Section 9: Duration of contract

60.     The contract runs from the date that it is agreed (subsection (2)) and lasts for the period specified by the court in its referral order (subsection (3)), except where the order is subsequently extended by the court following a further offence or is terminated by a court after the offender has been referred back to the court by the youth offender panel (subsections (5) and (6)).

61.     Where the court has made two or more referral orders, the contract may not continue in force for more than 12 months after it is agreed (subsection (4)).

Section 10: First meeting: failure to agree contract

62.     The intention is for the contract to be agreed at the first meeting of the youth offender panel. Where necessary the meeting may be reconvened in order to reach agreement, but section 10 provides that where there seems to be no prospect of reaching agreement, or where an agreement appears to have been reached but the young offender refuses to sign the contract, the youth offender panel must refer the young offender back to the court for re-sentencing (as to which see Schedule 1).

Section 11: Progress meetings

63.     Section 11 enables the youth offender panel to hold progress meetings during the course of the contract, as considered appropriate to monitor the young offender's progress. The number of meetings is not prescribed since it will depend on the length of the referral and the level of support the young offender appears to need in order to comply with the contract and complete the programme successfully. Progress meetings will also be required if a young offender wishes to vary the terms of the contract in any way or if there appears to a breach of the contract.

64.     In the event of an apparent breach, the purpose of the meeting will be to discuss with the young offender what has happened so that the youth offender panel can assess whether it will be appropriate to continue with the contract, perhaps varied to take account of any genuine difficulties that may be preventing compliance. If the breach is without good reason the panel may consider it to be sufficiently serious to refer the young offender back to court for re-sentencing (as to which see Schedule 1).

65.     Where there is a major change in the circumstances of the young offender (such as moving to live abroad) which would make it impossible to comply with the terms of the contract, the young offender may ask the youth offender panel to seek revocation of the order. In such cases the panel may terminate the meeting, where the request seems reasonable, and refer the case back to court for revocation to be considered (as to which see Schedule 1).

66.     Where it is considered appropriate to vary the terms of the contract, subsections (6) and (7) provide that, as with the original contract, the revised version should be set out or explained in clear language, signed by both the offender and a member of the youth offender panel and then copied to the offender. Subsection (9) provides that the same general rules governing content should apply to the varied contract as to the original.

Section 12: Final meeting

67.     Section 12 provides for the youth offender panel to call a final meeting before the end of the period specified by the referral order in order to review the young offender's overall compliance with the agreed contract.

68.     If the youth offender panel is satisfied that the contract is being successfully completed the order will be discharged as from the end of the period. If the panel is not so satisfied, the young offender will be referred back to court for re-sentencing (as to which see Schedule 1). The young offender must be provided with the panel's decision in writing.

69.     If the young offender is unable to attend the final panel meeting but has otherwise satisfactorily complied with the terms of the contract, the youth offender panel may discharge the order in his absence.

Section 13 and Schedule 1: Referral back to court

70.     The sanction for a young offender's non-compliance with a contract is for him or her to be sent back to court for re-sentencing. A referral back to court can be triggered by: failure to attend a meeting; failure to agree a contract; refusal to sign a contract; failure to meet the requirements of an agreed contract; or a request by the offender for referral back to court. The mechanics of the referral back procedure are contained in Part I of Schedule 1.

71.     Schedule 1 stipulates that the appropriate court to which the young offender is to be referred back (and which will carry out the re-sentencing) is the youth court or, where the young offender has reached the age of 18, the adult magistrates' court. The youth offender panel will send a report to the court by way of notification. The court will then require the young offender to attend court for a hearing by issuing a summons or warrant as appropriate.

72.     At such a hearing the court must consider the circumstances of the young offender's referral back to the court. The court must then make a finding of fact in respect of the report submitted by the youth offender panel.

73.     Where the court is satisfied that the referral back was justified, paragraph 5 empowers the court to revoke the referral order and to sentence the young offender afresh, with the same sentencing options (other than referral) as were available to the court which originally sentenced the offender. In reaching a decision on a fresh sentence, the court should consider the report of the youth offender panel and take into account the extent of the young offender's compliance with the contract up to the point of the referral back. The offender will have a right of appeal to the Crown Court against any sentence imposed.

74.     It is hoped that inappropriate referrals back to the court will be rare, but where (for example) the court finds that an alleged breach is unsubstantiated or that a breach has indeed occurred but that it was a minor issue given the particular circumstances of the case, it should not revoke the referral order. If the panel refers the offender back to court because no contract has been agreed, but the court does not revoke the referral order, youth offender panel should continue to try to negotiate a contract. Any contract agreed before the referral back to court will have continued in force during the resulting court proceedings with the panel continuing to monitor the young offender's progress and compliance.

75.     Part II of Schedule 1 provides for cases where a young offender who, having been referred by a court to a youth offender panel, is part-way through the referral period when he finds himself back before a court charged with a further offence. Where that offence (and any other further offences for which he is being sentenced on that occasion) occurred before the referral order was made, the court may sentence the offender for the further offence (or offences) by way of an extension to the existing referral period. Since any extension to the order must not extend its overall length beyond the maximum period of 12 months, this sentencing option will not be available where the original referral was for a full 12 months. Similarly, since the power of referral relates to young offenders aged from 10 to 17, this sentencing option will not be available if the young offender has reached the age of 18.

76.     The option to extend an existing referral order also applies where a court is dealing with a further offence committed after the order had been made, although this course of action is only likely to be appropriate in exceptional circumstances. Paragraph 12 of Schedule 1 requires the court to take account of any exceptional circumstances and, where they lead the court to make an extension of the original referral order, to give reasons for doing so in open court. The court's decision must be in line with the youth justice system's principal aim of preventing offending by children and young people.

77.     The Secretary of State may vary the cases in which extensions to referral orders may be imposed by way of sentence for further convictions. Any such amendment would be made by regulations subject to the affirmative resolution procedure (i.e. Parliament will be asked to discuss and approve it).

78.     The requirements of a youth offending contract under a referral order are incompatible with a custodial sentence and may interfere with aspects of other orders. Where a court decides to sentence in respect of further convictions otherwise than by extending an existing referral order, paragraph 14(2) of Schedule 1 automatically revokes the referral order and any extension order. This, in turn, will cause the contract drawn up with the youth offender panel to expire.

79     In these circumstances, the court may re-sentence the offender for the offence in respect of which the revoked referral or extension order was made. But in doing so the court must take into account how far the young offender may have already complied with any contract that has been agreed.

80.     The only exception to the automatic revocation is where the court gives an absolute discharge for the further offence as then there will be no difficulty with the existing referral order continuing to stand.

Section 14: Functions of youth offending teams

81.     Section 14 (along with paragraph 28 of Schedule 4) adds to the functions of youth offending teams, originally set by the Crime and Disorder Act 1998, to take account of their specific new responsibilities in respect of referral orders (which include the setting up of youth offender panels and the keeping of records of an offender's compliance with the terms of his contract).

Part II: Giving of evidence or information for purposes of criminal proceedings

Sections 16 and 17: Eligible witnesses

82.     Witnesses other than the defendant (who already has the benefit of a number of procedural safeguards) will be eligible for special measures to help them with giving evidence in criminal proceedings if:

• they are under 17;

• they suffer from a mental disorder, or have a mental impairment or learning disability (which could include autistic spectrum disorders) that the court considers significant enough to affect the quality of their evidence;

• they have a physical disorder or disability (which could include deafness) that the court considers likely to affect the quality of their evidence; or

• the court is satisfied that the witnesses are likely, because of their own circumstances and the circumstances relating to the case (section 17(2)), to suffer fear or distress in giving evidence to an extent that is expected to affect its quality.

It will be possible to make applications, and for courts to grant special measures, on more than one of these grounds.

83.     A witness under the age of 17 will always be eligible for help (and section 21 provides for measures to continue when a witness turns 17 before the end of the trial). Otherwise, in deciding eligibility courts must consider witnesses' own views about their status. Complainants of sexual offences will be considered eligible unless they inform the court that they do not want to be eligible. "Complainant" is defined in section 63 of the Act as "a person against or in relation to whom the offence was (or is alleged to have been) committed" - in other words, the alleged victim.

84.     It is intended that courts will authorise special measures (see section 19) if they take the view that a measure or combination of measures will be likely to improve the quality of a witness's evidence. Without the measures, the quality is likely to range:

• from being unintelligible (in that the witness would not meet the tests for competence and intelligibility given in section 53: "to understand questions put to him as a witness and give answers to them which can be understood")

• to being intelligible, but of a worse quality than it could be, because of the circumstances that make the witness eligible for help.

'Quality' means more than intelligibility (section 16(5)): it encompasses completeness, accuracy and being able to address the questions put and give answers which can be understood (both as separate answers and when taken together as a complete statement of the witness's evidence).

Section 18: Special measures available to eligible witnesses

85.     Subsection (1) of this section makes the special measures set out in sections 23 to 30 available to all eligible witnesses. The only exceptions are the examination of a witness through an intermediary (section 29) and the use of a communication device (section 30), which are not available to witnesses who are eligible on the ground of fear or distress only. The Act does not affect courts' common law discretion to make measures available to disguise witnesses' identities in the wholly exceptional circumstances (such as where a public interest immunity certificate has been granted) where that identity needs to be kept secret in court.

86     Subsection (2) provides that courts will not be able to award any of the special measures until they are notified by the Secretary of State that a particular measure or group of measures is available in their area: this will allow for phased implementation of the measures.

87.     The Secretary of State will be able to make new special measures available, and amend or remove others, by orders subject to the affirmative resolution procedure (i.e. the orders will have to be discussed and approved by Parliament) (subsection (5)).

Section 19: Special measures direction relating to an eligible witness

88.     This section describes what courts must consider when they decide, on application from either the prosecution or the defence, or of their own accord, whether special measures might be appropriate for a witness. They must consider:

• whether the witness is eligible for special measures under section 16 or 17; and

• if the witness is eligible, whether any of the special measures available would improve the witness's evidence (subsection (2)) in the circumstances of the case and, if so, which ones. The circumstances of the case include the witness's own views and the possibility that the measures might tend to inhibit the evidence being tested effectively.

89.     Any direction must give detailed instruction about where, when and how the measures specified should be provided (subsection (4)).

90     The inherent discretion of the court to offer these or other measures to witnesses who do not qualify as eligible (such as defendants), or who need measures for reasons other than age, incapacity, fear or distress, is not affected (subsection (6)).

Section 20: Further provisions about directions: general

91.     This section makes special measures directions binding until the end of the trial, although courts can alter or discharge a direction if it seems to be in the interests of justice to do so.

92.     Either party can apply for the direction to be altered or discharged, but it must show that there has been a significant change of circumstances since the court made the direction or since an application for it to be altered was last made.

93.     This provision is intended to create some certainty for witnesses, by encouraging the party calling the witness (ie, the prosecution or the defence) to make applications for special measures as early as possible and by preventing re-applications on grounds the court has already found unpersuasive.

94.     Special measures directions can be made before the trial begins, at a Plea and Directions Hearing in the Crown Court, or another pre-trial hearing. Special measures directions might also be made if, witnesses were called at a Newton hearing (to settle the factual basis upon which sentence will be passed after a guilty plea), and new directions would be needed for a retrial or appeal.

95.     Subsection (5) is intended to ensure that there is a record of the court's reasons for giving, altering or discharging a direction or refusing an application. This is intended to include, for example, the court's reasons for deciding that a witness is ineligible for help. The reasons should be recorded so that it is clear to everyone involved in the case what decision has been made and why it was made.

96.     It is intended to use the rule-making powers in subsection (6):

• to enable applications that are not contested by the other side to be decided by the court without a hearing;

• to prevent the renewal of an unsuccessful application under this section except where there has been a material change of circumstances;

• so that expert witnesses can give evidence about whether a witness will benefit from special measures (courts can hear evidence from non-expert witnesses on such subjects under their existing discretion);

• to govern the way that confidential and sensitive information connected with applications for special measures is dealt with.

Section 21: Special provisions relating to young witnesses

97.     This section imposes special obligations on courts when they deal with witnesses under the age of 17.

98.     It creates three groups of child witnesses:

• children giving evidence in a sexual offence case (as defined in section 35)

• children giving evidence in a case involving an offence of violence, abduction or neglect, and

• children giving evidence in all other cases.

99.     The first two groups are described as being in need of "special protection", and each group will benefit from strong presumptions about how they will give evidence. Children in sexual offence cases will receive a particularly high level of protection. Subsections (2) to (8) set out how each category of witness will give their evidence.

100.     Most child witnesses - those giving evidence in cases that do not involve offences of sex, violence, cruelty or abduction - will have a video recording admitted as their evidence-in-chief and will give any further evidence, or cross-examination, through a live link at trial. A presumption to this effect will apply unless giving evidence in this way would not improve the quality of the child's evidence.

101.     For witnesses in need of special protection, courts will not have to consider whether special measures will improve the quality of their evidence. That requirement is, in effect, treated as being satisfied.

102.     All witnesses in need of special protection will have a video recording of their evidence-in-chief admitted. (The only possible exception would be if the court exercised its power under clause 27(2) to exclude a recording if it would not be in the interests of justice to be admit it.) Witnesses who are giving evidence in sexual offence cases will go on to be cross-examined at a pre-trial hearing which will be recorded on video, unless they inform the court that they do not want this measure to apply to them. Those giving evidence in violent offence cases will give further evidence through live link at trial.

103.     Subsection (8) provides that, if a court makes a special measures direction in respect of a child witness who was eligible for special measures on grounds of youth only, and the witness turns 17 before beginning to give evidence, the direction will no longer have effect. But if such a witness turns 17 after beginning to give evidence, the special measures provided for him will continue to apply. The intention is to reduce confusion for the witness and the court.

104.     Subsection (9) provides that if a witness gave video-recorded evidence in chief or was cross-examined on video before the trial when he was under 17, but since turned 17, the video recording will still be admissible as evidence.

Section 22: Extension of provisions of section 21 to certain witnesses over 17

105.     This section extends some of the provisions of section 21 to witnesses who are over 17 at the beginning of the trial, but who made a video recording to take the place of their evidence-in-chief when they were under 17. They will be eligible for special measures in the same way that they would be if they were under 17, and the same presumptions will apply to them as apply to children under 17. That includes being considered "in need of special protection" if they are giving evidence in a case involving sex, violence, neglect or abduction.

Section 23: Screening witness from accused

106.     Screens may be authorised under this section to shield the witness from seeing the defendant. Subsection (2) is intended to ensure that screens do not prevent the judge, magistrates or jury and at least one legal representative of each party to the case (i.e. the prosecution and each defendant) seeing the witness, and the witness seeing them.

Section 24: Evidence by live link

107.     This section allows witnesses to give evidence by live link. This would usually mean a closed circuit television link, but the section is drafted sufficiently widely to apply to any technology with the same effect.

108.     Subsections (2) and (3) are intended to create a presumption that a witness who gives evidence by live link for a part of the proceedings will continue to give evidence by this means throughout.

109.     Subsections (5) and (6) describe how temporary facilities may be made available to magistrates' courts for the purposes of hearing evidence by live link.

Section 25: Evidence given in private

110.     This section allows the courtroom to be cleared of people who do not need to be present while a witness gives evidence. The measure will only be available in a case involving a sexual offence or when the court is persuaded that someone has tried to intimidate, or is likely to try to intimidate, the witness. The direction will describe individuals or groups of people, rather than areas of the court, and will mostly affect those in the public gallery and the press gallery. The court will have to allow at least one member of the press to remain if one has been nominated by the press. The freedom of any member of the press who is excluded from the courtroom under this section to report the case will be unaffected, unless a reporting restriction is imposed separately.

Section 26: Removal of wigs and gowns

111.     This measure can apply to the judiciary as well as legal representatives.

Section 27: Video recorded evidence in chief

112.     This section allows a video-recorded interview to take the place of a witness's evidence in chief, both at trial and for the purposes of committal proceedings (subsection (10)).

113.     Subsections (2) and (3) allow video recordings to be excluded and edited if the interests of justice so require. In deciding whether to allow only an edited recording to be used in evidence, courts will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

114.     Subsection (4) provides that, where a direction has been made for a recording to be shown to the court, the court can later exclude the recording if there is not enough information available about how and where the recording was made or if the witness who made the recording is not available for further questioning (whether by video, in court or by live link) and the parties to the case have not agreed that this is unnecessary. However, courts will retain the discretion to admit the recording in these circumstances.

115.     The video recording (as edited, in a case where that is required) will form the whole of a witness's evidence in chief unless:

• the witness is asked to give evidence about matters not covered in the recorded interview; or

• the court gives permission for the witness to be asked further questions about matters not covered adequately in the recorded interview. Subsections (5)(b) and (7) allow courts to give such permission on their own initiative or on an application by one of the parties to the case if that party can show that there has been a material change of circumstances since the direction to admit the video recording was made.

116.     If the witness is asked to give further evidence, subsection (9) allows courts to direct that the evidence should be given by live link and, as in other circumstances where a live link is provided, allows temporary facilities to be authorised for magistrates' courts.

117.     Witnesses aged 14 or over who make a video recording that is intended to take the place of their evidence-in-chief will either swear an oath at the beginning of the interview, if someone is available to administer the oath and they are capable of being sworn, or give evidence unsworn.

Section 28: Video recorded cross-examination or re-examination

118.     This section provides that, where the court has already allowed a video recording to be admitted as the witness's main evidence, the witness may be cross-examined before trial, and the cross-examination, and any re-examination, recorded on video for use at trial.

119.     The cross-examination would not be recorded in the physical presence of the defendant, although he would have to be able to see and hear the cross-examination and be able to communicate with his legal representative. This could be achieved through a live link, for example.

120.     The video-recorded cross-examination may, but need not, take place in the physical presence of the judge or magistrates and the defence and prosecution legal representatives. However, a judge or magistrate will have to be able to control the proceedings. It is intended that the judge or magistrate in charge of this procedure would normally be the trial judge. All the people mentioned in this paragraph will have to be able to see and hear the witness being cross-examined and communicate with anyone who is in the room with the witness (such as an intermediary).

121.     As with video-recorded evidence in chief, a video recording of cross-examination may afterwards be excluded if any rules of court governing the cross-examination have not been complied with (subsection (4)).

122.     Subsections (5) and (6) provide that witnesses who have been cross-examined on video are not to be cross-examined again unless the court makes a direction permitting another video-recorded cross-examination. It will only do so if the subject of the proposed cross-examination is relevant to the trial and something which the party seeking to cross-examine did not know about at the time of the original cross-examination (and could not have reasonably found out about by then) or if it is otherwise in the interests of justice to do so. Information that has not yet been disclosed to the cross-examining party is intended to count as information that the party could not reasonably have found out about.