Criminal law

Evidence

On 24 July 2002, significant provisions of the Youth Justice and Criminal Evidence Act 1999 came into force.

Most fundamentally, these changed the law of competence as to when a witness's evidence is admissible in a criminal trial.

The only test now is whether the witness can understand the questions being asked and give answers that are understood.

In deciding whether a person can understand and be understood, the witness is to have the benefit of the special measures set out below.

These will increase significantly the number of children who can give evidence which is admissible, and will particularly assist the mentally ill.

Although all the evidence is admissible, the court will separately have to consider whether any particular witness should be sworn.

A person who is younger than 14 or not capable of understanding the significance of the proceedings or the difference between truth and fabrication will give evidence unsworn.

The Act creates an offence of giving untrue evidence in this way, carrying a six months and/or a level five fine.

A witness who is older than 14 and capable of understanding the nature of the proceedings and the difference between truth and fabrication will continue to be sworn and will commit perjury if he lies on oath.

Additional restrictions have been introduced on the ability of a defendant in person to cross- examine.

This restriction can now apply in any proceedings where the quality of a witness's evidence may be diminished and would be improved if the cross-examination were not by a defendant in person.

Finally, the provisions of a significant number of 'special measures' have been brought into force for all courts.

These include the more traditional use of screens, removal of wigs, and closure of the court to the public.

However, evidence in chief may now be given in directed cases by video; orders can be made that evidence be given or cross- examination be made by live link; and aides to communication may be used to assist understanding.

These measures are available to three groups of people:

- Those younger than 17 on the date of the hearing of the application for a special measure or those suffering from incapacity;

- Those so in fear or distress that their evidence is likely to be diminished, and;

- Complainants in sexual crimes.

The measures are available to all witnesses, whether prosecution or defence.

Only a defendant cannot use them.

A person is incapacitated for these purposes if the quality of his evidence in its completeness, coherence or accuracy is likely to be diminished by mental disorder, or by significant impairment of intelligence or social functioning, or by physical disability.

A person is in fear or distress if the quality of his evidence is likely to be diminished in considering all the relevant factors, which include the nature and circumstances of the proceedings; his age; social, cultural, domestic and employment circumstances; his religious and political beliefs; and the behaviour of a defendant towards him.

Stronger provisions are made for those younger than 17 who are in need of special protection.

That is defined as those giving evidence in connection with allegations of kidnapping, cruelty, sexual crime, false imprisonment, assault or injury or threat of injury to any person.

In such cases, evidence must be given by video-in-chief.

In other cases, children must be given the benefit of special measures if it is in the interests of justice and likely to maximise the quality of their evidence.

Each special measure has its own section which contains the relevant qualifying criteria.

These will need to be considered on an individual basis against the facts and circumstances of a witness in a particular case and in accordance with the provisions of section 19.

Applications are made under the Crown Court (Special Measures Directions and Directions Prohibiting Cross-Examination Rules 2002 and the Magistrates Courts (Special Measures Directions) Rules 2002.

In the youth court, an application must be made within 28 days of a defendant's first appearance and in the magistrates' court within 14 days of the date on which a defendant first indicated his intention to plead not guilty.

In the Crown Court, the application must be made within 28 days of the case being sent, committed or transferred to the Crown Court.

All these time limits can be extended.

Applications must be served on the court and all parties to the proceedings.

Other parties have 14 days in which to object.

Annexed to the rules are forms of application, which should be used by those seeking special measures.

It should be noted that the provisions of section 23 of the Criminal Justice Act 1988 on documentary hearsay are not repealed by these provisions, and thus it may still be possible for a video recording, which is a document, to be given as evidence in a case.

However, in considering whether it is in the interests of justice for such a video to be admitted - usually under section 26 of the Criminal Justice Act 1988 - the court will doubtless consider whether the availability of cross examination by live link using special measures does not allow for a fairer trial for a defendant.

By Anthony Edwards, TV Edwards, London