Chapter 11: Crown Court trial - preliminaries

Transcription

1 Chapter 11: Crown Court trial - preliminaries Chapter : Preparatory hearings (pp ) In R v I [2009] EWCA Crim 1793; [2010] 1 Cr App R 10, the Court of Appeal gave guidance on preparatory hearings and endeavoured to restrict their use. At [21], Hughes LJ said: It is emphatically not the case that most heavy fraud or similar cases will nowadays call for a preparatory hearing. Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law. An interlocutory appeal can be a most beneficial process in a few, very limited, circumstances. If a discrete point of law arises, its resolution in this court can if necessary be accomplished within a very short time-frame and this can avoid the risk of many weeks of wasted trial time. On the other hand, many points of law decided in the Crown Court turn out to be fact-sensitive and to appear differently, or for that matter to go away, by the time the evidence has been heard. Making a decision on one part of a case only and on necessarily hypothetical facts is normally very undesirable; whereas a ruling in the Crown Court can be varied from time to time if the case proceeds differently from what was expected, a ruling of this court cannot normally be treated similarly. An interlocutory appeal is apt to cause serious disruption to a carefully planned trial timetable, which may involve multiple defendants and their lawyers and large numbers of witnesses. If the timetable of one case is disrupted, it very often has a knock-on effect on the timetables of others. Moreover, if the tendency of an interlocutory appeal to have this consequence is to be minimised, it is essential for this court to give it priority over other waiting appeals. This is not only potentially unfair to those who are in custody following conviction; it is also impossible unless interlocutory appeals are very exceptional. The present case did, as we have indicated, present a good example of a justified interlocutory appeal. The point was discrete, novel, certain to arise rather than hypothetical or contingent, involved no factual dispute and needed authoritatively to be determined lest the trial proceed on what might turn out to be a false footing, with consequent risk of the necessity of re-trial. By contrast, rulings where the judge has applied well understood principles to the case will not be suitable for interlocutory appeal even if they may properly be described as questions of law; rulings upon severance are amongst those likely to fall into this category. Nor will those where the ruling is to any extent provisional or dependent upon the way the evidence emerges. It is important to remember that the decision to declare a preparatory hearing is for the judge alone; it cannot be made by agreement between the parties. Nor is it a reason for making an order for a preparatory hearing that one or other party would like the opportunity of testing some ruling by way of interlocutory appeal, unless the point is one of the few which is genuinely suitable for such procedure. Chapter : Trial on indictment defendant absconding (pp )

2 In R v Pomfrett [2009] EWCA Crim 1939; [2010] 2 All ER 481, it was held that it was held that defence counsel may rely on fresh instructions provided by the defendant after he has absconded. In that case, such instructions had been communicated to his solicitors by . Richards LJ said (at [80]) that: no principled distinction can be drawn between instructions received before and instructions received after the date of absconding. If counsel were not permitted to take into account fresh instructions received from the absent defendant, it would increase unnecessarily the possibility of error or oversight against which, as Lord Bingham said in Jones at paragraph [15], representation by counsel provides a valuable safeguard. It could lead to counsel having to advance a case wholly at odds with the defendant's true case It could also prevent counsel from being able to deal effectively with new evidence or new issues, even where the absent defendant had valid points to make in relation to them: the possibility of taking instructions on any new matter that might arise in the course of the trial If it is generally desirable that a defendant be represented even if he has voluntarily absconded, it is equally desirable in our judgment not to impair the effectiveness of that representation by laying down an artificial restriction on the instructions upon which counsel can act. The public interest does not require a cut-off point at the date of absconding. Chapter : Bail (pp ) In R v Evans [2011] EWCA Crim 2842; (2012) 176 JP 139, the Court of Appeal had to consider what a defendant has to do in order to surrender to the custody of the court. In that case, the defendant's advocate in the Crown Court went into the courtroom where his case was likely to be heard and told the usher that the defendant was in the building. The defendant later walked out of the building and did not return. When his case was called on, he was not there and a bench warrant for his arrest was issued. He was subsequently dealt with for the offence of failing to surrender to bail, contrary to s 6(1) of the Bail Act Hughes LJ (at [9] [11]) noted that the Bail Act distinguishes between two situations: firstly, where a defendant is on bail but fails without reasonable excuse to surrender to custody (defined in s 2(2) as surrendering himself into the custody of the court... at the time and place for the time being appointed for him to do so ); secondly, where a defendant has surrendered to bail but then absents himself from the court before the hearing either begins or resumes, as the case may be. The first situation constitutes an offence under s 6(1); the second situation, however, is not a Bail Act offence, but the court may issue a warrant for the defendant's arrest under s 7(2). His Lordship observed that the second situation would fall within the common law offence of escape (see R v Rumble [2003] EWCA Crim 770; (2003) 167 JP 205); the purpose of s 7(2) is simply to enable the absconder to be apprehended as soon as possible so that the proceedings can begin or continue, as the case may be.

3 At [14], Hughes LJ quoted from the judgement of Glidewell LJ in DPP v Richards [1988] QB 701: "... if a court provides a procedure which, by some form of direction, by notice or orally, instructs a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction he surrenders to his bail". Hughes LJ went on (at [15]) to confirm that what constitutes surrender has necessarily to vary to some extent according to the arrangements which are made for accepting surrender at any particular court. At [20], Hughes LJ summarises the practical effect of the decision of the House of Lords in R v Central Criminal Court, ex p Guney [1996] AC 616 thus: once arraignment has taken place, however informal its particular circumstances may be, the court must review the question of bail and if a surety is involved direct a fresh taking of a reconnaissance... whenever else it may happen surrender is deemed to have taken place on arraignment. Hughes LJ went on to say, at [27], that surrender is normally accomplished by way of entry into the dock. However, in the Crown Court, surrender may also be accomplished by the commencement of any hearing before the judge where the defendant is formally identified and whether he enters the dock or not. Consequently, the Court rejected (at [28]) the suggestion that reporting to the usher amounts to surrender. The Court reasoned (at [29]) that, in the absence of either stepping into the dock in a Crown Court or in such a court being formally identified for the purposes of hearing, the defendant has not put himself into anything which can properly be called "custody". Nor... has he overtly subjected himself to the directions of the court. His Lordship added (at [32]) that... once a defendant arrives at the Crown Court building he is in one sense not entirely at liberty to come and go as he wishes. That, however, does not seem to us to mean that he has thereby surrendered. Indeed it is common ground that mere arrival at the Crown Court building does not constitute surrender and could not do so. The correct analysis seems to us to be not that he has surrendered but that he knows that he may be required at any moment to do so and in consequence he would be very unwise to wander away. At [33], Hughes LJ went on to give guidance in relation to grants of bail and sureties: It is important to remember that if a Magistrates' Court commits on bail with or without a condition that a surety provide a recognisance, that bail and recognisance lapse on the first appearance in the Crown Court. It cannot in law carry through subsequent adjournments in that Crown Court. On the

4 other hand, the Crown Court, if it renews bail, does have the power to make the recognisance continuous for all future appearances. All that underlines the importance of attention being paid to the terms of a defendant's bail, particularly at the conclusion of the first hearing in the Crown Court. At that point conditions of bail should always be considered. Of course it is sufficient to do so briefly by simply reimposing conditions previously placed there by the magistrates, if that is appropriate and especially if there is no objection. But in both surety cases and non-surety cases an assessment of bail is required at the end of the first hearing in each Crown Court. At [36], Hughes LJ summarises the decision of the Court:... in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been, it is also accomplished by arraignment. Thirdly, the position in the Magistrates' Court may be the same, but may easily differ as explained in DPP v Richards. Chapter : Who can serve on a jury (pp ) R v Abdroikov [2007] UKHL 37 and R v Khan [2008] EWCA Crim 531 were considered in R v Yemoh [2009] EWCA Crim 930, which involved a challenge to a conviction on the basis that a police officer was serving on the jury. Hooper LJ (at [111]) said that: Unlike in the United States, jurors are only rarely questioned in this country. Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials, such as terrorism and fraud cases, but not otherwise. The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.

5 The Court of Appeal rejected the argument that a trial in which there was evidence that the appellant had been abusive to the police in an interview became unfair owing to the presence of a serving police officer on the jury. The officer was not otherwise connected with the case or with any of the witnesses involved. At [112], Hooper LJ said that: it is submitted to us on behalf of [the defendant] that the introduction of what was said by [him] at the time of being charged adds additional weight to the submission that the appellant did not have a fair trial because of the presence on the jury of a police officer We agree with the judge that the introduction of evidence abusing the police should not lead to the discharge of a policeman from the jury. In this respect a policeman is in no different position than a black juror trying a case in which there is evidence of abuse of black people. We would not expect the black juror to be discharged on the grounds of apparent bias. In R v J [2009] EWCA Crim 1638, a serving police officer had been a member of the jury (indeed she acted as forewoman). In advance of the trial she had informed the jury summoning officer of her occupation but this had not been passed on to the judge and was not known to any of the participants in the trial. The information did not become known until after the jury had reached their verdicts and had been discharged. Richards LJ noted (at [25]), that it was clear from R v Abdroikov and R v Khan that the relevant test of whether a jury is independent and impartial is an objective one, namely whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased. At [26], his Lordship summarized the effect of Khan as follows: [T]he court drew a distinction between partiality towards the case of one of the parties and partiality towards a witness, stating that a conviction will not necessarily be quashed because a juror is shown to have had reason to favour a particular witness; this will happen only if it has rendered the trial unfair or given an appearance of unfairness. To decide that, it is necessary to consider two questions: (i) would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? and (ii) would the fair minded observer consider that this may have affected the outcome of the trial? At [27], his Lordship goes on to say that, in the light of Khan: One principle was clear, however, namely that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality.

6 In R v LL [2011] EWCA Crim 65; [2011] 1 Cr App R 27, the impartiality of the jury which convicted the defendant was challenged on the basis that one juror was an employee of the Crown Prosecution Service, another was a serving police officer, and a third was a retired police officer. The former police office has not served in the Metropolitan Police (whose officers were involved in the case) and he had been retired since The serving officer was in the Metropolitan Police but his role was non-operational, he was not linked to any particular station, and there was no connection between his work and the work of the officers involved in the trial. On this basis, the Court could see no reason why the position of either of these two jurors should cause any concern. Turning to the position of the CPS employee, Lord Judge said (at [30]) that it would be inconsistent with the current legislative arrangements for every employee of the CPS to be or to be regarded as excused or disqualified from service on a jury in a trial prosecuted by the CPS. In principle the position of an individual employee of the CPS is fact and employment-specific, rather than subject to an all-embracing embargo. In the present case, the juror had worked full-time for the CPS for nine years. However, her role was an administrative one and was not connected with the Crown Court where the present trial took place. Nonetheless, the Court ruled (at [31]) that her service was long enough and of sufficient importance to lead to the conclusion that she fell within the ambit of the prohibition of being a member of the jury. Moreover, it appeared that her presence on the jury was not drawn to the attention of counsel for the defence before the trial so that her position within the CPS could be examined and properly informed submissions made to the trial judge, and for the judge to be able to make a fully informed decision. The conviction was therefore quashed and a re-trial ordered. The case of R v Khan [2008] EWCA Crim 531 (where a police officer had been a member of the jury which convicted the appellants) subsequently went to the European Court of Human Rights, sub nom Hanif and Khan v UK [2011] ECHR The Court began by recalling some basic principles: 138. The Court recalls that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end it has constantly stressed that a tribunal, including a jury, must be impartial from an objective as well as a subjective point of view Further, the personal impartiality of a judge or a jury member must be presumed until there is proof to the contrary.

7 140. As to whether the court was impartial from an objective point of view, this Court must examine whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury bearing in mind that the misgivings of the accused, although important, cannot be decisive for its determination. While the need to ensure a fair trial may, in certain circumstances, require a judge to discharge an individual juror or an entire jury it must also be acknowledged that this may not always be the only means to achieve this aim. In other circumstances, the presence of additional safeguards will be sufficient Finally, the Court has previously held that it does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person s testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal. In the present case, there was nothing to suggest that there had been actual partiality on the part of the police officer, and so the question was whether there were sufficient guarantees to exclude any objectively justified doubts as to his impartiality (at [142]). The Court observed (at [144]), that police officers are permitted to serve as jurors in very few jurisdictions, noting that of the jurisdictions surveyed, only in New York and Belgium are police officers permitted to serve on juries... and it is to be recalled that in both jurisdictions, unlike in England, peremptory challenges are permitted. Moreover, within the UK, the Scottish Government... decided against making any change to the Scottish legislation which precludes police officers from serving... In Northern Ireland, as recently as 1996 it was decided to exclude police officers from jury service... and that remains the position today. This persuaded the court that the presence of a police officer in the jury in the present case required particularly careful scrutiny ([145]). However, since the appellants were not seeking to challenge the legislation which permits police officers to participate in jury service, the Court was not required (in the present case) to assess the extent to which the legislative changes to jury service in England and Wales comply with the requirements of Article 6 1 of the Convention. The Court regarded it as important that the defence case depended to a significant extent upon his challenge to the evidence of the police officers ([146]). The Court said (at [148]), that: leaving aside the question whether the presence of a police officer on a juror could ever be compatible with Article 6, where there is an important conflict regarding police evidence in the case

8 and a police officer who is personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police. In the present case, the juror in question had known one of the officers in the case for ten years and, although not from the same station, had worked with him on three occasions. The other witnesses who supported that officer s account of events were also police officers. On this basis, the Court found (at [149]) that there had been a violation of Article 6 1 of the Convention since the trial had not taken place before an impartial tribunal. Chapter : Prosecution stand-by (pp ) Attorney-General s Guidelines on Jury Vetting and Use of Stand-by: Chapter : Discharge of jurors during trial (p 522) In R v Carter [2010] EWCA Crim 201; [2010] 1 WLR 1577, the Court of Appeal ruled that, when a juror is discharged during the course of the jury's deliberations, and there was no misconduct or impropriety, the judge is not required to direct the remaining jurors to ignore the views expressed by the juror who has departed. At [19], Lord Judge CJ said: We are not here concerned with the discharge of a juror on the grounds of misconduct, impropriety or irregularity. As it seems to us, whether one or two jurors are suddenly and for good reason discharged, and at whatever stage in the trial, the question whether the judge should direct the remaining members to ignore any views expressed by the discharged juror (or jurors) is identical. As a matter of first principle the verdict of the jury is the verdict which the members returning it conscientiously believe to be right. Before reaching their decision, they will have reflected on the arguments they have heard advanced by both, and in a multi-handed case by all the parties at trial, and then, in the privacy of their retiring room, the opinions and views expressed by each member of the jury. This is... a "dynamic" process. Of course the jurors who have been discharged cannot be, and are not responsible for the eventual verdict. But until their discharge they are entitled to express their views, favourable or adverse to the prosecution or to some parts of the prosecution case, or

9 favourable or adverse to the defendant or some part of the defence case. As the discussions proceed, the views expressed at an earlier stage may well develop and change. It is a continuing process. But while jurors are properly empanelled, the views of each and every one of them are entitled to the same careful analysis and respect as those expressed by any juror, including jurors who are later discharged. On discharge they cease to have any responsibility for the verdict, but there is no reason to imagine that the views expressed at a time when they believed that they would be responsible for the verdict were expressed any less conscientiously and responsibly than those of any other juror. Those views become part of the fabric of opinions under consideration, impossible to isolate and compartmentalise. It would therefore be wholly unrealistic for a direction to be given to the remaining members of the jury to ignore the views expressed on any subject by the departed jurors. What matters is that the discussion between the remaining jurors will continue to ebb and flow and, on refection, the views expressed by the departing juror (or jurors) would have been examined and either accepted wholly or in part, or rejected wholly or in part, or treated as irrelevant by the remaining jurors in the course of reaching the decisions to which their conscience impels them. The eventual verdict, however, is no more than that of the jurors who have been party to it as a result of the process of discussion in the privacy of the jury room. The views expressed by the departed jurors will only be relevant to the extent that the remaining jurors will have adopted or assimilated those views as their own. In R v AM [2012] EWCA Crim 2056, the trial began with a jury randomly selected from a panel of fifteen jurors in waiting. The Crown opened the case. The following morning, shortly after the complainant had given some of her evidence, it became apparent that one of the twelve jurors was insufficiently proficient in English. Rather than discharging the one juror and continuing with the eleven remaining jurors, the judge discharged the entire jury. He indicated that the eleven remaining jurors would be re-sworn and the twelfth juror would be randomly selected from the remaining three members of the jury panel. However, the same course of action had been adopted in R v Mulkerrins and Sansom (unreported, 20 June 1997), and that Court of Appeal in that case ruled the judge had failed to comply with s 11(1) of the Juries Act 1974, and so quashed the conviction. The Court of Appeal in the present case therefore concluded that the judge had erred and that, if objection to the irregularity had been taken at the time, or as soon as practicable after it occurred, the convictions could not stand (per Lord Judge CJ at [12]). However, no objection had been taken by counsel for the defence. Lord Judge noted (at [14]) that s 18(2) of the 1974 Act is clearly intended to avoid concerns or difficulties arising during the process of jury selection or relating to the composition of the jury constituting the basis for an appeal in the event of conviction. That is why any possible irregularities must be raised at the trial or as soon as practicable. His Lordship went on to add (at [15]) that the decision reached by the Court of Appeal in this case does not mean that sensible arrangements may not be reached between the judge and the advocates for each side in the Crown Court for the selection of additional or the replacement of individual members of the jury when difficulties arise after the trial has started. Sometimes the difficulties should be anticipated. Certainly in a long or complex trial it would be as well if they were. Generally speaking, it is undesirable for a case which runs into this sort of trouble just after it has started to continue with eleven jurors, rather than to start again with a full complement of twelve. At

10 the same time, it is not in anyone's interests for a trial which has just started to be postponed to enable a new jury panel to be convened. That would inevitably involve a wearisome and unnecessary postponement which of itself might put strain and stress on all those involved in the case. In short, we do not expect purely technical objections to be raised if, as here, the reality is that the jurors were in fact a random group of individuals who had formed part of the jury panel and whose irregular selection as jurors for the second trial followed an entirely regular selection process which led them into the jury box for the purposes of the first trial. Chapter : Discharge of entire jury (pp ) In R v Lawson [2005] EWCA Crim 84; [2007] 1 Cr App R 20, Auld LJ, at [65] (cited with approval in R v Mills [2008] EWCA Crim 3001, per Beatson J, at [24]) said: Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed [A]ll these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that the jury should be discharged whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction. In Sookram v R [2011] UKPC 5, one of the defendants changed his plea to guilty during the course of the trial. The issue arose whether the trial of the remaining defendant should start again with a fresh jury. Lord Brown, at [19] and [20], said: There are, of course, cases where, upon a co-accused (B) changing his plea, justice requires the jury to be discharged and the accused (A) to be tried afresh by a new jury. Wherever an appeal has succeeded on that basis, however, it has been possible to point to a particular unfairness which could be seen to result from A continuing to be tried by the same jury. It may be, for example, that the trial

11 having begun with A and B both steadfastly maintaining their innocence, B's subsequent acceptance of his guilt necessarily carries with it the inference that A too is guilty as in R v O'Connor (1986) 85 Cr App R 298 where A and B were jointly charged with having conspired together (and with no one else) to obtain property by deception (although in the event the proviso was applied); or as in R v Fedrick [1990] Crim. L.R 403 where the prosecution had opened the case on the basis that A and B were "in cahoots" (although no conspiracy charge was laid); or, indeed, because A and B had been seen (or had admitted being) together at or near the time and place of the crime. Or it may be that, before B's change of plea, evidence had been led against him which was not admissible against A but nevertheless highly prejudicial to him. Unless in such cases as these the Court could in any event properly hold B's plea of guilty to be admissible in evidence against A, or can by appropriate directions to the jury substantially nullify its prejudicial effect on A's case or there is other good reason not to discharge the jury... a failure to do so may well... result in a successful appeal. In the present case, the appellant had suffered no prejudice and, it would be not merely unnecessary but would involve a great waste of time and money and great inconvenience to witnesses who had already given their evidence to start [his] trial all over again. Chapter 11.9: Special measures directions (pp ) Section 98 and 100 of the Coroners and Justice Act 2009 extend special measures to people aged 18 or under (rather than 17 or under). Thus, all witnesses under the age of 18 are made eligible for special measures. Section 100 also adds new subsections to s 21 of the Youth Justice and Criminal Evidence 1999: ss (4)(ba) and (4A) to (4C) enable a child witness (i.e. a witness under 18) to opt out of special measures where 'the court is satisfied that not complying with the rule [that special measures should be ordered] would not diminish the quality of the witness's evidence' and specify the factors which the court must take into account in such circumstances. Section 100 of the 2009 Act also amends s 22 of the 1999 Act so that the same provisions apply where a witness is over the age of 18. Section 99 of the 2009 Act amends s 17 of the Youth Justice and Criminal Evidence 1999 in order to provide for automatic eligibility for special measures for witnesses in proceedings for a relevant offence (i.e. an offence specified in a new sch. 1A to the 1999 Act, which specifies a wide range of offences involving the use of guns and knives).

12 Section 101 of the 2009 Act inserts a new section, s 22A, into the 1999 Act. This makes special provision for complainants in respect of sexual offences tried in the Crown Court, requiring the admission of the complainant s video-recorded statement under s 27 of the 1999 Act, unless that requirement would not maximise the quality of the complainant s evidence. Section 104 of the 2009 Act inserts new sections, ss 33BA and 33BB, into the 1999 Act. Under s 33BA, the court may give a direction that provides for any examination of the defendant to be conducted through an intermediary where he is under the age of 18 and his ability to participate effectively as a witness is compromised by his level of intellectual ability or social functioning, or where he is over 18 but suffering from a mental disorder or otherwise has a significant impairment of intelligence and social function which prevents his effective participation. However, it should be noted that the court has the power to adopt such measures independently of the 1999 Act (see R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin); [2010] 1 All ER 735, where the Divisional Court confirmed that courts have an inherent power to take such steps as would enable the young defendant to participate effectively in the trial, per Openshaw J, at para 15). Section 111 of the Coroners and Justice Act 2009 repeals s 138(1) of the Criminal Justice act 2003 (which prohibits a witness whose evidence has been given by way of a video recording under s 137 from giving evidence in any other manner).

13