Youth Justice and Criminal Evidence Act 1999

Background

One of the practical realities affecting the criminal justice system is that the success or failure of many criminal prosecutions depends largely upon the availability, and quality, of evidence given by witnesses. It is also an unfortunate reality that, in many such cases, the witness or witnesses relied upon by the prosecution require assistance or, in extreme cases, protection so as to give the best testimony possible. The issue is perceived to be particularly acute where key witnesses are children and may be required to testify to abuse that they, themselves, have suffered, although the same difficulties often arise with adult victims, for instance in the context of domestic abuse. Securing a conviction, therefore, often turns on the ability of the court system to accommodate the special needs of vulnerable or at-risk witnesses, and in that respect the existing legal and procedural regimes were broadly considered to be inadequate. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) was introduced as part of New Labour’s stated aim of modernising the youth justice system.

Statutory purpose

The YJCEA was introduced with a view to facilitating the ability of vulnerable and/or intimidated witnesses to give evidence efficiently and safely in criminal court proceedings. The principal aim, therefore, is to strengthen the hand of the prosecution in criminal cases by allowing vulnerable witnesses to access a range of measures designed to improve the quality of evidence given and to allow testimony from witnesses that might previously have been unable to participate, and so would have been considered incompetent to give such testimony.

Statutory Approach

In legal terms, as is indicated above, the methodology of the YJCEA revolves largely around the introduction of a series of ‘special measures’, introduced in Part II of the Act, as well as significant procedural reform of the youth criminal justice system, introduced in Part I.

Part I enacts a new sentencing disposal with respect to youth offenders, permitting referral to a Youth Offender Panel, with such referral being compulsory for first-time offenders. Part I also provides for the drawing up of ‘youth offender contracts’ and a ‘programme of behaviour’ with a view to lowering rates of recidivism. This aspect of the YJCEA has since been repealed and consolidated by the

Part II YJCEA introduces a number of provisions which are designed to facilitate the gathering and giving of evidence by assisting vulnerable witnesses. These measures apply to both prosecution and defence witnesses (but not the defendant) and include: provision of privacy screens (s.23), the ability to testify via live-link from an outside location (s.24), the ability to exclude members of the public and press (s.25), the use of intermediaries (s.29), prohibition of cross-examination, in person, by the defendant in certain cases (ss.34-36) and the ability of the court to enforce reporting restrictions (s.46).

Key Provisions

Section 41

Section 41 of the Youth Justice and Criminal Evidence Act 1999 is geared specifically towards the protection of complainants in proceedings for sexual offences by restricting evidence of a complainant’s sexual history, or questioning concerning said history, except for certain exceptions.

In essence s.41 institutes a structured approach to the exercise of judicial discretion in sexual offences cases, effectively limiting the circumstances in which evidence of a complainant’s sexual history can be admitted or examined.

In addition, the court must be satisfied that to refuse leave would result in an unsafe conclusion being drawn on a relevant issue of trial. Permission will also be refused by the court if it is considered that the principal aim of evidence claimed to relate to a relevant issue is simply to undermine the complainant’s reliability.

Section 45

Section 45, which disapplies section 38 of the Children and Young Persona Act 1933, provides that a court may direct that no matter pertaining to any person concerned in the proceedings can, while they are under 18, be included in any publication if said inclusion is likely to lead members of the public to identify them as a person concerned in the proceedings.

Section 45 should be read in conjunction with s.45A, which allows for lifelong anonymity to be granted if the requisite conditions of the section are made out. Such a direction may only be made if the quality of the evidence given by the person in question, or the level of co-operation given by the person as a party to the proceedings, is likely to be diminished due to fear or distress at their potential identification as a person connected with the proceedings.