The possiblity of a defendant personally cross examining a witnesss has always been a reality in this jurisdiction although instances of it occurring appear to be extremely rare. 

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In 2018, S.36 Criminal Law (Sexual Offences) Act 2017 changed this but it is important to note that the provision is limited. The legislation amends the Criminal Evidence Act 1992 adding a new section, 14C, and is as follows:

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Protection against cross-examination by accused

14C. (1) Where —

(a) a person is accused of a relevant offence , and

(b) a person under the age of 18 years is to give evidence,

the court shall direct that the accused may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.

(2) Where —

(a) a person is accused of a sexual offence, and

(b) a person who has attained the age of 18 years (being a person in respect of whom a sexual offence is alleged to have been committed) is to give evidence,

the court may direct that the accused may not personally cross- examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.

(3) Where an accused person is prevented from cross-examining a witness by virtue of subsection (1) or (2) , the court shall —

(a) invite the accused person to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness, and

(b) require the accused person to notify the court, by the end of such period as it may specify, as to whether a legal representative is to act for the accused for that purpose.

(4) If by the end of the period referred to in subsection (3)(b) , the accused has notified the court that no legal representative is to act for him or her for the purpose of cross-examining the witness or no notification has been received by the court and it appears to the court that no legal representative is to so act, the court shall consider whether it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused person.

(5) If the court decides it is necessary, in the interests of justice, for the witness to be so cross-examined, the court shall appoint a legal representative (chosen by the court) to cross-examine the witness on behalf of the accused.

(6) Where, in a jury trial, an accused person is prevented from cross-examining a witness in person by virtue of this section, the court shall give the jury such warning (if any) as it considers necessary to ensure that the accused person is not prejudiced—

(a) by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person, or

(b) where the witness has been cross-examined by a legal representative appointed under subsection (5) , by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the legal representative of the accused.

(7) In addition to the meaning assigned to that expression by section 27 of the Civil Legal Aid Act 1995 , ‘ legal aid ’ in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act on behalf of the accused in relation to the cross-examination of a witness under subsection (3) .

 

 

Provision for restriction on personal cross examination is also contained in the Domestic Violence Act 2018  

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16. Protection against cross-examination by applicant or respondent

(1) Where—

(a) an application is made to a court for a specified order,

 

(b) a person under the age of 18 years is to give evidence, and

 

(c) the applicant or respondent proposes to cross-examine the person referred to in paragraph (b) personally,

 

the court shall direct that the applicant or the respondent, as the case may be, may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the applicant or respondent to conduct the cross-examination personally.

 

(2) Where—

(a) an application is made to a court for a specified order,

 

(b) a person who has attained the age of 18 years (being the applicant for the specified order, an aggrieved person under section 11, a dependent person or the respondent to that application) is to give evidence, and

 

(c) the applicant or respondent proposes to cross-examine the person referred to in paragraph (b) personally,

 

the court may direct that the applicant or the respondent, as the case may be, may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the applicant or respondent to conduct the cross- examination personally.

 

(3) Where an applicant or respondent, as the case may be, is prevented from cross-examining a witness by virtue of subsection (1) or (2), the court shall—

(a) invite the applicant or respondent to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness, and

 

(b) require the applicant or respondent to notify the court, by the end of such period as it may specify, as to whether a legal representative is to act for him or her for that purpose.

 

(4) If by the end of the period referred to in subsection (3)(b), the applicant or respondent has notified the court that no legal representative is to act for him or her for the purpose of cross-examining the witness or no notification has been received by the court and it appears to the court that no legal representative is to so act, the court shall consider whether it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to act for the applicant or respondent for that purpose.

 

(5) If the court decides under subsection (4) that it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to act for the applicant or respondent for that purpose, the court shall appoint a legal representative (chosen by the court) to cross-examine the witness on behalf of the applicant or respondent.

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