R, R v

On 12 July 2004 the appellant was convicted at the Crown Court at Chelmsford of the rape of his wife and assault on her occasioning actual bodily harm. He was sentenced to a custodial term of 8 years imprisonment and an extension period of 3 years. He appeals against his conviction by leave of the full court on a single issue.

That issue relates to whether the evidence given in chief by means of a pre- recorded video had been properly admitted under the special measures provisions of the Youth Justice and Criminal Evidence Act 1999, in the light of the way the Home Secretary had chosen to implement the provisions. S. 18(2) of the Act had provided that such measures were not to be taken to be available until the particular court had been notified by the Secretary of State. Although the provisions had been commenced by Commencement Order, the Secretary of State had not given any notification to the Crown Court at Chelmsford.

It was the contention of the appellant, made attractively by Miss Griffiths QC, that there was therefore no statutory power at the Crown Court at Chelmsford to admit the evidence in chief of the wife by playing the video recording and that evidence was therefore inadmissible. As this was the evidence on which the conviction was based, if the material was not admissible, there was no evidence which could sustain the elements of the offence and the conviction for rape had to be quashed: R v Bedwellty Justices [1996] 2 Cr App R 594. The appeal raises issues as to a novel process for making and implementing primary legislation relating to criminal trials in the Crown Court and the effect of this on a conviction for a serious offence.

For these purposes, it is necessary to give only a brief description of the facts relating to the rape and the assault. It will be necessary to say more in relation to how those facts came to be given in evidence.

By May 2004 the appellant and his wife had been married for 16 years; his wife had moved out of the matrimonial home and had entered into a relationship with another man. The appellant had learnt of this. On 7 May 2004, the wife went to visit the former matrimonial home. There sexual intercourse took place between the appellant and his wife.

The wife’s account was that this took place without her consent in brutal circumstances that it is unnecessary to describe in detail; those circumstances included forcing her upstairs, stripping her, tying her to the bed and having oral sex as well as vaginal sex. The appellant’s account was that, although they had quarrelled initially, all the sexual activity took place with her consent. There were statements from a general practitioner who had given her medical treatment as to cuts and bruises and from a female postal worker who had been seen by the wife immediately after the incident and to whom the wife had complained of the rape.

It is clear, however, that the conviction of the appellant depended on the evidence of the wife and without such evidence there would have been no conviction.

The wife was interviewed the same day and the evidence was recorded on videotape.

Unfortunately brevity is not possible in relation to the way in which the evidence was introduced. In the light of the argument made, it is necessary to set out the provisions of the 1999 Act, the procedures followed at the Crown Court and the details of circulars and letters sent by the Home Office and then the Ministry of Justice in relation to the implementation of the special measures provisions of the Act.

The provisions relating to special measures

In 1999 Parliament enacted the Youth Justice and Criminal Evidence Act; Chapter 1 of Part 2 of the Act made provision for what were described as special measures in relation to the giving of evidence by vulnerable and intimidated witnesses. The scheme of the chapter was broadly as follows:

These sections of the chapter (except sections 28 and 29 which are not material) were brought into force on 24 July 2002 by paragraph 2 of the Youth Justice and Criminal Evidence Act 1999 (Commencement No. 7) Order, S.I. 2002 No. 1739 made on 8 July 2002 by the Secretary of State under s.64(4) and 68(3) of the Act; the Secretary of State did not exercise his power under s.64(4) to make different provision for different areas. The Crown Court (Special Measures Directions and Directions Prohibiting Cross Examination) Rules 2002 were made and brought into force on 24 July 2002; Rule 2 of these Rules made provision for prescribed forms and Rule 8 made provision for a special measures direction enabling a video recording of a witness to be admitted as evidence in chief.

The provisions of the 1999 Act amended the substantive law relating to the admissibility of evidence before the Crown Court. Evidence is admissible either because it is admissible at common law or under a statutory provision enacted by Parliament. If evidence is not admissible at common law or by statute, then it cannot form a basis of evidence on which a conviction can be founded.

It was common ground that the only basis on which the evidence through a video recording or evidence by live link could properly be admitted in the trial of the appellant, was under the statutory provisions of the 1999 Act. The power to alter the law of evidence is not something that is within the very considerable inherent powers of the court to regulate its own procedures irrespective of statute or rules of court. As was made clear by the Divisional Court in R(S) v Waltham Forest Youth Court [2004] EWHC 715 Admin, permitting a defendant to give evidence by live link is not within the range of measures open to a court in its discretion to regulate the trial process: see paragraphs 86 and 87 of that decision. Counsel for the Crown made it clear that he did not contend that the court had any such power and the admissibility of the evidence depended on the applicability of the provisions in the 1999 Act.

The application made to the Crown Court at Chelmsford in 2004

The application for a special measures direction in relation to the proceedings against the appellant was made to the court to admit the video as evidence in chief and cross examination by the live television link at the court. The application was heard on 12 July 2004.

Although a copy of the Order made on the hearing cannot now be found, it is clear from the court log that such an order was made. As made then (or as subsequently varied) it provided for the giving of evidence in chief by means of the video recording and cross examination by live TV link. At the hearing when the Order was made and on the hearing of the appeal, the following were common ground:

On 24 November 2004 the trial commenced. At 12.29 the wife was sworn in as a witness over the live link. The video recording was then played. At 16.03 the wife was asked questions in chief by counsel for the prosecution over the live link. On the following day, 25 November 2004 the wife was cross-examined over the live link and then re-examined.

No point was taken in relation to what had happened until January 2007 when Chris Saltrese Solicitors, who were then members of the Historic Abuse Appeal Panel,advised the appellant that he had grounds for appeal against his conviction on the basis that s.27 had not been made applicable to the Crown Court at Chelmsford under the provisions of s.18 of the 1999 Act, though it was accepted that the additional evidence given in chief and the cross examination were admissible when given by means of the live link as s.24 had been made applicable under s. 18.

s. 18 of the 1999 Act

Section 18 (1) (2) and (3) provide as follows:

“18.

– Special measures available to eligible witnesses

(1)

For the purposes of this Chapter –

(a)

the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and

(b)

the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17;

but this subsection has effect subject to subsection (2).

(2)

Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless –

(a)

the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and

(b)

the notice has not been withdrawn.

(3)

In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.”

The provision, as can be seen, in essence required the Secretary of State (then the Home Secretary and now the Secretary of State for Justice) to notify courts that arrangements for implementing the measure in question were available in the area in which it appeared to the court that the proceedings would take place. Thus, although sections 24 and 27 were commenced in July 2002 by the Commencement Order and were therefore in force, s.18 provided that a special measure was not to be ‘taken by a court to be available’ unless it had received such notification.

The notifications given

Prior to the hearing, despite the sustained efforts of counsel for the Crown, he had had very considerable difficulty in obtaining the relevant documentation which provided for the giving notification to the court. This is not the least surprising to this court; we know of the vast volume of circulars and letters sent to Crown Courts on a wide range of matters from changes in the law to matters of staff relations. Not only is the quantity vast, but managers face the further difficulty of leading hard pressed court staff at courts with resources that are not plentiful; furthermore there are clear and obvious difficulties in storing such documentation in a manner in which a particular circular can readily be found. No criticism could therefore possibly be made of the counsel for the Crown nor the Crown Court managers or those in the CPS who had tried to help him assist the court; finding the information was simply not practicable for him. As notification to the court was contended to affect the applicability of the power to make special measures, the difficulty experienced is not without significance.

In these circumstances we had to ask the Court of Appeal Office, during the course of the hearing of the appeal, to obtain full information from the Ministry of Justice. As a result of the enquiries made of the Better Trials Unit of the Office of Criminal Justice Reform at the Ministry of Justice, it is now clear that in the period 2002-2007 a series of circulars and letters entitled “The implementation of ‘Speaking Up for Justice’” were sent on the subject of the commencement of the provisions of chapter 1 of Part 2 of the 1999 Act and the giving of notification to the courts under s.18(2):

Now that this ostensibly complete collection of documents has been supplied by the Ministry of Justice, it would appear clear that no notification of the availability of a special measure under s.27 for a witness within s.17 was given until late in 2007, save in respect of the Crown Courts at Sheffield and Wood Green, and then it was given only in respect of sexual offences where the investigation commenced after that date.

The explanation of the purpose of the notifications

This Court was informed by the Ministry of Justice that the intention to implement the special measures on a phased basis was made clear by Circular 2002/38 and that it was done in this way because of the need to monitor the effectiveness and the impact on resources. It was only after a public consultation “Convicting Rapists and Protecting Victims – Justice for Victims of Rape” in the spring of 2006 that Ministers agreed to extend the availability of special measures in the Crown Court to complainants in sexual offence cases within s.17.

Although that may have been the intention of the Ministry, what is material is the intention of Parliament. We are therefore greatly indebted to both counsel, who after the conclusion of the hearing examined the passage of the Bill through Parliament in 1999 and further occasions in Parliament when question were asked about the Act. During the passage of the Bill, Parliament was told by the Minister of State that some of the special measures required training and guidance; there would be pilots and that there would be a phased implementation plan so that all measures were implemented “syllogistically”. Nothing of assistance to the court was said during the passage of the bill in relation to the clause which became s.18, other than it was to be used in connection with phased implementation.

It was argued by Miss Griffiths QC for the appellant that, from this material, it was clear that it was the intention that the special measures were to be piloted to test their effectiveness and therefore Parliament cannot have intended the measures to have been of general application until it was clear that they were a safe method of adducing evidence. Thus until the Secretary of State had satisfied himself that they were safe, the powers were not to be used. It was submitted that it was evident that that was the intention from the answers given by Minsters to Parliamentary questions in October 2002 and November 2004 and circulars including that dated February 2002 (see paragraph 21i) above). It was only in June 2007 (as was apparent from the circular of June 2007) that the Secretary of State for Justice was satisfied that it was safe to permit courts to use the powers under s.27. A conscious decision had therefore been taken to delay giving the courts power to use s.27. The only reason for this was that until 2007 the Secretary of State was not satisfied that it was safe to implement the measures. The obvious conclusion was that it was considered unsafe, untried and untested to permit evidence to be given in such form until 1 September 2007. It followed therefore that the intention must have been that notification under s.18(2) was not an administrative matter, but was a precondition to the use the powers; although the s.27 was in force, no court could use the power until the Secretary of State said it could by giving notification under s. 18(2).

We note that the materials on which Miss Griffiths QC relied were not statements to Parliament during the passage of the bill, but claims by the Home Office and the Ministry of Justice in (a) its circulars as to its intentions and by necessary implication as to its powers and (b) in answers to questions in Parliament in October 2002 and November 2004, long after the enactment of the Act.

After enquiries had been made by counsel for the Crown, we were told that there had in fact been no evaluation of the operation of s.27 at Wood Green and Sheffield. However the fact that there was no evaluation at the pilot courts does not affect the argument made by Miss Griffiths QC as this depends on the meaning of the 1999 Act and the intention of Parliament as to that Act and not the action (or inaction) of the Ministry in relation to the pilots.

The position of the Crown Court

It is quite clear from the detailed enquiries made by counsel for the Crown that everyone who took part in the hearing on 12 July 2004, in subsequent pre-trial hearings and in the trial in December 2004 thought that the court was entitled to make a special measures direction under s.27 of the Act which had been commenced in July 2002. The court had for many years had the requisite equipment, as it had been used for giving evidence in this way by children and the court staff were experienced in its use; the police had the facilities to record the evidence and the necessary guidance was in place. However, in what no doubt seemed to everyone concerned as a sensible approach to the giving of evidence by the wife in this case under a provision that was in force, it plainly occurred to no one to consider what was in effect a possible trap created by s. 18(2). Paragraph 8-55 of the 2008 edition of Archbold now sets out a short passage after s.18 which deals with the availability of the special measures; this was not in the 2004 edition.

Nor can anyone be criticised for so believing. That is because of the legal, constitutional and curial background of which Parliament must have been aware:

The power of the judge to make the special measures direction under s.27

It is against that background, we turn first to consider the question as to whether the judge had power to make the special measures direction under s.27 (which was in force) despite the lack of notification under s.18(2). This question is a similar question to the first question which arose in R v Clarke and McDaid [2008] UKHL 8, where an indictment had not been signed despite a clear statutory provision that it should be: see paragraphs 17 to 19 of the speech of Lord Bingham of Cornhill.

We consider that that the judge had the power:

We cannot accept the argument put forward by Miss Griffiths QC to the contrary. Indeed her argument raises two issues of more general importance which add further support to our construction of s.18(2).

We therefore conclude that, as s.27 had been commenced, it applied and applies to all Crown Courts in all proceedings; it gave the judge power to make a special measures direction, notwithstanding the fact no notification of availability had been given under s.18(2). S. 18(2) was simply an administrative provision designed to help the court, but it in no way affected the power of the Crown Court to make a special measures direction under s.27 in any proceedings at any time after the provision was commenced by the Commencement Order. In so far as any circular sent by the Minster suggested otherwise, the Minister was wrong; he had no such power and the Crown Court has been able to make special measures in all cases since July 2004 under those provisions which have been commenced.

We must refer briefly to the issue which arose in Bottomley as to the transitional provisions of Schedule 7 to the 1999 Act as we have mentioned at paragraph 21.v). Although the appeal touched on s.18(2), the issue in this appeal did not arise. We will briefly explain why. Under the transitional provisions the court had power to make a special measures direction in existing proceedings unless the court had exercised certain powers before “the specified date”. Paragraph 7(4) of the schedule defined “specified date” as:

“the specified date”, in relation to a witness in any proceedings, means such date as may be specified by the Secretary of State in a notice given to the court in question under section 18(2), where the date is expressed to apply—

(i)

for the purposes of this paragraph, and

(ii)

in relation to any description of witnesses and proceedings within which the witness and the proceedings fall.”

As set out at paragraph 21.v), the circular of 10 July 2002 omitted to deal with this transitional provision; it had to be corrected by the circular of 16 August 2002. The appellant was convicted of murder on 16 August 2002 and part of the evidence had been given by live link. It was contended by the appellant that, as the provisions had not been brought into effect at the time of the trial in the manner set out in the schedule, the evidence could not have been heard by live link and that there was therefore a material irregularity in the course of the trial. This court held that once the 1999 Act was in force, it applied to all proceedings whether existing or not and covered the giving of the evidence by live link in the trial of the appellant; the transitional provisions merely provided for the validity of directions made in the anomalous case where the court might have made a direction under powers under the earlier Act referred to in the provisions. No issue arose as the notification to the court under s.18(2) about the general availability of a live link at all Crown Courts, as the letter of 10 July 2002 had given such a notification.

The position if there was no power without notification under s.18(2)

If we were wrong in our view that the judge had power to make a special measures direction that evidence in chief could be given under s.27 at Chelmsford (as at any other location of the Crown Court) without notification under s.18 from the Secretary of State and the correct construction of s.18 was that the court had no such power, the question would arise as to the consequences.

The availability of special measures under s.24 (livelink) had been notified. It was therefore argued that as the order to permit cross examination was one that was validly made, then as there was sufficient evidence to sustain the conviction on the cross examination, then the fact that the evidence in chief may have been admitted wrongly did not matter. We cannot accept the contention; as Miss Griffiths QC put it, if there was no admissible evidence in chief, the cross examination would never have taken place.

As that argument cannot provide a solution, we must address directly the question of the consequences of the court permitting the evidence to be given when no notification had not been given and therefore in circumstances when it had no power to make a direction under s.27. The question is answered by asking whether Parliament intended the consequence to be that the evidence given in consequence of the special measures direction which the court had no power to make had to be treated as inadmissible; if it was inadmissible, then there would have been no admissible evidence to sustain the conviction.

This question is similar to the second question in R v Clarke and McDaid which the House of Lords derived from two of its earlier decisions. In the first, Attorney General’s Reference No. 3 of 1999 [2000] UKHL 63 [2001] 1 Cr. App. R. 34, the House of Lords made clear that the question to be asked in respect of the failure to comply with a statutory requirement was to focus on the consequences of non-compliance (see paragraphs 15 to 17 of the speech of Lord Steyn). In the second decision, R v Soneji [2005] UKHL 49 [2006] 2 Cr. App. R. 20, Lord Steyn returned to this issue at paragraphs 14-23 of his speech; after a review of the authorities he concluded:

“The emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.”

In Clarke and McDaid Lord Bingham identified the second question as ascertaining the intention of Parliament as to the consequences; Lord Rodger of Earlsferry approved at paragraph 28 the test set out by the High Court of Australia as, “Whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”

From the matters we have set out above, it is clear that even if the Crown Court at Chelmsford was not to be permitted to make a special measures direction under s.27 until it was notified by the Secretary of State under s.18(2), Parliament cannot have intended the consequence to be that the evidence was inadmissible; the whole purpose of the legislation was to help witnesses give evidence. There is nothing in the language of the Act or in any of the materials from Parliament that indicated that s.18(2) was to do anything other than permit a phased introduction. The submission that until the safety of the measures had been evaluated, they were not to be used by a court rests solely on material from the Ministry and from answers to Parliamentary questions given long after the Act had been passed; those views cannot assist us in ascertaining the intention of Parliament. We have therefore come to the clear conclusion that if the evidence given at the Crown Court at Chelmsford was given when the court had no power to make the special measures direction because no notification had been received under s.18(2), the evidence was still not inadmissible.

We are therefore satisfied that the court not only had the power to make a special measures direction under s.27, but even if it did not, then the fact that the Court acted beyond its powers in making the special measures direction at the trial of the appellant without having been given notice under s. 18(2) did not render the evidence inadmissible.

It is clear that the re-opening of the validity of the conviction has caused strain and stress to the wife whom the jury by its verdict at the trial found to be the victim of rape. If the appeal had succeeded, there would have had to be a re-trial of the facts four years after the events. In the light of our decision, a re-trial is not necessary, but the fact that the victim has been subjected to the stress of this appeal is deeply regrettable. It has arisen because of the lack of clarity in relation to the real difficulties that can arise in relation to the phased implementation of the changes to the criminal law. Those difficulties can be acute if the phased implementation is not merely on a temporal basis but on a geographic basis.

This appeal has highlighted the fact that there are two quite different situations in relation to implementation and piloting which were not clear as regards the 1999 Act. We would observe, though it is a matter entirely for Parliament, that it would be desirable in any future legislation in which there is a question of phased implementation on a geographic basis or the piloting of substantive changes to the law that the two situations are clearly differentiated:

Furthermore, no reason has been identified in the course of this appeal as to why local issues cannot be handled locally by the court rather than being managed by circular from central government. Quite apart from the difficulties created which this appeal has highlighted, it is clear that those at Chelmsford who dealt with this case in 2004, dealt with it in a manner that was not only manifestly in the interests of justice but in a manner with which all then present agreed. The view might be taken that it would have been better if they had been left to do so, as we have held they were entitled to do under the Act. The way this was in fact dealt with at Chelmsford, in our experience of the Crown Court at its various locations in of England and Wales, is a clear example of the good sense of trusting Crown Courts to deal with practical problems in a sensible fashion.

An irregularity not affecting the safety of the conviction?

In the light of the approach in Clarke and McDaid, it is not necessary for us to consider the observations of this court in Bottomley at paragraphs 52-54 as to whether what was done amounted to an irregularity not affecting the safety of the conviction.

If it had been necessary to do so, there was sufficient evidence before us to enable us to consider that issue. It is clear that the evidence could have been admitted either by the transfer of the case to Wood Green (where no argument could have been raised as to the power of the court under s.27 to make a special measures direction in respect of the video recording) or by asking the claimant to give evidence in chief over the live link at Chelmsford. The evidence before us made it clear that she would have been prepared to give evidence in this way. However in the light of the conclusion to which we have come, it is not necessary for us to consider this further.

There remains one further issue.

It was the submission of Miss Griffiths QC that even if we came to the conclusion that the evidence of the wife was admissible on either of the grounds on which we have held it to be, this appeal should be allowed as the conviction was neither just nor safe.

The essence of her submission was that the interview had not been conducted in circumstances where the obligation of the wife to tell the truth had been made clear. She relied on the following passage at the commencement of the interview:

“Police Officer: It’s tongue in cheek and I realise that. Erm, but I need to know that you know the difference between truth and lies.

Wife: Yes

Police Officer: Erm, could you give me an example of say for instance give me an example of a lie.

Wife: Erm, my eyes are brown.

Police Officer: and what colour are your eyes?

Wife: Blue.

Police Officer: That’s good. ”

After that question and answer the officer proceeded to ask for a detailed account of what had happened. It was submitted that the admission of this as the evidence in chief of the wife without the formality of an oath or affirmation or anything to make clear on the tape that the evidence was the truth, beyond the passage quoted, was not evidence that a court could safely rely upon. Miss Griffiths referred us to the explanatory note to 117 to the Act and the requirements of Rule 8(2)(d) of the Rules which required the application to state whether an oath was administered.

We cannot accept this submission:

We therefore conclude this conviction is safe and dismiss the appeal.