Criminal Evidence (Northern Ireland) Order 1999

JurisdictionUK Non-devolved
CitationSI 1999/2789
Year1999

1999 No. 2789 (N.I. 8)

NORTHERN IRELAND

The Criminal Evidence (Northern Ireland) Order 1999

Made 12th October 1999

Laid before Parliament 26th October 1999

Coming into operation on days to be appointed under Article 1(2)

At the Court at Buckingham Palace, the 12th day of October 1999

Present,

The Queen’s Most Excellent Majesty in Council

Whereas this Order is made only for purposes corresponding to the purposes of the provisions of the1Youth Justice and Criminal Evidence Act 1999 mentioned in section 66(2) of that Act:

Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the2Northern Ireland Act 1974 (as modified by section 66(1) of the said Act of 1999) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

1 INTRODUCTORY

PART I

INTRODUCTORY

Title and commencement
S-1 Title and commencement

Title and commencement

1.—(1) This Order may be cited as the Criminal Evidence (Northern Ireland) Order 1999.

(2) This Order shall come into operation on such day or days as the Secretary of State may by order appoint.

Interpretation
S-2 Interpretation

Interpretation

2.—(1) The 3Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order—

“accused”, in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not he has been convicted);

“the complainant”, in relation to any offence (or alleged offence), means a person against or in relation to whom the offence was (or is alleged to have been) committed;

“judge” includes, in relation to a magistrates' court, the resident magistrate or justice of the peace;

“picture” includes a likeness however produced;

“the prosecutor” means any person acting as prosecutor, whether an individual or body;

“rules of court” means Crown Court rules, magistrates' courts rules, county court rules or rules made under section 55 of the4Judicature (Northern Ireland) Act 1978;

“video recording” means any recording, on any medium, from which a moving image may by any means be produced, and includes the accompanying sound-track;

“witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings.

(3) Nothing in this Order shall affect any power of a court to exclude evidence at its discretion (whether by preventing questions being put or otherwise) which is exercisable apart from this Order.

Meaning of “sexual offence” and other references to offences
S-3 Meaning of “sexual offence” and other references to offences

Meaning of “sexual offence” and other references to offences

3.—(1) In this Order “sexual offence” means—

(a)

(a) rape or burglary with intent to rape;

(b)

(b) any offence under any of the following provisions of the5Offences against the Person Act 1861

(i) section 52 (indecent assault on a female);

(ii) section 53 so far as it relates to the abduction of a woman against her will;

(iii) section 61 (buggery);

(iv) section 62 (attempt to commit buggery, assault with intent to commit buggery or indecent assault on a male);

(c)

(c) any offence under any of the following provisions of the6Criminal Law Amendment Act 1885

(i) section 3 (procuring unlawful carnal knowledge of a woman by threats, false pretences or administering drugs);

(ii) section 4 (unlawful carnal knowledge, or attempted unlawful carnal knowledge, of a girl under 14);

(iii) section 5 (unlawful carnal knowledge of a girl under 17);

(d)

(d) any offence under any of the following provisions of the7Punishment of Incest Act 1908

(i) section 1 (incest, attempted incest by males);

(ii) section 2 (incest by females over 16);

(e)

(e) any offence under section 22 of the8Children and Young Persons Act (Northern Ireland) 1968 (indecent conduct towards child);

(f)

(f) any offence under Article 9 of the9Criminal Justice (Northern Ireland) Order 1980 (inciting girl under 16 to have incestuous sexual intercourse);

(g)

(g) any offence under Article 123 of the10Mental Health (Northern Ireland) Order 1986 (unlawful sexual intercourse by hospital staff, etc. with a person receiving treatment for mental disorder).

(2) In this Order any reference (including a reference having effect by virtue of this paragraph) to an offence of any description (“the substantive offence”) is to be taken to include a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, the substantive offence.

2 SPECIAL MEASURES DIRECTIONS IN CASE OF VULNERABLE AND INTIMIDATED WITNESSES

PART II

SPECIAL MEASURES DIRECTIONS IN CASE OF VULNERABLE AND INTIMIDATED WITNESSES

Preliminary

Preliminary

S-4 Witnesses eligible for assistance on grounds of age or incapacity

Witnesses eligible for assistance on grounds of age or incapacity

4.—(1) For the purposes of this Part a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this Article—

(a)

(a) if under the age of 17 at the time of the hearing; or

(b)

(b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within paragraph (2).

(2) The circumstances falling within this paragraph are—

(a)

(a) that the witness—

(i) suffers from mental disorder within the meaning of the11Mental Health (Northern Ireland) Order 1986, or

(ii) otherwise has a significant impairment of intelligence and social functioning;

(b)

(b) that the witness has a physical disability or is suffering from a physical disorder.

(3) In paragraph (1)(a) “the time of the hearing”, in relation to a witness, means the time when it falls to the court to make a determination for the purposes of Article 7(2) in relation to the witness.

(4) In determining whether a witness falls within paragraph (1)(b) the court must consider any views expressed by the witness.

(5) In this Part references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.

S-5 Witnesses eligible for assistance on grounds of fear or distress about testifying

Witnesses eligible for assistance on grounds of fear or distress about testifying

5.—(1) For the purposes of this Part a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this paragraph if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.

(2) In determining whether a witness falls within paragraph (1) the court must take into account, in particular—

(a)

(a) the nature and alleged circumstances of the offence to which the proceedings relate;

(b)

(b) the age of the witness;

(c)

(c) such of the following matters as appear to the court to be relevant, namely—

(i) the social and cultural background and ethnic origins of the witness,

(ii) the domestic and employment circumstances of the witness, and

(iii) any religious beliefs or political opinions of the witness;

(d)

(d) any behaviour towards the witness on the part of—

(i) the accused,

(ii) members of the family or associates of the accused, or

(iii) any other person who is likely to be an accused or a witness in the proceedings.

(3) In determining that question the court must in addition consider any views expressed by the witness.

(4) Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this paragraph unless the witness has informed the court of the witness’s wish not to be so eligible by virtue of this paragraph.

S-6 Special measures available to eligible witnesses

Special measures available to eligible witnesses

6.—(1) For the purposes of this Part—

(a)

(a) the provision which may be made by a special measures direction by virtue of each of Articles 11 to 18 is a special measure available in relation to a witness eligible for assistance by virtue of Article 4; and

(b)

(b) the provision which may be made by such a direction by virtue of each of Articles 11 to 16 is a special measure available in relation to a witness eligible for assistance by virtue of Article 5;

but this paragraph has effect subject to paragraph (2).

(2) Where (apart from this paragraph) a special measure would, in accordance with paragraph (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless—

(a)

(a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the district in which it appears to the court that the proceedings will take place, and

(b)

(b) the notice has not been withdrawn.

(3) In paragraph (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.

(4) The withdrawal of a notice under that paragraph relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness’s evidence has been made by the court before the notice is withdrawn.

(5) The Secretary of State may by order make such amendments of this Part as he considers appropriate for altering the special measures which, in accordance with paragraph...

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