R (D) v Camberwell Green Youth Court; R (G) v Camberwell Green Youth Court

JurisdictionEngland & Wales
JudgeLORD HOFFMANN,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NICHOLLS OF BIRKENHEAD,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND
Judgment Date27 January 2005
Neutral Citation[2005] UKHL 4
Date27 January 2005
CourtHouse of Lords
Regina
and
Camberwell Green Youth Court
(Respondents)

ex parte

D (a minor)(by his mother and litigation friend)
(Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina
and
Camberwell Green Youth Court
(Respondents)

ex parte

Director of Public Prosecutions
(Respondent)
(G (by his mother and litigation friend) (FC)
(Appellant) (Interested Party)) (Criminal Appeal from Her Majesty's High Court of Justice)

[2005] UKHL 4

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD
1

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. For the reasons they give, with which I agree, I would dismiss these appeals.

LORD HOFFMANN

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I would dismiss these appeals.

LORD RODGER OF EARLSFERRY

My Lords,

3

I have had the advantage of reading in draft the speeches to be delivered by my noble and learned friends, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. I agree with them and would accordingly answer the certified questions as Lady Hale proposes and dismiss the appeals.

4

The provisions of section 21 of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act") have the effect that, save in exceptional circumstances, the evidence of witnesses under 17 years of age in relation, inter alia, to sexual offences and crimes involving violence must be given by a live television link and, where available, by a suitable video recording. (For the sake of brevity, I shall refer to these particular measures as "special measures".)

5

As can be seen from section 16(5), the theory underlying these provisions is that the use of the special measures will maximise the quality of the children's evidence in terms of its completeness, coherence and accuracy. To put the point another way, the measures will enable the children to give the best evidence of which they are capable. Both formulations assume that the children are truthful and intend to give accurate evidence. The special measures will then help them to do so by reducing any strain caused either by the formal atmosphere of the court-room or by the presence of the accused. Making the special measures standard for the trial of certain kinds of offences has the additional advantage of allowing these potential witnesses and their parents to be reassured, at an early stage, that they will be able to give their evidence in this way.

6

In an ideal world only honest and reliable witnesses would be called to give evidence in court. Relatively few crimes are committed, however, in front of disinterested, sober, upright members of the public. Therefore, in many trials, especially for crimes of violence, both the prosecution and the defence have to rely on witnesses who are anything but honest and reliable. For example, where the case arises out of a fight between rival gangs of sixteen-year-old youths, the prosecution witnesses will tend to be members of the defeated gang and their equally young supporters. Very often, whether out of misplaced loyalty or as a result of threats, some, at least, of these witnesses will give deliberately false evidence that is designed to conceal the actual course of events in order to throw the blame on to their opponents, the defendants. The defence witnesses will come from the victorious side and will often have precisely the opposite agenda. In practice, even although under 17 years of age, many witnesses of this kind are only too little affected by the formality of the trial proceedings or by any judicial sanctions which might be imposed for their failure to speak up or for their perjury. And, if they feel threatened, it is not by the mere presence of the defendant(s) in the dock, but by the prospect of being beaten up later if they deviate from the party line. The unenviable task of the jury in such cases is to assess the witnesses and to try to pick out those parts of their evidence that are truthful and reliable. The jury's task is unlikely to be made any less difficult if the use of special measures does indeed have its presumed effect and so makes it that much easier for the dishonest witnesses to give their untruthful account in the most complete and coherent way of which they are capable.

7

Different people may therefore take different views about the wisdom of applying special measures, in the specified cases, across the board to all witnesses who are under 17 years of age. As Lady Hale has explained, however, there is a considerable body of expert opinion which supports the view that, except in special circumstances, the evidence of such witnesses should indeed be taken in that way in all trials for sexual offences or offences involving violence. Recently, in the Vulnerable Witnesses (Scotland) Act 2004, the Scottish Parliament has followed that path and made provision for a system of special measures for taking the evidence of witnesses under 16 years of age in certain cases, but has also prescribed a general rule that in such cases witnesses under 12 years of age should give their evidence away from the court building. Similarly, the 1999 Act gives effect to Parliament's judgment that the benefits to justice from applying special measures to truthful young witnesses outweigh any risks to justice from applying them to untruthful or unreliable young witnesses. That judgment must be respected. I would therefore reject Mr Carter Stephenson QC's argument that a court, which has to make a special measures direction by virtue of 21(3), can immediately discharge or vary that direction under section 20(2)(b) on the view that, having regard to the nature of the case or the age of the defendant, it would not be in the interests of justice to make such a direction. That interpretation of section 20(2)(b) would frustrate the policy of the legislation. Section 20(2)(b) should be interpreted, rather, as catering for the (unusual) situation where, between the making of the direction and the trial, some particular circumstance emerges which would make it impossible or inappropriate to proceed on the basis of the direction. Sections 24(3) and 27(7) give the court powers to deal with any problems which may emerge at the trial.

8

Mr Starmer QC submitted that article 6(3)(d) of the European Convention on Human Rights, gives the defendant in a criminal trial a right to confront his accusers, to look them in the eye while they are giving their evidence. That right might have to yield if, in any given case, it could be shown that the child witness would not be able to give his or her evidence satisfactorily in open court in the presence of the defendant. But section 21(5), which excluded any such individualised consideration, made the system incompatible with article 6(3)(d). Mr Carter Stephenson adopted this submission.

9

According to the popular image, in a British criminal trial witnesses give evidence before a robed judge and a jury and they are examined and cross-examined by bewigged counsel for the Crown and for the defence. Inevitably, that image is over-simplified. The vast majority of trials take place before magistrates; the representatives of both sides may be solicitors rather than counsel and, in exceptional cases, in England - but not in Scotland – even trials for serious offences may proceed in the absence of the accused. Where children are involved, in the Crown Court wigs and gowns are discarded and various other steps are taken to make the proceedings less formal. In the Youth Court the proceedings are always relatively informal, being tailored to the requirements of the children who appear there. Historically, also, the popular image does not tell the whole story. For centuries, in England the parties in a criminal trial usually had no professional representation. The prosecutor and his witnesses would put their side of the story and the accused would try to discredit it. In that world, cross-examination and formal rules of evidence were unknown: they are the products of the adversarial form of trial that emerged when, in the course of the eighteenth and early nineteenth centuries, it became common for counsel to be instructed. Since the forms of trial have evolved in this way over the centuries, there is no reason to suppose that today's norm represents the ultimate state of perfection or that the procedures will not evolve further, as technology advances. The special measures in these cases are indeed examples of modifications which have been made possible by advances in technology.

10

It is nevertheless fair to say that under the systems of criminal procedure used in Britain today it is usual for witnesses to give their evidence in open court in the presence of the accused. That form of trial is often contrasted with a Continental form of criminal proceedings where judges rather than juries determine guilt, on the basis of their free appreciation of a file of evidence compiled by an investigating judge, and where, if witnesses are questioned at trial, the questions are put by the judge rather than by the prosecution and defence lawyers. Again, the counter-image is over-simplified, since the Continental systems vary considerably from country to country and within countries. It is, however, sufficiently accurate to make one anticipate that the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence...

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