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Session 2004 - 05
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Regina v. Camberwell Green Youth Court
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. 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 v. 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) ON THURSDAY 27 JANUARY 2005 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 LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. 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 v. 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 4LORD NICHOLLS OF BIRKENHEAD1. 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 EARLSFERRYMy 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 in the presence of the accused. 11. An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of Continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge. For instance, in Unterpertinger v Austria (1986) 13 EHRR 175 the defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not be cross-examined on their statements. In these circumstances the European Court of Human Rights held that there had been a breach of article 6(3)(d) since the defendant had not had an opportunity, at any stage in the earlier proceedings, to question the persons whose statements were read out at the hearing. Similarly, in Kostovski v Netherlands (1989) 12 EHRR 434 the Court found that there had been a violation of article 6(3)(d) where a Dutch court treated the statements of anonymous witnesses, who had been examined in the absence of the accused and his representatives, as sufficient proof of guilt of armed robbery. The Court explained its approach in this way, at pp 447 - 448, para 41:
In Van Mechelen v Netherlands (1997) 25 EHRR 647 a Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The Court of Appeal referred the case to the investigating judge who arranged hearings in which he, a registrar and the anonymous witnesses were in one room, while the applicants, their lawyers and the Advocate General were in another room. The two rooms were connected by a sound link only. By a majority, the European Court held, at p 674, para 59, that there had been a breach of article 6(3)(d) since the defence were not only unaware of the identity of the police witnesses but were also prevented from observing their demeanour under direct questioning, and thus from testing their reliability. It had not been explained to the Court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered. It seems clear, however, that, if the two rooms had been connected by a video link, which had allowed the applicants and their representatives to observe the demeanour of the witnesses under questioning, this would have gone a long way, at the very least, to meeting the requirements of article 6(3)(d). 12. By its very nature, the normal trial procedure in this country ensures that an accused can challenge and question the witnesses against him. That is one of its perceived virtues. And one of the aims of the Sixth Amendment to the United States Constitution, which guarantees the defendant in a criminal trial the right "to be confronted with the witnesses against him", is indeed to make sure that the witnesses will be subject to cross-examination. Therefore, where the witness is available for cross-examination at trial, the Sixth Amendment places no restraint on the use of any pre-trial statement which he may have made. So, in California v Green (1970) 399 US 149, the Supreme Court held that there was no violation of the Sixth Amendment when the defendant was convicted of supplying marijuana on the basis of pre-trial statements of a witness who gave evidence at the trial and who was subject to full and effective cross-examination. The Court expressly reaffirmed this ruling in Crawford v Washington (2004) 541 US 36 per Scalia J, Slip Opinion, at p 24, footnote 9. This approach differs in one particular respect from the one adopted by the European Court of Human Rights in Kostovski v Netherlands (1989) 12 EHRR 434, 447 - 448, para 41 quoted above. The critical element for the European Court is that the defence should have an adequate and proper opportunity to challenge and question a witness on his statement at some stage. The requirements of the Convention are satisfied even if that opportunity is afforded before trial. The Sixth Amendment is somewhat stricter, however, since it requires that the witness should be available for cross-examination at the trial. That is, of course, what happens under the 1999 Act. 13. Mr Starmer drew on another important strand in the case law on the Sixth Amendment as support for his argument that the normal form of trial in Britain is also designed to give effect to a right of any defendant to be confronted with the witnesses against him and to look them in the eye while they are giving evidence. That right was valuable because, human nature being what it is, witnesses were likely to feel differently if they had to repeat their story looking at the man whom they would harm greatly by distorting or mistaking the facts. This line of thought is expounded in the opinion of Scalia J, writing for the Supreme Court, in Coy v Iowa (1988) 487 US 1012, 1016 - 1020. More recently, in Crawford v Washington Scalia J, again giving the opinion of the Court, went into the historical background to the Sixth Amendment. On that basis he held, Slip Opinion, at p 14, that the principal evil against which it was directed "was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Hence it was aimed at an accuser who made a formal statement to government officers. Doubtless, therefore, it would cover a child witness who gave evidence in a memorandum video recording. 14. It is for the people of the United States, and not for your Lordships, to debate the virtues of the Sixth Amendment in today's world. It overlaps, to some extent, with article 6(3)(d) of the Convention as interpreted by the European Court. But, as interpreted by the Supreme Court, the Sixth Amendment appears to go much further towards requiring, as a check on accuracy, that a witness must give his evidence under the very gaze of the accused. For my part, I would certainly not disparage the thinking behind that requirement. But, whatever its merits, this line of thought never gave rise to a corresponding requirement in English law. That is amply demonstrated by the very brevity of the decision of the Court of Criminal Appeal in Smellie (1919) 14 Cr App R 128, holding that a judge could remove the accused from the sight of a witness whom his presence might intimidate. 15. Nor has article 6(3)(d) of the Convention been interpreted as guaranteeing the accused a right to be in the same room as the witness giving evidence. What matters, as Kostovski v Netherlands shows, is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. The decision of the European Commission of Human Rights in Hols v Netherlands Application no 25206/94, 19 October 1996, and the judgment of the Court in SN v Sweden Application no 34209/96, 2 July 2002, confirm that these requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning. Here the good reason is to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability. The introduction of article 6(3)(d) into English domestic law has therefore not altered the position in this regard. The 1999 Act satisfies the requirements of article 6(3)(d). Mr Starmer's first challenge to its provisions must therefore be rejected. 16. The other submission advanced by Mr Starmer and adopted by Mr Carter Stephenson was that, by requiring the evidence of child witnesses to be given by video recording and/or video link, while not affording a similar facility to child defendants, the provisions of the 1999 Act violated these defendants' article 6(1) Convention right to equality of arms. As a general rule, however, a provision that is designed to allow truthful witnesses for both sides to give their evidence to the best of their ability cannot make a trial unfair, simply because there is no corresponding provision designed to allow a truthful defendant to give his evidence to the best of his ability. The facts that the defendant does not need to give evidence, and that he has a legal representative to assist him if he chooses to do so, have hitherto been regarded as adequate arguments against the need to make such provision for child defendants in England and Wales. Certain practical difficulties have also been prayed in aid of this stance. It is worth noticing, however, that, when the Vulnerable Witnesses (Scotland) Act 2004 comes into force, under section 271F(2) - (8) of the Criminal Procedure (Scotland) Act 1995 children who give evidence as accused persons will, for the most part, be treated in the same way as other children who are witnesses. So there are no insuperable difficulties in the way of taking some such step. 17. The fact remains, however, that the 1999 Act does not treat child defendants in this way. But, equally, it does not affect any power of the court, in the exercise of its inherent jurisdiction, to make an order, or to give leave, of any description in relation to such defendants who are witnesses: section 19(6), read along with section 17(1). It would be inappropriate for the House in this case to determine the scope of any such power to ensure a fair trial where, for example, a child defendant's ability to give evidence satisfactorily was impaired because of the behaviour of a co-defendant, or of a witness or of their associates or of the members of their families. (Cf section 271F(1)(b) to be inserted into the Criminal Procedure (Scotland) Act 1995.) Only if this power should prove to be inadequate in any given case might the defendant's trial be rendered unfair, with the result that there would be a breach of article 6(1). BARONESS HALE OF RICHMOND My Lords, 18. The issue before us is whether the new scheme providing for how child witnesses are to give their evidence in criminal cases is compatible with the right of the defendant to a fair trial under article 6 of the European Convention on Human Rights, in particular when that defendant is also a child. The question certified for us by the Divisional Court was this:
19. It is necessary, therefore, to explain how section 21(5) fits into the scheme for "special measures directions in the case of vulnerable and intimidated witnesses", set up by Chapter I of Part II to the Youth Justice and Criminal Evidence Act 1999. This followed from Speaking Up for Justice, Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998). This is turn followed a Council of Europe Recommendation No R(97)13, Intimidation of witnesses and the rights of the defence, adopted on 10 September 1997. The new scheme built upon and expanded earlier tentative steps taken both by the common law and statute to enable children to give evidence in criminal trials: removing the accused from the sight though not the hearing of a witness (R v Smellie (1919) 14 Cr App R 128); setting up screens to prevent the witness seeing or being seen from the dock (R v X, Y and Z (1990) 91 Cr App R 36); allowing a child to give evidence by live television link (Criminal Justice Act 1988, s 32); and admitting a video recorded interview as the child's evidence in chief (Criminal Justice Act 1988, section 32A, inserted by the Criminal Justice Act 1991, s 54). The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable. The legislation 20. Section 16(1)(a) provides that all children under 17 at the time of the directions hearing are eligible for assistance. Section 16(1)(b) and (2) deal with mentally or physically disordered or disabled witnesses and section 17 deals with witnesses whose evidence is likely to be affected by fear or distress. Under section 18(1)(a), seven special measures are potentially available to help children and disabled witnesses: screens to prevent them seeing the accused (section 23); giving evidence by means of a live television link (section 24); giving evidence in private (section 25); removing wigs or gowns (section 26); admitting a video-recorded interview as their evidence in chief (section 27); admitting a video recording of cross-examination and re-examination (section 28 - but this has not been brought into force); examination through an intermediary (section 29); and devices to aid the communication of questions and answers to and by a disabled witness (section 30). All except the last two are available to help witnesses who are in fear or distress (see section 18(1)(b)). None of these measures is available unless the Secretary of State has notified the court that arrangements are in place locally for implementing them (see section 18(2), (3)). 21. All witnesses, whether for the prosecution or defence, may be eligible for assistance except for the accused (see sections 16(1) and 17(1)). Any party may make an application for a special measures direction or the court may raise the issue of its own motion (section 19(1)). For most witnesses, the court has first to determine whether the witness is eligible, then whether any of the special measures would be "likely to improve the quality" of her evidence, and if it would, which measures to direct (section 19(2)). 22. For child witnesses, however, there is a special regime applying to two of the special measures, video-recorded interviews and live link. If the witness is a child, the court must first have regard to the principles set out in section 21(3) to (7). If these require either or both of these special measures to be applied, the court must assume that they will be likely to maximise the quality of the child's evidence (see section 21(2)). Section 21(3) to (5) read as follows (section 21(6) and (7) deal with video-recorded cross examination):
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