893780
| Question | Answer |
| Youth justice and criminal evidence act 1999 | statutory regime for protecting witnesses |
| Lord Haldane Scott v Scott [1913] | 'the paramount objective must always be to do justice' |
| R v Smellie (1919) | young witness sat on stairs so the defendant could hear her but not see her |
| R v X, Y, Z (1989) | screens erected to shield child victims from defendant |
| Advisory group on video evidence - the pigot committee (home office 1989) | concern was initially with children the recommendations was that evidence in chief was video recorded with child witness - judge rules on admissibility of video at pre-trail application - preliminary hearing - child cross examined by defence counsel -preliminary hearing video recorded (cross examination and re-examination) - child does not need to attend trial bit too radical to implement and still aspiring to achieve this now |
| criminal justice act 1991 | pre-recorded xc for child witnesses no provision for preliminary hearing child must be available at trial for xx may be by video |
| problems with criminal justice act 1991 | focused on children aimed at sex abuse cases only xc pre-recorded child still had to go to trial for xx |
| YJCEA 1999 | introduces special measures extends protection to vulnerable and intimidated witnesses but no definition of these Coroners and justice act 2009 makes amendments |
| s16 YJCEA 1999 | eligibility for special measures under 17 or evidence diminished by... |
| s17 YJCEA 1999 | eligibility fear or distress in connection with testifying |
| special measures available | s23 - screen s24 - live video link s25 - clearing court s26 - removal of wigs and gowns s27 - pre-recorded evidence in chief s28- -pre-recorded xx not fully implemented |
| s23 screen | r v smellie the judge jury and counsel and any interpreters must be able to see w |
| s24 live video link | r v Redbridge youth court ex p DPP 2001 |
| s25 clearing court | only for sexual offences or if evidence of intimidation one member of the press must be permitted to remain |
| implementation of s28 | not fully implemented should be reserved for the most vulnerable witnesses eg. very young w with terminal or serious degenerative illness mental incapacity but can still give good evidence s28 brought into force 30 Dec 2013 limited to proceedings in 3 areas and under s16 |
| special measures only available under s16 | s29 - intermediary or interpreter s30 - aids to communication |
| coherence | refers to a witnesses ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively |
| s16(5) | quality of evdience |
| s19(2) | which special measure |
| s21 YJCEA 1999 | additional protection for child witnesses amended by s100 of 2009 act primary rule usually include s24 and s27 but child can opt out of primary rule |
| s22A YJCEA 1999 inserted by 2009 act | in relation to sexual offences presumption that complainants video recorded will be admitted under s27 unless this would not maximise the quality of the complainants evdience |
| special measures and art 6 R (on the application of D c Camberwell green youth court 2005 | neither live link nor video recorded xc infringe D's right under 6(3)(d to examine witness as long as layers can hear and xx w |
| R (on the application of S) v Waltham forest youth court 2004 | special measures not available to defendants and no breach of art 6 |
| SC v UK 2005 | action to be taken by UK to assist D's in their understanding of the proceedings in which they r tried |
| s 33A YJCEA 1999 inserted by s47 police and justice act 2006 | permits use of live link for certain Ds |
| s103 of 2009 act inserts ss33 BA and 33BB into the 1999 act | not yet in force use of intermediaries for d |
| victims and witness intimidation: findings from the british crime survey HO 2000 | relatively rare only 3% of all victims did not report their crimes to the police for fear of reprisals, this rose to 10% for victims of violent offences |
| s39 criminal justice and police act 2001 | offence to interfere with a witness 366 convictions in 1996 783 in 2005 |
| subpoena witness to attend | witness would be uncooperative and potential breach of art 2and 8 |
| witness protection programme witness intimidation | extreme measure intended for grasses |
| witness intimidation adduce written statement as hearsay s116 CJA 2003 | witness would still need to be identified and no opportunity for xx |
| Mayers 2008 | Anonymity – allow oral testimony to be given in court (with the use of special measures if necessary) but keep identity of witness a secret – a ‘special measure of last practical resort’ |
| Al-Khawaja and Tahery v UK 2011 | ‘Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available measures, such as witness anonymity and other special measures, would be inappropriate or impractical’ |
| Davis Ellis and others 2008 facts | ww gave evidence under a pseudonym - behind screens but could be seen by judge and jury natural voices hear by judge and jury but distorted to everyone else CA dismissed the appeal unanimously |
| Davis Ellis and others 2008 House of Lords | Is it permissible for a defendant to be convicted where a conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses? answer unanimously = no |
| Davis Ellis and others [2008] the conclusion | HL believed Strasbourg would not accept this case under requirements of art 6 evidence was sole or decisive basis |
| The criminal evidence (witness anonymity ) bill 13th july | received assent 21 st july |
| Coroners and justice act 2009 | re-enacted the provisions for WAO came into force 1 jan 2010 extends wao to the investigatory stage witness investigation orders only apply to murder or manslaughter by shooting or stabbing |
| s86(2) 2009 act s87 s88 | includes the following measures - application for WAO may be made by P or D s88 - three conditions that must be met |
| Horncastle 2009 | WAO consistent with article 6 |
| sexual offences and recent complaint | victims of so expected to raise 'a hue and cry' immediately after an alleged attack not the case no with historical sexual offence cases |
| R v Osbourne 1905 | sexual offences and recent complaint - complaint must have been made 'at the first opportunity after the offence which reasonably affords itself - complaint must not have been elicited by questions of a 'leading and inducing or intimidating character' |
| s120 CJA 2003 | S120(4) and (7): previous consistent statements made by victims of an offence are admissible in evidence as truth of their content as long as the complaint was not made as a result of a threat or a promise and the victim gives evidence. |
| Coroners and justice act 2009 time of complaints | removed restriction from 2003 act that complaint has to be recent |
| Milton Brown 1998 | two counts of rape he conducted xx in person subject the two complainants to qq for days even wore the same clothes it was alleged he wore when he raped them |
| Criminal justice act 1991 | introduced prohibition of xx by accused in person of certain child witnesses |
| s34 and 35 YJCEA 1999 | Extends prohibition on xx by accused to other vulnerable witnesses - complainants in so - child witnesses in certain offences |
| s36 YJCE 1999 | empowers court to prohibit accused from xx if satisfied of requirements Hillman v Richmond magistrates court 2003 |
| common law on sexual history evidence | could cross examine about her promiscuity in general but could not about certain sexual partners and occasions |
| s2 sexual offences (amendment act 1976 | prohibited evidence of sexual experience of complainant with a person other than d without leave from j - j to grant leave if satisfied it would be unfair to d to refuse |
| criticisms of 1976 act | 50 rape trials application for leave made in 40% = 20 leave granted in 75% of these - 15 |
| ss41-43 yjcea 1999 | wider than the 1976 act 1976 only applied to rape extends to evidence of sexual behaviour with d |
| s41 YJCEA sexual offences | when the prohibition applies |
| s62 YJCEA definition of sexual offence | refers to offence under part 1 soa 2003 but what about under soa 1956? drafting error criminal justice and immigration act 2008 amends this to include specified superseded offences |
| R v Cartwright [2007] | consequences are absurd |
| s41(1)(c) YJCEA 1999 | def of sexual behaviour |
| R v Ben Rejab [2011] | sexual behaviour wider than physical sexual activity with another person sex fb quiz in this case yes this was evidence about sexual behaviour so wasn't allow CA upheld convic sexual behaviour can be carried out by one person alone eg porn |
| R v T 2001 | false accusations about previous sexual assaults are not about sexual behaviour |
| R v AM [2009] | it must be proved that the complaint was in fact dales - otherwise it will fall within the ambit of s41 |
| R v RP [2013] | D sought to q V about the emotional and financial assistance given to V in respect of a termination of pregnancy when V was 17 not a q about sexual behaviour |
| s41(6) YJCEA 1999 | if the 2 requirements are satisfied the evidence cannot be adduced without leave if it is to be admitted must relate to a specific instance of sexual behaviour not general reputation |
| s41(2) YJCEA 1999 | granting leave to allow the evidence to adduced - one of four gateways and - that refusal would leave an unsafe conclusion |
| gateway 1 s41(3)(a) YJCEA 1999 | the evidence relates to a relevant issue in the case and the issue is not an issue of consent |
| s42(1)(b) YJCEA 1999 | issue of consent meaning |
| gateway 1 examples of issues which are not issues of consent | belief in consent denial act actually took place denial act was committed by accused |
| Gateway 2 S41(3)(b) YJCEA 1999 | the evidence relates to a relevant issue in the case and either the issue is consent and the behaviour is alleged to have taken place at or about the same time as the event in issue |
| R v A (No 2) 2002 HL | at or about the same time as the event in issue 24 hrs initially but dropped test is flexible to be determined on facts of case one week before is not at or about same time |
| gate way 3 s41(3)(c) YJCEA 1999 | issue is consent and behaviour is similar not coincedence |
| R v A (no2) in relation to gateway 3 | similar fact gateway must now be interpreted in light of decision in this case |
| s41(4) YJCEA 1999 sting in the tail gateway 1,2 and 3 | No evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness |
| R v Islam [2012] | d charged with rape claimed v consented sought leave to ask 4 qq in xx not allowed as it seemed to tj that only purpose was to assert that she wanted sex with someone of opposite gender that night |
| gateway 4 s41(5) YJCEA 1999 | behaviour relates to and rebuts evidence adduced by the prosecution about the complainants sexual behaviour |
| R v A (No2) 2001 in relation to art 6 | Certified Q for H/L May a sexual relationship between a D and C be relevant to the issue of consent so as to render its exclusion under s41 YJCEA 1999 a contravention of D’s right to a fair trial? answer = it may judges should rely on s3 of human rights act 1998 and read into the provision of s41(3)(c) so as to prevent unfair trial |
| R v A No 2 2001 Lord Steyne | ‘……The test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the convention. If this test is satisfied the evidence should not be excluded’ |
| R v R [2003] application of lord steyns admissibility test | previous sexual relationship relevant but only to D's belief in consent gateway 1 not gateway 2 or 3 |
| R v White 2004 | distinguished R v A NO 2 not authority for any wider reading of s41 by force of s3 HRA in a case where sexual acts of complainant with men other than the appellant are sought to be adduce than is justified by the application of conventional canons of construction |
| R v B [2007] application s41 to male victims | difference in substance between questions of a female complainant about her sexual habits or promiscuity or frequency of casual sexual engagement and similar questions of a male. |
Want to create your own Flashcards for free with GoConqr? Learn more.