Northern Ireland Orders in Council

"accused", in relation to any criminal proceedings, means any person charged with an offence to which the proceedings relate (whether or not he has been convicted);

"the complainant", in relation to any offence (or alleged offence), means a person against or in relation to whom the offence was (or is alleged to have been) committed;

"judge" includes, in relation to a magistrates' court, the resident magistrate or justice of the peace;

"picture" includes a likeness however produced;

"the prosecutor" means any person acting as prosecutor, whether an individual or body;

"rules of court" means Crown Court rules, magistrates' courts rules, county court rules or rules made under section 55 of the Judicature (Northern Ireland) Act 1978;

"video recording" means any recording, on any medium, from which a moving image may by any means be produced, and includes the accompanying sound-track;

"witness", in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings.

(a) if under the age of 17 at the time of the hearing; or

(b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within paragraph (2).

    (2) The circumstances falling within this paragraph are - 

(a) that the witness - 


(i) suffers from mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986, or

(ii) otherwise has a significant impairment of intelligence and social functioning;



(b) that the witness has a physical disability or is suffering from a physical disorder.

(a) it is admissible evidence of any fact of which such testimony from the witness would be admissible;

(b) it is not capable of corroborating any other evidence given by the witness.

    (3) Paragraph (2) applies to a statement admitted under Article 15 or 16 which is not made by the witness on oath even though it would have been required to be made on oath if made by the witness in direct oral testimony in court.

    (4) In estimating the weight (if any) to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn (as to the accuracy of the statement or otherwise).

    (5) Nothing in this Part (apart from paragraph (3)) affects the operation of any rule of law relating to evidence in criminal proceedings.

    (6) Where any statement made by a person on oath in any proceeding which is not a judicial proceeding for the purposes of Article 3 of the Perjury (Northern Ireland) Order 1979 (perjury) is received in evidence in pursuance of a special measures direction, that proceeding shall be taken for the purposes of that Article to be part of the judicial proceeding in which the statement is so received in evidence.

    (7) Where in any proceeding which is not a judicial proceeding for the purposes of that Order - 

(a) a person wilfully makes a false statement otherwise than on oath which is subsequently received in evidence in pursuance of a special measures direction, and

(b) the statement is made in such circumstances that had it been given on oath in any such judicial proceeding that person would have been guilty of perjury,

(a) in connection with that offence, or

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

(a) the prosecutor makes an application for the court to give a direction under this Article in relation to the witness, or

(b) the court of its own motion raises the issue whether such a direction should be given.

    (2) If it appears to the court - 

(a) that the quality of evidence given by the witness on cross-examination - 


(i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and

(ii) would be likely to be improved if a direction were given under this Article, and



(b) that it would not be contrary to the interests of justice to give such a direction,

the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.

    (3) In determining whether paragraph (2)(a) applies in the case of a witness the court must have regard, in particular, to - 

(a) any views expressed by the witness as to whether or not the witness is content to be cross-examined by the accused in person;

(b) the nature of the questions likely to be asked, having regard to the issues in the proceedings and the defence case advanced so far (if any);

(c) any behaviour on the part of the accused at any stage of the proceedings, both generally and in relation to the witness;

(d) any relationship (of whatever nature) between the witness and the accused;

(e) whether any person (other than the accused) is or has at any time been charged in the proceedings with a sexual offence or an offence to which Article 23 applies, and (if so) whether Article 22 or 23 operates or would have operated to prevent that person from cross-examining the witness in person;

(f) any direction under Article 7 which the court has given, or proposes to give, in relation to the witness.

    (4) For the purposes of this Article - 

(a) "witness", in relation to an accused, does not include any other person who is charged with an offence in the proceedings; and

(b) any reference to the quality of a witness's evidence shall be construed in accordance with Article 4(5).

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial about any sexual behaviour of the complainant.

    (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied - 

(a) that paragraph (3) or (5) applies, and

(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

    (3) This paragraph applies if the evidence or question relates to a relevant issue in the case and either - 

(a) that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar - 


(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

(ii) to any other sexual behaviour of the complaint which (according to such evidence) took place at or about the same time as that event,



that the similarity cannot reasonably be explained as a coincidence.

    (4) For the purposes of paragraph (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.

    (5) This paragraph applies if the evidence or question - 

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

    (6) For the purposes of paragraphs (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those paragraphs is capable of applying in relation to the evidence or question to the extent that it does not so relate).

    (7) Where this Article applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence - 

(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but

(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.

(a) understand questions put to him as a witness, and

(b) give answers to them which can be understood.

(a) by a party to the proceedings, or

(b) by the court of its own motion,

shall be determined by the court in accordance with this Article.

    (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 paragraph (2)(b).

    (5) Any proceedings held for the determination of the question mentioned in paragraph (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 Article a person is able to give intelligible testimony if he is able to - 

(a) understand questions put to him as a witness, and

(b) give answers to them which can be understood.

" "authorised place of detention" means - 
(a) a police station; or

(b) any other place prescribed for the purposes of this Order by order made by the Secretary of State;



and an order made under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.".

    (3) In Article 3 (circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned or charged), after paragraph (2) there shall be inserted - 

    " (2A) Where the accused was at an authorised place of detention at the time of the failure, paragraphs (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in paragraph (1).".

    (4) In Article 5 (inferences from failure or refusal to account for objects, marks, etc.), after paragraph (4) there shall be inserted - 

    " (4A) Where the accused was at an authorised place of detention at the time of the failure or refusal, paragraphs (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.".

    (5) In Article 6 (inferences from failure or refusal to account for presence at a particular place), after paragraph (3) there shall be inserted - 

    " (3A) Where the accused was at an authorised place of detention at the time of the failure or refusal, paragraphs (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.".

(a) for "so charged" substitute "charged in criminal proceedings"; and

(b) for "in pursuance of this Act" substitute "in the proceedings".

    (4) In paragraph (e) of the proviso - 

(a) for "and being a witness in pursuance of this Act" substitute "in criminal proceedings who is called as a witness in the proceedings"; and

(b) for "the offence charged" substitute "any offence with which he is charged in the proceedings".

    (5) In paragraph (f) of the proviso - 

(a) for "and called as a witness in pursuance of this Act" substitute "in criminal proceedings who is called as a witness in the proceedings";

(b) for "that wherewith" substitute "one with which"; and

(c) in sub-paragraph (i), for "the offence wherewith" substitute "an offence with which".

    (6) In paragraph (g) of the proviso, for "called as a witness in pursuance of this Act" substitute "charged in criminal proceedings who is called as a witness in the proceedings".

    (7) Paragraphs (a), (e), (f) and (g) of the proviso shall be respectively numbered as subsections (1), (2), (3) and (4) of the section.

    " (2) In any proceedings the wife or husband of a person charged in the proceedings shall, subject to paragraph (4), be compellable to give evidence on behalf of that person.

    (2A) In any proceedings the wife or husband of a person charged in the proceedings shall, subject to paragraph (4), be compellable - 


(a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or

(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.



    (3) In relation to the wife or husband of a person charged in any proceedings, an offence is a specified offence for the purposes of paragraph (2A) if - 



(a) it involves an assault on, or injury or a threat of injury to, the wife or husband or a person who was at the material time under the age of 16;

(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or

(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within sub-paragraph (a) or (b).



    (4) No person who is charged in any proceedings shall be compellable by virtue of paragraph (2) or (2A) to give evidence in the proceedings.

    (4A) References in this Article to 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).".

    (4) In paragraph (5) of Article 79, omit "competent and" and, in the shoulder-note, omit "Competence and".

    (5) After Article 79 insert - 

" Rule where accused's spouse not compellable
     79A. The failure of the wife or husband of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution.".

    " (1A) This paragraph applies to - 


(a) an offence which involves an assault on, or injury or threat of injury to, a person;

(b) an offence under section 20 of the Children and Young Persons Act (Northern Ireland) 1968;

(c) a sexual offence (within the meaning of Part IX of the Police and Criminal Evidence (Northern Ireland) Order 1989); and

(d) an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within sub-paragraph (a), (b) or (c).".

    (3) In Article 4(6) for "Article 81(3)(a) or (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989" substitute "paragraph (1A)(a) or (b)" and for "Article 81(3)(c) of that Order" substitute "paragraph (1A)(c)".

    (4) In Article 4(7) for "Article 81(3) of that Order" substitute "paragraph (1A)".

    " (1) A person commits an offence if - 


(a) he does an act which intimidates, and is intended to intimidate, another person ("the victim"),

(b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and

(c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.



    (2) A person commits an offence if - 



(a) he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person,

(b) he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed ("the victim"), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and

(c) he does or threatens to do it because of that knowledge or belief.



    (3) For the purposes of paragraphs (1) and (2) it is immaterial that the act is or would be done, or that the threat is made - 



(a) otherwise than in the presence of the victim; or

(b) to a person other than the victim.".

    (2) In paragraph (8) (presumption in proceedings for offence under paragraph (2)) - 

(a) for "he did or threatened to do an act falling within sub-paragraph (a) within the relevant period" substitute

" within the relevant period - 
(a) he did an act which harmed, and was intended to harm, another person, or

(b) intending to cause another person fear of harm, he threatened to do an act which would harm that other person,



and that he did the act, or (as the case may be) threatened to do the act,"; and

(b) after "to have done the act" insert "or (as the case may be) threatened to do the act".

The Youth Justice and Criminal Evidence Act 1999 (c. 23)

     6. In section 47(2) after paragraph (a) insert - 

" (aa) a direction under Article 7 or 24 of the Criminal Evidence (Northern Ireland) Order 1999 or an order discharging, or (in the case of a direction under Article 7) varying, such a direction;".

"the 1989 Order" means the Police and Criminal Evidence (Northern Ireland) Order 1989;

"commencement date", in relation to any provisions of this Order and proceedings of any description, means the date on which those provisions come into operation in relation to such proceedings;

"continuing proceedings" (except in paragraph 2) means proceedings instituted before the commencement date;

"existing special measures power" means any power of the court to make an order or give leave, in the exercise of its inherent jurisdiction, for the taking of measures in relation to a witness which are similar to those which could be provided for by a special measures direction.

    (2) For the purposes of this Schedule - 

(a) proceedings other than proceedings on appeal are to be taken to be instituted - 


(i) where a justice of the peace issues a summons under Article 20 of the Magistrates' Courts (Northern Ireland) Order 1981, when the complaint for the offence is made;

(ii) where a justice of the peace issues a warrant for the arrest of any person under that Article, when the complaint for the offence is made;

(iii) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of the charge;

(iv) where an indictment is presented under the authority of section 2(2)(c), (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969, when the indictment is presented to the court;



and where the application of this head would result in there being more than one time for the institution of the proceedings, they shall be taken to have been instituted at the earliest of those times; and

(b) proceedings on appeal are to be taken to be instituted at the time when the notice of appeal is given or (as the case may be) the reference under section 10 or 12 of the Criminal Appeal Act 1995 is made.



Special measures under Part II

     2.  - (1) A special measures direction may be given in relation to a witness in continuing proceedings unless the court has before the specified date - 

(a) given leave in relation to the witness in connection with those proceedings under Article 81 (evidence through television links) or Article 81A (video recordings of testimony of child witnesses) of the 1989 Order, or

(b) exercised any existing special measures power in relation to the witness in connection with those proceedings.

    (2) The repeals made by this Order shall not affect the continued operation in relation to a witness in continuing proceedings of Article 81 or 81A of the 1989 Order where before the specified date leave was given in relation to the witness in connection with those proceedings by virtue of Article 81 or Article 81A, as the case may be.

    (3) Nothing in this Order affects the continued operation in relation to a witness in continuing proceedings of any order made or leave given under any existing special measures power exercised by the court before the specified date in relation to the witness in connection with those proceedings.

    (4) In this paragraph - 

(a) "continuing proceedings" means proceedings instituted before the specified date;

(b) "the specified date", in relation to a witness in any proceedings, means such date as may be specified by the Secretary of State in a notice given to the court in question under Article 6(2), where the date is expressed to apply - 


(i) for the purposes of this paragraph, and

(ii) in relation to any description of witnesses and proceedings within which the witness and the proceedings fall.

Protection of witnesses from cross-examination by accused in person

     3. Nothing in Part III applies in relation to proceedings instituted before the commencement date for that Part.

(a) under Article 4 of the Sexual Offences (Northern Ireland) Order 1978, or

(b) (in the case of proceedings to which Article 4 does not apply) in the exercise of any similar power of the court exercisable by virtue of its inherent jurisdiction.

    (2) Nothing in this Order affects the continued operation of any leave so given in relation to any such proceedings.

(a) apply only to proceedings instituted on or after the commencement date for that Article; but

(b) so apply whether the relevant failure or refusal on the part of the accused took place before or after that date.

Crown copyright 1999

Prepared 3 November 1999