R (DPP) v Redbridge Youth Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE ASTILL |
| Judgment Date | 22 March 2001 |
| Neutral Citation | [2001] EWHC 209 (Admin) |
| Docket Number | Case No: CO/4444/00 & CO/225/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 March 2001 |
[2001] EWHC 209 (Admin)
IN THE SUPREME COURT OF JUDICATURE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham and
Mr Justice Astill
Case No: CO/4444/00 & CO/225/01
Mr David Perry (instructed by the Crown Prosecution Service for the DPP
Mr Hugo Keith (Appointed amicus curiae by the Court)
Mr Julian Knowles (instructed by Arnold du Feu of Oxford for the Appellant 'L')
Mr Peter Ross (appeared for the Crown Prosecution Service as interested party)
These two applications raise different, but overlapping questions in relation to sections 32 and 32A of the Criminal Justice Act 1988. These two sections are concerned with the court's powers to hear evidence by live television link and to receive in evidence a video recording of an interview with a child as the child's evidence in the proceedings. The facts of each case are as follows:
Redbridge Youth Court
The defendant before the Youth Court was a 14 year old youth, who had been charged with three offences of indecent assault on two girls both of whom were, at the relevant time, 14 years of age. It was alleged that on the 18th August 2000 he, together with other youths, approached the girls, one of whom was known to him, produced a sum of money and stated that he wished to have sex. After a number of requests of a sexual nature, the defendant was alleged to have assaulted both girls by slapping their bottoms over their clothes. The two girls were interviewed on video tape. An application was made for the video recordings in respect of both girls to be admitted in evidence, under s. 32A of the Act, and for the remainder of their evidence to be given by way of a live television link under s. 32 of the Act.
The application was heard on the 27th October 2000 by three justices. The Crown relied on the age of the girls and evidence to the effect that to require them to give live evidence would cause them embarrassment. There was no evidence before the court of intimidation, nor was there any suggestion at that time that they would refuse to give evidence if they were required to give evidence in the courtroom itself. The justices refused the applications. Their reasons are set out in an affidavit from Michael Batten, their Chairman dated the 23rd January 2001:
"5. The court carefully considered the purpose behind the Crown's application of seeking to reduce the risk of embarrassment to child witnesses giving evidence in a reasonably formal setting. Sect 32A Criminal Justice Act 1988 clearly sought to reduce any harm suffered by a child witness when ascertaining the facts of a case without unfairly interfering with the rights of the parties to a fair trial.
6. It was considered by the court that in exercising its discretion it must balance the interests of both parties in a criminal trial. The need to save the child as much trauma as possible and to improve his or her ability to give evidence in ascertaining the true facts of the case had to be balanced against the need to safeguard the interest of the accused. The interest of the accused to have a fair trial generally included the right to be present whilst the case against him was being expounded, to be represented by counsel of his choosing and to test the evidence against him such as by cross-examining the child witnesses and observing the demeanour of the witness during testimony.
7. The court considered that it must exercise its discretion as to when and how the video link procedure is used, so as to ensure that all interests are carefully and independently taken into account. The prosecution may not always be in the best position to assess the likely effect on a child witness. It is difficult to define proceedings in which the procedure would operate fairly in all circumstances and the flexibility and ability to choose to use the procedure for a particular child witness in a particular case is paramount.
8. In exercising its discretion the court considered the following factors:
(a) the fact that the defendant and the witnesses were of similar age, thus eliminating the potential for any intimidation by an older defendant in a position of authority. The Crown offered no evidence to suggest that there were any additional factors of relevance including personality, intelligence and immaturity in assessing if the witnesses would be competent to give live evidence or disability to which the child may or may not be subject. The court considered both witnesses to be competent to give evidence.
(b) The nature and importance of the matters on which the witnesses were being called to give evidence. The allegations related to slapping the girls bottoms whilst fully clothed. The court considered that the allegation of indecent assault fell towards the lower end of the scale of seriousness.
(c) The court noted that the Crown at no stage asserted that either witness would suffer trauma or intimidation by giving live evidence but claimed that the Crown witnesses would suffer embarrassment, which although not conclusive, was a relevant factor for consideration in all the circumstances of this case. The court concluded that neither witness would suffer emotional harm or significant embarrassment if required to give live evidence in camera, in a relatively informal court setting accompanied by an appropriate adult who would offer support.
(d) The court was concerned to ensure that as far as possible both prosecution and defence should be afforded an opportunity to present their evidence under conditions that did not substantially advantage or disadvantage either party, thus ensuring equality of arms.
(e) The court considered the issue of the quality of evidence and if such evidence would be more reliable if adduced by way of video link, the court concluded that it would not. The impact of the witnesses' evidence through an electronic medium may be lessened and the circumstances in which the recorded interview was made may affect the quality and reliability of evidence. Moreover, the best evidence rule would be breached and the accused may be disadvantaged by being unable to confront the witness in the court room.
(f) The court considered that additional complications could arise as an interpreter was required for the defendant who spoke little English.
9. The court in exercising its discretion balanced the nature of the allegation, the proximity in age of the parties, the characteristics of the witnesses, the potential risk of embarrassment or intimidation (although not asserted by the Crown) which may have been occasioned by the witness giving evidence in camera supported by an appropriate adult, against the risk of prejudice to the defendant, the detraction of the immediacy of live testimony in the courtroom which would provide the court with the best opportunity to test the credibility of the witnesses prior to cross-examination and the desire for equality of arms to be preserved and a fair trial to be secured.
10. The court concluded having regard to all the above factors that in the particular circumstances of this case it was not in the interests of justice that evidence by video recording and live TV link should be admitted in accordance with s. 32A(3)(c) of the Criminal Justice Act 1988"
Bicester Youth Court
In this case the claimant is also 14 years of age. He was charged with inflicting grievous bodily harm contrary to s. 20 of the Offences Against the Person Act, 1861 and firearms offences contrary to sections 16A and 19 of the Firearms Act, 1968. On the 8th August 2000 the adult complainant was crossing a playground in Banbury on which a number of children were playing. His account was that two of the boys pulled out air guns and began shooting at tin cans. Then one of the boys, who was alleged to be the claimant, pointed the gun at him and shot him in the face from a short distance, hitting him in his cheek.
The incident was witnessed by a number of children who made witness statements. Perhaps not surprisingly, these statements disclose considerable discrepancies. On the 25th October 2000, the Crown applied for the use of a live television link in relation to the evidence of three of the boys, a ten year old, an 11 year old, and two 13 year olds. The application was not ultimately pursued in relation to one of the 13 year olds. The basis of the application was that each of the witnesses was vulnerable and that in relation to the two younger ones, that they were threatened by the claimant with the air gun at the time of the incident. The applications were ultimately heard by District Judge Wicks who gave his decision on the 8th November 2000. We have been provided with a note of his reasons. The relevant parts are as follows:
"My decision is as follows and I believe that the factors that I can properly take into account have to be geared to ensuring that justice is achieved to the maximum extent possible as this requires a very careful balancing of interests of the defendant that a fair and just outcome ensuring that the witnesses who might otherwise not be available to give evidence at all are capable of giving evidence if that is achieved. Of course it does not mean any person under the age of 14 who has to give some evidence should not automatically give their evidence through video link. There has to be some factor from which a court can deduce the witness's potentially so vulnerable for whatever reasons may be applicable that without video link they either would not appear at all or their evidence would be affected by factors of stress which would adversely...
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Subject Index
...(on the application of DPP) v RedbridgeYouth Court; R (on the application of L(A Child) v Bicester Youth Court [2001]EWHC Admin 209, [2001] 2 Cr App R 25....................................................................2 86R (on the application of Ebrahim) v FelthamMagistrates’ Court; Mou......
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