D, R (on the application of) v Camberwell Green Youth Court

LORD JUSTICE ROSE: 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:

By section 19(3):

By section 19(6):

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:

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:

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 prosecution and defence, contrary to the fair trial provisions of Article 6(1) and the right under Article 6(3)(d) to examine witnesses under the same conditions as witnesses against the defendant.

Mr Starmer QC, on behalf of all the defendants, submits that, when construed without reference to section 3 of the Human Rights Act 1998, section 21(5) requires the court to give a special measures direction in relation to the evidence of a child witness in need of special protection, whereby the court is deprived of any power to consider whether the restriction on the rights of the defendant is necessary or in the interests of justice. Section 21(5) is therefore incompatible with Article 6, and, according to his written submissions but not substantially pursued in oral argument, Article 14. Accordingly, section 3 of the Human Rights Act requires section 21(5) to be interpreted "so far as it is possible to do so" in accordance with the Convention. There are, he says, three possible ways in which this might be done.

First, by adding to section 21(5) words permitting the court to apply subsection (4)(c) in the interests of justice. He accepts that the difficulty with this would be that it would effectively delete section 21(5).

Second, by reading sections 21(5) and 20(2) together, so as to enable the court to vary a special measures direction in the interests of justice.

Third, by reading sections 21(5) and 24(2) and (3) together to enable the evidence to be given by some other means, where this was in the interests of justice. He accepts that this would involve making a decision, as the District Judges did in the present case, at the time when the order for special measures was first made.

Alternatively, he submits, if no such interpretation is possible, section 21(5) is incompatible with Convention rights, and should be so declared by this court under section 4(2) of the Human Rights Act. Mr Starmer expressly disavows any submission that the provision of special measures would of itself be incompatible with Convention rights. He accepts that special measures, if justified as necessary and in the interests of justice in a particular case, can be ordered without violation of the Convention.

In support of these submissions he referred to the Criminal Justice Act 1988, sections 32 and 32A, which, in relation to the evidence of a child, respectively, are merely permissive as to live link and, though presumptive as to video recording, the interests of justice and prejudice to the accused have, in such a case, to be considered. He referred to the consideration of those sections by the Divisional Court in DPP v Redbridge Youth Court [2001] EWHC Admin 209, and Latham LJ's reference to "... the paradigm or norm in our courts ... that a witness should give evidence in court in the presence of the defendant", whereby "some good reason must be shown in accordance with the legislative purpose if an order is to be made under s.32."

Mr Starmer also took us to a number of recommendations in the report of the Interdepartmental Working Group "Speaking up for Justice" published in June 1998: in particular, the purpose of the proposed scheme in identifying vulnerable witnesses at an early stage, and the benefit of binding decisions at a pre-trial hearing to ensure that such witnesses know with certainty the assistance they will receive at trial, including the way in which they will give evidence. Mr Starmer submits that there is nothing in that report to support a mandatory scheme, though he accepts that the report does propose a presumption for a live link for child witnesses.

Mr Starmer referred to the Strasbourg jurisprudence, which, it is common ground, establishes that the Article 6 right to a fair trial is to be interpreted broadly, that the principle of equality of arms which underpins Article 6 is only one feature of the wider concept of a fair trial, and that Article 6(3) is not an exhaustive list of the rights of the defence, but merely exemplifies the minimum guarantees which must be afforded to a defendant. As to Article 6(3)(d), the principles applicable include production of evidence in the presence of the defendant; adversarial hearing of witnesses; adequate and proper opportunity to challenge testimony; and dealing with prosecution and defence evidence on the same basis. He referred to paragraph 8 of the European Court of Human Rights' judgment in Barberà and others v Spain (1989) 11 EHRR 360, where it is said that:

Mr Starmer accepts that there is, in Europe, no absolute right to confrontation, and that there can be restrictions to safeguard the rights of witnesses. But, he says, restrictions must be strictly necessary, as the European Court of Human Rights emphasised in Van Mechelen at paragraph 58. The European jurisprudence is case-specific and requires consideration of the particular facts when determining whether restrictions are necessary and in the interests of justice.

In the United States, although there is a constitutional right to confrontation, the US Supreme Court has required individualised findings that particular witnesses need special protection: see Coy v Iowa (1988) 487 US 1012 and Maryland v Craig (1990) 497 US 836. This, says Mr Starmer, is a very similar approach to the case-specific approach of the European Court. But section 21(5) permits no account to be taken of the facts of a specific case and, in the present cases, experienced District Judges have expressly found that a special measures direction would cause prejudice. Furthermore, Mr Starmer submits, the idea of a mandatory group always being given special protection does not appear in any other jurisdiction.

As to the application of section 3 of the Human Rights Act, Mr Starmer accepts that the divergence of approach between Lord Steyn and Lord Hope in A [2002] 1 AC 45 was unanimously resolved by the House of Lords in In Re S [2002] 2 AC 291 at 313, paragraphs 38 to 40, per Lord Nicholls. Lord Nicholls distinguished between interpretation of statutes being for the courts and amendment of statutes being for Parliament:

For the Secretary of State, as an interested party, Mr Perry submits that there is a profound public interest in evidence being given in a way most favourable to eliciting the truth. This is a legitimate objective of the Act, achieved by section 21 in relation to child witnesses in need of special protection, while leaving intact, and without any impediment on, the accused's ability to challenge the evidence. Mr Starmer's argument, says Mr Perry, is based on unsustainable assumptions that, because a live-linked witness is in a different room, this is a violation of a defendant's fair trial rights; that face-to-face confrontation is essential and in its absence there is unfairness; and that the Act is insufficiently focused and flexible.

The reassurance to a witness from live link or video recording is, says Mr Perry, an important safeguard to the rights of witnesses, which have to be balanced in relation to, rather than ignored when considering, the rights of a defendant. Although the general principle is that witnesses and defendants should be present and in sight of each other, there is no absolute right in English law to face-to-face confrontation: see, for example, the reading of a witness's statement under sections 23 and 26 of the Criminal Justice Act 1988 and the possibility of a trial in the defendant's absence (see Jones [2002] 2 Cr App R 128). A defendant's right to test and challenge the evidence of a witness who is visible to his lawyers remains intact. Any minimal infringement is substantially outweighed by the benefits to a witness who, by age and the nature of the offence, is bound to be affected by the prospect of giving evidence, but who ought to give evidence to the best of his or her ability. Section 19(3) and (6) make clear that the court's common law powers in relation to non-eligible witnesses are unaffected, so steps to safeguard a defendant may be taken at trial. Sections 24(3) and 27(4) contain "interests of justice" safety valves. The District Judges, in saying there was no need for a direction, were asking the wrong question, which was not whether there was a need, but whether there was anything over and above the use of special measures which would lead to injustice to the accused.

In the report "Speaking up for Justice", the clear conclusion was reached (see paragraph 3.28) that a defendant should be excluded from special measures directions. Mr Perry points to the safeguards provided for defendants, which include the Code of Practice for Crown Prosecutors' requirements for sufficient evidence before prosecuting; the presumption of innocence; the burden and standard of proof; the defendant's ability to choose whether to give evidence and the right to legal representation; the general requirement that prosecution witnesses give oral evidence, subject to cross-examination; the overriding duty of a judge to ensure a fair trial; the power, in the interests of justice, to stay proceedings as an abuse, dismiss a case and direct an acquittal; and the powers to exclude prejudicial evidence, evidence obtained unfairly and evidence which would have an adverse effect on the fairness of the proceedings.

The primary rule, that the court must give a special measures direction for a child witness in need of special protection, does not of itself, he says, lead to unfairness. Video recorded evidence, which represents a greater departure from the norm than live link, can be excluded in the interests of justice: see section 27(2). By virtue of section 24, where a live link direction has been given, the witness may not give evidence in any other way without the permission of the court, which may be given in the interests of justice. This would not, Mr Perry submits, be simply because injustice resulted from a live link being ordered. There must be something more to justify departure from the primary rule. There is no common law right to direct confrontation. For example, a defendant who intimidated a witness or disrupts the proceedings may be required to leave court. Mr Perry referred to X, Y, Z 91 Cr App R 36 where Lord Lane CJ said, at page 40, that no reasonable jury could have been prejudiced because child witnesses were screened from the defendant.

As to the European jurisprudence, Mr Perry also referred to Barberà v Spain, where, at paragraph 68, the court referred to the general rule that:

In Doorson v Netherlands (1996) 22 EHRR 330 it was held that there had been no violation of Article 6 where witnesses had not been heard in the defendant's presence and he had not had the opportunity to question them. At paragraph 70 of the judgment, dealing with the interests of witnesses, the court said:

Mr Perry submits that, in view of its approach in Van Mechelen and Doorson, the European Court would have no hesitation in approving evidence by video interview with cross-examination by live link. He also referred to Unterpertinger v Austria (1986) 13 EHRR 175, paragraph 31, where it was held that the reading out of witness statements was not of itself a breach of Article 6, but Article 6(3)(d) required that there be an opportunity to examine the witnesses.

In Trivedi v United Kingdom (1997) EHLRR 175 the European Commission declared inadmissible a challenge to the admission of a witness's statements read under sections 23 and 26 of the Criminal Justice Act 1988. Mr Perry submits that it is fairer to a defendant for a witness to give evidence pursuant to a special measures direction than for his or her statement to be read. Accordingly, the European Court, he says, is wholly unlikely to regard a special measures direction as violating Article 6.

Mr Perry also refers to Baegen v Netherlands, application number 16696/90, 26th October 1994, where the report of the Commission, at paragraph 77, accepted that:

Mr Perry accepts that the European Court proceeds on a case-by-case basis. It does so because, in deciding whether there has been any violation, it has to proceed by reference to the facts of the particular case.

As to the United States' authorities, Mr Perry submits that it is significant, in view of the constitutional right to confrontation, that, in Maryland v Craig, the Supreme Court concluded that there was a legitimate State interest in the well-being of a child witness which could outweigh the right to confrontation. In the present cases Mr Perry says the only difference from normal procedure is that the witnesses will be in a different room. Article 6 and the European jurisprudence does not require them to be in the same room, and, in accordance with Article 6(3)(d), they can be cross-examined.

For the Director of Public Prosecutions, Mr Heywood, in submissions expressly intended to chime harmoniously with those on behalf of the Secretary of State, submits, as is common ground, that the primary rule is that a child witness in need of special protection shall give evidence by live link, with or without a video recording. The court on application by a party, or of its own motion, is required at a preliminary stage to make such an order. But it is capable of review, under sections 20(2) and 24(2) and (3), to prevent any actual unfairness.

In the present cases there is no ground on which the primary rule should be displaced and, as the trial has not yet taken place, it is impossible for its fairness to be judged at this stage. The live link order, of itself, involves no breach of Convention rights, and the 1999 Act is compatible with the Convention. The District Judges should have found, in each case, that the child witnesses were eligible and in special need of protection. As required by section 21(2)(a), they should have had regard to section 21(3) to (7) and concluded that the primary rule required a special measures direction for evidence by live link, and, in the case of G, for a video recording of the 12-year-old complainant to be admissible as evidence in chief. They should have concluded, in accordance with sections 19(2) and 21(2), that special measures would be likely to maximise the quality of the evidence given; and then considered, under section 27(2), in the case of G, whether, in the interests of justice, any part of the video recording should not be admitted. Instead, the District Judges avoided a determination under section 19, as required by section 21, had no regard for the deeming provisions on maximising quality of evidence, and wrongly equated the positions of the defendant and the witnesses.

Furthermore, section 24(3) does not empower the court, as the District Judges purported to do, forthwith to consider whether the interests of justice required the court to avoid the deeming provisions of section 19. The true purpose of section 24(3), submits Mr Heywood, is to enable a court, usually at trial, to depart from a live link direction in unexpected circumstances arising after the live link direction was made. The scheme of the legislation provides vulnerable witnesses with a high degree of certainty, in advance of trial, as to how their evidence will be given. It is only if and when use of the link may cause unfairness at trial that there may be a variation. In the light of this safety valve, the scheme is not properly described as being mandatory. The claims of D, R and N are, he submits, premature because no question of fairness in their trials has yet arisen.

Nothing in the Strasbourg jurisprudence suggests a live link is unfair. On the contrary, he submits, the observations by the court in SN v Sweden ECHR (First Section) 2nd July 2002 point in the opposite direction. At paragraph 44, having referred to the general rule that all evidence must normally be produced in the presence of the accused and the need for the rights of the defence to be respected, the court said:

Mr Heywood further submits that, even if section 21(5) is capable of breaching a Convention right to demand the presence of a witness, it does not breach the right to a fair trial and is proportionate, operating only in relation to a limited class of witnesses: see per Lord Steyn in A (No 2) [2002] 1 AC 45 at paragraph 38, and his reference to balancing the triangulation of interests of the accused, the victim and society.

Finally, Mr Heywood submits that special arrangements are already provided for defendants in a youth court, and the Act specifically preserves the court's powers at common law and under section 78 of the Criminal Evidence Act 1984. Section 32 of the 1999 Act also requires the court to warn itself against prejudice to the accused from the fact that a special measures direction was given.

In the light of all these matters, he submits, the Convention is not engaged and there is no breach of Article 6 in these cases resulting from the provisions of section 21(5).

Having set out the rival submissions at substantial length, it is possible to state my conclusions shortly.

Section 21(5) does not, in my judgment, breach Article 6 or any part of it or, indeed, Article 14. The fact that the District Judges chose to express views about justification, fairness and equality which were irrelevant to their statutory task does not create a violation, which, on the face of the statute, did not arise.

Section 21(5) provides a primary rule requiring a timely special measures direction in relation to child witnesses in need of special protection. This enables appropriate arrangements to be made, and such witnesses have the comfort of an assurance from an early stage in the proceedings as to how they will be giving evidence. That assurance benefits them, helping to maximise the quality of their evidence. If, by reason of subsequent developments, unforeseen difficulties arise or the fairness of the trial may be impaired by virtue of the special measures direction, there are safety valves in sections 20(2) and 24(3), as well as in the uninhibited common law powers of judges and justices to prevent unfairness.

There is nothing in the fair trial provisions of Article 6, or the entitlement to examine witnesses in Article 6(3)(d), or in the Strasbourg jurisprudence on Article 6, which prohibits a vulnerable witness from giving evidence in a room apart from the defendant. On the contrary, the jurisprudence recognises that vulnerable witnesses, as well as defendants, have rights and may need protection. The nature of the protection is essentially a matter for the domestic courts, but it must not, usually, infringe the Article 6(3)(d) right to examine witnesses. Neither live link, nor a video recording of evidence in chief, in my view infringes that right, provided, as here, the defendant's lawyers can see as well as hear the witness and can cross-examine.

Furthermore, the fairness of proceedings challenged by reference to Article 6 can only be judged retrospectively by reference to the trial and any appeal, not prospectively before the trial has taken place. Accordingly, the conclusions of the District Judges -- who of course did not have the advantage this court has had of the detailed arguments which I have set out -- were premature in their conclusion as to Article 6 and, for the reasons given by Mr Heywood, which I accept, the District Judges did not approach their task as required by the statute. In any event, as I have sought to explain, the fact that a witness will give evidence from another room does not infringe a defendant's Article 6(3)(d) rights.

Accordingly, for my part, in the cases of D, R and N, I would decisions the applications. In the cases of G, I and AE, I would quash the refusals to make a special measures direction for live link, and, in the case of G, for video recording of evidence in chief. I would in all these three cases remit the matter to the Camberwell Youth Court for redetermination in accordance with the terms of this judgment, if my Lord agrees, as to whether a special measures direction should be given as to live link, and, in the case of G, video recording.

MR JUSTICE HENRIQUES: I agree.

LORD JUSTICE ROSE: Yes?

MR SIMBLET: My Lords, in relation to the orders arising out of your Lordships' judgment, your Lordship has already said that in the cases of D, R and N the applications are effectively dismissed. The appropriate order, in my respectful submission, in I, G and AE is an order quashing the decision and, because --

LORD JUSTICE ROSE: I think this is what I said, is it not?

MR SIMBLET: -- because these are judicial review, rather than appeals by way of case stated, I am not sure that your Lordships actually jurisdiction to order that it be remitted. But the natural consequence of the quashing is that it will go back to Camberwell in any event.

LORD JUSTICE ROSE: A subtle point, yes, it is not by way of case stated.

MR SIMBLET: It is clear what the substance of the decisions is. In terms of the effects of your Lordships' judgment, I am instructed to ask your Lordships to certify a question --

LORD JUSTICE ROSE: What is that?

MR SIMBLET: -- with a view to the matter being considered by their Lordships' House. I have shown my learned friends the question I propose to ask, and I have got a copy of it.

LORD JUSTICE ROSE: Thank you. (Handed) Yes?

MR SIMBLET: When I discussed the terms of the question with my learned friend Mr Heywood, it is without prejudice to his position on whether your Lordship should certify or not. It was his understanding that had he, as it were, been on the wrong end of your Lordships' decision, that a question in similar terms to that that is formulated is the sort of question that he would have asked your Lordships to certify.

LORD JUSTICE ROSE: Yes. That is no surprise.

MR SIMBLET: Save that he would have stopped at the comma.

LORD JUSTICE ROSE: The comma?

MR SIMBLET: He would state it more simply --

LORD JUSTICE ROSE: I do not think there is a comma in mine. Sorry, after "human rights".

MR SIMBLET: He would stop there. But that, in my submission, does indicate that at least the question arises.

Your Lordships will know that if your Lordships refuse to certify a question, then the matter stops here and cannot be --

LORD JUSTICE ROSE: So I understand.

MR SIMBLET: I do not wish to submit to your Lordships things that your Lordships well know. If your Lordships were therefore minded not to certify a question today, I would be grateful if your Lordships could defer consideration for further argument or further submission, whether on paper or orally. Your Lordships will see that Mr Starmer has not thought it appropriate to return today for the judgment.

LORD JUSTICE ROSE: He was allowed to go.

MR SIMBLET: Yes, I know. I have spoken to him and he has indicated that if your Lordships were minded to refuse to certify, he would appreciate the opportunity to have some input into the submissions made in support of the application for leave to appeal.

LORD JUSTICE ROSE: Leave to appeal is a different point. At the moment we are addressing certification.

MR SIMBLET: The effect of refusing to certify is, of course, that there can never be leave to appeal.

LORD JUSTICE ROSE: Yes, I understand that.

MR SIMBLET: So I would ask your Lordships to certify a question in those terms and, as it were, seek liberty to apply, if your Lordships are going to be against me at this stage.

LORD JUSTICE ROSE: Thank you.

Mr Heywood, first of all as to the principle of certification I suspect you cannot realistically resist that --

MR HEYWOOD: No, my Lord.

LORD JUSTICE ROSE: -- because you would have been doing the same if the boot had been on the other foot. So far as the form of the question is concerned, have you got any comments?

MR HEYWOOD: Only that the second clause is probably unnecessary.

LORD JUSTICE ROSE: I am not sure that it does any harm.

MR HEYWOOD: It does not do any harm, my Lord. I would not go that far.

LORD JUSTICE ROSE: Mr Hallam, do you want to say anything about this?

MR HALLAM: My Lord, I have no observations. (The Bench conferred)

LORD JUSTICE ROSE: Mr Simblet, we certify this question.

MR SIMBLET: Thank you. That being certified, might I also ask you to use your powers to grant leave, rather than the appellants, as they intend to be, petitioning their Lordships' House?

LORD JUSTICE ROSE: You may ask us, yes. (The Bench conferred) But we refuse leave.

MR SIMBLET: Thank you, my Lord. The only other issue that arises is that it is in my submission not appropriate for there to be any order for costs between the parties, but the claimants and the interested parties -- as it were, the criminal defendants --

LORD JUSTICE ROSE: The defendants, yes.

MR SIMBLET: -- could we apply for detailed assessment in accordance with the public funding certificate.

LORD JUSTICE ROSE: I am not sure that you need an order from this court, but if you do you have it.

MR SIMBLET: Thank you, my Lord.

LORD JUSTICE ROSE: Anything else?

MR SIMBLET: No, my Lord.

LORD JUSTICE ROSE: Just for the avoidance of doubt, I take it that it was not implicit in what you said about Mr Starmer that he might want to come back and argue about leave to appeal?

MR SIMBLET: No. It would have only been if, as it were, this appeal was going to hit the buffers.

LORD JUSTICE ROSE: Just for the avoidance of doubt.

MR SIMBLET: Sorry, my Lord. There are, of course, going to be proceedings continuing against all of the criminal defendants in the lower court. I know your Lordships have refused leave to appeal, but it would be appropriate, in my submission, for your Lordships to consider extending the stay that had been --

LORD JUSTICE ROSE: Yes, I see that. What is the period of time for application to the Lords, 28 days?

MR SIMBLET: It is 28 days from the grant of funding in the case of a publicly funded litigant. So Mr Starmer will have to consider the matter.

LORD JUSTICE ROSE: It is obviously not in anybody's interest, in view of the age of these defendants and the witnesses, that this matter is dealt with other than expeditiously.

MR SIMBLET: Yes. But at the moment they are all at risk of criminal proceedings continuing against them, the stay having fallen with the decision in this court.

So might I ask for a stay for a period of 28 days, which will allow time for their Lordships to be petitioned, and if further relief is required from their Lordships for any further stay to be from them.

LORD JUSTICE ROSE: What do you say about that, if anything, Mr Heywood?

MR HEYWOOD: In principle, my Lord, we would have no objection to a limited stay, limited in time, but strictly limited, so that proper consideration can be given to it. But once it has expired and no further extension sought the matters can proceed.

LORD JUSTICE ROSE: Mr Hallam, do you want to add anything?

MR HALLAM: No.

LORD JUSTICE ROSE: 28 days would seem to be reasonable. We shall grant a stay limited to 28 days.

MR SIMBLET: Thank you, my Lord.