Re R and Others (Minors) (Wardship: Criminal Proceedings)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 23 January 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0123-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 1991 |
| Docket Number | 91/0055 |
[1991] EWCA Civ J0123-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HIS HONOUR JUDGE CALLMAN)
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Beldam
91/0055
MR. JAMES MUNBY Q.C. and MISS KHARIN COX (instructed by Messrs. Ralph Haring & Co.) appeared for the Appellant (Second Defendant).
MR. HENRY TURCAN (instructed by the Official Solicitor) appeared for the Respondents (Third to Eighth Defendants) as Guardian ad Litem.
MR. M. KELLY (instructed by S. Forster, Esq., Director of Law Administration, Brent Town Hall) appeared for the Respondent (Plaintiff).
MR. M. WARREN (instructed by Messrs. Powell Spencer & Partners) appeared for the Respondent (First Defendant).
This is the judgment of the court.
This appeal concerns the interrelationship between the wardship and criminal jurisdictions of the courts.
The facts can be briefly stated. The family consists of father, mother and six children. Four of the children are girls aged fifteen, thirteen, nine and two. The two boys are S. aged twelve, with whom this appeal is primarily concerned, and another aged five.
The three older children became wards of court on 9th March 1990. S. and the two younger children became wards on 5th April. Subsequently the father was charged with very serious offences against the three older girls. In the course of the police investigations S. was interviewed. For reasons which have never been explained, no permission from the court was sought for this interview to take place, but it may be that the police were unaware that S. was a ward of court and that the mother, who attended the interview, was unaware of the need for consent. Nothing turns upon this failure, so far as this appeal is concerned.
S. in his witness statement alleged that he had been sexually abused on different occasions by a neighbour and by a stranger. He made no allegations against his father and said nothing which bore on allegations that the father had sexually abused his sisters. For reasons which are obscure, this statement was included with the prosecution statements upon which a committal for trial was obtained and S. was unconditionally bound to attend the trial and give evidence.
In August 1990 the father's solicitors came into possession of a tape recording of a statement by S. that he slept in the room next door to that occupied by the sisters, that he had never heard anything which might suggest that they were being sexually abused and that his sisters had lied to the police. Subsequently, on 26th September 1990, the Crown Prosecution Service notified the father's solicitors that they would not be relying on S's evidence at the trial. For reasons which are again largely unexplained, except that it was apparently thought that S. would be tendered by the prosecution for cross-examination, the father's solicitors did nothing until the week before the trial. They then woke up to the fact that S. would not be required to attend the trial and by a notice dated 8th January 1991 applied to His Honour Judge Callman, acting as the wardship judge, for leave (a) to interview S. and (b) to call him as a witness at the trial.
The judge refused both applications on Thursday 10th January 1991 and the father appealed. The criminal trial was due to begin on Monday 14th January, but was postponed for one day in order to enable this court to hear the appeal. We set aside the judge's order saying that the question whether the ward should give evidence at the criminal trial was for the judge of that court who no doubt would consider any adverse effects upon the child. We gave leave for S. to be interviewed by the father's solicitors in the presence of a representative of the Official Solicitor, upon condition that the defendant was not present and that, unless distress would be caused to S., no other member of the family should be present. In view of the fact that this was the first occasion upon which this particular aspect of the court's wardship jurisdiction had been reviewed by this court, we reserved giving reasons for our decision in order that they might be put into writing. This we now do.
The appeal raises two distinct issues. The first concerns the scope of the wardship jurisdiction where either prosecution or defence in criminal proceedings wish to interview a ward with a view to taking a proof of evidence and, if so advised, calling the ward as a witness. The second concerns the exercise of that jurisdiction in the light of the facts of this case.
The scope of the jurisdiction
This sub-divides into two categories to which different considerations apply, namely, seeking permission to interview a ward and seeking consent to the ward being summoned to give evidence in criminal proceedings and giving such evidence.
Interviewing wards
That the court in the exercise of its wardship jurisdiction is entitled to require that its consent be obtained as a pre-condition of the right of anyone to interview a ward is beyond doubt and was not questioned on the hearing of this appeal. This jurisdiction is exercised in accordance with two practice directions.
The first "(Ward: Witness at Trial)" reported at (1987) 1 W.L.R. 1739 provides that:-
"Where the police desire to interview a child who is already a ward of court application must be made for leave for the police to do so. Where leave is given the order should, unless there is some special reason which requires the contrary, give leave for any number of interviews which may be required by the prosecution or the police. If it is desired to conduct any interview beyond what is permitted by the order further application should be made for this purpose.
No evidence or documents in the wardship proceedings or information about wardship proceedings should be disclosed in the criminal proceedings without the prior leave of the wardship court."
We would only comment that, as is apparent from the full terms of the direction, it stemmed from the decision in In Re "K", to which we must refer in detail hereafter, where the minors were prosecution witnesses and it is no doubt for this reason that it in terms only applies to interviews by the prosecution and the police. Those representing defendants in criminal proceedings will equally require leave to interview wards and should in principle be granted the same facilities. This is, however, subject to the qualification that it would not be appropriate that the child should be interviewed on behalf of the defendant if and so long as that child is likely to be a witness for the prosecution and that the circumstances of the case may dictate the need to impose special conditions, such as the presence of the Official Solicitor at such interviews or as to the number of interviews to be permitted without further reference to the court. In saying this we are not departing from the fundamental principle that, if one party to criminal proceedings or the other is to be disadvantaged, it should be the prosecution. All that we are doing is to invite recognition of the fact that a defendant's approach to criminal proceedings brought against him may not be as objective as that of the prosecution ought to be and that children may be more emotionally vulnerable when interviewed on behalf of a related defendant than when interviewed on behalf of the police.
The second practice direction, "(Ward: Witness at Trial) (No. 2)" reported at (1988) 1 W.L.R. 989, modifies the first direction in relation to occasions where it is necessary in the interests of justice to interview a child without notice to a particular party to the wardship proceedings or where the interests of justice require that the ward be interviewed without prior notice to the wardship court. It is inherently unlikely that such situations could arise in cases in which those acting for the defendant wish to interview the ward and the direction fully and adequately deals with the exercise of the jurisdiction in relation to the police and prosecuting authorities. If, contrary to our expectation, such a situation arose, the direction should be applied mutatis mutandis.
We would express the hope that in any case, and particularly a case such as the present, both the prosecution and defence would explore every avenue open to them, for example under section 9 or 10 of the Criminal Justice Act 1967 as amended by the Children and Young Persons Act 1969, to avoid the need for the ward of court to attend the trial.
Consent to the ward giving evidence
The courts have traditionally declined to define the ultimate limits of the wardship...
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