Unit 9 - Witness Evidence Reading PDF

**BSB CENTRALLY SET ASSESSMENTS SYLLABUS COVERAGE FOR UNIT 9** **(PLEASE SEE SYLLABUS FOR FULL BCP REFERENCES):** **12. Preliminary issues relating to Witnesses ** 1. competence and compellability  2. oaths and affirmations  3. issue of a witness summons and warrant of arrest  **13. The rul...

**BSB CENTRALLY SET ASSESSMENTS SYLLABUS COVERAGE FOR UNIT 9** **(PLEASE SEE SYLLABUS FOR FULL BCP REFERENCES):** **12. Preliminary issues relating to Witnesses ** 1. competence and compellability  2. oaths and affirmations  3. issue of a witness summons and warrant of arrest  **13. The rules relating to the examination of Witnesses** 1. examination-in-chief: form of questioning, memory refreshing, the use of previous consistent statements, hostile witnesses  2. cross-examination: form of questioning, previous inconsistent statements, restrictions on cross examination, including finality on collateral matters  3. re-examination: form of questions  4. the special measures available to vulnerable witnesses and witnesses in fear of testifying 12\. Preliminary issues relating to Witnesses 1\. competence and compellability 2\. oaths and affirmations 3\. issue of a witness summons and warrant of arrest 1\. Examinable material on **competence and compellability** will consist of the meaning of competence and compellability, the general rule as to competence, the general rule as to compellability, competence of the accused, competence and compellability of the spouse or civil partner of the accused, and the competence of children and persons with a disorder or disability of the mind. The relevant material is addressed in paragraphs F4.1-4.3, F4.8, F4.10, F4.14-4.15, F4.18 and F4.21 of Blackstone's Criminal Practice 2025. **[Meaning of Competence and Compellability]** **F4.1** A witness is competent if the witness may lawfully be called to testify, and is compellable if, being competent, the witness may lawfully be compelled by the court to testify. **[General Rules as to competence]** **F4.2** The general rule as to competence is that all persons are, whatever their age, competent to give evidence (YJCEA 1999, s. 53(1)). There are only two exceptions. Under the first exception, a person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood (s. 53(3), considered further at F4.21). The types of witness who, under this test, may be incompetent are children and persons with a disorder or disability of the mind. Under the second exception, an accused is not competent to give evidence for the prosecution (s. 53(4), considered further at F4.8). Youth Justice and Criminal Evidence Act 1999, s. 53 (1)     At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2)     Subsection (1) has effect subject to subsections (3) and (4). (3)     A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to--- (4)     A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). (5)     In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason). **[General Rule as to Compellability ]** **F4.3** The general rule as to compellability is that all competent witnesses are compellable. There are four categories of exception. Under the first, the accused is not a compellable witness for the defence, i.e. for him or herself (see F4.10) or a co-accused (see F4.13) (Criminal Evidence Act 1898, s. 1(1)). Under the second exception, an accused\'s spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused (PACE 1984, s. 80, considered at F4.14 et seq.). The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats (see F4.29). The fourth relates to bankers (see F4.30). **[THE ACCUSED: As a Witness for the Prosecution ]** **F4.8** An accused is not competent as a witness for the prosecution. Under the YJCEA 1999, s. 53(4): \'A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings)\' If an accused pleads guilty, he or she is competent for the prosecution even if the accused\'s evidence suggests that he or she was not a participant in the offence, unless the plea is set aside (McEwan \[2011\] EWCA Crim 1026). **[THE ACCUSED: As a Witness on One's own behalf]** **F4.10** The accused is a competent witness for the defence pursuant to the YJCEA 1999, s. 53(1), whereby \'At every stage in criminal proceedings all persons are... competent to give evidence\'. The phrase \'at every stage in criminal proceedings\' allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence. The accused is not a compellable witness for the defence. Under the Criminal Evidence Act 1898, s. 1(1), \'A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application\'. **[The Spouse or Civil Partner of the Accused: GENERAL]** **F4.14** **The competence and compellability of the spouse or civil partner of an accused is governed by the YJCEA 1999, s. 53(1) (see F4.2), and the PACE 1984, s. 80.** Police and Criminal Evidence Act 1984, s. 80 (2)     In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person. (2A)     In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable---  (3)     In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if---  (4)     No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings. (4A)     References in this section t a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason). (5)     In any proceedings a person who has been but is no longer married to the accused shall be compellable to give evidence as if that person and the accused had never been married. (5A)     In any proceedings a person who has been but is no longer the civil partner of the accused shall be compellable to give evidence as if that person and the accused had never been civil partners. **[The Spouse or Civil Partner of the Accused: As a witness for the Prosecution]** **F4.15** The spouse or civil partner of an accused is competent to give evidence for the prosecution (YJCEA 1999, s. 53(1): see F4.2), unless also \'a person charged\' in the criminal proceedings (s. 53(4) and (5), considered at F4.8). A spouse or civil partner is competent under s. 53(1) irrespective of whether the evidence to be given will be directed against the accused or any co-accused. As to compellability, the rule, subject to one exception, is that the spouse or civil partner shall be compellable to give evidence for the prosecution, but only in respect of any \'specified offence\' with which any person is charged in the proceedings (PACE 1984, s. 80(2A)(b)). The exception is where the spouse or civil partner is also charged in the proceedings (s. 80(4) and (4A)). It is submitted that the words \'spouse\' and \'civil partner\' used in s. 80 refer to persons whose marriage or civil partnership (wherever celebrated) would be recognised by English law. **[The Spouse or Civil Partner of the Accused: As a witness for the Accused]** **F4.18** The spouse or civil partner of an accused is competent to give evidence for the accused, and shall be compellable to give evidence for the accused... And shall be compellable to give evidence for the accused, unless also charged in the proceedings. **[Children and Persons with a Disorder or Disability of the Mind: TEST FOR COMPETENCE]** **F4.21** The competence of a child (or person with a disorder or disability of the mind) to give evidence in criminal proceedings, and the question whether he or she should give sworn or unsworn evidence, are governed by the YJCEA 1999, ss. 53 to 56. As to competence, the rule is that all persons are (whatever their age) competent to give evidence (s. 53(1); see F4.2); but a person is not competent if it appears to the court that the person is not able to (a) understand questions put to him or her as a witness and (b) give answers to them which can be understood (s. 53(2) and (3). In MacPherson \[2005\] It was also held that there is no requirement that the witness be aware of his or her status as a witness and that questions of credibility and reliability are not relevant to competence but go to the weight of the evidence and may be considered, if appropriate, on a submission of no case to answer. Equally, a person who has no recollection of an event may be a perfectly competent witness (DPP v R \[2007\] EWHC 1842 (Admin)). The following propositions relating to s. 53 derive from Barker \[2010\] EWCA Crim 4 (a)     In each case, the question under s. 53 is whether the individual witness or child is competent to give evidence in the particular trial. The question is entirely witness or child specific.  (b)     There are no presumptions or preconceptions.  (c)     The witness does not need to understand the special importance of telling the truth in court and does not need to understand every single question or give a readily understandable answer to every question (applied in IA \[2013\] EWCA Crim 1308). Dealing with it broadly and fairly, provided the witness can understand the questions and can also provide understandable answers, the witness is competent. (d)     Questions, of course, come from both sides. If the child is called as a witness by the prosecution, the child should have the ability to understand the questions put by the defence as well as the prosecution and to provide answers to them which are understandable. (e)     Section 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria. 2\. Examinable material on **oaths and affirmations** will consist of the general rule and exceptions, and the giving of sworn and unsworn evidence by children. The relevant material is addressed in the paragraphs F4.26 (first subparagraph ending "\... in the presence of the parties (s.55(7))."), and F4.31 of Blackstone's Criminal Practice 2025. **[Children and persons with a Disorder or Disability of the Mind: SWORN EVIDENCE]** **F4.26 (first subparagraph ending "\... in the presence of the parties (s.55(7)).")** Whether a child (or person of unsound mind) may be sworn for the purpose of giving evidence on oath is governed by the YJCEA 1999, s. 55. A witness may not be sworn for this purpose unless the witness has attained the age of 14 and \'has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath\' (s. 55(2)). Any proceedings held for the determination of the question whether a witness may be sworn for the purpose of giving evidence on oath should take place in the absence of the jury (s. 55(5)). Expert evidence may be received on the question (s. 55(6)) and any questioning of the witness shall be conducted by the court in the presence of the parties (s. 55(7)). **Youth Justice and Criminal Evidence Act 1999, s. 55** (1)     Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised---  shall be determined by the court in accordance with this section. (2)     The witness may not be sworn for that purpose unless---  (a)     he has attained the age of 14, and  (b)     he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. (3)     The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party). (4)     If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b). (5)     Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one). (6)     Expert evidence may be received on the question. (7)     Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties. (8)     For the purposes of this section a person is able to give intelligible testimony if he is able to---  **[Oaths and Affirmations: General Rule and Exceptions ]** **F4.31** Unless legislation otherwise provides, before giving evidence a witness must take an oath or affirm (CrimPR 24.4(3) (magistrates\' courts) and 25.11(3) (Crown Court). The evidence of a person who is competent to give evidence but who is not permitted to be sworn, shall be given unsworn (see F4.27); and at common law a witness called merely for the purpose of producing a document need not be sworn (Perry v Gibson (1934) 1 A & E 48). - As to the latter situation, the witness, if not sworn, is not liable to cross-examination. However, if the identity of the document is disputed, and must be established, this must be done by sworn evidence. Where a video recording of an interview with a child is admitted under the YJCEA 1999, s. 27, and the child is then aged 14 or over, the oath should be administered before the start of the cross-examination. Under the YJCEA 1999, s. 56(5), where a witness who is competent to give evidence in criminal proceedings has given evidence unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of the grounds of appeal in the Criminal Appeal Act 1968, s. 2(1), 13(1) or 16(1), by reason only that the witness was a person falling within s. 55(2) of the 1999 Act and therefore should have given evidence on oath. 3\. Examinable material on **issue of a witness summons and warrant of arrest** will consist of securing the attendance of witnesses, compelling attendance, punishment for failure to attend, and the powers of magistrates to issue a witness summons and warrant of arrest. The relevant material is addressed in paragraphs D21.26, D21.27, D15.91-15.92 and D15.93 (first five lines of the first sub-paragraph up to "... a contempt in the court's face (ibid.);") of Blackstone's Criminal Practice 2025. **[Securing the Attendance of a Witness: WITNESS SUMMONSES ]** **D21.26** The attendance of witnesses for purposes of criminal proceedings in magistrates\' courts may be secured by the issue of a summons or warrant under the MCA 1980, s. 97 (see D21.32), which applies equally to proposed prosecution and proposed defence witnesses. It provides that, where a magistrate is satisfied that:  the magistrate may issue a summons requiring the person to attend before the court on the date specified in the summons (s. 97(1)). A similar power is given to justices\' clerks by the Justices\' Clerks Rules 2005 (SI 2005 No. 545), sch. 1, para. 2. If a magistrate (but not a clerk) is also satisfied by evidence on oath that it is probable that a summons issued under s. 97(1) would not procure the witness\'s attendance, an arrest warrant may be issued instead (s. 97(2)). **D21.27** Should a person summoned under s. 97(1) fail to attend as required, the court may issue an arrest warrant (s. 97(3)). It must, however, be satisfied that:  Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed. By virtue of CrimPR Part 4 (see Supplement, R4.1 et seq.), a witness summons may be served in one of the following ways:  **[TRIAL ON INDICTMENT: General Matters and Pre-Trial Procedure ]** **[SECURING THE ATTENDANCE OF WITNESSES]** **D15.91** In most cases it is the responsibility of the police to secure the attendance of prosecution witnesses, and the defence solicitor to ensure that defence witnesses attend. The steps taken will depend on the sensitivity of the witness and whether there is a fixed date for trial, or whether the case is in a warned list in which case an accused, for example, would need to keep in daily contact with solicitors during the period in which the case might be called on. **[Compelling Attendance]** **D15.92** Where the prosecution or defence wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily, they can apply for a witness summons. The same provisions are used to secure the production of documents, rather than the attendance of a witness, as evidence. The use of the provisions for this purpose is particularly pertinent to the disclosure of material in the possession of third parties, which is discussed at D15.79 and D9.72. **[Punishment for failure to attend]** **D15.93 (first five lines of the first sub-paragraph up to "... a contempt in the court's face (ibid.);")** A person who \'without just excuse\' disobeys a witness order or summons requiring the person to attend court is guilty of contempt of the court that the person fails to attend (Criminal Procedure (Attendance of Witnesses) Act 1965, s. 3(1)). The person may be summarily punished as if having committed a contempt in the court\'s face (ibid.) 13\. The rules relating to the examination of Witnesses 1\. examination in chief: form of questioning, memory refreshing, the use of previous consistent statements, hostile witnesses 2\. cross-examination: form of questioning, previous inconsistent statements, restrictions on cross-examination, including finality on collateral matters 3\. re-examination: form of questions 4\. the special measures available to vulnerable witnesses and witnesses in fear of testifying 1\. Examinable material on **examination in chief** will consist of the impermissibility of leading questions, refreshing the memory from documents in the course of giving evidence, refreshing memory out of court, previous complaints, general rule against previous consistent (self-serving) statements, self-serving statements made on accusation, unfavourable and hostile witnesses, general rule against impeaching credit of own witness, time at which to apply to treat witness as hostile, role of judge and jury, Criminal Procedure Act 1865 (Denman's Act) 1865, and statements in rebuttal of allegations of recent fabrication. The relevant material is addressed in paragraphs F6.1, F6.15-6.18, F6.28-6.29, F6.30, F6.31, F6.32, F6.33, F6.39-6.40, F6.48, F6.50-6.52, F7.67-7.68 and F7.70 of Blackstone's Criminal Practice 2025. **[Introduction]** **F6.1** Examination-in-chief is the examination of a witness by the party calling him or her and its object is to elicit from the witness evidence supportive of the party\'s case. **[LEADING QUESTIONS: Leading Questions generally Impermissible in Chief ]** **F6.15** The general rule is that in examination-in-chief a witness may not be asked leading questions, i.e. questions framed in such a way as to suggest the answer sought or to assume the existence of facts yet to be established. Evidence elicited by such questions is not inadmissible, but the weight to be attached to it may be substantially reduced. There are two other frequently recurring situations to which the general rule does not apply:  **[Refreshing the Memory: GENERAL]** **F6.16** Under the CJA 2003, s. 139(1), which has relaxed the common-law rules on refreshing memory, a witness, in the course of giving evidence, may refer to a document in order to refresh his or her memory on two conditions: \(1) that the witness gives evidence that the document records his or her recollection at the time it was made and \(2) that his or her recollection at that time is likely to have been significantly better than at the time of the oral evidence. The trial judge has a residual discretion to refuse an application under s. 139 even if the statutory conditions are met. **Criminal Justice Act 2003, s. 139(1)    ** A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if---  (2)     Where---  he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript. **F6.17** An application to refresh memory will normally be made by an advocate, but it is the proper function of the judge, where the interests of justice demand it, to suggest that a witness, including a prosecution witness, refresh his or her memory from a document. Under s. 139(1) and (2), the witness may refresh his or her memory \'at any stage\' in the course of giving oral evidence. Thus, although a witness refreshing memory in court will normally do so in examination-in-chief, provided the conditions are met there is nothing wrong in principle in allowing a witness to refresh memory during re-examination. Concerning the condition in s. 139(1)(b), ultimately it is a matter for the assessment of the judge, whatever the witness\'s view of the matter. **[Refreshing the Memory: MAKING or VERIFICATION of DOCUMENT]** **F6.18** For the purposes of the CJA 2003, s. 139(1), \'document\' means anything in which information of any description is recorded, but not including any recording of sounds or moving images (s. 140). Under s. 139(1), the document must have been prepared by the witness him or herself or by another, provided in the latter case that the witness verified the document. **[Refreshing the Memory: Refreshing Memory OUT OF COURT]** [Prior to going into the witness box ] **F6.28** The conditions on which a witness may refresh his or her memory while giving evidence in the witness-box do not apply to a witness who refreshes memory from a statement before going into the witness-box. All witnesses are routinely provided with copies of their statements before going into court. Witnesses are entitled to refresh their memory from their statement or visually recorded interview. In Richardson, Sachs LJ, giving the judgment of the Court of Appeal, made the following observations:  **F6.29** Concerning (d), it is incumbent on prosecuting authorities and judges to ensure that witnesses are informed that they should not discuss cases in which they are involved (Shaw \[2002\] EWCA Crim 3004). As a general rule, discussions between witnesses, particularly just before going into court to give evidence, should not take place, nor should statements or proofs of evidence be read to witnesses in each other\'s presence. If it emerges in cross-examination of the witnesses that the discussion may have led to fabrication, the court may take the view that it would be unsafe to leave any of the evidence of the witnesses concerned to the jury, but in other cases it may suffice to direct the jury on the implications which such conduct might have for the reliability of the evidence of the witnesses concerned. [After going into the witness box ] **F6.30** In some cases it may be appropriate for the witness to withdraw from the witness-box and read the statement in peace (per Stuart-Smith LJ in Da Silva \[1990\] 1 All ER 29, at p. 35). In the case of a witness who is dyslexic and cannot read an earlier statement, the witness may be given the opportunity of adopting it by having counsel read it out in the absence of the jury. [Cross-examination on Memory-refreshing document ] **F6.31** If a witness has refreshed his or her memory out of court and before entering the witness-box, counsel for the other side is entitled not only to inspect the memory-refreshing document, but also to cross-examine the witness upon the relevant matters contained therein. If counsel cross-examines upon material in the document from which the witness has refreshed his or her memory, the document is not thereby made evidence in the case; but if counsel cross-examines upon material which has not been referred to by the witness, this entitles the party calling the witness to put the document in evidence so that the tribunal of fact may see the document upon which the cross-examination is based. **[Examination in Chief: PREVIOUS COMPLAINTS]** **F6.32** The CJA 2003, s. 120(1), (4) and (7), create an important exception to both the rule against hearsay (see F16) and the rule against previous consistent statements (see F6.39) in the case of a witness\'s previous complaint. Under the statutory provisions, the witness\'s complaint, whether oral or written, is admissible subject to a number of conditions, principally: 1. that the witness testifies that to the best of his or her belief he or she made the statement and it is true; that the witness claims that an offence was committed against him or her; 2. that the offence is one to which the proceedings relate; 3. and that the complaint is about conduct which would, if proved, constitute the offence or part of it. A statement received under these provisions is admissible as evidence of the matters stated and also goes to the consistency of the witness. **[Criminal Justice Act 2003, s120]** **F6.33** Criminal Justice Act 2003, s. 120(1)     This section applies where a person (the witness) is called to give evidence in criminal proceedings.... (4)     A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if---  (7)     The third condition is that---  (8)     For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved. Prosecutors assembling the evidence to be called at trial should have s. 120(4)(b) well in mind if it is intended to rely on a previous statement as evidence of the truth of its contents, especially where a video interview is to stand as the witness\'s evidence-in-chief. **[General rule against previous consistent (self-serving) statements]** **F6.39** There is a general common-law rule excluding previous consistent or self-serving statements, sometimes referred to as the rule against narrative, to which there is a range of important statutory and common-law exceptions. Under the rule, a witness may not be asked about a previous oral or written statement made by the witness and consistent with his or her evidence. The previous statement, which may also be inadmissible as evidence of the facts contained in it under the rule against hearsay, is excluded as evidence of the accused\'s consistency. In Roberts \[1942\] 1 All ER 187, D was convicted of the murder of a girl by shooting her. His defence was that the gun went off accidentally when he was trying to make up a quarrel with her. The Court of Criminal Appeal held that evidence that two days after the event D had told his father that his defence would be accident had been properly excluded. Such evidence is easily manufactured and of no evidential value. The fact that D has said the same thing to someone else on a previous occasion did not confirm his evidence (Roberts, at p. 191). The general rule applies in examination-in-chief, cross-examination and re-examination. Thus the credibility of a witness may not be bolstered by evidence of a previous consistent statement merely because the witness\'s testimony has been impeached in cross-examination, and this remains the case \'even if the impeachment takes the form of contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion\'. However, the court does have a residual discretion, necessary in the interests of justice, to permit re-examination to show consistency, to ensure that as a result of the cross-examination the jury are not positively misled as to the existence of some fact or the terms of an earlier statement. There are a number of statutory and common-law exceptions to the general rule. including complaints (see F6.32), previous identification and description (see F6.36) and statements in rebuttal of allegations of recent fabrication (see F7.67). **[Self-serving statements made on accusation]** **F6.40** In Pearce (1979) 69 Cr App R 365, at pp. 368 and 370, the Court of Appeal could see no reason for casting doubt on the well-established practice, on the part of the prosecution, to admit in evidence all unwritten, and most written, statements made by an accused person to the police, whether they contain admissions or whether they contain denials of guilt. If such a statement is wholly adverse to the accused, it may be admitted as evidence of the truth of the facts contained in it under the PACE 1984, s. 76 (see F18.8). If it is a mixed statement, i.e. a statement containing both inculpatory and exculpatory parts, such as \'I killed X. If I had not done so, X would certainly have killed me there and then\', the whole statement is admissible (see principle 2(b) in Pearce, at F6.42), and both parts are admitted as evidence of the truth of the facts they contain. However, if the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it \'is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts\'. **[UNFAVOURABLE AND HOSTILE WITNESSES: General Rule against Impeaching Credit of Own Witness]** **F6.48** The general rule is that a party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness\'s bad character, previous convictions, bias or previous inconsistent statements. - However, the general rule appears to have no application where evidence of a witness\'s bad character is introduced not to impeach the witness\'s credit in relation to the testimony, but because it supports some other discrete part of the prosecution case. Equally, the prosecution may call a witness to give evidence only part of which they consider to be worthy of belief and may adduce other evidence to contradict that part of the witness\'s evidence which they consider to be inaccurate or false, and invite the jury to reject that part of the witness\'s evidence. That may be done without applying to treat the witness as hostile. However, unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement. In the case of a witness who appears to the judge to be hostile, that is to say not desirous of telling the truth to the court at the instance of the party calling him or her (Stephen\'s Digest of the Law of Evidence (12th edn, 1936), Article 147), the general rule is modified, but in only two respects: **[UNFAVOURABLE AND HOSTILE WITNESSES: Time at which to Apply to Treat Witness as Hostile]** **F6.50** The application to treat a witness as hostile should be made when the witness first shows unmistakable signs of hostility (Pestano \[1981\] Crim LR 397). If counsel for the prosecution has a statement directly contradicting one of their witnesses who gives evidence that he or she is unable to identify the accused, counsel should at once show the statement to the judge and ask for leave to cross-examine the witness (Fraser (1956) 40 Cr App R 160). However, although there may be circumstances where a witness is displaying such an excessive degree of hostility that the only appropriate course is to treat him or her as hostile, if the witness gives evidence contrary to an earlier statement (or fails to give the evidence expected) the party calling the witness and the trial judge should first consider inviting the witness to refresh his or her memory from material which it is legitimate to use for that purpose and should not immediately proceed to treat the witness as hostile (Maw \[1994\] Crim LR 841). **[UNFAVOURABLE AND HOSTILE WITNESSES: Role of Judge and Jury]** **F6.51** The discretion of the judge, however hostile the witness, is absolute (Rice v Howard (1886) 16 QBD 681; Price v Manning (1889) 42 Ch D 372), and the decision will rarely be open to a successful challenge on appeal (Manning \[1968\] Crim LR 675). Although the question whether a witness is hostile is for the judge in the absence of the jury following a formal application (Hopes \[2011\] EWCA Crim 1869), the evidence and demeanour of the potentially hostile witness should usually be tested in the presence of the jury. **[DENMAN'S ACT, S3 Criminal Procedure Act 1865]** **F6.52** A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; - but **before such last mentioned proof can be given** the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. Section 3 comprises three rules. The first is an enactment of the common-law rule that a party calling a witness is not entitled to impeach the witness\'s credit by evidence of bad character, i.e. evidence of previous misconduct, convictions, or other evidence designed to show that the witness is not to be believed on oath. The second and third rules apply to witnesses who, in the opinion of the judge, prove \'adverse\', which means \'hostile\' and not merely \'unfavourable\'. - In assessing whether a witness is hostile for the purposes of s. 3, a judge will consider many factors, including whether the witness is in a position to assist, whether the witness has indicated a willingness to assist, any previous accounts given, and demeanour in the witness-box. - The issue does not depend solely on whether the witness has been previously inconsistent in a written statement or in evidence on oath (Hengari-Ajufo \[2016\] EWCA Crim 1913, at \[59\]). The second rule in s. 3 is that a party may \'contradict\' a hostile witness, i.e. call other witnesses to prove that which the hostile witness has failed to establish. The third rule in s. 3, which does apply only in the case of a witness who is, in the opinion of the judge, hostile, allows the judge to give leave to prove that the witness has made at other times a statement inconsistent with the present testimony. - This requirement of leave cannot be circumvented by reliance on s. 4 of the Act (Booth (1981) 74 Cr App R 123; see F7.52). - A witness for the defence who is treated as hostile is in the same position as a hostile prosecution witness, and accordingly is open to cross-examination on a previous inconsistent statement (Booth). If the nature of the evidence given justifies it, an application may be made to treat as hostile the spouse or civil partner of an accused who is competent but not compellable for the prosecution, and who has waived his or her right to refuse to testify. However, it is desirable that the judge should explain to the spouse or civil partner, in the absence of the jury and before the oath is taken, that if the choice is made to give evidence, he or she may be treated like any other witness (Pitt \[1983\] QB 25). **[STATEMENTS in REBUTTAL of ALLEGATIONS OF RECENT FABRICATION]** **F7.67** Under the **CJA 2003, s. 120(1) and (2),** which constitute an exception to both the rule against hearsay (see F16) and the rule against previous consistent statements (see F6.39), a statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witness\'s credibility. **Criminal Justice Act 2003, s. 120** (1)     This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2)     If a previous statement by the witness is admitted as evidence to **rebut** a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. **F7.68** Section 120(2) itself does not govern admissibility, which must be considered by reference to the common-law principles which have governed this question in the past (Trewin \[2008\] EWCA Crim 484, at \[18\] and \[20\]). However, if in cross-examination it is suggested to a witness that his or her evidence is a recent fabrication, evidence of a previous consistent statement will be admissible in re-examination to negative the suggestion and confirm the witness\'s credibility. **F7.70** Although s. 120(2) refers to \'fabrication\' without the qualification \'recent\', the clear intention was to leave the common-law principle intact. However, the principle is not to be confined to a temporal straitjacket. \'Recent\' is an elastic description designed to assist in the identification of circumstances in which a previous consistent statement should be admitted where there is a rational basis for its use as a tool for deciding where the truth lies. The touchstone is whether the evidence may fairly assist in that way, and not the length of time (Athwal \[2009\] EWCA Crim 789). For example, in MH \[2012\] EWCA Crim 2725, where it was alleged by a father that his son had been coached by his mother to give false evidence against him to stop him from seeing his children and by reason of the financial dispute between him and his wife, evidence of the son\'s complaints to the mother against the father prior to the breakdown of the marriage was admissible in rebuttal, but not evidence of such complaints made at a time when the father was not permitted to see his children and when he and his wife were in financial dispute. 2\. Examinable material on **cross-examination** will consist of previous inconsistent statements, nature of cross examination, sequence of cross-examination, cross-examination by an accused in person, object of crossexamination, role of the judge during cross-examination, putting one's case and the effect of failure to do so, general restrictions on cross-examination, scope of cross-examination, leading questions, exclusionary rules of evidence, power of judge to impose time limits and limit cross-examination, cross-examination as to credit, Code of Conduct for Barristers, general rule of finality of answers to questions on collateral matters, and bias and partiality. The relevant material is addressed in paragraphs F6.47, F7.1-7.3, F7.5-7.6, F7.8, F7.16-7.23, F7.48 and F7.57-7.60 of Blackstone's Criminal Practice 2025. **[Previous Inconsistent Statements]** **F6.47** If a witness in examination-in-chief (or cross-examination) admits making a previous oral or written inconsistent statement, the statement is admissible under the CJA 2003, s. 119, as evidence of any matter stated of which oral evidence by the witness would be admissible. Criminal Justice Act 2003, s. 119 (1)     If in criminal proceedings a person gives oral evidence and---  a. he admits making a previous inconsistent statement... the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible. The statement is admissible for the truth of its contents as evidence against its maker. Thus, if it implicates a co-accused, s. 119 does not allow it to be used against the co-accused. However, it may be admissible, for this purpose, under the CJA 2003, s. 114(1)(d) (Nguyen \[2020\] EWCA Crim 140). The fact that a witness who has made a previous statement gives evidence that he or she cannot remember the matters in the statement will not necessarily make the statement a previous inconsistent statement. - However, it is submitted that such a conclusion should be drawn if the witness denies the truth of the earlier statement, in which case, in effect, \'he admits making a previous inconsistent statement\', or is treated as a hostile witness on the basis that in all the circumstances of the case the witness is likely to be able to remember the matters in question and by claiming not to be able to do so is not willing to tell the truth to the court. **[CROSS-EXAMINATION: Nature of Cross-examination]** **F7.1** Cross-examination is the questioning of a witness by (a) the opponent of the party calling the witness or (b) any other party to the proceedings. Thus, as to the latter, an accused has the right to cross-examine a co-accused who has chosen to give evidence (and any witnesses called by the co-accused). This applies not only where the co-accused has given evidence unfavourable to the accused (Hadwen \[1902\] 1 KB 882; Paul \[1920\] 2 KB 183), but also if the co-accused has merely given evidence in his or her own defence. **[Sequence of Cross-examination ]** **F7.2** For magistrates\' court proceedings, CrimPR 24.4(4) (see Supplement, R24.4) simply provides that \'every other party may ask questions in cross-examination\'. Specific provision for the sequence is made for the Crown Court where both prosecution and defence witnesses may be cross-examined by any co-accused in the order their names appear in the indictment or as directed by the court (CrimPR 25.11(4)(b) and (c); see Supplement, R25.11); a defence witness may be cross-examined by the prosecution after cross-examination by any co-accused (r. 25.11(c)). **[Cross-examination by an Accused in Person]** **F7.3** As a general rule, an accused is entitled to cross-examine in person any witness called by the prosecution. The general rule is subject to a common-law restriction and important statutory exceptions. Concerning the former, a trial judge is not obliged to give an unrepresented accused freedom to ask whatever questions, at whatever length, the accused wishes (Brown (Milton) \[1998\] 2 Cr App R 364). As to the latter, the YJCEA 1999, ss. 34 to 39, protect three categories of witness from cross-examination by an accused in person: - Under the YJCEA 1999, s. 34, no person charged with a sexual offence as defined in s. 62 of the Act (see F7.28) may cross-examine in person the complainant, either in connection with the offence or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings; - under s. 35, no person charged with one of a number of specified offences may cross-examine in person a \'protected witness\' either in connection with the offence, or in connection with any other offence (of whatever nature) with which that person is charged in the proceedings; and under s. 36, the court has a general power, in cases not covered by ss. 34 and 35, to give a direction prohibiting the accused from cross-examining a witness in person if: Section 38 provides that, where an accused is prevented from cross-examining a witness in person, the court must invite the accused to appoint a legal representative; and that if the accused fails to do so and the court decides that it is in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused, the court must choose and appoint such a representative, who shall not be responsible to the accused. **[Object of Cross-examination]** **F7.5** The object of cross-examination is:  (a)     to elicit from the witness evidence supporting the cross-examining party\'s version of the facts in issue;  (b)     to weaken or cast doubt upon the accuracy of the evidence given by the witness in chief; and  (c)     in appropriate circumstances, to impeach the witness\'s credibility. **[Role of the JUDGE during cross-examination]** **F7.6** The court may ask a witness questions and, in particular, where the accused is not represented, ask a witness any question necessary in the interests of the accused (CrimPR 24.4(6) (magistrates\' courts) and 25.11(6) (Crown Court). In general, when cross-examination is conducted by a competent advocate, a judge should not intervene, save to clarify matters the judge does not understand or thinks the jury may not understand. If the judge wishes to ask questions about matters that have not been touched upon, it is generally better to wait until the end of the examination or cross-examination. In Mustafa \[2020\] EWCA Crim 1723, the Court approved the following three principles as set out by the Civil Division of the Court of Appeal in Serafin v Malkiewicz \[2019\] EWCA Civ 852 (at \[108\]--\[110\]) under the heading \'The principle of fairness\':  (1)     It is a fundamental tenet of the administration of law that all those who appear before the courts are treated fairly and that judges act---and are seen to act---fairly and impartially throughout the trial.  (2)     It is a duty of a judge to intervene in the course of witness evidence \'to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear\' (per Rose LJ in Tuegel \[2000\] 2 Cr App R 361).  (3)     It is wrong for a judge \'to descend into the arena and give the impression of acting as advocate\' (per Lord Parker CJ in Hamilton (9 June 1969 unreported), cited in Hulusi (1973) 58 Cr App R 378 at p. 382). **[PUTTING ONE'S CASE and the effect of FAILURE TO DO SO]** **F7.8** In Wood Green Crown Court, ex parte Taylor \[1995\] Crim LR 879, the Divisional Court approved the following principle as stated in the 1995 edition of this work: a party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict the witness or impeach his or her credit by calling other witnesses, tacitly accepts the truth of the witness\'s evidence-in-chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve the witness in that regard. Thus in Bircham \[1972\] Crim LR 430, counsel for D was not permitted to suggest to the jury in his closing speech that the co-accused and a prosecution witness had committed the offence charged, where the allegation had not been put to either in cross-examination. In TUI UK Ltd v Griffiths \[2023\] UKSC 48, the Supreme Court set out a number of important propositions concerning the rule in Browne v Dunn (1893) 6 R 67. Although the judgment expressly addressed civil proceedings, it is submitted that there is no reason in principle why the following propositions should not apply in criminal cases.  **[RULES GOVERNING CONDUCT OF CROSS-EXAMINATION: General Restrictions]** **F7.16** Likewise, questions should not be in the nature of comment on the facts; comments should be confined to speeches. Nor should questions be framed in such a way as to invite argument rather than elicit evidence on the facts in issue. Thus an advocate should avoid questions such as \'I suggest to you that...\' and \'Do you ask the jury to believe that...\'. Cross-examination should be confined to putting questions of fact. An advocate should not state what somebody else has said or is expected to say. The time for statements such as \'The defendant\'s recollection is...\' or \'The defendant will say...\' is the opening speech; such statements should not be made, or put in the form of a question, in cross-examination. See also rC7.1 of the Code of Conduct for barristers in the BSB Handbook: \'Where you are acting as an advocate, your duty not to abuse your role includes the following obligations... you must not make statements or ask questions merely to insult, humiliate or annoy a witness\'. In addition to the powers of the trial judge in relation to the cross-examination of children and vulnerable witnesses (see F7.10 and D14.74), the judge has a general discretion to prevent any questions in cross-examination which the judge considers to be unnecessary, improper or oppressive. **[SCOPE of Cross-examination ]** **F7.17** Questions in cross-examination are not restricted to matters raised in chief, but may relate to any fact in issue (or relevant fact), or to the credibility of the witness. **[LEADING QUESTIONS]** **F7.18** A witness under cross-examination may be asked leading questions. This is so even if the witness appears to be more favourable to the cross-examining party than to the party calling him or her. **[EXCLUSIONARY RULES of EVIDENCE]** **F7.19** The exclusionary rules of evidence relating to hearsay, opinion, privilege etc. apply to cross-examination as they apply to examination-in-chief. In Treacy \[1944\] 2 All ER 229, a charge of murder, it was held that D had been cross-examined improperly upon certain inadmissible confessions made on arrest and inconsistent with his evidence. It has been said that the principle established in this case, that an accused cannot be cross-examined by the prosecution in such a way as to reveal that the accused made an inadmissible confession, also obtains in favour of any co-accused **[Power of JUDGE to IMPOSE TIME-LIMITS and Limit cross-examination]** **F7.20** The court has a general duty to deal with cases efficiently and expeditiously and to manage cases actively to ensure that evidence is presented in the shortest and clearest way, giving any direction appropriate. It follows that, as part of its case management powers, the court may limit the duration of any stage of the hearing and the cross-examination of a witness. **[Cross-examination as to CREDIT]** **F7.21** '*Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence\'* Thus a witness may be cross-examined about his or her means of knowledge of the facts to which he or she has testified, opportunities for observation, powers of perception, the quality of the witness\'s memory, mistakes, omissions and inconsistencies in evidence, and omissions or inconsistencies in previous statements that relate to the witness\'s likely standing with the jury after cross-examination but which are not \'relative to the subject matter of the indictment\' (Funderburk \[1990\] 2 All ER 482). **[BAD CHARACTER]** **F7.22** Any questions in cross-examination as to a witness\'s bad character are subject to the rules set out in the CJA 2003, Part 11. Section 99 of the Act abolishes the common-law rules governing the admissibility of evidence of \'bad character\' in criminal proceedings and the intention appears to be to abolish not only the rules as to the introduction of such evidence in examination-in-chief, but also the rules governing cross-examination about bad character. Thus, such cross-examination is permitted only if it comes within one of the specified categories of admissibility set out in s. 100 (non-defendant\'s bad character; see F15) or 101 (defendant\'s bad character; see F13). **[Code of Conduct for Barristers]** **F7.23** The Code of Conduct for barristers also regulates the conduct of cross-examination: see rC7.1 and rC7.2 **[RULE OF FINALITY of ANWERS to QUESTIONS ON COLLATERAL MATTERS: General Rule]** **F7.48** The general rule, based on the desirability of avoiding a multiplicity of essentially irrelevant issues, is that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, i.e. matters which go merely to credit but which are otherwise irrelevant to the issues in the case. In A-G v Hitchcock (1847) 1 Exch 91, Pollock CB said (at p. 99): \'The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence --- if it have such a connection with the issues that you would be allowed to give it in evidence --- then it is a matter on which you may contradict him.\' **[RULE OF FINALITY of ANWERS to QUESTIONS ON COLLATERAL MATTERS: BIAS and PARTIALITY]** **F7.57** Evidence has always been admissible to contradict a witness\'s denial of bias or partiality towards one of the parties, and to show that the witness is prejudicial concerning the case being tried. To the extent that this common-law doctrine allows the introduction of evidence of, or of a disposition towards, misconduct on the part of a witness, it was abolished by the CJA 2003, s. 99. However, much evidence of bias is likely to remain admissible under the doctrine, because it will fall outside the statutory definition of evidence of bad character in s. 98 of the 2003 Act, which excludes \'evidence of, or of a disposition towards misconduct... which has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence\'. If the evidence in question is not admissible on that basis, it is nonetheless likely to be admitted under the CJA, s. 100(1)(b), i.e. as evidence of the bad character of a person other than the accused that has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole (see F15). **F7.58** In A-G v Hitchcock (1847) 1 Exch 91, it was held that although evidence is not admissible to contradict a witness\'s denial of being offered a bribe to give false evidence, because this does not show that he or she is not a fair and credible witness, evidence is admissible to rebut a witness\'s denial of accepting such a bribe, because that tends to show the witness\'s partiality. Pollock CB said: *\'A witness may be asked how he stands affected towards one of the parties; and if his relation towards them is such as to prejudice his mind, and fill him with sentiments of revenge and other feelings of a similar kind, and if he denies the fact, evidence may be given to show the state of his mind and feelings*.\' **F7.59** In Shaw (1888) 16 Cox CC 503, it was held that D may call evidence to contradict a prosecution witness who, in cross-examination, denies having threatened to be revenged on D following a quarrel with him. **F7.60** In Mendy (1976) 64 Cr App R 4, D was convicted of assault. At her trial, prospective witnesses were kept out of court in accordance with the normal practice. While a police officer was giving evidence, a man in the public gallery was seen taking notes. He was later seen discussing the case with D\'s husband, apparently describing the officer\'s evidence to him. The husband, under cross-examination, denied this incident. The Court of Appeal held that the trial judge had properly allowed the prosecution to call evidence in rebuttal: the husband was prepared to lend himself to a scheme, designed to defeat the purpose of keeping prospective witnesses out of court, to enable him the more convincingly to describe how he, and not his wife, had caused the injuries alleged. 3\. Examinable material on **re-examination** will consist of the principal rules of re-examination. The relevant material is addressed in paragraph F7.66 of Blackstone's Criminal Practice 2025. **[RE-EXAMINATION: General ]** **F7.66** After cross-examination, a witness may be re-examined by the party who called him or her. This applies even in the case of a hostile witness, who may be re-examined on any new matters which arose out of cross-examination (Wong \[1986\] Crim LR 683). Leading questions may not be asked in re-examination. The principal rule of re-examination is that, except with the leave of the judge, questions should be confined to matters, including any new matters, arising out of cross-examination. This rule applies not only in the case of a witness who has been examined in chief, but also in the case of a witness whose name is notionally on the back of the indictment and who was called by the prosecution merely to allow the defence to cross-examine him (Beezley (1830) 4 C & P 220). A witness may refresh his or her memory in re-examination. 4\. Examinable material on **special measures** will consist of the range of special measures available, the general eligibility categories, eligibility of defendant for live link, eligibility of defendant for an intermediary, and intermediaries. The relevant material is addressed in paragraphs D14.1 (first ten lines of first sub-paragraph up to "... enabling an accused to comprehend the proceedings" and second sub-paragraph beginning "The Equality Act 2010 \..."), D14.2 (first sub-paragraph ending "\... provide their best evidence."), D14.3-14.7, D14.26, D14.28 (except for the first sub-paragraph ending "It is now improbable that the statutory provisions will be implemented."), and D14.49 of Blackstone's Criminal Practice 2025. **[SPECIAL MEASURES FOR WITNESSES: Introduction]** **D14.1 (first ten lines of first sub-paragraph up to "... enabling an accused to comprehend the proceedings" and second sub-paragraph beginning "The Equality Act 2010 \...")** Since the YJCEA 1999, the prevailing ethos is that the orthodox procedures of the adversarial trial must be adapted to the needs of all child and other vulnerable witnesses and defendants, including those with physical or mental disabilities, appearing in the criminal and civil courts, to facilitate their participation (Barker \[2010\] EWCA Crim 4, at \[42\]; CrimPR 3.8(3)(a) and (b), (6) and 3.13). Advocates must adapt to the witness, not the other way round (Lubemba \[2014\] EWCA Crim 2064, at \[45\]). This shift in professional culture includes enabling a witness or accused to give their best evidence, and enabling an accused to comprehend the proceedings. The Equality Act 2010 demands substantive equality for every person appearing in court to ensure their full participation, and provides that the court has safeguarding responsibilities in respect of children and vulnerable adults, often discharged through judicial discretion. This duty is reinforced by CrimPR 3.8(6), including giving directions for the appropriate treatment and questioning of a witness or the defendant, especially where an intermediary is used. **D14.2 (first sub-paragraph ending "\... provide their best evidence.")** Under the YJCEA 1999, s. 53(3) (see F4.21 et seq.), all witnesses regardless of age (or disability) are presumed competent. If competence is put in issue, it need only be demonstrated that the witness can understand questions and give answers that can be understood, competence being \'witness, trial and issue specific\' (IA \[2013\] EWCA Crim 1308, at \[70\]). This minimal test has resulted in younger children and adults with mental disorders or severe impairments being witnesses in circumstances that once would have been unthinkable. The YJCEA 1999, ss. 16 to 30, modify the orthodox trial process for witnesses who are in fear, suffering from a physical or mental disability, or are complainants of sexual offences, as well as witnesses aged under 18, to enable them to provide their best evidence. **D14.3** The wide range of special measures has not altered the court\'s responsibility for the fairness of the trial; trial judges are expected to deal with specific communication problems faced by any defendant or witness as part of their ordinary control of the judicial process. The narrow (and arguably discriminatory) gateway to live link for vulnerable defendants in the YJCEA 1999, s. 33A, which was limited to defendants with significant intellectual disabilities, has been effectively repealed in relation to the Crown Court and magistrates\' courts (PCSCA 2022, s. 200, with effect from 28 June 2022). - Defendants\' access to the live link for their own testimony or for the entire trial is now governed by the same statutory provisions as for other witnesses, under the revamped, open-textured CJA2003, s. 51. - Unlike under the YJCEA 1999, s. 33A, no defence application (nor indeed the defendant\'s assent) is required, nor are any exigent circumstances making it impossible, or inadvisable, for the defendant to attend. **D14.4** The litmus test of the special measures regime appears in s. 19(2), requiring the court to consider which measures will \'maximise the quality of the evidence\'. - For witnesses under 18, the test in s. 19(2) is presumed to be satisfied by playing their recorded interviews with the police as their evidence-in-chief, and by cross-examination via video link (s. 21(2)). - In certain circumstances this presumption can be displaced. - In all other cases, s. 19(2) requires that the measures be tailored to the needs of the individual witness and defendant. **[SPECIAL MEASURES FOR WITNESSES: RANGE of special measures available]** **D14.5** The range of statutory special measures currently available is:  (a)     screening the witness from the accused (YJCEA 1999, s. 23);  (b)     giving evidence by live link, accompanied by a supporter (s. 24) (for other uses of live link, see D15.96);  (c)     giving evidence in private, available where sex offences or modern slavery, servitude, forced labour or human trafficking are charged (MSA 2015, s. 46(3)) or witness intimidation is a concern (YJCEA 1999, s. 25);  (d)     removal of wigs and gowns while the witness gives evidence (s. 26);  (e)     video recording of evidence-in-chief (s. 27);   (f)     video recording of cross-examination and re-examination where the evidence-in-chief of the witness has already been video-recorded and admitted in evidence (s. 28) (see D14.52);   (g)     examination through an intermediary for a young or incapacitated witness (s. 29); (h)     provision of aids to communication for a young or incapacitated witness (s. 30); and  (i)     a witness anonymity order (CAJA 2009, Part 3, ch. 2), which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure (Part 3, ch. 1: see D1.219). **D14.6** Practitioners should also consider other protective procedures:  - orders under the YJCEA 1999, s. 46, restricting reporting and public access, to protect a fearful or distressed adult witness\'s identity, where such an order is likely to improve the quality of that witness\'s testimony or co-operation (see D3.139); - complainant anonymity in sex offence cases (Sexual Offences (Amendment) Act 1992, s. 1(1): see D3.138);  - the prohibition in the YJCEA 1999, ss. 34 to 38, on cross-examination by the accused in person of (i) child complainants of, or witnesses to, sexual or violent offences, cruelty, kidnapping, false imprisonment or abduction, and (ii) adult complainants alleging sexual offences (see F7.3 and CrimPD 6.5; see Supplement, PD6.5) or (iii) on application, to complainants of, or witnesses to, other offences such as domestic abuse, the quality of whose evidence would be diminished (s. 36); and - pre-trial depositions of children or young persons under the CYPA 1933, s. 43 (see D16.38). **[SPECIAL MEASURES FOR WITNESSES: ELIGIBILITY CATEGORIES - General]** **D14.7** The measures apply with equal force to prosecution and defence witnesses (YJCEA 1999, s. 19(1)). Different provisions apply to an accused (see D14.25). The categories of eligibility are discussed in detail at D14.15 et seq. In summary, they are: - all witnesses under the age of 18 at the time of the hearing or video recording; - vulnerable witnesses affected by a mental or physical impairment; - witnesses in fear or distress about testifying; - adult complainants of sexual offences, or of offences under the MSA 2015, ss. 1 (slavery, servitude and forced or compulsory labour) and 2 (human trafficking), or of any other offence where it is alleged that the accused\'s behaviour amounted to domestic abuse within the meaning of the Domestic Abuse Act 2021, s. 1; and - any witness in a case involving a \'relevant offence\', currently defined as homicide offences and other offences involving a firearm or knife. For witnesses who are not automatically eligible (i.e. those affected by mental or physical impairment or in fear or distress about testifying), the court must determine whether the quality of the evidence would be diminished by the witness\'s condition (YJCEA 1999, ss. 16(1)(b) and 17(1); see D14.57 and D14.58), taking into account any views of the witness (ss. 16(4) and 17(3)). Adult complainants of sexual offences (s. 17(4A)) and witnesses in \'relevant offence\' cases have an unqualified right to opt out of special measures (s. 17(5)). After making the eligibility declaration, the court must consider which special measures will maximise the quality of the witness\'s evidence; for all child witnesses, this is presumed to be the consequence of the \'primary rule\' measures (discussed at D14.17). Testifying through an intermediary and aids to communication are not available for witnesses eligible only by reason of fear or intimidation. **[ELIGIBILITY OF DEFENDANT FOR LIVE LINK]** **D14.26** The eligibility of defendants to testify through live link was transformed by the PCSCA 2022. he consequence is that the defendant\'s access to the live link in the Crown Court and magistrates\' court is now governed by the general provisions applicable to all witnesses and other participants in the trial. To give a live link direction under the PCSCA 2022 the court must consider all the circumstances of the case, and be satisfied that it is in the interests of justice that that person take part in the proceedings in accordance with an audio link or video link, and that the parties, and if relevant the youth offending team, have been given an opportunity to make representations (s. 51(4), (5)(b)). The prescribed \'circumstances\' are framed in terms of \'person\' rather than \'witness\' and so could apply to the defendant when not giving evidence, as well as to jurors and legal representatives and observers (s. 51(6):  (a)     the person\'s availability;  (b)     any need for the person to attend in person;  (c)     the person\'s views;  (d)     the suitability of the proposed live link facilities;  **[ELIGIBILITY OF DEFENDANT FOR AN INTERMEDIARY]** **D14.28 (except for the first sub-paragraph ending "It is now improbable that the statutory provisions will be implemented.")** The Crown Court and magistrates\' courts continue to deploy inherent powers to direct that the defendant be assisted by an intermediary, these powers now being supported by the detailed provisions of CrimPR 18.23. In 2021, the Rule Committee placed on a solid footing the entitlement of defendants to the assistance of an intermediary to facilitate their effective participation in their trial (r. 18.1(e)). CrimPR 18.23 provides that the court \'must\' exercise its power to appoint an intermediary where two criteria are met: \(b) the appointment is \'necessary\' for the purpose of facilitating effective participation. CrimPR 18.23(5) confirms that the court may act on its own initiative to appoint an intermediary, The court may not vary or discharge an intermediary order unless satisfied that since the order was made the defendant\'s communication needs or other material circumstances have changed materially, and the defendant would be still able to participate effectively without the order (r. 18.23(6)). **[INTERMEDIARIES]** **D14.49** The role of intermediaries in the criminal justice system has been defined in the 2021 amendment to CrimPR 18.3 (see Supplement, R18.3) as being a person who is either approved by the court under the YJCEA 1999, or is asked to assess a defendant\'s communication needs, or appointed by the court to facilitate a defendant\'s effective participation in the trial, when the defendant gives evidence or at any other time, where otherwise that defendant\'s communication needs would impede such participation. Their role when appointed to assist a defendant\'s effective participation includes explaining to the defendant, in understandable terms, what is said and done by other participants. Even though the YJCEA 1999, s. 29, makes it clear that an intermediary can assist a witness to communicate by explaining questions and answers, this happens very rarely in practice; advocates usually put their questions directly to the witness, with the intermediary intervening only where miscommunication is likely to have occurred. Particular care is required to ensure that intermediaries assisting defendants do not jeopardise their impartiality through their close contact with them, and that transparency as to their involvement is observed at all times. Note The following is the specific statutory provision with which students should be familiar (and able to refer to by section number): section 139 Criminal Justice Act 2003.