criminal law Acts

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The Youth Justice and Criminal Evidence Act 1999

The Youth Justice and Criminal Evidence Act 1999 (the “YCJEA”) is a significant piece of legislation with wide-ranging consequences in not one, but two major areas. The first is in the area of youth justice. Part I of the YCJEA was part of a sweeping reform of the youth justice system which was promised by the Labour government and set out in the White Paper ‘No More Excuses[1]. The provisions of Part I of the YCJEA introduced a new sentencing disposal in respect of young offenders appearing before a youth court or the magistrates’ court, allowing them to be referred to a youth offender panel[2]. In the case of first time offenders, such a referral was compulsory if certain conditions were met[3]. The aim of these provisions was to reduce youth offending by establishing “a programme of behaviour” for the young offender to follow (also known as a “youth offender contract”), to be agreed between the young offender and the panel. The terms of the programme and contract were guided by the three key principles of “restorative justice”, namely victim reparation, offender re-integration and taking responsibility for offending behaviour[4]. These changes to the youth justice system were hailed as “unambiguously belonging to New Labour”, introducing a “much more radical reform than even the abolition of the principle of doli incapax…”[5]. Whilst the specific provisions of Part I of the YCJEA have since been repealed and consolidated under the Powers of Criminal Courts (Sentencing) Act 2000[6], the basic framework established by the YCJEA – namely the introduction of referral orders in respect of young offenders, remains in place to this day.

Secondly, Part II of the YCJEA has revamped the way in which evidence in criminal proceedings is given. Many of these provisions originated from the proposals in ‘Speaking up for Justice’[7] and can be seen to augment previous legislative initiatives designed to improve proceedings (for example, the establishment of the ability of witnesses to testify through live TV link under section 32 of the Criminal Justice Act 1988). Part II of YCJEA was seen to represent the government's response to the problems faced by vulnerable witnesses, and a recognition of the “stress and, in some cases, humiliation involved in giving evidence”[8].

Part II of the YCJEA introduced a wide range of “special measures” designed to protect and assist vulnerable and intimidated witnesses when testifying in criminal proceedings. The full list of special measures includes allowing the giving of evidence through a screen which prevents the witness from seeing the accused[9], live link[10] or in private[11], requiring the removal of wigs and gowns[12], and allowing for the admission of pre-recorded video evidence in chief[13] and cross-examination[14]. The availability of a special measures direction depends on the category of witness, with children testifying in relation to sexual or violent offences deemed to need special protection[15]. To alleviate concerns that the introduction of these special measures ultimately push the balance of fairness too far in the direction of the protection of witnesses, judges are required under section 32 of the YCJEA “give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused”.

The YCJEA also includes important provisions prohibiting defendants from cross-examining in person complainants of sexual offences, and children who are the alleged victims or witnesses to the commission of a variety of offences[16]. The implementation of these changes was lauded as “an early indication of the Labour government’s promise to improve the plight of victims in the criminal justice system”[17]. One of the more “controversial” amendments introduced by the YCJEA are the provisions dealing with a sexual history evidence[18]. In particular, section 41 of the YCJEA prohibits the accused from adducing evidence or asking questions in cross-examination about any sexual behaviour of the complainant without leave of the court, and sets out the limited grounds on which such leave may be granted.

Other important changes introduced by the YCJEA include providing that all persons (regardless of age) are competent to give evidence in criminal proceedings[19] and amending sections 34 and 36-38 of the Criminal Justice and Public Order Act 1994 by providing that adverse inferences may not be drawn from an accused’s silence where prior access to legal advice has been denied[20].

Whilst modifying trial procedure to accommodate the requirements of vulnerable or intimidated witnesses may be criticised by some as “departing from the fundamental principles of justice”, it does not detract from the fact that the provisions of Part II of the YCJEA has enabled complainants and other witnesses to give their “best evidence”, and in consequence allowed more offenders to be brought to justice[21].

Total number of words (excluding title, footnotes and bibliography): 785

REFERENCES CITED:

1. Ball, C., ‘The Youth Justice and Criminal Evidence Act 1999 Part I: a significant move towards restorative justice, or a recipe for unintended consequences?’ (2000) Criminal Law Review, April 211-222

2. Home Office, ‘Explanatory Notes to the Youth Justice and Criminal Evidence Act 1999’,

3. Home Office, ‘No More Excuses – A New Approach to Tackling Youth Crime in England and Wales’ (White Paper, Cm 3809, 1997)

4. Home Office, ‘Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable Or Intimidated Witnesses in the Criminal Justice System’ (1998)

5. McEwan, J., ‘In defence of vulnerable witnesses: the Youth Justice and Criminal Evidence Act 1999’ (2000) International Journal of Evidence and Proof , 4(1), 1-30

6. Roberts, P., Cooper, D., and Judge, S., ‘Monitoring success, accounting for failure: the outcome of prosecutors’ applications for special measures directions under the Youth Justice and Criminal Evidence Act 1999’ (2005) International Journal of Evidence and Proof, 9(4), 269-290

7. Wells, C., and Quick, O.,“Lacey, Wells and Quick - Reconstructing Criminal Law: Text and Materials” (Fourth edition, Cambridge University Press, 2010)

8. The Youth Justice and Criminal Evidence Act 1999 (Editorial)’ (1999) Criminal Law Review, Sep, 687-688

LEGISLATION CITED:

1. Criminal Justice Act 1988

2. Criminal Justice and Public Order Act 1994

3. Powers of Criminal Courts (Sentencing) Act 2000

4. Youth Justice and Criminal Evidence Act 1999


[1] Home Office, ‘No More Excuses – A New Approach to Tackling Youth Crime in England and Wales’ (White Paper, Cm 3809, 1997)

[2] Youth Justice and Criminal Evidence Act 1999, sections 1-15 (now repealed)

[3] Youth Justice and Criminal Evidence Act 1999, sections 1(2) and 2

[4] Home Office, ‘Explanatory Notes to the Youth Justice and Criminal Evidence Act 1999’, at para 8

[5] Caroline Ball, ‘The Youth Justice and Criminal Evidence Act 1999 Part I: a significant move towards restorative justice, or a recipe for unintended consequences?’ (2000) Criminal Law Review, April 211-222, 211

[6] Powers of Criminal Courts (Sentencing) Act 2000, sections 16-32 and Schedule 12

[7] Home Office, ‘Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable Or Intimidated Witnesses in the Criminal Justice System’ (1998)

[8] Jenny McEwan, ‘In defence of vulnerable witnesses: the Youth Justice and Criminal Evidence Act 1999’ (2000) International Journal of Evidence and Proof , 4(1), 1-30, 1

[9] Youth Justice and Criminal Evidence Act 1999, section 23

[10] Youth Justice and Criminal Evidence Act 1999, section 24

[11] Youth Justice and Criminal Evidence Act 1999, section 25

[12] Youth Justice and Criminal Evidence Act 1999, section 26

[13] Youth Justice and Criminal Evidence Act 1999, section 27

[14] Youth Justice and Criminal Evidence Act 1999, section 28

[15] Youth Justice and Criminal Evidence Act 1999, section 21

[16] Youth Justice and Criminal Evidence Act 1999, sections 34-35

[17] Celia Wells and Oliver Quick, “Lacey, Wells and Quick - Reconstructing Criminal Law: Text and Materials” (Fourth edition, Cambridge University Press, 2010), 528

[18] The Youth Justice and Criminal Evidence Act 1999 (Editorial)’ (1999) Criminal Law Review, Sep, 687-688, 688

[19] Youth Justice and Criminal Evidence Act 1999, section 55

[20] Youth Justice and Criminal Evidence Act 1999, section 58

[21] Paul Roberts, Debbie Cooper and Sheelagh Judge, ‘Monitoring success, accounting for failure: the outcome of prosecutors’ applications for special measures directions under the Youth Justice and Criminal Evidence Act 1999’ (2005) International Journal of Evidence and Proof, 9(4), 269-290, 288 and 289