On 17th January 2023, the industry regulator, the Bar Standards Board decided to hand down an order imposing a ban on a barrister preventing him from continuing to practise after evidence emerged
A Witness Must Give Evidence in Court, Right
On 23rd March 2022 the Judiciary of England and Wales announced that it was making Amendments to the Criminal Law Practice Directions.
What Is Changing?
The judiciary have decided to make some changes to the additional protocol to the Criminal Procedure Rules which are applied in the England and Wales Criminal Law courts. The headline figure from this announcement concerns the protection of persons providing evidence as witnesses to or victims of criminal offences. Subject to the approval of the relevant judge in the case, section 28 of the Youth Justice and Criminal Evidence Act 1999 provides such victims and witnesses with the choice as to whether they have their respective testimonies and cross-examinations recorded pre-trial.
Who Is Covered By This Section?
When the UK Government enacted this piece of legislation it clearly meant for section 28 to apply to every witness and victim of crime and those who fall under the definition of a “child”. More specifically section 28 applies to every witness whose standard of evidence will be significantly reduced because of a vulnerability.
What Personal Characteristics Of A Witness Or Victim Of Crime Will Make A Person Vulnerable Under The Act?
The legislation is clear. Section 28 of the Youth Justice and Criminal Evidence Act 1999 will be triggered if a person’s social functioning and intelligence is reduced due to a physical or mental disability, then these personal characteristics will reduce the standard of evidence they can give to a court. Under this section at the discretion of the judge, the affected person may be excused from giving their testimony and being cross examined away from the open court and prior to the full trial via a video recording. It cannot be over-emphasised enough that this is at the discretion of the judge on the particular facts and circumstances of each case.
How Is The Witness Evidence Presented To The Jury?
Subject to the circumstances in the case and the discretion of the judge, once the jury is sworn-in. they will be played the pre-recorded testimony given by the particular vulnerable person during the open court case.
What Difference Will The New Practice Direction Make?
The update published by the judiciary states that more guidance will be issued in due course. This will be in the form of some new paragraphs inserted into the Youth Justice and Criminal Evidence Act 1999. It is likely that the judge will be required to assess whether any measures implemented would increase the standard of the witness’ or victim’s evidence. In any decision of this nature the judge allocated to the case will need to consider carefully whether the measures will substantially advance the date for the recording of the cross-examination and re-examination.
The judiciary appear to have the ambition of avoiding delays in the process. If the police want to have a conversation about the options for and availability of such special measures with a carer, witness or parent then the new Practice Direction requires the police force to apply to the Crown Prosecution Service for its approval of such measures.
Prior to the recording being played to the jury the Practice Direction also directs judges faced with a vulnerable witness or victim who have chosen to give their evidence and testimony to explain to advocates how to approach what they should communicate to a relevant jury concerning the restrictions on section 28 questioning. The judge will also be required to give a direction to the jury about such limitations.
Criminal law practitioners need to be aware of these measures to avoid being caught out.
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SOURCES USED WHEN WRITING THIS ARTICLE
 Courts and Tribunals Judiciary – Amendments to the Criminal Practice Directions (March 2022) summary of key changes – 23 March 2022 - Amendments to the Criminal Practice Directions (March 2022) – summary of key changes | Courts and Tribunals Judiciary
 Criminal Practice Directions 2015 – Amendment 12 - Amendment No 12 (judiciary.uk)
 Criminal Practice Directions 2015  EWCA Crim 1566
 Section 16 Youth Justice and Criminal Evidence Act 1999
 Section 17 Youth Justice and Criminal Evidence Act 1999
 Sections 25 Youth Justice and Criminal Evidence Act 1999
 Section 27 Youth Justice and Criminal Evidence Act 1999
 Section 28 Youth Justice and Criminal Evidence Act 1999
 Criminal Practice Directions 2015 Crim PD 12 CONSOLIDATED March 2022 (judiciary.uk)
 Section 98(2) of the Coroners Act 2009 - Coroners and Justice Act 2009 (legislation.gov.uk)
 Section 1(2) Mental Health Act 1983
 Section 1(2) Mental Health Act 2007
 Section 103 Coroners and Justice Act 2009
 Criminal Practice Directions: Amendment No. 8 effective from 1st April 2019 – 28 March 2019 - Criminal Practice Directions: Amendment No. 8 effective from 1st April 2019 | Courts and Tribunals Judiciary
 Section 28 for vulnerable victims and witnesses in Crown Courts – 27 October 2022 - Section 28 for vulnerable victims and witnesses in Crown Courts - GOV.UK (www.gov.uk)