Youth Justice and Criminal Evidence Act 1999

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This is likely to be of limited application since in accordance with the 2003 Sexual Offences Act a belief in consent must be reasonable to afford a defence. There will be very few cases where this example will be of practical application as issues of belief in consent are often inextricably bound up with the issue of consent. Since the enactment of Section 41

Further powers are available in relation to children and young people. It should be noted generally that where Convention rights are engaged, there is an inherent jurisdiction to restrict publicity beyond the statutory provisions: S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. Note also the restrictions on who may be present in a youth court ( section 47(2) CYPA 1933), and the power to exclude the public but not bona fide representatives of the media when a child or young person gives evidence in certain proceedings ( section 37(1) CYPA 1933). In some very serious cases the risk to a witness is so great that they may need to relocate to another part of the country or even change their identity. Witness protection is the means of providing protective measures for people involved in the criminal justice system who find themselves at risk of serious personal harm as a result of that involvement. There are also automatic reporting restrictions on certain pre-trial hearings (see the Contempt of Court, Reporting Restrictions and Restriction on Public Access to Hearings legal guidance). However, such restrictions generally only last until the conclusion of the trial(s). Prosecutors should make sure that after the hearing children are told what has happened and that they understand. This is particularly important when the case is dropped at court or lesser pleas are accepted. The sentence the defendant has received and its effect should also be explained. Communicating the result of the case There are provisions in the Sexual Offences Amendment Act 1992 for a lifetime ban on publicity identifying a person in respect of certain sexual offences if it is likely to lead members of the public to identify the person against whom the offence is alleged to have been committed. The provision is not specific to children.

Changes over time for: Chapter I

a qualifying offence has been committed (murder or manslaughter where the death was caused by a firearm and/or a knife); Higher culpability factors involve: offence committed whilst on bail for other offences, offence motivated by the victim’s sexual orientation/disability/race/religion (or presumed membership), previous convictions, an intention to commit more harm than actually resulted from the offence, offenders operating in groups or gangs, deliberate targeting of vulnerable victims, use of a weapon to frighten or injure the victim, abuse of power or position of trust. Any application must be in writing and must be made as soon as reasonably practicable after becoming aware of the grounds for doing so, and in any event not more than 14 days after the prosecutor discloses material on which the application is based (Rule 22.4(1)) So far as the Public Interest stage is concerned, a prosecution is more likely to be needed in the public interest, if the offence was committed in the presence of or in close proximity to a child (Code 4.14). This is, of course, subject to any factors that may make a prosecution less likely to be needed (Code 4.14). It is very important that all witnesses who have attended court (whether they have given evidence or not) should be thanked for attending. This should be done at the outset when the prosecutor introduces him/herself to the witness but it may also be of value to the witness to receive thanks after they have given evidence. Prosecutors should therefore do this as a matter of course, regardless of the outcome of the case.

to disclose as much relevant material to the defence as possible without identifying the witness, including material that may tend to cast doubt on the credibility, reliability or accuracy of the witness’s evidence”. The purpose of speaking to witnesses is to explain procedures with which they will be unfamiliar, to put them at ease and to thank them for coming to give evidence. Advocates should try to adjust their tone and language to an appropriate one for the age and ability of the child without being patronising. Straightforward, non-legal language should be used and questions should be kept short and simple. To be satisfied of the child's ability to understand and communicate and function as a competent witness, with or without the benefit of any special measures; Retention of confidential material provided to the court (such as unedited witness statements) is covered in Crim PD V 18D.24, and, as an alternative to being stored in secure conditions by the court officer, the court may give a direction that such material be committed to the safe keeping of the applicant or any other person, which in practice should be the police not the CPS. Special CounselSection 45 YJCEA 1999 provides for discretionary reporting restrictions for those under 18 who are defendants or witnesses in other criminal proceedings. Again, prosecutors should note that such restrictions will lapse once the person in question reaches the age of 18: section 45(3) states that it applies “while he is under the age of 18”. In the absence of the CCU head, the area Deputy Chief Crown Prosecutor or above may authorise an application. In the absence of the Deputy Head of the CCD, the Head of the relevant CCD or above or a nominated Deputy Head or DCCP may authorise an application. the prosecution must be proactive, and, if relevant, focus closely on the credibility of the witness; this should if possible be objectively verified; An unredacted evidential statement of the witness; this is not required where it is proposed to request the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness, unless the prosecutor decides that they need to see a version which does identify the witness; and,

Condition C: the importance of the witness's testimony is such that in the interests of justice the witness ought to testify and- A simple thank you may make all the difference to a child's experience and determine whether he or she will be prepared to give evidence again in future. Annex 1: Local Safeguarding Children Boards (LSCBs) MembershipProsecutors should try to provide assistance to local authorities and person appointed by the court to act in the best interests of a child seeking to discharge their statutory responsibilities. Prosecutors must ensure that they have sufficient evidence or information to satisfy a court that each of the three conditions has been met. Each application is likely to be fact specific, and applications for civilian witnesses and those for professional witnesses engaged in law enforcement are likely to differ. Children can be victims of offences and can also be affected by crime even if they are not themselves victims or witnesses. A child may be seriously affected by, for example, domestic violence, even if not present in the same room as the offence is committed. If the prosecutor is satisfied that it is appropriate to make such a request, they should make the application and also invite the judge to exercise their discretion not to be informed of the true identity of the witness concerned. Prosecutors' decisions and actions may have a direct impact on the safety of a child in individual cases. Examples include:

The court must give every party to the proceedings the opportunity to make representations, but it has the power to consider matters in the absence of a defendant (section 87(6) and (7) and CPR 18.18(1)(b) and (2)); and, Prosecutors should familiarise themselves with the timetables and processes of the family court when reviewing cases with parallel care proceedings. In particular: Provisions to disguise the identity of the anonymous witness whilst they give evidence (such as voice modulation and screens); that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case Where the prosecutor is not able to leave the court to speak with a witness who has just given evidence and been released, it is nevertheless good practice for the prosecutor to thank the witness in open court for attending.

Changes over time for: Section 42

There is no lower age limit in relation to giving evidence, but prosecutors should be satisfied that the child will be able to give understandable evidence - all witnesses have to be able to understand questions and be able to give replies that can be understood as set out in section 53 of the Youth Justice and Criminal Evidence Act 1999. Whether this is critical to the case will depend on what other evidence is available. Prosecutors should, however, consider all options available that would enable a young or immature child or a child with learning difficulties to give evidence effectively; for example, through the use of a Registered Intermediary.