R (D) v Camberwell Green Youth Court; R (G) v Camberwell Green Youth Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE HENRIQUES |
| Judgment Date | 04 February 2003 |
| Neutral Citation | [2003] EWHC 227 (Admin) |
| Docket Number | CO/5129/2002; CO/5522/2002 CO/5625/2002; CO/5927/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2003 |
[2003] EWHC 227 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
Mr Justice Henriques
CO/5129/2002; CO/5522/2002
CO/5544/2002; CO/5487/2002
CO/5625/2002; CO/5927/2002
MR KIER STARMER QC, MISS Q WHITAKER and MR S SIMBLET appeared on behalf of the Claimants D, N & R and Interested Parties AE & KE
MR KIER STARMER QC and MR M HARDIE (SOLICITOR-ADVOCATE) appeared on behalf of the Interested Parties G & I
MR D PERRY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Secretary of State for the Home Department on 3rd February 2003
MR J HALLAM (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Secretary of State for the Home Department on 4th February 2003
MR M HEYWOOD (instructed by Youth Unit, Crown Prosecution Service, The Cooperage, 8 Gainsford Street, London SE1 2NE
There are before the court, as a matter of urgency because trials are imminent, six applications for judicial review in relation to orders made by youth courts on applications for a special measures direction under the Youth Justice and Criminal Evidence Act 1999. In three cases (to which I shall refer as "D", "R", and "N"), the claimants are the defendants in criminal proceedings in which justices gave a special measures direction for witnesses to give evidence via a live video link. In three cases (to which I shall refer as "G", "I" and "AE"), the claimant is the Director of Public Prosecutions, a District Judge having declined to give such a direction.
In R the youth court was at Balham. In the other five cases the court was at Camberwell.
All the cases raise the question as to how the Act's provisions as to special measures directions should be interpreted. Before turning to the competing submissions, it is convenient to refer to the relevant statutory provisions.
Chapter 1 of Part II of the Act provides for the making of special measures directions in relation to vulnerable or intimidated witnesses in criminal proceedings. Section 16(1) identifies as eligible, witnesses other than the accused who are (a) under 17 at the time of the hearing; or (b) the quality of whose evidence is likely to be diminished by mental or physical disorder or impairment (section 16(2)).
Section 17 identifies as eligible witnesses, other than the accused, if the quality of their evidence is likely to be diminished by fear or distress, in relation to which the nature and circumstances of the offence and the age of the witness must, in addition to other specified matters, be taken into account. A fearful witness under the age of 17 may therefore be eligible under both sections 16 and 17.
Section 19(1) provides that a party to the proceedings may apply for a special measures direction, or the court of its own motion may raise the issue. By section 19(2), in relation to an eligible witness the court must:
"(a) determine whether any of the special measures available … would, in its opinion, be likely to improve the quality of evidence given by the witness; and
(b) if so-
(i) determine which of those measures (or combination of them) would, in its opinion, be likely to maximise so far as practicable the quality of such evidence; and
(ii) give a direction under this section providing for the measure or measures …"
By section 19(3):
"In determining for the purposes of this Chapter whether any special measure or measures would or would not be likely to improve, or to maximise so far as practicable, the quality of evidence given by the witness, the court must consider all the circumstances of the case, including in particular-
(a) any views expressed by the witness; and
(b) whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings."
By section 19(6):
"Nothing in this Chapter is to be regarded as affecting any power of a court to make an order or give leave of any description (in the exercise of its inherent jurisdiction or otherwise)-
(a) in relation to a witness who is not an eligible witness …"
Section 20(2) provides that, on an application by a party to the proceedings if there has been a material change of circumstances, or of its own motion:
"The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so, …"
Sections 23 to 30 identify the special measures which can be taken. They include screening from the accused (section 23), giving evidence by a live link (section 24) and giving evidence by video recording (sections 27 and 28).
In relation to a direction for evidence by live link, section 24(3) contains a provision similar to section 20(2); that is, if it is in the interests of justice to do so, the court may, under section 24(2), give permission for a witness to give evidence in some other way than by live link.
Section 21 subsections (1) to (5) provide as follows:
"(1) For the purposes of this section-
(a) a witness in criminal proceedings is a 'child witness' if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);
(b) a child witness is 'in need of special protection' if the offence (or any of the offences) to which the proceedings relate is-
(i) an offence falling within section 35(3)(a) (sexual offences etc.), or
(ii) an offence falling within section 35(3)(b), (c) or (d) (kidnapping, assaults etc.); and
(c) a 'relevant recording', in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
(2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must-
(a) first have regard to subsections (3) to (7) below; and
(b) then have regard to section 19(2);
and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.
(3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—
(a) it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief); and
(b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 24.
(4) The primary rule is subject to the following limitations-
(a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;
(b) the requirement contained in subsection (3)(a) also has effect subject to section 27(2); and
(c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).
(5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection."
Subsection (8) of section 21 provides that a direction ceases to have effect when the witness reaches 17.
It is to be noted that the special measures directions provisions apply, not just to the victim of an offence, but to all witnesses, whether for prosecution or defence. The initial question at the heart of these applications is whether section 21(5) requires a special measures direction to be given in relation to a child witness in need of special protection in a manner compatible with the Article 6 fair trial requirements of the European Convention on Human Rights.
In D, R and N the justices were advised that they had no discretion and must make a special measures direction, which they did; ordering in each case that evidence be given by live link, by child witnesses for the prosecution aged 13 or 14 in cases of robbery in which the defendants were 14, 16 and 15 respectively.
In G, I and AE, which involved allegations of robbery or assault, and the respective defendants were 14, 16 and 15 and the witnesses 12, 16 and 15, the District Judges ruled that there was no justification for a direction, which would give rise to substantial inequality between...
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Subject Index
...[2002] EWCA Civ 1661,[2003] 1 All ER 540 ................... 191–6R (on the application of the DPP) vCamberwell Green Youth Court[2003] EWHC Admin 227 ........... 204Radcliffe v Price (1902) 18 TLR 466........................................................ 225Ramakrishnan s/o Ramayan v PP ......
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