Upper Volta - Perkoa Mining Exploration and Technical Assistance Project
This section applies where a youth court or other magistrates' court is dealing with a person under the age of 18 for an offence and—
neither the offence nor any associated offence is one for which the sentence is fixed by law;
the court is not, in respect of the offence or any associated offence, proposing to impose a custodial sentence on the offender or make a hospital order in his case; and
the court is not proposing to discharge him absolutely in respect of the offence.
If— the court shall sentence the offender for the offence by ordering him to be referred to a youth offender panel.
the compulsory referral conditions are satisfied in accordance with section 2, and
referral is available to the court,
If— the court may sentence the offender for the offence by ordering him to be referred to a youth offender panel.
the discretionary referral conditions are satisfied in accordance with section 2, and
referral is available to the court,
For the purposes of this section referral is available to a court if—
the court has been notified by the Secretary of State that arrangements for the implementation of referral orders are available in the area in which it appears to the court that the offender resides or will reside; and
the notice has not been withdrawn.
In this Part “referral order” means an order under subsection (2) or (3).
For the purposes of section 1(2) the compulsory referral conditions are satisfied in relation to an offence if the offender—
pleaded guilty to the offence and to any associated offence;
has never been convicted by or before a court in the United Kingdom of any offence other than the offence and any associated offence; and
has never been bound over in criminal proceedings in England and Wales or Northern Ireland to keep the peace or to be of good behaviour.
For the purposes of section 1(3) the discretionary referral conditions are satisfied in relation to an offence if—
the offender is being dealt with by the court for the offence and one or more associated offences;
although he pleaded guilty to at least one of the offences mentioned in paragraph (a), he also pleaded not guilty to at least one of them;
he has never been convicted by or before a court in the United Kingdom of any offence other than the offences mentioned in paragraph (a); and
he has never been bound over in criminal proceedings in England and Wales or Northern Ireland to keep the peace or to be of good behaviour.
The Secretary of State may by regulations make such amendments of this section as he considers appropriate for altering in any way the descriptions of offenders in the case of which the compulsory referral conditions or the discretionary referral conditions fall to be satisfied for the purposes of section 1(2) or (3) (as the case may be).
Any description of offender having effect for those purposes by virtue of such regulations may be framed by reference to such matters as the Secretary of State considers appropriate, including (in particular) one or more of the following—
the offender’s age;
how the offender has pleaded;
the offence (or offences) of which the offender has been convicted;
the offender’s previous convictions (if any);
how (if at all) the offender has been previously punished or otherwise dealt with by any court; and
any characteristics or behaviour of, or circumstances relating to, any person who has at any time been charged in the same proceedings as the offender (whether or not in respect of the same offence).
For the purposes of this section an offender who has been convicted of an offence in respect of which he was conditionally discharged (whether by a court in England and Wales or in Northern Ireland) shall be treated, despite— as having been convicted of that offence.
section 1C(1) of the Powers of Criminal Courts Act 1973 (conviction of offence for which offender so discharged deemed not a conviction), or
Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (corresponding provision for Northern Ireland),
A referral order shall—
specify the youth offending team responsible for implementing the order;
require the offender to attend each of the meetings of a youth offender panel to be established by the team for the offender; and
specify the period for which any youth offender contract taking effect between the offender and the panel under section 8 is to have effect (which must not be less than 3 nor more than 12 months).
The youth offending team specified under subsection (1)(a) shall be the team having the function of implementing referral orders in the area in which it appears to the court that the offender resides or will reside.
On making a referral order the court shall explain to the offender in ordinary language—
the effect of the order; and
the consequences which may follow—
if no youth offender contract takes effect between the offender and the panel under section 8, or
if the offender breaches any of the terms of any such contract.
Subsections (5) to (7) apply where, in dealing with an offender for two or more associated offences, a court makes a referral order in respect of each, or each of two or more, of the offences.
The orders shall have the effect of referring the offender to a single youth offender panel; and the provision made by them under subsection (1) shall accordingly be the same in each case, except that the periods specified under subsection (1)(c) may be different.
The court may direct that the period so specified in either or any of the orders is to run concurrently with or be additional to that specified in the other or any of the others; but in exercising its power under this subsection the court must ensure that the total period for which such a contract as is mentioned in subsection (1)(c) is to have effect does not exceed 12 months.
Each of the orders mentioned in subsection (4) shall, for the purposes of this Part, be treated as associated with the other or each of the others.
Subsections (2) to (5) apply where a court makes a referral order in respect of an offence.
The court may not deal with the offender for the offence in any of the prohibited ways.
The court—
shall, in respect of any associated offence, either sentence the offender by making a referral order or make an order discharging him absolutely; and
may not deal with the offender for any such offence in any of the prohibited ways.
For the purposes of subsections (2) and (3) the prohibited ways are—
imposing a community sentence (within the meaning of Part I of the Criminal Justice Act 1991) on the offender;
ordering him to pay a fine;
making a reparation order under section 67 of the Crime and Disorder Act 1998 in respect of him; and
making an order discharging him conditionally.
The court may not make, in connection with the conviction of the offender for the offence or any associated offence—
an order binding him over to keep the peace or to be of good behaviour;
an order under section 58 of the Criminal Justice Act 1991 (binding over of parent or guardian); or
a parenting order under section 8 of the Crime and Disorder Act 1998.
Subsections (2), (3) and (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 (offender referred back to court by panel) or paragraph 14 (powers of a court where offender convicted while subject to referral) of Schedule 1.
Where section 1(2) above requires a court to make a referral order, the court may not under section 1 of the Powers of Criminal Courts Act 1973 defer passing sentence on him, but section 1(2) and subsection (3)(a) above do not affect any power or duty of a magistrates' court under—
section 56 of the Children and Young Persons Act 1933 (remission to youth court, or another such court, for sentence),
section 7(8) of the Children and Young Persons Act 1969 (remission to youth court for sentence),
section 10(3) of the Magistrates' Courts Act 1980 (adjournment for inquiries),
section 37 of that Act (committal to Crown Court for sentence), or
section 35, 38, 43 or 44 of the Mental Health Act 1983 (remand for reports, interim hospital orders and committal to Crown Court for restriction order).
A court making a referral order may make an order requiring— to attend the meetings of the youth offender panel.
the appropriate person, or
in a case where there are two or more appropriate persons, any one or more of them,
Where an offender is under the age of 16 when a court makes a referral order in his case—
the court shall exercise its power under subsection (1) so as to require at least one appropriate person to attend meetings of the youth offender panel; and
if the offender falls within subsection (6), the person or persons so required to attend those meetings shall be or include a representative of the local authority mentioned in that subsection.
The court shall not under this section make an order requiring a person to attend meetings of the youth offender panel—
if the court is satisfied that it would be unreasonable to do so, or
to an extent which the court is satisfied would be unreasonable.
Except where the offender falls within subsection (6), each person who is a parent or guardian of the offender is an “appropriate person” for the purposes of this section.
Where the offender falls within subsection (6), each of the following is an “appropriate person” for the purposes of this section—
a representative of the local authority mentioned in that subsection, and
each person who is a parent or guardian of the offender with whom the offender is allowed to live.
An offender falls within this subsection if he is (within the meaning of the Children Act 1989) a child who is looked after by a local authority.
If, at the time when a court makes an order under this section— the court must send him or (as the case may be) the authority a copy of the order forthwith.
a person who is required by the order to attend meetings of a youth offender panel is not present in court, or
a local authority whose representative is so required to attend such meetings is not represented in court,
In this section “guardian” has the same meaning as in the Children and Young Persons Act 1933.
Where a referral order has been made in respect of an offender (or two or more associated referral orders have been so made), it is the duty of the youth offending team specified in the order (or orders)—
to establish a youth offender panel for the offender;
to arrange for the first meeting of the panel to be held for the purposes of section 8; and
subsequently to arrange for the holding of any further meetings of the panel required by virtue of section 10 (in addition to those required by virtue of any other provision of this Part).
A youth offender panel shall— in accordance with guidance given from time to time by the Secretary of State.
be constituted,
conduct its proceedings, and
discharge its functions under this Part (and in particular those arising under section 8),
At each of its meetings a panel shall, however, consist of at least—
one member appointed by the youth offending team from among its members; and
two members so appointed who are not members of the team.
The Secretary of State may by regulations make provision requiring persons appointed as members of a youth offender panel to have such qualifications, or satisfy such other criteria, as are specified in the regulations.
Where it appears to the court which made a referral order that, by reason of either a change or a prospective change in the offender’s place or intended place of residence, the youth offending team for the time being specified in the order (“the current team”) either does not or will not have the function of implementing referral orders in the area in which the offender resides or will reside, the court may vary the order so that it instead specifies the team which has the function of implementing such orders in that area (“the new team”).
Where a court so varies a referral order—
subsection (1)(a) shall apply to the new team in any event;
subsection (1)(b) shall apply to the new team if no youth offender contract has (or has under paragraph (c) below been treated as having) taken effect under section 8 between the offender and a youth offender panel established by the current team;
if such a contract has (or has previously under this paragraph been treated as having) so taken effect, it shall (after the variation) be treated as if it were a contract which had taken effect under section 8 between the offender and the panel being established for the offender by the new team.
References in this Part to the meetings of a youth offender panel (or any such meeting) are to the following meetings of the panel (or any of them)—
the first meeting held in pursuance of subsection (1)(b);
any further meetings held in pursuance of section 10;
any progress meeting held under section 11; and
the final meeting held under section 12.
The specified team shall, in the case of each meeting of the panel established for the offender, notify— of the time and place at which he is required to attend that meeting.
the offender, and
any person to whom an order under section 5 applies,
If the offender fails to attend any part of such a meeting the panel may— and subsection (1) shall apply in relation to any such adjourned meeting.
adjourn the meeting to such time and place as it may specify; or
end the meeting and refer the offender back to the appropriate court;
One person aged 18 or over chosen by the offender, with the agreement of the panel, shall be entitled to accompany the offender to any meeting of the panel (and it need not be the same person who accompanies him to every meeting).
The panel may allow to attend any such meeting—
any person who appears to the panel to be a victim of, or otherwise affected by, the offence, or any of the offences, in respect of which the offender was referred to the panel;
any person who appears to the panel to be someone capable of having a good influence on the offender.
Where the panel allows any such person as is mentioned in subsection (4)(a) (“the victim”) to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.
At the first meeting of the youth offender panel established for an offender the panel shall seek to reach agreement with the offender on a programme of behaviour the aim (or principal aim) of which is the prevention of re-offending by the offender.
The terms of the programme may, in particular, include provision for any of the following—
the offender to make financial or other reparation to any person who appears to the panel to be a victim of, or otherwise affected by, the offence, or any of the offences, for which the offender was referred to the panel;
the offender to attend mediation sessions with any such victim or other person;
the offender to carry out unpaid work or service in or for the community;
the offender to be at home at times specified in or determined under the programme;
attendance by the offender at a school or other educational establishment or at a place of work;
the offender to participate in specified activities (such as those designed to address offending behaviour, those offering education or training or those assisting with the rehabilitation of persons dependent on, or having a propensity to misuse, alcohol or drugs);
the offender to present himself to specified persons at times and places specified in or determined under the programme;
the offender to stay away from specified places or persons (or both);
enabling the offender’s compliance with the programme to be supervised and recorded.
The programme may not, however, provide—
for the electronic monitoring of the offender’s whereabouts; or
for the offender to have imposed on him any physical restriction on his movements.
No term which provides for anything to be done to or with any such victim or other affected person as is mentioned in subsection (2)(a) may be included in the programme without the consent of that person.
Where a programme is agreed between the offender and the panel, the panel shall cause a written record of the programme to be produced forthwith—
in language capable of being readily understood by, or explained to, the offender, and
for signature by him.
Once the record has been signed— the terms of the programme, as set out in the record, take effect as the terms of a “youth offender contract” between the offender and the panel; and the panel shall cause a copy of the record to be given or sent to the offender.
by the offender, and
by a member of the panel on behalf of the panel,
This section applies where a youth offender contract has taken effect under section 8 between an offender and a youth offender panel.
The day on which the contract so takes effect shall be the first day of the period for which it has effect.
Where the panel was established in pursuance of a single referral order, the length of the period for which the contract has effect shall be that of the period specified under section 3(1)(c) in the referral order.
Where the panel was established in pursuance of two or more associated referral orders, the length of the period for which the contract has effect shall be that resulting from the court’s directions under section 3(6).
Subsections (3) and (4) have effect subject to—
any order under paragraph 11 or 12 of Schedule 1 extending the length of the period for which the contract has effect; and
subsection (6).
If the referral order, or each of the associated referral orders, is revoked (whether under paragraph 5(2) of Schedule 1 or by virtue of paragraph 14(2) of that Schedule), the period for which the contract has effect expires at the time when the order or orders is or are revoked unless it has already expired.
Where it appears to a youth offender panel to be appropriate to do so, the panel may—
end the first meeting (or any further meeting held in pursuance of paragraph (b)) without having reached agreement with the offender on a programme of behaviour of the kind mentioned in section 8(1), and
resume consideration of the offender’s case at a further meeting of the panel.
If, however, it appears to the panel at the first meeting or any such further meeting that there is no prospect of agreement being reached with the offender within a reasonable period after the making of the referral order (or orders)—
subsection (1)(b) shall not apply; and
instead the panel shall refer the offender back to the appropriate court.
If at a meeting of the panel— the panel shall end the meeting and refer the offender back to the appropriate court.
agreement is reached with the offender but he does not sign the record produced in pursuance of section 8(5), and
his failure to do so appears to the panel to be unreasonable,
At any time— the specified team shall, if so requested by the panel, arrange for the holding of a meeting of the panel under this section (“a progress meeting”).
after a youth offender contract has taken effect under section 8, but
before the end of the period for which the contract has effect,
The panel may make a request under subsection (1) if it appears to the panel to be expedient to review—
the offender’s progress in implementing the programme of behaviour contained in the contract, or
any other matter arising in connection with the contract.
The panel shall make such a request if—
the offender has notified the panel that—
he wishes to seek the panel’s agreement to a variation in the terms of the contract, or
he wishes the panel to refer him back to the appropriate court with a view to the referral order (or orders) being revoked on account of a significant change in his circumstances (such as his being taken to live abroad) making compliance with any youth offender contract impractical; or
it appears to the panel that the offender is in breach of any of the terms of the contract.
At a progress meeting the panel shall do such one or more of the following things as it considers appropriate in the circumstances, namely—
review the offender’s progress or any such other matter as is mentioned in subsection (2);
discuss with the offender any breach of the terms of the contract which it appears to the panel that he has committed;
consider any variation in the terms of the contract sought by the offender or which it appears to the panel to be expedient to make in the light of any such review or discussion;
consider whether to accede to any request by the offender that he be referred back to the appropriate court.
Where the panel has discussed with the offender such a breach as is mentioned in subsection (4)(b)—
the panel and the offender may agree that the offender is to continue to be required to comply with the contract (either in its original form or with any agreed variation in its terms) without being referred back to the appropriate court; or
the panel may decide to end the meeting and refer the offender back to that court.
Where a variation in the terms of the contract is agreed between the offender and the panel, the panel shall cause a written record of the variation to be produced forthwith—
in language capable of being readily understood by, or explained to, the offender; and
for signature by him.
Any such variation shall take effect once the record has been signed— and the panel shall cause a copy of the record to be given or sent to the offender.
by the offender, and
by a member of the panel on behalf of the panel;
If at a progress meeting— the panel may end the meeting and refer the offender back to the appropriate court.
any such variation is agreed but the offender does not sign the record produced in pursuance of subsection (6), and
his failure to do so appears to the panel to be unreasonable,
Section 8(2) to (4) shall apply in connection with what may be provided for by the terms of the contract as varied under this section as they apply in connection with what may be provided for by the terms of a programme of behaviour of the kind mentioned in section 8(1).
Where the panel has discussed with the offender such a request as is mentioned in subsection (4)(d), the panel may, if it is satisfied that there is (or is soon to be) such a change in circumstances as is mentioned in subsection (3)(a)(ii), decide to end the meeting and refer the offender back to the appropriate court.
Where the compliance period in the case of a youth offender contract is due to expire, the specified team shall arrange for the holding, before the end of that period, of a meeting of the panel under this section (“the final meeting”).
At the final meeting the panel shall— and the panel shall give the offender written confirmation of its decision.
review the extent of the offender’s compliance to date with the terms of the contract; and
decide, in the light of that review, whether his compliance with those terms has been such as to justify the conclusion that, by the time the compliance period expires, he will have satisfactorily completed the contract;
Where the panel decides that the offender’s compliance with the terms of the contract has been such as to justify that conclusion, the panel’s decision shall have the effect of discharging the referral order (or orders) as from the end of the compliance period.
Otherwise the panel shall refer the offender back to the appropriate court.
Nothing in section 7(2) prevents the panel from making the decision mentioned in subsection (3) in the offender’s absence if it appears to the panel to be appropriate to do that instead of exercising either of its powers under section 7(2).
Section 7(2)(a) does not permit the final meeting to be adjourned (or re-adjourned) to a time falling after the end of the compliance period.
In this section “the compliance period” in relation to a youth offender contract means the period for which the contract has effect in accordance with section 9.
in Part I makes provision for what is to happen when a youth offender panel refers an offender back to the appropriate court, and
in Part II makes provision for what is to happen when an offender is convicted of further offences while for the time being subject to a referral order,
The functions of a youth offending team responsible for implementing a referral order include, in particular, arranging for the provision of such administrative staff, accommodation or other facilities as are required by the youth offender panel established in pursuance of the order.
During the period for which a youth offender contract between a youth offender panel and an offender has effect—
the specified team shall make arrangements for supervising the offender’s compliance with the terms of the contract; and
the person who is the member of the panel referred to in section 6(3)(a) shall ensure that records are kept of the offender’s compliance (or non-compliance) with those terms.
In implementing referral orders a youth offending team shall have regard to any guidance given from time to time by the Secretary of State.
In this Part—
“the appropriate court” shall be construed in accordance with paragraph 1(2) of Schedule 1;
“relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990;
“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;
“quality”, in relation to the evidence of a witness, shall be construed in accordance with section 16(5);
In this section “direction” means a direction under section 36.
For the purposes of this Part an offence is associated with another if the offender falls to be dealt with for it at the same time as he is dealt with for the other offence (whether or not he is convicted of the offences at the same time or by or before the same court).
References in this Part to a referral order being associated with another shall be construed in accordance with section 3(7).
For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—
if under the age of 18 at the time of the hearing; or
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).
The circumstances falling within this subsection are—
that the witness—
suffers from mental disorder within the meaning of the Mental Health Act 1983, or
otherwise has a significant impairment of intelligence and social functioning;
that the witness has a physical disability or is suffering from a physical disorder.
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.
In determining whether a witness falls within subsection (1)(b) the court must consider any views expressed by the witness.
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.
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.
In determining whether a witness falls within subsection (1) the court must take into account, in particular—
the nature and alleged circumstances of the offence to which the proceedings relate;
the age of the witness;
such of the following matters as appear to the court to be relevant, namely—
the social and cultural background and ethnic origins of the witness,
the domestic and employment circumstances of the witness, and
any religious beliefs or political opinions of the witness;
any behaviour towards the witness on the part of—
the accused,
members of the family or associates of the accused, or
any other person who is likely to be an accused or a witness in the proceedings.
In determining that question the court must in addition consider any views expressed by the witness.
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.
The offences are—
a sexual offence;
an offence under section 1 or 2 of the Modern Slavery Act 2015;
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).
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.
For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.
The Secretary of State may by order amend Schedule 1A.
For the purposes of this Chapter— but this subsection has effect subject to subsection (2).
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
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;
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—
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
the notice has not been withdrawn.
In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.
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.
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—
by modifying the provisions relating to any measure for the time being available in relation to such a witness,
by the addition—
(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
of any new measure, or
by the removal of any measure.
This section applies where in any criminal proceedings—
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
the court of its own motion raises the issue whether such a direction should be given.
Where the court determines that the witness is eligible for assistance by virtue of section 16 or 17, the court must then—
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
if so—
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
give a direction under this section providing for the measure or measures so determined to apply to evidence given by the witness.
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—
any views expressed by the witness; and
whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings.
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.
In this Chapter “special measures direction” means a direction under this section.
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)—
in relation to a witness who is not an eligible witness, or
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.
Subject to subsection (2) 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— in relation to the accused or (if there is more than one) in relation to each of the accused.
determined (by acquittal, conviction or otherwise), or
abandoned,
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—
on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or
of its own motion.
In subsection (2) “the relevant time” means—
the time when the direction was given, or
if a previous application has been made under that subsection, the time when the application (or last application) was made.
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).
The court must state in open court its reasons for— a special measures direction and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings.
giving or varying,
refusing an application for, or for the variation or discharge of, or
discharging,
Criminal Procedure Rules may make provision—
for uncontested applications to be determined by the court without a hearing;
for preventing the renewal of an unsuccessful application for a special measures direction except where there has been a material change of circumstances;
for expert evidence to be given in connection with an application for, or for varying or discharging, such a direction;
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.
For the purposes of this section—
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);
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and
an offence falling within section 35(3)(a) (sexual offences etc.), or
an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); and
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.
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— 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.
first have regard to subsections (3) to (4C) below; and
then have regard to section 19(2);
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—
it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief); and
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.
The primary rule is subject to the following limitations—
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;
the requirement contained in subsection (3)(a) also has effect subject to section 27(2); ...
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).
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
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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.
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any cross-examination of the witness otherwise than by the accused in person, and
any subsequent re-examination.
The requirement in subsection (4A) is subject to the following limitations—
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
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).
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it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and
it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.
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)—
the age and maturity of the witness;
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);
the relationship (if any) between the witness and the accused;
the witness's social and cultural background and ethnic origins;
the nature and alleged circumstances of the offence to which the proceedings relate.
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— the direction shall cease to have effect at the time when the witness attains the age of 18.
subject to subsection (9) below, and
except where the witness has already begun to give evidence in the proceedings,
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— then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.
the direction provides—
for any relevant recording to be admitted under section 27 as evidence in chief of the witness, or
for the special measure available under section 28 to apply in relation to the witness, and
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,
For the purposes of this section—
a witness in criminal proceedings (other than the accused) is a “qualifying witness” if he—
is not an eligible witness at the time of the hearing (as defined by section 16(3)), but
was under the age of 18 when a relevant recording was made;
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an offence falling within section 35(3)(a) (sexual offences etc.), or
an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); and
a “relevant recording”, in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
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).
subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);
subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and
subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).
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.
This section does not apply if the place of trial is a magistrates' court.
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).
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).
Subsection (6) applies if—
a party to the proceedings makes a request under subsection (4) with respect to the complainant, and
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.
The court must— 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.
first have regard to subsections (7) to (9); and
then have regard to section 19(2);
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.
The requirement in subsection (7) has effect subject to section 27(2).
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).
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.
A special measures direction may provide for the witness, while giving testimony or being sworn in court, to be prevented by means of a screen or other arrangement from seeing the accused.
But the screen or other arrangement must not prevent the witness from being able to see, and to be seen by—
the judge or justices (or both) and the jury (if there is one);
legal representatives acting in the proceedings; and
any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(b) is to be regarded as satisfied in relation to those representatives if the witness is able at all material times to see and be seen by at least one of them.
A special measures direction may provide for the witness to give evidence by means of a live link.
Where a direction provides for the witness to give evidence by means of a live link, the witness may not give evidence in any other way without the permission of the court.
Such a direction may also provide for a specified person to accompany the witness while the witness is giving evidence by live link.
The court may give permission for the purposes of subsection (2) if it appears to the court to be in the interests of justice to do so, and may do so either—
on an application by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or
of its own motion.
In determining who may accompany the witness, the court must have regard to the wishes of the witness.
In subsection (3) “the relevant time” means—
the time when the direction was given, or
if a previous application has been made under that subsection, the time when the application (or last application) was made.
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evidence is to be given by means of a live link in accordance with a special measures direction, but
suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which that court can (apart from this subsection) lawfully sit,
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In this Chapter “live link” means a live television link or other arrangement whereby a witness, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the persons specified in section 23(2)(a) to (c).
A special measures direction may provide for the exclusion from the court, during the giving of the witness’s evidence, of persons of any description specified in the direction.
The persons who may be so excluded do not include—
the accused,
legal representatives acting in the proceedings, or
any interpreter or other person appointed (in pursuance of the direction or otherwise) to assist the witness.
A special measures direction providing for representatives of news gathering or reporting organisations to be so excluded shall be expressed not to apply to one named person who— unless it appears to the court that no such nomination has been made.
is a representative of such an organisation, and
has been nominated for the purpose by one or more such organisations,
A special measures direction may only provide for the exclusion of persons under this section where—
the proceedings relate to a sexual offence or an offence under section 1 or 2 of the Modern Slavery Act 2015 an offence listed in section 17(4A); or
it appears to the court that there are reasonable grounds for believing that any person other than the accused has sought, or will seek, to intimidate the witness in connection with testifying in the proceedings.
Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of news gathering or reporting organisations) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.
A special measures direction may provide for the wearing of wigs or gowns to be dispensed with during the giving of the witness’s evidence.
A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness.
A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.
In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if—
it appears to the court that—
the witness will not be available for cross-examination (whether conducted in the ordinary way or in accordance with any such direction), and
the parties to the proceedings have not agreed that there is no need for the witness to be so available; or
any Criminal Procedure Rules requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court.
Where a recording is admitted under this section—
the witness must be called by the party tendering it in evidence, unless—
a special measures direction provides for the witness’s evidence on cross-examination to be given in any recording admissible under section 28, or
the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and
the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness's recorded testimony.
as to any matter which, in the opinion of the court, has been dealt with adequately in the witness’s recorded testimony, or
without the permission of the court, as to any other matter which, in the opinion of the court, is dealt with in that testimony.
Where in accordance with subsection (2) a special measures direction provides for part only of a recording to be admitted under this section, references in subsections (4) and (5) to the recording or to the witness’s recorded testimony are references to the part of the recording or testimony which is to be so admitted.
The court may give permission for the purposes of subsection subsection (5)(b) if it appears to the court to be in the interests of justice to do so, and may do so either—
on an application by a party to the proceedings, ... or
of its own motion.
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the time when the direction was given, or
if a previous application has been made under that subsection, the time when the application (or last application) was made.
The court may, in giving permission for the purposes of subsection (5)(b), direct that the evidence in question is to be given by the witness by means of a live link; ....
A magistrates’ court inquiring into an offence as examining justices under section 6 of the Magistrates’ Courts Act 1980 may consider any video recording in relation to which it is proposed to apply for a special measures direction providing for it to be admitted at the trial in accordance with this section.
If the court directs under subsection (9) that evidence is to be given by live link, it may also make such provision in that direction as it could make under section 24(1A) in a special measures direction.
Nothing in this section affects the admissibility of any video recording which would be admissible apart from this section.
Where a special measures direction provides for a video recording to be admitted under section 27 as evidence in chief of the witness, the direction may also provide—
for any cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and
for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.
Such a recording must be made in the presence of such persons as Criminal Procedure Rules or the direction may provide and in the absence of the accused, but in circumstances in which—
the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the persons in whose presence the recording is being made, and
the accused is able to see and hear any such examination and to communicate with any legal representative acting for him.
Where two or more legal representatives are acting for a party to the proceedings, subsection (2)(a) and (b) are to be regarded as satisfied in relation to those representatives if at all material times they are satisfied in relation to at least one of them.
Where a special measures direction provides for a recording to be admitted under this section, the court may nevertheless subsequently direct that it is not to be so admitted if any requirement of subsection (2) or Criminal Procedure Rules or the direction has not been complied with to the satisfaction of the court.
Where in pursuance of subsection (1) a recording has been made of any examination of the witness, the witness may not be subsequently cross-examined or re-examined in respect of any evidence given by the witness in the proceedings (whether in any recording admissible under section 27 or this section or otherwise than in such a recording) unless the court gives a further special measures direction making such provision as is mentioned in subsection (1)(a) and (b) in relation to any subsequent cross-examination, and re-examination, of the witness.
The court may only give such a further direction if it appears to the court—
that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of subsection (1), of a matter which that party could not with reasonable diligence have ascertained by then, or
that for any other reason it is in the interests of justice to give the further direction.
Nothing in this section shall be read as applying in relation to any cross-examination of the witness by the accused in person (in a case where the accused is to be able to conduct any such cross-examination).
A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).
The function of an intermediary is to communicate— and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
to the witness, questions put to the witness, and
to any person asking such questions, the answers given by the witness in reply to them,
Any examination of the witness in pursuance of subsection (1) must take place in the presence of such persons as Criminal Procedure Rules or the direction may provide, but in circumstances in which—
the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the witness and to communicate with the intermediary, and
(except in the case of a video recorded examination) the jury (if there is one) are able to see and hear the examination of the witness.
Where two or more legal representatives are acting for a party to the proceedings, subsection (3)(a) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them.
A person may not act as an intermediary in a particular case except after making a declaration, in such form as may be prescribed by Criminal Procedure Rules, that he will faithfully perform his function as intermediary.
Subsection (1) does not apply to an interview of the witness which is recorded by means of a video recording with a view to its admission as evidence in chief of the witness; but a special measures direction may provide for such a recording to be admitted under section 27 if the interview was conducted through an intermediary and—
that person complied with subsection (5) before the interview began, and
the court’s approval for the purposes of this section is given before the direction is given.
Section 1 of the Perjury Act 1911 (perjury) shall apply in relation to a person acting as an intermediary as it applies in relation to a person lawfully sworn as an interpreter in a judicial proceeding; and for this purpose, where a person acts as an intermediary in any proceeding which is not a judicial proceeding for the purposes of that section, that proceeding shall be taken to be part of the judicial proceeding in which the witness’s evidence is given.
A special measures direction may provide for the witness, while giving evidence (whether by testimony in court or otherwise), to be provided with such device as the court considers appropriate with a view to enabling questions or answers to be communicated to or by the witness despite any disability or disorder or other impairment which the witness has or suffers from.
Subsections (2) to (4) apply to a statement made by a witness in criminal proceedings which, in accordance with a special measures direction, is not made by the witness in direct oral testimony in court but forms part of the witness’s evidence in those proceedings.
The statement shall be treated as if made by the witness in direct oral testimony in court; and accordingly—
it is admissible evidence of any fact of which such testimony from the witness would be admissible;
it is not capable of corroborating any other evidence given by the witness.
Subsection (2) applies to a statement admitted under section 27 or 28 which is not made by the witness on oath even though it would have been required to be made on oath if made by the witness in direct oral testimony in court.
In estimating the weight (if any) to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn (as to the accuracy of the statement or otherwise).
Nothing in this Chapter (apart from subsection (3)) affects the operation of any rule of law relating to evidence in criminal proceedings.
Where any statement made by a person on oath in any proceeding which is not a judicial proceeding for the purposes of section 1 of the Perjury Act 1911 (perjury) is received in evidence in pursuance of a special measures direction, that proceeding shall be taken for the purposes of that section to be part of the judicial proceeding in which the statement is so received in evidence.
Where in any proceeding which is not a judicial proceeding for the purposes of that Act— he shall be guilty of an offence and liable to any punishment which might be imposed on conviction of an offence under section 57(2) (giving of false unsworn evidence in criminal proceedings).
a person wilfully makes a false statement otherwise than on oath which is subsequently received in evidence in pursuance of a special measures direction, and
the statement is made in such circumstances that had it been given on oath in any such judicial proceeding that person would have been guilty of perjury,
In this section “statement” includes any representation of fact, whether made in words or otherwise.
Where on a trial on indictment with a jury evidence has been given in accordance with a special measures direction, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused.
In this Chapter—
“eligible witness” means a witness eligible for assistance by virtue of section 16 or 17;
“eligible witness” means a witness eligible for assistance by virtue of section 16 or 17;
“an appropriate person” means (subject to subsections (10) to (12))—
in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or
in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the protected person;
“live link” has the meaning given by section 24(8);
(in England and Wales) the Children Act 1989, or
“special measures direction” means (in accordance with section 19(5)) a direction under section 19.
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings;
In this Chapter references to the special measures available in relation to a witness shall be construed in accordance with section 18.
In this Chapter references to a person being able to see or hear, or be seen or heard by, another person are to be read as not applying to the extent that either of them is unable to see or hear by reason of any impairment of eyesight or hearing.
In the case of any proceedings in which there is more than one accused—
any reference to the accused in sections 23 to 28 may be taken by a court, in connection with the giving of a special measures direction, as a reference to all or any of the accused, as the court may determine, and
any such direction may be given on the basis of any such determination.
For the purposes of this Chapter as it applies in relation to a witness who is the complainant in respect of a relevant offence, where the age of the witness is uncertain and there are reasons to believe that the witness is under the age of 18, that witness is presumed to be under the age of 18.
In subsection (5) “relevant offence” means—
a sexual offence;
an offence under section 1 of the Protection of Children Act 1978;
an offence under section 160 of the Criminal Justice Act 1988;
an offence under section 1 or 2 of the Modern Slavery Act 2015.
No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—
in connection with that offence, or
in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
No person charged with an offence to which this section applies may in any criminal proceedings cross-examine in person a protected witness, either—
in connection with that offence, or
in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
For the purposes of subsection (1) a “protected witness” is a witness who—
either is the complainant or is alleged to have been a witness to the commission of the offence to which this section applies, and
either is a child or falls to be cross-examined after giving evidence in chief (whether wholly or in part)—
by means of a video recording made (for the purposes of section 27) at a time when the witness was a child, or
in any other way at any such time.
The offences to which this section applies are—
any offence under—
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the Protection of Children Act 1978; ...
any of sections 33 to 36 of the Sexual Offences Act 1956,
Part 1 of the Sexual Offences Act 2003 or any relevant superseded enactment; or
sections 1 and 2 of the Modern Slavery Act 2015;
kidnapping, false imprisonment or an offence under section 1 or 2 of the Child Abduction Act 1984;
any offence under section 1 of the Children and Young Persons Act 1933;
any offence (not within any of the preceding paragraphs) which involves an assault on, or injury or a threat of injury to, any person.
In this section “child” means—
where the offence falls within subsection (3)(a), a person under the age of 18; or
where the offence falls within subsection (3)(b), (c) or (d), a person under the age of 14.
In subsection (3)(a)(vi) “relevant superseded enactment” means—
any of sections 1 to 32 of the Sexual Offences Act 1956;
the Indecency with Children Act 1960;
the Sexual Offences Act 1967;
section 54 of the Criminal Law Act 1977.
For the purposes of this section “witness” includes a witness who is charged with an offence in the proceedings.
This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—
the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
the court of its own motion raises the issue whether such a direction should be given.
If it appears to the court— the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.
that the quality of evidence given by the witness on cross-examination—
is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and
would be likely to be improved if a direction were given under this section, and
that it would not be contrary to the interests of justice to give such a direction,
In determining whether subsection (2)(a) applies in the case of a witness the court must have regard, in particular, to—
any views expressed by the witness as to whether or not the witness is content to be cross-examined by the accused in person;
the nature of the questions likely to be asked, having regard to the issues in the proceedings and the defence case advanced so far (if any);
any behaviour on the part of the accused at any stage of the proceedings, both generally and in relation to the witness;
any relationship (of whatever nature) between the witness and the accused;
whether any person (other than the accused) is or has at any time been charged in the proceedings with a sexual offence or an offence to which section 35 applies, and (if so) whether section 34 or 35 operates or would have operated to prevent that person from cross-examining the witness in person;
any direction under section 19 which the court has given, or proposes to give, in relation to the witness.
For the purposes of this section—
“witness”, in relation to an accused, does not include any other person who is charged with an offence in the proceedings; and
any reference to the quality of a witness’s evidence shall be construed in accordance with section 16(5).
Subject to subsection (2), a direction has binding effect from the time it is made until the witness to whom it applies is discharged.
The court may discharge a direction if it appears to the court to be in the interests of justice to do so, and may do so either—
on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or
of its own motion.
In subsection (2) “the relevant time” means—
the time when the direction was given, or
if a previous application has been made under that subsection, the time when the application (or last application) was made.
The court must state in open court its reasons for— a direction and, if it is a magistrates’ court, must cause them to be entered in the register of its proceedings.
giving, or
refusing an application for, or for the discharge of, or
discharging,
Criminal Procedure Rules may make provision—
for uncontested applications to be determined by the court without a hearing;
for preventing the renewal of an unsuccessful application for a direction except where there has been a material change of circumstances;
for expert evidence to be given in connection with an application for, or for discharging, a direction;
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.
This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.
Where it appears to the court that this section applies, it must—
invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and
require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
If by the end of the period mentioned in subsection (2)(b) either— the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused.
the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or
no notification has been received by the court and it appears to the court that no legal representative is to so act,
If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.
A person so appointed shall not be responsible to the accused.
Criminal Procedure Rules may make provision—
as to the time when, and the manner in which, subsection (2) is to be complied with;
in connection with the appointment of a legal representative under subsection (4), and in particular for securing that a person so appointed is provided with evidence or other material relating to the proceedings.
Criminal Procedure Rules made in pursuance of subsection (6)(b) may make provision for the application, with such modifications as are specified in the rules, of any of the provisions of—
Part I of the Criminal Procedure and Investigations Act 1996 (disclosure of material in connection with criminal proceedings), or
the Sexual Offences (Protected Material) Act 1997.
For the purposes of this section—
any reference to cross-examination includes (in a case where a direction is given under section 36 after the accused has begun cross-examining the witness) a reference to further cross-examination; and
“qualified legal representative” means a legal representative who has a right of audience (within the meaning of the Courts and Legal Services Act 1990) in relation to the proceedings before the court.
Where on a trial on indictment with a jury an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced—
by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person;
where the witness has been cross-examined by a legal representative appointed under section 38(4), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the accused’s own legal representative.
Subsection (8)(a) of section 38 applies for the purposes of this section as it applies for the purposes of section 38.
In section 19(3) of the Prosecution of Offences Act 1985 (regulations authorising payments out of central funds), after paragraph (d) there shall be inserted—
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
This section applies to proceedings in a service court against a person for an offence, if and so far as provided by an order under section 61(1).
The court may, on the application of the accused, give a live link direction if it is satisfied—
that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused, and
that it is in the interests of justice for the accused to give evidence through a live link.
A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
Where the accused is aged under 18 when the application is made, the conditions are that—
his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning, and
use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
Where the accused has attained the age of 18 at that time, the conditions are that—
he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function,
he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court, and
use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).
While a live link direction has effect the accused may not give oral evidence before the court in the proceedings otherwise than through a live link.
The court may discharge a live link direction at any time before or during any hearing to which it applies if it appears to the court to be in the interests of justice to do so (but this does not affect the power to give a further live link direction in relation to the accused). The court may exercise this power of its own motion or on an application by a party.
The court must state in open court its reasons for— and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings.
giving or discharging a live link direction, or
refusing an application for or for the discharge of a live link direction,
In section 33A “live link” means an arrangement by which the accused, while absent from the place where the proceedings are being held, is able— and for this purpose any impairment of eyesight or hearing is to be disregarded.
to see and hear a person there, and
to be seen and heard by the persons mentioned in subsection (2),
The persons are—
the judge or justices (or both) and the jury (if there is one),
where there are two or more accused in the proceedings, each of the other accused,
legal representatives acting in the proceedings, and
any interpreter or other person appointed by the court to assist the accused.
Nothing in this Chapter affects—
any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or
the operation of any rule of law relating to evidence in criminal proceedings.
If at a trial a person is charged with a sexual offence, then, except with the leave of the court— by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
no evidence may be adduced, and
no question may be asked in cross-examination,
The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
that subsection (3) or (5) applies, and
that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
This subsection applies if the evidence or question relates to a relevant issue in the case and either—
that issue is not an issue of consent; or
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar— that the similarity cannot reasonably be explained as a coincidence.
to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
This subsection applies if the evidence or question—
relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
In section 41—
“relevant issue in the case” means any issue falling to be proved by the prosecution or defence in the trial of the accused;
“issue of consent” means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented);
“sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and
subject to any order made under subsection (2), “sexual offence” shall be construed in accordance with section 62.
The Secretary of State may by order make such provision as he considers appropriate for adding or removing, for the purposes of section 41, any offence to or from the offences which are sexual offences for the purposes of this Act by virtue of section 62.
Section 41 applies in relation to the following proceedings as it applies to a trial, namely— and references (in section 41 or this section) to a person charged with an offence accordingly include a person convicted of an offence.
proceedings before a magistrates’ court inquiring into an offence as examining justices,
the hearing of an application under paragraph 5(1) of Schedule 6 to the Criminal Justice Act 1991 (application to dismiss charge following notice of transfer of case to Crown Court),
the hearing of an application under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998 (application to dismiss charge by person sent for trial under section 51 or 51A of that Act),
any hearing held, between conviction and sentencing, for the purpose of determining matters relevant to the court’s decision as to how the accused is to be dealt with, and
the hearing of an appeal,
An application for leave shall be heard in private and in the absence of the complainant.
“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings;
Where such an application has been determined, the court must state in open court (but in the absence of the jury, if there is one)— and, if it is a magistrates’ court, must cause those matters to be entered in the register of its proceedings.
its reasons for giving, or refusing, leave, and
if it gives leave, the extent to which evidence may be adduced or questions asked in pursuance of the leave,
Criminal Procedure Rules may make provision—
requiring applications for leave to specify, in relation to each item of evidence or question to which they relate, particulars of the grounds on which it is asserted that leave should be given by virtue of subsection (3) or (5) of section 41;
enabling the court to request a party to the proceedings to provide the court with information which it considers would assist it in determining an application for leave;
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, parties to the proceedings.
This section applies (subject to subsection (3)) where a criminal investigation has begun in respect of—
an alleged offence against the law of—
England and Wales, or
Northern Ireland; or
an alleged civil offence (other than an offence falling within paragraph (a)) committed (whether or not in the United Kingdom) by a person subject to service law.
No matter relating to any person involved in the offence shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person involved in the offence.
The restrictions imposed by subsection (2) cease to apply once there are proceedings in a court (whether a court in England and Wales, a service court or a court in Northern Ireland) in respect of the offence.
For the purposes of subsection (2) any reference to a person involved in the offence is to—
a person by whom the offence is alleged to have been committed except a person in relation to whom section 12(2) of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 applies in connection with the offence; or
if this paragraph applies to the publication in question by virtue of subsection (5)— except that paragraph (b)(i) does not include a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.
a person against or in respect of whom the offence is alleged to have been committed, or
a person who is alleged to have been a witness to the commission of the offence;
Subsection (4)(b) applies to a publication if— on or after such date as may be specified in an order made by the Secretary of State.
where it is a relevant programme, it is transmitted, or
in the case of any other publication, it is published,
The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
his name,
his address,
the identity of any school or other educational establishment attended by him,
the identity of any place of work, and
any still or moving picture of him.
In the application of this section to Northern Ireland, the reference in subsection (5) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.
Any appropriate criminal court may by order dispense, to any extent specified in the order, with the restrictions imposed by subsection (2) in relation to a person if it is satisfied that it is necessary in the interests of justice to do so.
However, when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person.
In subsection (7) “appropriate criminal court” means—
in a case where this section applies by virtue of subsection (1)(a)(i) or (ii), any court in England and Wales or (as the case may be) in Northern Ireland which has any jurisdiction in, or in relation to, any criminal proceedings (but not a service court unless the offence is alleged to have been committed by a person subject to service law);
in a case where this section applies by virtue of subsection (1)(b), any court falling within paragraph (a) or a service court.
The power under subsection (7) of a magistrates’ court in England and Wales may be exercised by a single justice.
In the case of a decision of a magistrates’ court in England and Wales, or a court of summary jurisdiction in Northern Ireland, to make or refuse to make an order under subsection (7), the following persons, namely— may, in accordance with Criminal Procedure Rules in England and Wales, or rules of court in Northern Ireland, appeal to the Crown Court, or in Northern Ireland a county court, against that decision or appear or be represented at the hearing of such an appeal.
any person who was a party to the proceedings on the application for the order, and
with the leave of the Crown Court, or in Northern Ireland a county court, any other person,
On such an appeal the Crown Court or in Northern Ireland a county court—
may make such order as is necessary to give effect to its determination of the appeal; and
may also make such incidental or consequential orders as appear to it to be just.
In this section—
“civil offence” means an act or omission which, if committed in England and Wales, would be an offence against the law of England and Wales;
any reference to a criminal investigation, in relation to an alleged offence, is to an investigation conducted by police officers, or other persons charged with the duty of investigating offences, with a view to it being ascertained whether a person should be charged with the offence;
any reference to a person subject to service law is to—
a person subject to military law, air-force law or the Naval Discipline Act 1957, or
a person subject to service law within the meaning of the Armed Forces Act 2006; or
any other person to whom provisions of Part II of the Army Act 1955, Part II of the Air Force Act 1955 or Parts I and II of the Naval Discipline Act 1957 apply (whether with or without any modifications).
a civilian subject to service discipline within the meaning of that Act.
This section applies (subject to subsection (2)) in relation to—
any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland; and
any proceedings (whether in the United Kingdom or elsewhere) in any service court.
This section does not apply in relation to any proceedings to which section 49 of the Children and Young Persons Act 1933 applies.
The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.
The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied that it is necessary in the interests of justice to do so.
The court or an appellate court may also by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied— but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
that it is in the public interest to remove or relax that restriction;
When deciding whether to make— the court or (as the case may be) the appellate court shall have regard to the welfare of that person.
a direction under subsection (3) in relation to a person, or
an excepting direction under subsection (4) or (5) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,
For the purposes of subsection (3) any reference to a person concerned in the proceedings is to a person—
against or in respect of whom the proceedings are taken, or
who is a witness in the proceedings.
The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
his name,
his address,
the identity of any school or other educational establishment attended by him,
the identity of any place of work, and
any still or moving picture of him.
A direction under subsection (3) may be revoked by the court or an appellate court.
An excepting direction—
may be given at the time the direction under subsection (3) is given or subsequently; and
may be varied or revoked by the court or an appellate court.
In this section “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal.
This section applies in relation to—
any criminal proceedings in any court (other than a service court) in England and Wales, and
any proceedings (whether in the United Kingdom or elsewhere) in any service court.
The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
a witness, other than an accused, in the proceedings;
a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.
For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
the person's name,
the person's address,
the identity of any school or other educational establishment attended by the person,
the identity of any place of work of the person, and
any still or moving picture of the person.
The court may make a reporting direction in respect of a person only if it is satisfied that— is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.
the quality of any evidence given by the person, or
the level of co-operation given by the person to any party to the proceedings in connection with that party's preparation of its case,
In determining whether subsection (5) is satisfied, the court must in particular take into account—
the nature and alleged circumstances of the offence to which the proceedings relate;
the age of the person;
such of the following as appear to the court to be relevant—
the social and cultural background and ethnic origins of the person,
the domestic, educational and employment circumstances of the person, and
any religious beliefs or political opinions of the person;
any behaviour towards the person on the part of—
an accused,
members of the family or associates of an accused, or
any other person who is likely to be an accused or a witness in the proceedings.
In determining that question the court must in addition consider any views expressed—
by the person in respect of whom the reporting restriction may be made, and
where that person is under the age of 16, by an appropriate person other than an accused.
In determining whether to make a reporting direction in respect of a person, the court must have regard to—
the welfare of that person,
whether it would be in the interests of justice to make the direction, and
the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.
A reporting direction may be revoked by the court or an appellate court.
The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
The court or an appellate court may only make an excepting direction if—
it is satisfied that it is necessary in the interests of justice to do so, or
it is satisfied that—
the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
it is in the public interest to remove or relax that restriction.
No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
An excepting direction—
may be given at the time the reporting direction is given or subsequently, and
may be varied or revoked by the court or an appellate court.
For the purposes of this section—
criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;
proceedings in a service court commence when the charge is brought under section 121(1A) or 122 of the Armed Forces Act 2006.
In this section—
“appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;
“appropriate person” has the same meaning as in section 50;
references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person's ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);
references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.
This section applies where— a party to the proceedings makes an application for the court to give a reporting direction in relation to a witness in the proceedings (other than the accused) who has attained the age of 18.
the Service Civilian Court; or
in any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland, or
in any proceedings (whether in the United Kingdom or elsewhere) in any service court,
“picture” includes a likeness however produced;
(in Northern Ireland) the Children (Northern Ireland) Order 1995.
(in Northern Ireland) the Children (Northern Ireland) Order 1995.
If the court determines—
that the witness is eligible for protection, and
that giving a reporting direction in relation to the witness is likely to improve— the court may give a reporting direction in relation to the witness.
the quality of evidence given by the witness, or
the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
In this section “reporting direction” has the meaning given by subsection (6).
For the purposes of this section a witness is eligible for protection if the court is satisfied— is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings.
that the quality of evidence given by the witness, or
the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
In determining whether a witness is eligible for protection the court must take into account, in particular—
the nature and alleged circumstances of the offence to which the proceedings relate;
the age of the witness;
such of the following matters as appear to the court to be relevant, namely—
the social and cultural background and ethnic origins of the witness,
the domestic and employment circumstances of the witness, and
any religious beliefs or political opinions of the witness;
any behaviour towards the witness on the part of—
the accused,
members of the family or associates of the accused, or
any other person who is likely to be an accused or a witness in the proceedings.
In determining that question the court must in addition consider any views expressed by the witness.
For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness’s lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.
The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6)) include in particular—
the witness’s name,
the witness’s address,
the identity of any educational establishment attended by the witness,
the identity of any place of work, and
any still or moving picture of the witness.
In determining whether to give a reporting direction the court shall consider—
whether it would be in the interests of justice to do so, and
the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.
The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction if—
it is satisfied that it is necessary in the interests of justice to do so, or
it is satisfied— but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
that it is in the public interest to remove or relax that restriction;
A reporting direction may be revoked by the court or an appellate court.
An excepting direction—
may be given at the time the reporting direction is given or subsequently; and
may be varied or revoked by the court or an appellate court.
In this section—
“appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;
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);
references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.
Except as provided by this section, no publication shall include a report of a matter falling within subsection (2).
The matters falling within this subsection are—
a direction under section 19 , 33A or 36 or an order discharging, or (in the case of a direction under section 19) varying, such a direction;
proceedings—
on an application for such a direction or order, or
where the court acts of its own motion to determine whether to give or make any such direction or order.
a direction under Article 7 or 24 of the Criminal Evidence (Northern Ireland) Order 1999 or an order discharging, or (in the case of a direction under Article 7) varying, such a direction;
The court dealing with a matter falling within subsection (2) may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of that matter.
Where— the court shall make the order if (and only if) satisfied after considering (in the case of proceedings in England and Wales) or hearing (in the case of other proceedings) the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
there is only one accused in the relevant proceedings, and
he objects to the making of an order under subsection (3),
Where— the court shall make the order if (and only if) satisfied after considering (in the case of proceedings in England and Wales) or hearing (in the case of other proceedings) the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
there are two or more accused in the relevant proceedings, and
one or more of them object to the making of an order under subsection (3),
Subsection (1) does not apply to the inclusion in a publication of a report of matters after the relevant proceedings are either— in relation to the accused or (if there is more than one) in relation to each of the accused.
determined (by acquittal, conviction or otherwise), or
abandoned,
In this section “the relevant proceedings” means the proceedings to which any such direction as is mentioned in subsection (2) relates or would relate.
Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of matter in a publication.
Schedule 2, which contains amendments relating to reporting restrictions under— shall have effect.
the Children and Young Persons Act 1933,
the Sexual Offences (Amendment) Act 1976,
the Sexual Offences (Northern Ireland) Order 1978,
the Sexual Offences (Amendment) Act 1992, and
the Criminal Justice (Northern Ireland) Order 1994,
This section applies if a publication—
includes any matter in contravention of section 44(2) or of a direction under section 45(3) or 46(2); or
includes a report in contravention of section 47.
Where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical is guilty of an offence.
This section also applies—
in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;
in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.
Where the publication is a relevant programme— is guilty of an offence.
any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and
any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
In the case of any other publication, any person publishing it is guilty of an offence.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Proceedings for an offence under this section in respect of a publication falling within subsection (1)(b) may not be instituted—
in England and Wales otherwise than by or with the consent of the Attorney General, or
in Northern Ireland otherwise than by or with the consent of the Attorney General for Northern Ireland.
Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.
Where a person is charged with an offence under section 49 it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included the matter or report in question.
Where— it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun.
a person is charged with an offence under section 49, and
the offence relates to the inclusion of any matter in a publication in contravention of section 44(2),
Where—
paragraphs (a) and (b) of subsection (2) apply, and
the contravention of section 44(2) does not relate to either— it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 44(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence.
the person by whom the offence mentioned in that provision is alleged to have been committed, or
(where that offence is one in relation to which section 1 of the Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence,
Subsection (5) applies where—
paragraphs (a) and (b) of subsection (2) apply, and
the contravention of section 44(2) relates to a person (“the protected person”) who is neither—
the person mentioned in subsection (3)(b)(i), nor
a person within subsection (3)(b)(ii) who is under the age of 16.
In such a case it shall be a defence, subject to subsection (6), to prove that written consent to the inclusion of the matter in question in the publication had been given— and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
by the protected person, if that person was aged 16 or 17 at that time,
The defence provided by subsection (5) is not available if—
(where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—
was given to the appropriate recipient by any other appropriate person or by the protected person, and
was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
subsection (8) applies.
Where— it shall be a defence, unless subsection (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
a person is charged with an offence under section 49, and
the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 46(2),
Where— it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
a person is charged with an offence under section 49, and
the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),
Written consent is not a defence by virtue of subsections (5) to (7) if it is proved that any person interfered— with intent to obtain the consent.
with the peace or comfort of the person giving the consent, or
(where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,
Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.
In this section—
Where the protected person is (within the meaning of the Children Act 1989 or the Social Services and Well-being (Wales) Act 2014) a child who is looked after by a local authority, “an appropriate person” means a person who is—
a representative of that authority, or
a parent or guardian of the protected person with whom the protected person is allowed to live.
Where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, “an appropriate person” means a person who is—
an officer of that authority, or
a parent or guardian of the protected person with whom the protected person is allowed to live.
Where the protected person is (within the meaning of section 17(6) of the Children (Scotland) Act 1995) a child who is looked after by a local authority, “an appropriate person” means a person who is—
a representative of that authority, or
a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.
However, no person by whom the offence mentioned in section 44(2) is alleged to have been committed is, by virtue of subsections (9) to (12), an appropriate person for the purposes of this section.
In this section “the appropriate recipient”, in relation to a notice under subsection (6)(a), means— and for this purpose “person” includes a body of persons and a partnership.
the person to whom the notice giving consent was given,
(if different) the person by whom the matter in question was published, or
any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;
If an offence under section 49 committed by a body corporate is proved— an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
to have been committed with the consent or connivance of, or
to be attributable to any neglect on the part of,
In subsection (1) “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
If the affairs of a body corporate are managed by its members, “director” in subsection (2) means a member of that body.
Where an offence under section 49 is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Where for the purposes of any provision of this Chapter it falls to a court to determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).
Those matters are—
the interest in each of the following—
the open reporting of crime,
the open reporting of matters relating to human health or safety, and
the prevention and exposure of miscarriages of justice;
the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and
any views expressed—
by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 (“the protected person”), or
by a person within that paragraph who has attained that age.
In subsection (2) “an appropriate person”, in relation to the protected person, has the same meaning as it has for the purposes of section 50.
At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
Subsection (1) has effect subject to subsections (3) and (4).
A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—
understand questions put to him as a witness, and
give answers to them which can be understood.
A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised— shall be determined by the court in accordance with this section.
by a party to the proceedings, or
by the court of its own motion,
It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.
In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give, in relation to the witness.
Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
Expert evidence may be received on the question.
Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised— shall be determined by the court in accordance with this section.
by a party to the proceedings, or
by the court of its own motion,
The witness may not be sworn for that purpose unless—
he has attained the age of 14, and
he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party).
If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b).
Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one).
Expert evidence may be received on the question.
Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
For the purposes of this section a person is able to give intelligible testimony if he is able to—
understand questions put to him as a witness, and
give answers to them which can be understood.
Subsections (2) and (3) apply to a person (of any age) who—
is competent to give evidence in criminal proceedings, but
(by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings.
The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.
A deposition of unsworn evidence given by a person to whom this subsection applies may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.
A court in criminal proceedings shall accordingly receive in evidence any evidence given unsworn in pursuance of subsection (2) or (3).
Where a person (“the witness”) who is competent to give evidence in criminal proceedings gives evidence in such proceedings unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of any of sections 2(1), 13(1) and 16(1) of the Criminal Appeal Act 1968 (grounds for allowing appeals) by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath).
This section applies where a person gives unsworn evidence in criminal proceedings in pursuance of section 56(2) or (3).
If such a person wilfully gives false evidence in such circumstances that, had the evidence been given on oath, he would have been guilty of perjury, he shall be guilty of an offence and liable on summary conviction to— or both.
imprisonment for a term not exceeding 6 months, or
a fine not exceeding £1,000,
In relation to a person under the age of 14, subsection (2) shall have effect as if for the words following “on summary conviction” there were substituted “ to a fine not exceeding £250 ”.
Sections 34 and 36 to 38 of the Criminal Justice and Public Order Act 1994 (inferences from accused’s silence) shall be amended as follows.
In section 34 (effect of accused’s failure to mention facts when questioned or charged), after subsection (2) there shall be inserted—
In section 36 (effect of accused’s failure or refusal to account for objects, substances or marks), after subsection (4) there shall be inserted—
In section 37 (effect of accused’s failure or refusal to account for presence at a particular place), after subsection (3) there shall be inserted—
In section 38 (interpretation), after subsection (2) there shall be inserted—
Schedule 3, which amends enactments providing for the use of answers and statements given under compulsion so as to restrict in criminal proceedings their use in evidence against the persons giving them, shall have effect.
Section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.
The Secretary of State may by order direct that any provision of— shall apply, subject to such modifications as he may specify, to any proceedings before a service court.
Chapters I to III and V, or
sections 62, 63 and 65 so far as having effect for the purposes of any of those Chapters,
Chapter IV (and sections 62, 63 and 65 so far as having effect for the purposes of that Chapter) shall have effect for the purposes of proceedings before a service court subject to any modifications which the Secretary of State may by order specify.
The power to make an order under section 39 of the Criminal Justice and Public Order Act 1994 (power to apply sections 34 to 38 to the armed forces) in relation to any provision of sections 34 to 38 of that Act shall be exercisable in relation to any provision of those sections as amended by section 58 above.
In this Part “sexual offence” means any offence under—
Part 1 of the Sexual Offences Act 2003 or any relevant superseded offence; or
section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).
an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.);
an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14);
an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).
In this Part any reference (including a reference having effect by virtue of this subsection) to an offence of any description (“the substantive offence”) is to be taken to include a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, the substantive offence.
In subsection (1) “relevant superseded offence” means—
rape or burglary with intent to rape;
an offence under any of sections 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.);
an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.);
an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14);
an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).
In this Part (except where the context otherwise requires)—
“firearm” has the meaning given by section 57 of the Firearms Act 1968;
Nothing in this Part shall affect any power of a court to exclude evidence at its discretion (whether by preventing questions being put or otherwise) which is exercisable apart from this Part.
Any power of the Secretary of State to make any . . . order under this Act shall be exercised by statutory instrument.
A statutory instrument containing any . . . order under section . . . 61(1) or (2) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
No . . . order shall be made under— unless a draft of the . . .order has been laid before, and approved by a resolution of, each House of Parliament.
section . . ., 17(7), 18(5), 42(2) or 44(5), . . .
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Any . . . order made by the Secretary of State under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit.
Any power of the Department of Justice in Northern Ireland to make an order under this Act shall be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979.
No order shall be made by the Department of Justice under section 44(5) unless a draft of it has been laid before, and approved by a resolution of, the Northern Ireland Assembly (and subsection (3) above shall not apply to the making of any order by the Department of Justice).
Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (6) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.
Any order made by the Department of Justice under this Act may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Department of Justice thinks fit.
Criminal Procedure Rules may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Act (and nothing in this Act shall be taken to affect the generality of any enactment conferring power to make such rules).
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Magistrates' Courts Rules;
Crown Court Rules;
Criminal Appeal Rules.
For the purposes of this Act the age of a person shall be taken to be that which it appears to the court to be after considering any available evidence.
Subsection (3) is subject to section 33(5) of this Act.
An Order in Council under section 85 of the Northern Ireland Act 1998 (provision dealing with certain reserved matters) which contains a statement that it is made only for purposes corresponding to the purposes of any of the relevant provisions of this Act—
shall not be subject to the procedures set out in subsections (3) to (8) of that section; but
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
In subsection (1) “the relevant provisions of this Act” means—
Chapters I to III of Part II;
section 47;
sections 49 to 51 so far as having effect for the purposes of section 47;
Chapters V to VII of Part II (other than section 59); and
this Part.
Until the day appointed under section 3 of the Northern Ireland Act 1998 for the commencement of Parts II and III of that Act, this section shall have effect with the substitution for subsection (1) of the following—
The minor and consequential amendments specified in Schedule 4 shall have effect.
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The enactments specified in Schedule 6 (which include certain spent enactments) are repealed or revoked to the extent specified.
The transitional provisions and savings in Schedule 7 shall have effect.
This Act may be cited as the Youth Justice and Criminal Evidence Act 1999.
For the purposes of the Scotland Act 1998, any provision of this Act which extends to Scotland shall be taken to be a pre-commencement enactment within the meaning of that Act.
Subject to subsection (4), this Act shall not come into force until such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes or different areas.
The following provisions come into force on the day on which this Act is passed—
section 6(4);
the provisions of Chapters I to IV of Part II for the purpose only of the exercise of any power to make rules of court;
section 40(1);
sections 58(5) and 61(2) for the purpose only of the exercise of any power to make an order;
section 61(1) and (3), sections 62 to 66 and this section.
In relation to the coming into force of any provision of this Act for the purposes of the law of Northern Ireland, the reference in subsection (3) to the Secretary of State shall be construed as a reference to the Department of Justice in Northern Ireland.
Subject to subsections (6) to (9) this Act extends to England and Wales only.
Subject to subsection (9), the following provisions extend also to Scotland and Northern Ireland—
the provisions of Chapter IV of Part II and section 63 so far as having effect for the purposes of those provisions;
the provisions of paragraph 6 of Schedule 7 and paragraph 1 of that Schedule so far as having effect for the purposes of those provisions; and
sections 59, 61 and 64 and this section.
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Section 66 extends to Northern Ireland only.
The extent of any amendment, repeal or revocation made by this Act is the same as that of the enactment amended, repealed or revoked, except that—
the amendments made by Schedule 2 in section 49 of the Children and Young Persons Act 1933 and in the Sexual Offences (Amendment) Act 1992 extend to England and Wales, Scotland and Northern Ireland;
the repeal by Schedule 6 of section 62 of the Criminal Procedure and Investigations Act 1996 does not extend to Northern Ireland.
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Chapter IV of Part II, so far as it relates to proceedings before a service court (within the meaning of Part II), and
section 61,
This Part of this Schedule applies where a youth offender panel refers an offender back to the appropriate court under section 7(2), 10(2) or (3), 11(5), (8) or (10) or 12(4). For the purposes of this Part of this Schedule and the provisions mentioned in sub-paragraph (1) the appropriate court is—
The panel shall make the referral by sending a report to the appropriate court explaining why the offender is being referred back to it.
Where the appropriate court receives such a report, the court shall cause the offender to appear before it. For the purpose of securing the attendance of the offender before the court, a justice acting for the petty sessions area for which the court acts may— Any summons or warrant issued under sub-paragraph (2) shall direct the offender to appear or be brought before the appropriate court. Section 4 of the Summary Jurisdiction (Process) Act 1881 (execution of process of English courts in Scotland) shall apply to any process issued under sub-paragraph (2) as it applies to process issued under the Magistrates’ Courts Act 1980.
Where the offender is arrested in pursuance of a warrant under paragraph 3(2) and cannot be brought immediately before the appropriate court— Sub-paragraphs (3) to (5) apply where the court before which the offender is brought under sub-paragraph (1)(b) (“the alternative court”) is not the appropriate court. The alternative court may direct that he is to be released forthwith or remand him. Section 128 of the Magistrates’ Courts Act 1980 (remand in custody or on bail) shall have effect where the alternative court has power under sub-paragraph (3) to remand the offender as if the court referred to in subsections (1)(a), (3), (4)(a) and (5) were the appropriate court. That section shall have effect where the alternative court has power to so remand him, or the appropriate court has (by virtue of sub-paragraph (4)) power to further remand him, as if in subsection (1) there were inserted after paragraph (c)or .
If it is proved to the satisfaction of the appropriate court as regards any decision of the panel which resulted in the offender being referred back to the court— the court may exercise the power conferred by sub-paragraph (2). That power is a power to revoke the referral order (or each of the referral orders). The revocation under sub-paragraph (2) of a referral order has the effect of revoking any related order under paragraph 11 or 12. Where any order is revoked under sub-paragraph (2) or by virtue of sub-paragraph (3), the appropriate court may deal with the offender in accordance with sub-paragraph (5) for the offence in respect of which the revoked order was made. In so dealing with the offender for such an offence, the appropriate court— The appropriate court may not exercise the powers conferred by sub-paragraph (2) or (4) unless the offender is present before it; but those powers are exercisable even if, in a case where a contract has taken effect under section 8, the period for which the contract has effect has expired (whether before or after the referral of the offender back to the court). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Where the court in exercise of the power conferred by paragraph 5(4) deals with the offender for an offence, the offender may appeal to the Crown Court against the sentence.
This paragraph applies— If either— the offender shall continue to remain subject to the referral order (or orders) in all respects as if he had not been referred back to the court. If— the court shall make an order declaring that the referral order (or each of the referral orders) is discharged.
If, in a case where the offender is referred back to the court under section 12(4), the court decides (contrary to the decision of the panel) that the offender’s compliance with the terms of the contract has, or will have, been such as to justify the conclusion that he has satisfactorily completed the contract, the court shall make an order declaring that the referral order (or each of the referral orders) is discharged.
The discharge under paragraph 7(3) or 8 of a referral order has the effect of discharging any related order under paragraph 11 or 12.
Paragraphs 11 and 12 apply where, at a time when an offender under the age of 18 is subject to referral, a youth court or other magistrates’ court (“the relevant court”) is dealing with him for an offence in relation to which paragraphs (a) to (c) of section 1(1) are applicable. But paragraphs 11 and 12 do not apply unless the offender’s compliance period is less than 12 months.
If— the relevant court may sentence the offender for the offence by making an order extending his compliance period.
the occasion on which the offender was referred to the panel is the only other occasion on which it has fallen to a court in the United Kingdom to deal with the offender for any offence or offences, and
the offender committed the offence mentioned in paragraph 10, and any associated offence, before he was referred to the panel,
If— the relevant court may sentence the offender for the offence by making an order extending his compliance period, but only if the requirements of sub-paragraph (2) are complied with. Those requirements are that the court must— In sub-paragraph (2) “the relevant body” means the panel to which the offender has been referred or, if no contract has yet taken effect between the offender and the panel under section 8, the specified team.
An order under paragraph 11 or 12, or two or more orders under one or other of those paragraphs made in respect of associated offences, must not so extend the offender’s compliance period as to cause it to exceed twelve months. Sub-paragraphs (3) to (5) apply where the relevant court makes an order under paragraph 11 or 12 in respect of the offence mentioned in paragraph 10; but sub-paragraphs (3) to (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 or 14. The relevant court may not deal with the offender for that offence in any of the prohibited ways specified in section 4(4). The relevant court— The relevant court may not, in connection with the conviction of the offender for the offence or any associated offence, make any such order as is mentioned in section 4(5). For the purposes of paragraphs 11 and 12 any occasion on which the offender was discharged absolutely in respect of the offence, or each of the offences, for which he was being dealt with shall be disregarded. Any occasion on which, in criminal proceedings in England and Wales or Northern Ireland, the offender was bound over to keep the peace or to be of good behaviour shall be regarded for those purposes as an occasion on which it fell to a court in the United Kingdom to deal with the offender for an offence. The Secretary of State may by regulations make such amendments of paragraphs 10 to 12 and this paragraph as he considers appropriate for altering in any way the descriptions of offenders in the case of which an order extending the compliance period may be made; and subsection (4) of section 2 shall apply in relation to regulations under this sub-paragraph as it applies in relation to regulations under subsection (3) of that section.
This paragraph applies where, at a time when an offender is subject to referral, a court in England and Wales deals with him for an offence (whether committed before or after he was referred to the panel) by making an order other than— In such a case the order of the court shall have the effect of revoking— Where any order is revoked by virtue of sub-paragraph (2), the court may, if appears to the court that it would be in the interests of justice to do so, deal with the offender for the offence in respect of which the revoked order was made in any manner in which (assuming section 1 had not applied) he could have been dealt with for that offence by the court which made the order. When dealing with the offender under sub-paragraph (3) the court shall, where a contract has taken effect between the offender and the panel under section 8, have regard to the extent of his compliance with the terms of the contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
For the purposes of this Part of this Schedule an offender is for the time being subject to referral if— been discharged (whether by virtue of section 12(3) or under paragraph 7(3) or 8) or revoked (whether under paragraph 5(2) or by virtue of paragraph 14(2)). In this Part of this Schedule “compliance period”, in relation to an offender who is for the time being subject to referral, means the period for which (in accordance with section 9) any youth offender contract taking effect in his case under section 8 has (or would have) effect.
Section 48.
The Children and Young Persons Act 1933 has effect subject to the following amendments.
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Section 49 (restrictions on reports of proceedings in which children or young persons concerned) is amended as follows. For subsection (1) substitute— For subsection (3) substitute— In subsection (4), for the words from “whether as being” onwards substituteif he is— In subsection (4A), for “requirements of this section” substitute “ restrictions imposed by subsection (1) above ”. In subsection (8), after “subsection” insert “ (4A) or ”. For subsection (9) substitute— “picture” includes a likeness however produced; “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990; After subsection (11) insert— The amendments made by this paragraph do not apply to the inclusion of matter in a publication if— before the coming into force of this paragraph.
The Sexual Offences (Amendment) Act 1976 has effect subject to the following amendments. Omit sections 4 and 5 (which provide for the anonymity of complainants in rape etc. cases and are superseded by the amendments made by this Schedule to the Sexual Offences (Amendment) Act 1992). In section 7(6) (extent), for the words after “Scotland” substitute “ or Northern Ireland. ”
In the Sexual Offences (Northern Ireland) Order 1978, omit Articles 6 and 7 (which provide for the anonymity of complainants in rape offence cases and are superseded by the amendments made by this Schedule to the Sexual Offences (Amendment) Act 1992).
The Sexual Offences (Amendment) Act 1992 has effect subject to the following amendments.
Section 1 (anonymity of victims of certain sexual offences) is amended as follows. In subsection (1), for the words from “neither the name” to the end of paragraph (b) substitute “ no matter relating to that person shall during that person’s lifetime be included in any publication ”. In subsection (2), for the words after “complainant’s lifetime” substitute “ be included in any publication. ” For subsection (3) substitute— In subsection (4), for “publication or inclusion in a relevant programme” substitute “ inclusion in a publication ”.
Section 2 (offences to which Act applies) is amended as follows. In subsection (1), after “This Act applies to the following offences” insertagainst the law of England and Wales— . In subsection (1)(e), for “(a)” substitute “ (aa) ”. In subsection (1), after paragraph (g) insert—. In subsection (2), after paragraph (m) insert— After subsection (2) insert—
Section 3 (power to displace reporting restrictions under section 1) is amended as follows. In subsection (6)(b) (meaning of “judge”), after “Crown Court” insert “ in England and Wales. ” After subsection (6) insert—
In section 4 (special rules for cases of incest or buggery), after subsection (7) insert—
Section 5 (offences) is amended as follows. For subsection (1) substitute— In subsection (2) (defence where victim consented to publication)— In subsection (3) (cases where written consent not a defence), at the end insert “ , or that person was under the age of 16 at the time when it was given. ” In subsection (4) (Attorney General’s consent to prosecution), at the end insert “ if the offence is alleged to have been committed in England and Wales or of the Attorney General for Northern Ireland if the offence is alleged to have been committed in Northern Ireland. ” In subsection (5) (defence for person unaware of inclusion of prohibited matter), for the words from “or programme” onwards substitute “ included the matter in question. ” After subsection (5) insert— After subsection (7) insert—
Section 6 (interpretation) is amended as follows. “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings; the In subsection (3) (time when person is accused of an offence), in paragraph (a) after “is laid” insert “ , or (in Northern Ireland) a complaint is made, ”.
Section 7 (application of Act to courts-martial) is amended as follows. In subsection (1) (Act to apply with modifications where in pursuance of armed forces law a person is charged with an offence to which the Act applies), after “applies” insert “ by virtue of section 2(1) ”. In subsection (2) (modifications with which Act applies to courts-martial)—
For section 8(6) and (7) (application of Act to Scotland and to Northern Ireland) substitute—
In the Criminal Justice (Northern Ireland) Order 1994, omit Articles 19 to 24 (which provide for the anonymity of victims of certain sexual offences and are superseded by the amendments made by this Schedule to the Sexual Offences (Amendment) Act 1992).
Section 59.
The Insurance Companies Act 1982 is amended as follows.
In section 43A (general investigations into insurance companies), after subsection (5) (use of statements made under the section) add—
In section 44 (obtaining information and documents from companies), after subsection (5) (use of statements made under the section) insert—
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Section 433 of the Insolvency Act 1986 (admissibility in evidence of statements of affairs etc.) is amended as follows. That section is renumbered as subsection (1) of that section. After that subsection insert—
Section 20 of the Company Directors Disqualification Act 1986 (admissibility in evidence of statements) is amended as follows. That section is renumbered as subsection (1) of that section. After that subsection insert—
In section 57 of the Building Societies Act 1986 (use of answers given to inspectors conducting investigations into building societies), after subsection (5) (use of answers given to inspectors) insert—
The Financial Services Act 1986 is amended as follows.
In section 105 (powers of Secretary of State to investigate affairs of person carrying on investment business), after subsection (5) (use of statements made under the section) insert—
In section 177 (investigations into insider dealing), after subsection (6) (use of statements made under the section) insert—
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The Banking Act 1987 is amended as follows.
In section 39 (power of Financial Services Authority to obtain information etc. from authorised institutions), after subsection (12) (use of statements made under the section) insert—
In section 41 (investigations into authorised institutions by Financial Services Authority), after subsection (10) (use of statements made under the section) insert—
In section 42 (investigations by Financial Services Authority into suspected contraventions of sections 3 and 35), after subsection (5) (use of statements made under the section) insert—
After subsection (8) of section 2 of the Criminal Justice Act 1987 (use of statements made in response to requirements imposed by the Director of the Serious Fraud Office) insert—
In section 83 (powers exercisable for purposes of assisting an overseas regulatory authority), after subsection (6) (use of statements made under the section) insert—
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Article 375 of the Insolvency (Northern Ireland) Order 1989 (admissibility in evidence of statements of affairs etc.) is amended as follows. That Article is renumbered as paragraph (1) of that Article. After that paragraph insert—
In section 67 of the Friendly Societies Act 1992 (supplementary provisions about inspections carried out at the behest of the Friendly Societies Commission), after subsection (5) (use of statements made under the section) insert—
After subsection (5) of section 28 of the Criminal Law (Consolidation) (Scotland) Act 1995 (use of statements made in response to requirements imposed by a nominated officer) insert—
In paragraph 6 of Schedule 2 to the Proceeds of Crime (Northern Ireland) Order 1996 (admissibility of evidence), for sub-paragraph (b) substitute—.
Section 67.
Section 1 of the Criminal Evidence Act 1898 (competence of accused as witness for the defence) is amended as follows. Omit the words from the beginning to “Provided as follows:—”. In paragraph (a) of the proviso— In paragraph (e) of the proviso— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In paragraph (g) of the proviso, for “called as a witness in pursuance of this Act” substitute “ charged in criminal proceedings who is called as a witness in the proceedings ”. Paragraphs (a), (e), (f) and (g) of the proviso shall be respectively numbered as subsections (1), (2), (3) and (4) of the section.
The Children and Young Persons Act 1933 has effect subject to the following amendments. In section 37(1) (power to clear court, where child or young person giving evidence, of persons other than bona fide representatives of newspapers or news agencies), for “newspaper or news agency” substitute “ news gathering or reporting organisation ”. In section 47(2)(c) (bona fide representatives of newspapers or news agencies entitled to be present at sitting of youth court), for “newspapers or news agencies” substitute “ news gathering or reporting organisations ”.
In section 57(3) of the Children and Young Persons Act 1963 (which provides for sections 39 and 49 of the Children and Young Persons Act 1933 to extend to Scotland), for “sections 39 and 49”, in both places, substitute “ section 39 ”.
The Criminal Appeal Act 1968 has effect subject to the following amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 31(1)(b) (power to give directions exercisable by single judge), for “section 4(4) of the Sexual Offences (Amendment) Act 1976” substitute “ section 3(4) of the Sexual Offences (Amendment) Act 1992 ”.
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The Magistrates’ Courts Act 1980 has effect subject to the following amendments.
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In section 126 (execution of warrants in Channel Islands and Isle of Man under section 13 of the Indictable Offences Act 1848), after paragraph (e) insertand
In section 72(1) of the Criminal Justice Act 1982 (accused to give evidence on oath), after “if he gives evidence, he shall do so” insert “ (subject to sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999) ”.
but the court may make any other order which it
The Police and Criminal Evidence Act 1984 has effect subject to the following amendments.
Section 80 (competence and compellability of accused’s spouse) is amended as follows. Omit subsections (1) and (8). For subsections (2) to (4) substitute— In subsection (5), omit “competent and” and, in the side-note, omit “Competence and”.
After section 80 insert—
The Criminal Justice Act 1988 has effect subject to the following amendments.
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In section 34(3) (unsworn evidence may corroborate other evidence), for “section 52 of the Criminal Justice Act 1991” substitute “ section 56 of the Youth Justice and Criminal Evidence Act 1999 ”.
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In Article 2(2) of the Insolvency (Northern Ireland) Order 1989 (interpretation), in the definition of “regulations” for “Article 359(5)” substitute “ Articles 359(5) and 375(3)(b)(ii) ”.
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The Criminal Justice and Public Order Act 1994 has effect subject to the following amendments.
Section 51 (intimidation etc. of witnesses, jurors and others) is amended as follows. For subsections (1) to (3) (offences of intimidating, and of doing or threatening harm to, witnesses etc.) substitute— In subsection (8) (presumption in proceedings for offence under subsection (2))—
In section 136 (cross-border execution of arrest warrants), after subsection (7) insert—
In Schedule 11 (repeals), the entry relating to section 57(4) of the Children and Young Persons Act 1969 shall be treated as, and as always having been, an entry relating to section 57(4) of the Children and Young Persons Act 1963.
The Crime and Disorder Act 1998 has effect subject to the following amendments.
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In section 38(4) (definition of “youth justice services”), after paragraph (j) there shall be inserted—
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The Children and Young Persons Act 1969 has effect subject to the following amendments.
In section 12A (requirements that may be included in supervision orders), at the end add—
Section 15 (variation and discharge of supervision orders) is amended as follows. In subsection (3)(b) (magistrates’ powers of re-sentence on breach of supervision order), for “relevant court” substitute “ magistrates’ court ”. After subsection (8) insert—
Section 16 (provisions supplementary to section 15) is amended as follows. In subsection (3A), for “(3C)” substitute “ (4A) ”. Omit subsections (3B) and (3C). In subsection (4), at the beginning insert “ Subject to subsection (4A) of this section, ”. After subsection (4) insert—
The Crime and Disorder Act 1998 has effect subject to the following amendments.
Section 74 (duties and powers of court in relation to detention and training orders) is amended as follows. For subsection (2) substitute— After subsection (4) insert— After subsection (5) insert— In subsection (6), for “The reference in subsection (5) above” substitute “ Any reference in subsection (5) or (5A) above ”. In subsection (8), omit “this section or”.
In section 75(5) (alteration of release of offender subject to detention and training order), for “the youth court” substitute “ a youth court ”.
In section 77 (detention and training orders: breach of supervision requirements), after subsection (4) insert—
In section 79 (interaction of detention and training order with sentences of detention), after subsection (2) insert—
Paragraph 3 of Schedule 5 (failure to comply with reparation and action plan orders) is amended as follows. In sub-paragraph (2)(b), for “youth court” substitute “ magistrates’ court ”. Omit sub-paragraph (3). After sub-paragraph (8) insert—
Paragraph 4 of that Schedule (presence of offender in court, remands, etc.) is amended as follows. In sub-paragraph (5)(b), for “(6)” substitute “ (7A) ”. Omit sub-paragraph (6). In sub-paragraph (7), at the beginning insert “ Subject to sub-paragraph (7A) below, ”. After sub-paragraph (7) insert—
Omit paragraph 5(6) of that Schedule.
Section 67. Reference Short title or title Extent of repeal or revocation 61 & 62 Vict. c. 36. Criminal Evidence Act 1898. In section 1, the words from the beginning to “Provided as follows:—”. 23 & 24 Geo. 5 c. 12. Children and Young Persons Act 1933. Section 38. 12, 13 & 14 Geo. 6 c. 88. Registered Designs Act 1949. Section 17(11). 1955 c. 18. Army Act 1955. Section 93(1B) and (2). 1955 c. 19. Air Force Act 1955. Section 93(1B) and (2). 1957 c. 53. Naval Discipline Act 1957. Section 60(2) and (3). 1963 c. 37. Children and Young Persons Act 1963. Section 57(2) and (4). 1968 c. 19. Criminal Appeal Act 1968. In section 10(2)(b), the words “, a referral order within the meaning of Part I of the Youth Justice and Criminal Evidence Act 1999 (referral to youth offender panel)”. 1968 c. 20. Courts-Martial (Appeals) Act 1968. In section 36(1), the words “section 4(4) of the Sexual Offences (Amendment) Act 1976 as adapted by section 5(1)(d) of that Act or”. 1968 c. 60. Theft Act 1968. In section 30(2), the words from “and a person bringing” onwards. 1969 c. 54. Children and Young Persons Act 1969. Section 16(3B) and (3C). 1976 c. 52. Armed Forces Act 1976. In Schedule 3, in paragraph 3(2), the words from “or direct that” onwards. 1976 c. 82. Sexual Offences (Amendment) Act 1976. Sections 2 to 5. In section 7(4), the words from “except that” onwards. Section 7(5). 1977 c. 37. Patents Act 1977. Section 32(12). S.I. 1978/460 (N.I. 5). Sexual Offences (Northern Ireland) Order 1978. In Article 1(2), the words from “and Articles 6 and 8” onwards. Articles 6 and 7. 1978 c. 23. Judicature (Northern Ireland) Act 1978. In Part II of Schedule 5, the amendment of the Sexual Offences (Northern Ireland) Order 1978. 1979 c. 2. Customs and Excise Management Act 1979. Section 75A(6)(b). In section 118A(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. 1980 c. 43. Magistrates’ Courts Act 1980. In section 125(4)(c)(iii), the “and” at the end. In section 126(d), the “and” at the end. In Schedule 7, paragraph 148. 1981 c. 55. Armed Forces Act 1981. In Schedule 2, paragraph 9. 1984 c. 60. Police and Criminal Evidence Act 1984. Sections 69 and 70. Section 80(1). In section 80(5), the words “competent and”. Section 80(8). In section 82(1), in the definition of “proceedings”, in paragraph (a) the words after “court-martial” and, in paragraph (b)(i), the words “so constituted”. Schedule 3. 1985 c. 9. Companies Act 1985. In section 709(3), the words from “In England and Wales” onwards. 1988 c. 33. Criminal Justice Act 1988. In section 23(1), paragraph (c) and the “and” preceding it. In section 24(1), paragraph (c) and the “and” preceding it. In section 32(1), paragraph (b) and the “or” preceding it. Section 32(2), (3A) to (3E) and (6). Section 32A. Section 33A. Section 34A. Section 158(2) to (4). In Schedule 13, in paragraph 8, sub-paragraph (2)(b) and the “and” preceding it and, in sub-paragraph (3), “, (2)”. In Schedule 15, paragraph 53. 1990 c. 42. Broadcasting Act 1990. In Schedule 20, paragraphs 26 and 27. 1991 c. 53. Criminal Justice Act 1991. Section 52. Section 54. Section 55(2)(b), (4), (6) and (7). In Schedule 9, paragraphs 3 and 7. In Schedule 11, paragraph 1 and, in paragraph 37, the words from “and, in subsection (3)” onwards. 1992 c. 34. Sexual Offences (Amendment) Act 1992. In section 5(2), the words “or programme”. In section 6(1), the definition of “written publication” and the “and” preceding it. In section 7(2), paragraph (b) and paragraph (e) except for the “and” at the end. Section 7(3). 1994 c. 9. Finance Act 1994. In section 22(2)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. In Schedule 7, in paragraph 1(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. 1994 c. 23. Value Added Tax Act 1994. In Schedule 11, in paragraph 6(6)(b), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. 1994 c. 33. Criminal Justice and Public Order Act 1994. Section 50. In Schedule 9, paragraphs 11(1)(a), 13 and 33. In Schedule 10, paragraphs 32, 35(3) and 36. S.I. 1994/2795 (N.I. 15). Criminal Justice (Northern Ireland) Order 1994. Article 2(3). Article 18(3). Articles 19 to 24. 1995 c. 35. Criminal Appeal Act 1995. In Schedule 2, paragraph 16(2)(b) and (3). 1995 c. 38. Civil Evidence Act 1995. In Schedule 1, paragraph 10. 1996 c. 8. Finance Act 1996. In Schedule 5, in paragraph 2(6)(a), the words “sections 69 and 70 of the Police and Criminal Evidence Act 1984 and”. 1996 c. 25. Criminal Procedure and Investigations Act 1996. Section 62. In Schedule 1, paragraphs 23, 27 and 33. 1996 c. 46. Armed Forces Act 1996. In Schedule 1, paragraph 107(a). 1998 c. 37. Crime and Disorder Act 1998. In section 74(8), the words “this section or”. In Schedule 5, paragraphs 3(3), 4(6) and 5(6). S.I. 1998/1504 (N.I. 9). Criminal Justice (Children) (Northern Ireland) Order 1998. Article 22. 1999 c. 23. Youth Justice and Criminal Evidence Act 1999. Section 4(7)(d) except for the “or” at the end. In section 15(1), in the definition of “custodial sentence”, the words from “a sentence of detention in” to “1994,”. In Schedule 1, paragraphs 5(7) and 14(5). In Schedule 4, paragraph 4(2).
Section 67.
In this Schedule— For the purposes of this Schedule— Expressions used in this Schedule which are also used in Part II of this Act have the same meaning in this Schedule as in that Part.
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A special measures direction may be given in relation to a witness in continuing proceedings unless the court has before the specified date— The repeals made by this Act shall not affect the continued operation in relation to a witness in continuing proceedings of section 32 or 32A of the 1988 Act where before the specified date leave was given in relation to the witness in connection with those proceedings by virtue of section 32(1)(b) or section 32A, as the case may be. Nothing in this Act affects the continued operation in relation to a witness in continuing proceedings of any order made or leave given under any existing special measures power exercised by the court before the specified date in relation to the witness in connection with those proceedings. In this paragraph—
Nothing in Chapter II of Part II applies in relation to proceedings instituted before the commencement date for that Chapter.
Nothing in Chapter III of Part II applies in relation to continuing proceedings in which leave has been given before the commencement date for that Chapter— Nothing in this Act affects the continued operation of any leave so given in relation to any such proceedings.
Section 44 applies in relation to an alleged offence whether the criminal investigation into it is begun before or after the coming into force of that section. The restrictions imposed by subsection (2) of section 44 do not apply to the inclusion of matter in a publication if— before the coming into force of that section. Nothing in section 45 or 46 applies in relation to proceedings instituted before the commencement date for that section. In sub-paragraph (3) the reference to the institution of proceedings shall be construed— In the case of proceedings falling within sub-paragraph (4)(b)— In the case of proceedings falling within sub-paragraph (4)(c)—
Nothing in Chapter V of Part II applies in relation to proceedings instituted before the commencement date for that Chapter.
The amendments made by section 58—
apply only to proceedings instituted on or after the commencement date for that section; but
so apply whether the relevant failure or refusal on the part of the accused took place before or after that date.
Murder in a case where it is alleged that a firearm or knife was used to cause the death in question.
Manslaughter in a case where it is alleged that a firearm or knife was used to cause the death in question.
Murder or manslaughter in a case (other than a case falling within paragraph 1 or 2) where it is alleged that—
the accused was carrying a firearm or knife at any time during the commission of the offence, and
a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.
An offence under section 18 of the Offences against the Person Act 1861 (wounding with intent to cause grievous bodily harm etc) in a case where it is alleged that a firearm or knife was used to cause the wound or harm in question.
An offence under section 20 of that Act (malicious wounding) in a case where it is alleged that a firearm or knife was used to cause the wound or inflict the harm in question.
An offence under section 38 of that Act (assault with intent to resist arrest) in a case where it is alleged that a firearm or knife was used to carry out the assault in question.
An offence under section 47 of the Offences against the Person Act 1861 (assault occasioning actual bodily harm) in a case where it is alleged that a firearm or knife was used to inflict the harm in question.
An offence under section 18, 20, 38 or 47 of the Offences against the Person Act 1861 in a case (other than a case falling within any of paragraphs 4 to 7) where it is alleged that—
the accused was carrying a firearm or knife at any time during the commission of the offence, and
a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.
An offence under section 1 of the Prevention of Crime Act 1953 (having an offensive weapon in a public place).
An offence under section 1A of that Act (threatening with offensive weapon in public).
An offence under section 1 of the Firearms Act 1968 (requirement of firearm certificate).
An offence under section 2(1) of that Act (possession etc of a shot gun without a certificate).
An offence under section 3 of that Act (business and other transactions with firearms and ammunition).
An offence under section 4 of that Act (conversion of weapons).
An offence under section 5(1) of that Act (weapons subject to general prohibition).
An offence under section 5(1A) of that Act (ammunition subject to general prohibition).
An offence under section 16 of that Act (possession with intent to injure).
An offence under section 16A of that Act (possession with intent to cause fear of violence).
An offence under section 17 of that Act (use of firearm to resist arrest).
An offence under section 18 of that Act (carrying firearm with criminal intent).
An offence under section 19 of that Act (carrying firearm in a public place).
An offence under section 20 of that Act (trespassing with firearm).
An offence under section 21 of that Act (possession of firearms by person previously convicted of crime).
An offence under section 21A of that Act (firing an air weapon beyond premises).
An offence under section 24A of that Act (supplying imitation firearms to minors).
An offence under section 139 of the Criminal Justice Act 1988 (having article with blade or point in public place).
An offence under section 139A of that Act (having article with blade or point (or offensive weapon) on school premises).
An offence under section 139AA of that Act (threatening with article with blade or point or offensive weapon).
An offence under section 28 of the Violent Crime Reduction Act 2006 (using someone to mind a weapon).
An offence under section 32 of that Act (sales of air weapons by way of trade or business to be face to face).
An offence under section 36 of that Act (manufacture, import and sale of realistic imitation firearms).
An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation) in a case where it is alleged that—
the accused was carrying a firearm or knife at any time during the commission of the offence, and
a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.
A reference in any of paragraphs 1 to 8 and 29A to an offence (“offence A”) includes—
a reference to an attempt to commit offence A in a case where it is alleged that it was attempted to commit offence A in the manner or circumstances described in that paragraph,
a reference to a conspiracy to commit offence A in a case where it is alleged that the conspiracy was to commit offence A in the manner or circumstances described in that paragraph,
a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed in a case where it is alleged that the person intended or believed offence A would be committed in the manner or circumstances described in that paragraph, and
a reference to aiding, abetting, counselling or procuring the commission of offence A in a case where it is alleged that offence A was committed, or the act or omission charged in respect of offence A was done or made, in the manner or circumstances described in that paragraph.
A reference in any of paragraphs 9 to 29 to an offence (“offence A”) includes—
a reference to an attempt to commit offence A,
a reference to a conspiracy to commit offence A,
a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed, and
a reference to aiding, abetting, counselling or procuring the commission of offence A.
In this Schedule—
Section 49
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A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in— if the condition in sub-paragraph (2) is satisfied. The condition is that the service provider does not— For the purposes of sub-paragraph (1)— includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network. Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service. The service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of the automatic, intermediate and temporary storage of information so provided, if— The condition is that the service provider— This sub-paragraph applies if the service provider obtains actual knowledge that—
A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied. This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 45A(2). This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it. Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
This paragraph applies for the purposes of this Schedule. “Information society services”— and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible. “Service provider” means a person providing an information society service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .