The Crown Court (Special Measures Directions and Directions Prohibiting Cross-examination)(Amendment) Rules 2004

Section 1Citation, commencement and interpretation
(1) These Rules may be cited as the Crown Court (Special Measures Directions and Directions Prohibiting Cross-examination)(Amendment) Rules 2004 and shall come into force on 23rd February 2004.
(2) In these Rules, “the Special Measures Directions Rules ” means the Crown Court (Special Measures Directions and Directions Prohibiting Cross-examination) Rules 2002 .
Section 2Amendment of the Special Measures Directions Rules
(1) The Special Measures Directions Rules shall be amended in accordance with the following provisions of this rule.
(2) In rule 1 (citation, commencement and interpretation), in paragraph (2) at the end add—
“an intermediary” has the same meaning as in section 29 of the Act;
“child witness in need of protection” shall be construed in accordance with section 21(1) of the Act.
(3) In rule 2 (application for a special measures direction)—
(a) for paragraph (2), substitute—
(2) If the application is for a special measures direction—
(a) enabling a witness to give evidence by means of a live link, the information sought in Part B of the form prescribed in the Schedule to these Rules must be provided;
(b) providing for any examination of a witness to be conducted through an intermediary, the information sought in Part C of that form must be provided;
(c) enabling a video recording of an interview of a witness to be admitted as evidence in chief of the witness, the information sought in Part D of that form must be provided.
(b) after paragraph (6) insert—
(6A) Paragraphs (5) and (6) above do not apply in respect of an application for special measures direction enabling a child witness in need of special protection to give evidence by means of a live link if the opposition is that the special measures direction is not likely to maximise the quality of the witness’s evidence.
(4) In rule 4 (late applications), after paragraph (3), add—
(4) Paragraphs (2) and (3) above do not apply in respect of an application made orally at the trial for a special measures direction—
(a) enabling a child witness in need of special protection to give evidence by means of a live link; or
(b) enabling a video recording of such a child to be admitted as evidence in chief of the witness,
if the opposition is that the special measures direction will not maximise the quality of the witness’s evidence.
(5) In rule 7 (application for special measures direction for witness to give evidence by means of a live television link)—
(a) in paragraph (3) omit the words “within the meaning of section 21(1)(b) of the Act”;
(b) after paragraph (4) add the following paragraph—
(5) If the special measures directions combine provision for a witness to give evidence by means of a live link with provision for the examination of the witness to be conducted through an intermediary, the witness shall be accompanied at the live link only by—
(a) the intermediary; and
(b) such other persons as may be acceptable to a judge of the Crown Court.
(6) In rule 8 (video recording of testimony from witnesses)—
(a) after paragraph (4) insert—
(4A) If the special measures directions enabling a video recording of an interview of a witness to be admitted as evidence in chief of the witness with provision for the examination of the witness to be conducted through an intermediary, the information to be provided under paragraph (4)(c) above shall be the same as that for other persons present at the recording but with the addition of details of the declaration made by the intermediary under rule 9A.
(4B) If the special measures directions enabling a video recording of an interview of a witness to be admitted as evidence in chief of the witness with provision for the witness, in accordance with section 30 of the Act, to be provided with a device as an aid to communication during the video recording of the interview the information to be included under paragraph (4)(d) above shall include also details of any such device used for the purposes of the recording.
(b) after paragraph (5) insert—
(5A) A party who seeks to oppose an application for a special measures direction enabling a video recording of an interview of a child witness to be admitted as evidence in chief of the witness must, in order to comply with rule 2(5) above, state why in his view the giving of a special measures direction would not be likely to maximise the quality of the witness’s evidence.
(5B) However, paragraph (5A) above does not apply if the witness is a child witness in need of special protection.
(7) after rule 9 (expert witness), insert—
Intermediaries
(9A) The declaration required to be made by an intermediary in accordance with section 29(5) of the Act shall be in the following form—
“I solemnly, sincerely and truly declare that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.”.
(8) For the Schedule, substitute the following Schedule—
FORM OF APPLICATION FOR A SPECIAL MEASURES DIRECTION UNDER SECTION 19 OF THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999
An application must be made within 28 days of—
(a) the committal of the defendant;
(b) the consent to the preferment of the bill of indictment;
(c) a notice of transfer;
(d) the service of copies of the documents containing the evidence on which the charge or charges are based under the Crime and Disorder Act 1998; or
(e) the notice of appeal.
This form may also be used where an extension of time has been granted for the making of this application.
A copy of this form must be given at the same time to the other party or parties to the case.
To be completed by all applicants
Details of witness
Name of Witness:
Date of birth of witness:
If a previous application has been made to tender in evidence a video recording of testimony from the witness, give the date and (if known) result of that application.
An application by the defence for evidence to be given through a live television link or by means of a video recording need not disclose who that witness is, except where the witness is to give evidence in support of an alibi.
If the applicant is the prosecutor, give the name of the witness (otherwise leave blank).
Case details
Name of Crown Prosecution Service office:
Crown Prosecution Service number:
Defendant(s):
surname:
forenames:
Case reference numbers:
unique reference number assigned by police:
trial number:
Court area:
Charges:
The area in which the court hearing the case is situated.
Give brief details of those charges to which this application applies.
Specify the special measures being sought:
State the grounds on which the witness relies in support of the application for a special measures direction:
The statement should make clear whether the applicant seeks automatic eligibility (see Reasons for application section below) or whether the applicant alleges that the quality of the evidence will be reduced unless a direction is given. In the latter case, the grounds on which the applicant alleges that the quality of the witness’s evidence is likely to be diminished in terms of completeness, coherence and accuracy should be clearly stated.
Give a description of evidence submitted in support of this application:
This requirement is optional.
Examples of evidence might be:
birth certificate;
medical report;
expert evidence;
police report.
Arrangements which may be made available
Give a description of the arrangements relevant to the measures applied for which may be made available in the area in which it is likely the hearing will take place:
(A) Is the application for special measures for any of the following?
(i) video recorded evidence in chief only;
(ii) live link only;
(iii) both these measures?
Yes/No
(B) Is the witness a child witness in need of special protection at the time that any relevant recording was made? Yes/No
(C) Is the witness a child under 17 but not a child witness in need of special protection?
Yes/No
Material change of circumstances
Give a description of any material change of circumstances relied upon to support this application:
This requirement applies only where—
a special measures direction is already in force and application is being made to discharge or vary the direction, or
a previous application for a special measures direction was refused and this application seeks to reverse that decision.
To be completed if the application is for evidence to be given through a live television link
Details of application
Give—
the address of any venue from which the witness will give evidence if the court’s own live television link is not used:
(b) the name of the person who it is proposed will accompany the witness:
(c) the occupation of this person:
(d) the relationship (if any) of this person to the witness:
An application by the defence need not disclose the name of the person proposed to accompany the witness if disclosure could lead to the identification of the witness.
State why it is believed that this person should accompany the witness:
To be completed if the application is to tender in evidence a video recording under Section 27 of the Youth Justice and Criminal Evidence Act 1999
Statement as to circumstances in which video recording made:
These details need to be completed only to the extent that the information is not contained in the video recording itself.
Give details of each person present at any point during the recording:
Include name, age and occupation of anyone present; time for which present; relationship (if any) to witness and to the defendant.
(1) Was any person used as an intermediary in the making of the video recording?
(2) Did the intermediary make the appropriate declaration before the interview began?
The declaration is—
“I solemnly, sincerely and truly declare that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.”
Equipment used
Give a description of—
the equipment used for the recording:
any devices used as an aid to communication:
The description must include the following information—
number and type of cameras used (fixed or mobile); the number and location of microphones; the video format used; and whether it offered single or multiple recording facilities and if it did which were used.
In the case of communication aids, describe how the device was operated. State also whether the equipment was provided for or owned by the witness or the intermediary and whether any additional needs arose for the witness or the intermediary as a result of using the devices. (Refer to the examples given in Part C, paragraph 9(b)).
Recordings of part only of an interview
State whether the video recording contains part only of the interview with the witness:
A copy of any video recordings of other parts of the interview with the witness which it is not proposed to tender in evidence must also be provided to the court and the other parties. The details of each such recording must be given as above. Use separate sheets where necessary.
Details of copy
State in respect of each video recording whether it is a copy, and give the following details in respect of each copy—
Name and address of person who has the mastertape:
When, and by whom, the copy was made:
Attendance and supply of copies
In the opinion of the applicant—
is the witness available for cross-examination?
if the witness is not available for cross-examination, have the parties agreed that the witness need not be available?
To be completed if the application is for the examination of the witness to be conducted through an intermediary
Details of application
(1) Give a description of the communication needs of the witness:
Where an assessment has been undertaken by a relevant professional, give details of where and by whom the assessment was carried out.
(2) State why you consider that the quality of the evidence given by the witness would be improved by use of an intermediary:
(3) Give the name of the person through whom it is proposed the examination of the witness be conducted:
(4) What is the occupation of this person and what is the person’s area of specialism:
(5) Is this person related to the witness?
If not related to the witness, does the intermediary know the witness and, if so, how and to what extent?
(6) Is this person registered with the Intermediary Registration Board?
(7) Why do you consider this person has the necessary skills to meet the particular communication needs of the witness:
(8) Has this person been used in the pre-trial investigation?
(9) Communication aids—
(a) give details of any device used or which it is intended to use as a communication aid:
Give details of any devices that may be used and how they are operated.
(b) are there any issues which arise as a result of this device being used?
Examples might be:
whether breaks might be needed for the witness and/or the intermediary:
the facilities that may be needed for the use of the devices, for example power sources.
Signature of applicant
or
applicant’s Solicitor:
Date:
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