21AEvidence of vulnerable witnesses

21A Evidence of vulnerable witnesses (1) In considering whether a witness is a vulnerable witness, the court may have regard to the following matters: (a) any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; (b) any mental or physical disability to which the witness is, or appears to be, subject; Evidence Act 1939 6 (c) any relationship between the witness and the defendant to the proceedings; (d) any other matter the court considers relevant. (2) Subject to section 21B, a vulnerable witness is to give evidence at a place outside the courtroom using an audiovisual link, unless: (a) an audiovisual link is not available; or (b) the witness chooses to give evidence in the courtroom. (2AB) Subject to subsection (2) and section 21B, if a vulnerable witness is giving evidence in the courtroom, a screen, partition or one-way glass must be placed so that the witness's view of the defendant is obscured but not the view of the witness by the judge or the jury. (2AC) A witness is entitled to dispense with the use of the screen, partition or one-way glass mentioned in subsection (2AB). (2AD) In addition to the arrangements mentioned in subsections (2) to (2AC), a vulnerable witness is also entitled to the following: (a) for the purpose of providing the vulnerable witness with emotional support – be accompanied by: (i) a relative; or (ii) a friend; or (iii) any other person requested by the vulnerable witness and whom the court considers is in the circumstances appropriate to accompany the vulnerable witness; (b) that the court be closed while evidence is being given by the vulnerable witness in the proceeding (including evidence given under cross-examination) and that no persons remain in or enter a room or place in which the court is being held, or remain within the hearing of the court, without its permission. (2A) The court may make an order that the vulnerable witness is not to give evidence using an arrangement under subsection (2AB) or (2AD) if satisfied that: (a) it is not in the interests of justice for the witness's evidence to be given using that arrangement; or (b) the urgency of the proceeding makes the use of that arrangement inappropriate. Evidence Act 1939 7 (2B) In determining whether or not it is in the interests of justice to use an arrangement under subsection (2), the court must have regard to the following matters: (a) the need to minimise the harm that could be caused to the vulnerable witness by giving evidence; (b) the interest in the vulnerable witness being able to give evidence effectively. (2C) The court must state its reasons for making an order under subsection (2A). (3) Where a vulnerable witness is to give evidence using an arrangement under subsection (2) or (2AB), the judge must issue a warning to the jury (if any) to the effect that: (a) the procedure is a routine practice of the court; and (b) no adverse inference is to be drawn against the accused as a result of the use of the arrangement; and (c) the evidence of the witness is not to be given any greater or lesser weight because of the use of the arrangement. (4) If an arrangement under subsection (2AD)(a) is used, the person who accompanies the vulnerable witness is to be placed so he or she is visible to the judge and the jury (if any). (5) If an arrangement under subsection (2AD)(b) is used in a proceeding in which the defendant is or is apparently a child, nothing in subsection (2AD)(b) is to be taken to require the exclusion from the court or the place where the evidence is being given of a person who is required or permitted under the Youth Justice Act 2005 to be present. (6) If the court is requested to determine whether a witness is a vulnerable witness, the witness is to be taken to be a vulnerable witness until the court makes the determination.