The Act Commentary on Sections Schedule 11: Schedule to be inserted into the Protection of Children Act 1978 Section 47: Evidence of vulnerable accused
383.Section 47 inserts into the Youth Justice and Criminal Evidence Act 1999 a new Chapter 1A consisting of new sections 33A to 33C.
384.New section 33A allows the court in criminal proceedings, on application by the accused, to direct that any evidence given by the accused should be given over a live video link. Before doing so the court must be satisfied that it would be in the interests of justice, and that the following conditions are met:
	if the accused is under the age of 18, that his ability to participate effectively as a witness is compromised by his level of intelligence or social functioning, and that his ability to participate effectively would be improved by giving evidence over a live link: new section 33A(4).
	if the accused is aged 18 or over, that he is unable to participate in the proceedings effectively because he has a mental disorder or a significant impairment of intelligence or social function, and that his ability to participate effectively would be improved by giving evidence over a live link: new section 33A(5).
385.“Mental disorder” for the purposes of subsection 33A(5) is a disorder within the meaning of the Mental Health Act 1983.
386.New section 33A draws a distinction between juvenile and adult defendants. The starting assumption in relation to adult defendants is that almost everyone should and can give evidence in court. The criteria set out in subsection (5), which include the requirements in section 16(2)(a)(i) and (ii) of the Youth Justice and Criminal Evidence Act 1999, are intended to provide the court with a structured approach to the decision-making process and to ensure that the use of a live link is reserved for exceptional cases where the accused has a condition that prevents effective participation as a witness and so may prevent a fair trial from taking place. In the case of a juvenile accused the test of eligibility is less strict: there is no reference to a mental disorder or impairment, and it is sufficient that the ability to participate is compromised. The lower threshold recognises that it may be more common for juveniles to experience difficulties during the trial through limited intelligence and social development, than it would be for adults. But new section 33A(4) is aimed at juvenile defendants with a low level of intelligence or a particular problem in dealing with social situations, and is not intended to operate merely because an accused is a juvenile and is nervous, for example.
387.Where a direction for a live link has been given, the accused must give all his evidence through a live link (subsection (3)). The accused may not give oral evidence other than through a live link; for example, any cross-examination of the accused is also to take place through a live link (subsection (6)). The court can discharge a direction if it appears to be in the interests of justice to do so. This is a matter for the court to determine in the exercise of its discretion, and may cover a wide range of circumstances, for example, where an accused finds that giving evidence over a live link is very difficult and believes that giving evidence in open court would allow him to give a better quality of evidence (subsection (7)). A direction also ceases to have effect if the proceedings relating to the accused are determined or abandoned.
388.New section 33B is an interpretation provision. It defines in subsection (1) the arrangements that will amount to a “live link”. Whilst “live link” will typically involve evidence over a closed circuit television link, the definition is drafted sufficiently widely to encompass any technology with the same effect, which will enable the accused to see and hear a person in the courtroom, and to be seen and heard by the persons listed in subsection (2).