The Criminal Justice Act 1991 brought many changes to the way courts deal with offenders; changes that we are all now familiar with.

Most of the changes related to the way courts sentence defendants, some welcome and some not so welcome.

However, some of the not so well known changes which cover the area of the evidence of children deserve to be highlighted.The relevant provisions of the Act are contained in ss.52-55 and sched 6 which amend the Criminal Justice Act 1988.

S.52 deals with the competence of children as witnesses; s.54 deals with the admissibility of video recordings of testimony from child witnesses; s.55 deals with child witnesses giving evidence through a live television link; and s.53 and sched 6 deal with notices of transfer in lieu of committal proceedings.S.52 of the Criminal Justice Act 1991 amends the 1988 Act by providing that all children under the age of 14 shall give evidence unsworn in criminal proceedings.

Above that age a child is able to take the oath or affirm.

Prior to these changes, the court was under a duty to conduct an examination as to the competency of the person giving evidence so as to ascertain, because of his or her youth, his or her ability to understand the importance of telling the truth.In cases of sexual offences and offences involving violence or cruelty committed against children or witnessed by children, a procedure is now available in s.53 and sched 6 whereby committal proceedings can be avoided where the child will be called as a witness in the trial.

This is known as a notice of transfer.

This notice must be served before the magistrates' court begins to enquire into the case as examining justices.

The notice must be served by or on behalf of the DPP on the relevant magistrates' court and all other parties involved in the case.In child witness cases, the DPP must be of the opinion that the evidence is sufficient for the defendant to be committed for trial and that, to avoid prejudicing the welfare of the child, the case should without delay be taken over and proceeded with by the Crown Court.In cases where notice of transfer is served, the magistrates retain three functions: the making of witness orders; the power to remand the defendant in custody or on bail; and the granting of legal aid for Crown Court proceedings.

However, except in certain circumstances, magistrates have no power to grant or vary bail conditions once the notice of transfer has been served.There is provision for any requirement to appear on bail before a magistrates' court to cease once a notice of transfer has been given unless the notice states that it is to continue.

So far, most notices state that the requirement to appear on bail should continue.There is no form of appeal against, or court review of, the decision of the DPP to issue a notice of transfer.

There is a safeguard, however, in that the defence can apply to the judge at the Crown Court for the case to be dismissed if there is a belief that the evidence is insufficient.For committal proceedings held in adult magistrates' courts where such a notice of transfer has not been served, evidence by means of a video is admissible as evidence, notwithstanding the fact that the child is not called as a witness.S.55 contains further amendments which are designed to protect child witnesses from the stress of appearing in open court.

A child called for the prosecution in committal proceedings in cases of violence or sexual offences may not be called to give oral testimony, even if the defence objects to the admission of the child's statement.

This section also permits the use of television links in the youth courts for those cases mentioned above.The main purpose of these new procedures is to spare the child witness from the ordeal of having to give evidence within sight of the defendant.

These new provisions permit evidence in chief to be given and cross-examination to be conducted over a live television link to enable the child witness to remain in a room separate from the courtroom throughout the proceedings.

The Act therefore ensures that a child who is the victim or a witness to the commission of a sexual or violent offence, or is to be cross-examined following the admission of a video recording, may not be cross-examined in person by or on behalf of the accused.As most magistrates' courts do not have television link equipment, the Act permits a ll or part of relevant youth court proceedings to be heard in a suitably equipped Crown Court.

The arrangements for this locally should not prove to be a problem.

But, to assist the Crown Court, in the normal course of events only that part of the case involving the child's evidence is to be taken at the Crown Court, with the remainder of the case being heard in the magistrates' court.The Act defines 'child' with regard to video recordings as follows.

In the case of an offence falling within s.32(2)(a) or (b) of the Criminal Justice Act 1988: a person under 14 years of age (this subsection deals with an offence which involves an assault on, or injury or threat of an injury to, a person; or cruelty to a person under 16).In the case of an offence falling within s.32(2)(c): a person under 17 (this subsection refers to offences under the Sexual Offences Act 1956; Indecency with Children Act 1960; Sexual Offences Act 1967 and other related acts).It is interesting to note that if a video recording is made of a child under 14 in cases under s.32(a)(b), or under 17 under s.32(c), and they have become 15 and 17 respectively by the time the case comes to trial, they will be treated as children for this purpose.S.32(A)(3) states that in any proceedings where a video recording of an interview is (a) conducted between an adult and a child who is not the accused and relates to matters in issue, may with leave of the court be given in evidence.

Subs (3) goes on to say that the court shall give leave to admit the evidence unless:-- the child witness will not be available for cross-examination; -- any rules requiring disclosure of the circumstances in which the recording was made have not been complied with; or -- the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted; and the court can also direct that part of the recording is excluded in the interests of justice.The Act does not define what 'interests of justice' means.

It is for the court to determine where these interests lie in any particular case and, in deciding this issue, shall consider whether any prejudice to the accused which might result from the admission of that part is outweighed by the desirability of showing the whole of the recorded interview.There are, then, two stages to the admission of a video recording of a child's evidence and different criteria apply at each stage.The first stage is application for leave to admit a video recording tendered in evidence where the court shall give leave unless the conditions noted above apply.

The court may consider whether any part of the recording should be excluded.

The requirement is on the court to balance any prejudice to the accused against the desirability of showing the video as a whole.In the second stage, when the video recording has been admitted and is given in evidence, it is admissible evidence of any fact of which oral testimony is admissible.The ordinary rules of evidence governing oral testimony are applicable once the video recording is given in evidence.

The court must be aware of any breaches of the normal rules of evidence in the same way as if the child had made the statement in direct oral evidence.So far, there have not been many cases where these procedures have been adopted.

We have had screens in court behind which the child witness has sat, but in view of the Bench and advocates.

It is envisaged, however, that the new procedures will be used more often in the future in order to alleviate any unn ecessary stress on the persons they were designed to protect.