applied in relation to the complainant by virtue of this section is to be treated as if it were a measure determined by the court, pursuant to section 19(2)(a) and (b)(i), to be one that (whether on its own or with any other special measures) would be likely to maximise, so far as practicable, the quality of the complainant's evidence. (7) The court must give a special measures direction in relation to the complainant that provides for any relevant recording to be admitted under section 27. (8) The requirement in subsection (7) has effect subject to section 27(2). (9) The requirement in subsection (7) 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 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). (10) In this section “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 by live link: presence of supporter

102

• (1) In section 24 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (evidence by live link), after subsection (1) insert—

(1A) Such a direction may also provide for a specified person to accompany the witness while the witness is giving evidence by live link. (1B) In determining who may accompany the witness, the court must have regard to the wishes of the witness.

• (2) In section 27 of that Act (video recorded evidence in chief), after subsection (9) insert—