reg 78A Special provisions relating to a child witness
(1) Where the court is considering giving a special measures direction under rule 78(1) in relation to a child witness the court must— (a) first have regards to paragraphs (2) to (6) below; and (b) then have regard to rule 78(1); and if the judge advocate is required by paragraphs (2) to (6) to give such a direction, any special measure which must be provided for in the direction under paragraph (2) or (4) is to be treated for the purposes of rule 78(1)(b), as it then applies to the witness, as one which is likely to improve the quality of evidence given by the witness (whether on its own or in combination with any other special measure). (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 provides for any relevant recording to be admitted under section 27 of the 1999 Act (video recorded evidence in chief). (3) The primary rule is subject to the following limitations— (a) the requirement contained in paragraph (2) has effect subject to rule 80(1); (b) if the witness informs the court of the witness’s wish that the primary 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 (c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to improve the quality of the witness’s evidence (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). (4) Where as a consequence of all or part of the primary rule being disapplied under paragraph (3)(b) 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 of the 1999 Act (screening witness from accused) for the evidence or that part of it. (5) The requirement in paragraph (5) is subject to the following limitations— (a) if the witness informs the court of the witness’s wish that the requirement in paragraph (4) should not apply, the requirement does not apply to the extent that the court is satisfied that not complying with it would not diminish the quality of the witness’s evidence; and (b) the requirement does not apply to the extent that the court is satisfied that making such a provision would not be likely to improve the quality of the witness’s evidence (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason). (6) In making a decision under paragraph (3)(b) or (5)(a), the court must take into account the following factors (and any others it considers relevant)— (a) the age and maturity of the witness; (b) the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements in paragraph (2) or (as the case may be) in accordance with the requirements in paragraph (4); (c) the relationship (if any) between the witness and the defendant; (d) the witness’s social and cultural background and ethnic origins; (e) the nature of the alleged circumstances of the offence to which the proceedings relate. (7) Where a special measures direction is given in relation to a child witness who is not also an eligible witness in accordance with rule 75(2), then— (a) subject to paragraph (8) below; and (b) except where the witness has already begun to give evidence in the proceedings, the direction shall cease to have effect at the time when the witness attains the age of 18. (8) Where a special measures direction is given in relation to a child witness who is not also an eligible witness in accordance with 75(2) and— (a) the direction provides— (i) for any relevant recording to be admitted under section 27 of the 1999 Act as evidence in chief of the witness, or (ii) for the special measure available under section 28 of the 1999 Act (video recorded cross-examination or re-examination) to apply in relation to the witness; and (b) 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; then, so far as it provides as mentioned in sub-paragraph (a)(i) or (ii) above, the direction shall continue to have effect even though the witness subsequently attains that age. (9) In this rule— (a) a witness is a “child witness” if the witness is an eligible witness by reason of rule 75(1) (whether or not the witness is an eligible witness by reason of any other provision of rule 75 or 76); and (b) 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.