(back to preceding text)

    23.  A child witness is "in need of special protection" if the offence to which the proceedings relate is a sexual offence under various listed statutes, kidnapping, false imprisonment or child abduction, cruelty to a child, or any offence "which involves an assault on, or injury or threat of injury to, any person" (see section 35(3)).

    24.  Thus the presumption is that all child witnesses give their evidence in chief by means of a video-recorded interview (which has been conducted for that purpose, see section 21(1)(c)), if there is one. The court does, however, have a discretion to refuse to admit the video or part of it under section 27(2). This reads:

"(2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted."

    25.  It is common ground that this discretion can be exercised at the preliminary hearing where special measures are first considered. The Home Office and other interested Departments have published guidance on how these interviews are to be conducted: see Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children (2001), Chapter 2, revising and expanding upon the earlier Memorandum of Good Practice on Video Recorded Interviews for Child Witnesses in Criminal Proceedings (1992). These interviews are not conducted in the same way as an ordinary examination in chief. Every attempt is made to put the child at her ease and to enable her to speak freely about what has happened. Hence, there may be criticisms of the way in which the interview was conducted or it may contain inadmissible or prejudicial material which should be excluded. In considering whether any part of a recording should not be admitted, the court has to consider whether any prejudice to the accused is outweighed by the desirability of showing the whole, or substantially the whole of the interview (section 27(3)). In reality, the defence may be more than willing for an unsatisfactory interview to be admitted.

    26.  The presumption also is that all child witnesses will give the rest or the whole of their evidence by live link, if it is available (section 21(4)(a)). This is not subject to a discretion comparable to that in section 27(2). This is not surprising, as the only difference between giving evidence by live link and giving evidence in the normal way is that the witness is not physically present in the court room. She can still be seen and heard, often at closer range than in many courtrooms. The definition of live link is in section 24(8):

"(8) In this Chapter "live link" means a live television link or other arrangement whereby a witness, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the persons specified in section 23(2)(a) to (c)."

    27.  The "persons specified" are the judge or justices (or both) and the jury (if there is one); legal representatives acting in the proceedings; and any interpreter or other person appointed to assist the witness. They do not include the accused (for the unfortunate reason that the list is taken from that referring to the use of screens, the whole purpose of which is to prevent the witness seeing and being seen by the accused). But this is not an exclusive definition. If the accused is in the courtroom, the court would and normally should, in the exercise of its power to ensure a fair trial, arrange matters so that he can see the witness too.

    28.  In cases where the child is not "in need of special protection", that is where the offences do not involve sex, kidnapping, cruelty or violence, the court may also disapply the rule in favour of video recording and live link, if it is satisfied that it "would not be likely to maximise the quality of the [child's] evidence" (section 21(4)(c)). In cases where the child is in need of special protection, however, the court has no power to disapply the rule for that reason (section 21(5)). The irrebuttable presumption is that in all proceedings for offences of a sexual or violent nature, giving evidence in this way is likely to enable the child to give her best quality evidence.

    29.  All of this will be considered at the preliminary hearing when special measures are first raised (unless it is uncontested, in which case a hearing may be dispensed with, s 20(6)). Once made, a direction is intended to be binding until the proceedings are completed. This was a crucial feature of the scheme recommended in Speaking Up for Justice, para 2.2:

"The Working Group proposes a scheme which would involve the identification of a vulnerable or intimidated witness and their needs at an early stage in the police investigation. This would enable decisions to be taken on appropriate methods of interview and investigation and ensure that there is appropriate pre-trial preparation. The prosecution and defence would be able to apply to the court for special measures to be made available to assist the witness during the trial. Decisions on the measures to be used would be made by the court at a pre-trial hearing and this would be binding so as to ensure that the witness knows in advance of the trial what assistance s/he will be receiving, including the way in which they will be giving their evidence."

    30.  Hence section 20(1) provides:

"(1) Subject to subsection (2) and section 21(8), a special measures direction has binding effect from the time it is made until the proceedings for the purpose of which it is made are either:-

(a)  determined (by acquittal, conviction or otherwise), or

(b)  abandoned,

in relation to the accused or (if there is more than one) in relation to each of the accused."

    31.  Section 21(8) does not (yet) apply to this case. It provides that a special measures direction for a child witness ceases automatically once the child reaches 17, unless she has already begun to give evidence or the direction has provided for the admission of a video-recording.

    32.  Section 20(2), however, gives power to discharge or vary the direction in certain circumstances:

"(2) The court may discharge or vary (or further vary) a special measures direction if it appears to the court to be in the interests of justice to do so, and may do so either:-

(a)  on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

(b)  of its own motion."

    33.  It would be irrational for a court to make a special measures direction which it was bound to make because of the rules applying to child witnesses and then immediately to vary or discharge it in the interests of justice. Section 20(2) must be contemplating a time after the special measures direction has been made, perhaps at the trial or perhaps at some intermediate stage. It is unlikely to arise much, if at all, in relation to the two special measures with which we are concerned, because both may be disapplied by the trial judge or magistrates in the interests of justice.

    34.  Thus, once a live link direction has been given, section 24(2) provides that the witness cannot give evidence in any other way without the permission of the court. But section 24(3) provides:

"(3) The court may give permission for the purposes of subsection (2) if it appears to the court to be in the interests of justice to do so, and may do so either-

(a)  on an application by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

(b)  of its own motion."

    35.  Again, this must contemplate a time after the live link direction has been made. Usually it will be at the trial, for example where the machinery is not working properly or where the child is sliding down so as to be invisible to the camera. Another possibility might be where the child was positively anxious to give evidence in the courtroom and the court considered that it would be contrary to the interests of justice to require her to use the live link.

    36.  Where a video recording is admitted under section 27, the witness may not give evidence in chief in any other way on any matter which has been adequately dealt with in the recording or without the permission of the court on any matter dealt with (but less than adequately) in that testimony (section 27(5)(b)). The court may give that permission in the same circumstances as those set out in section 24(3) for live link (section 27(7)).

    37.  But such departures from the primary rules are clearly intended to be exceptional. The earlier powers in sections 32 and 32A of the Criminal Justice Act 1988 were exceptions to the normal practice of giving evidence in the court room, for which in the case of live link an individual case had to be made each time (see R (Director of Public Prosecutions) v Redbridge Youth Court [2001] 1 WLR 2403, 2413, para 17). By contrast, the 1999 Act provides that the normal procedure for taking the evidence of child witnesses is to be by video recording and live link.

    38.  The benefits of this are many. Mr Carter Stephenson, on behalf of the appellant G, acknowledges that a video-recorded interview is likely to be the best evidence that a child can give. It can take place close to the events in question when the recollection is fresh in the child's mind. It is done in an informal setting where every effort is made to make the child feel comfortable and able to speak freely. It is conducted by professionals who are specially trained in questioning children, first to establish that they understand the importance of telling the truth and then to elicit their story as fully as possible in language the child understands but without suggestion or leading questions. But this is obviously not appropriate where the child herself might be charged with an offence; she should be interviewed under the Police and Criminal Evidence Act 1984 (PACE) in the usual way.

    39.  Whether the direction is for a video recording or only for live link, the child and everyone else knows the position from an early stage. The child can be reassured that she will not have to go into the court room. This is not only reassuring for the witness, but may encourage other child witnesses to come forward or reduce their parents' reluctance to allow them to do so. It is also carries no implicit disparagement of the accused. If all child witnesses give their evidence in this way, there is no suggestion that this is an exceptional case in which the child requires special protection from the accused.

    40.  In the cases before us the making of a special measures direction was opposed at the outset. In the case of D (and in the associated cases of R and N), justices in the Youth Court ordered that the evidence of child witnesses then aged 13 or 14 be given by live link in prosecutions for robbery of child defendants then aged 14, 16 and 15 respectively. The justices were advised by their clerks that the effect of section 21(5) (see para 28 earlier) was that they had no discretion. The accused applied for judicial review.

    41.  In the case of G (and of I and AE associated with it) District Judges in the Youth Court declined to make special measures directions in respect of witnesses then aged 12, 16 and 15 in prosecutions for robbery or assault of child defendants then aged 14, 16 and 15. The special measures in question were live link and, in the case of G, a video-recorded interview of the witness O, who was 11 at the time of the events giving rise to the charge. According to the written reasons later given by District Judge Black, the directions were refused because of the inequality of arms between the prosecution and the defence where both the prosecution witnesses and the accused were children, but the accused children did not qualify for special measures. The Director of Public Prosecutions applied for judicial review.

    42.  A Divisional Court consisting of Rose LJ and Henriques J held that there was nothing in article 6 which prohibited a vulnerable witness from giving evidence in a different room from the accused, nor could a live link or a video recording infringe the right to examine witnesses guaranteed by article 6(3)(d). Accordingly they dismissed the applications of D, R and N and allowed the applications of the Director of Public Prosecutions in the cases of G, I and AE. They certified the question of law set out in paragraph 18 earlier.

    43.  There were three strands in the arguments presented by the appellants: first the limited power to disapply the primary rule in the interests of justice; second, the procedural requirements of a fair trial under article 6 of the European Convention on Human Rights; and third the "equality of arms" principle also derived from article 6.

    44.  First, Mr Starmer on behalf of D conceded that it was permissible for there to be a statutory presumption in favour of these special measures for child witnesses. His concern was with the limited opportunities for displacing them in the interests of justice. He accepted, indeed it was crucial to his argument, that the power to vary or discharge a special measures direction in section 20(2) could not be used at the time when the direction was made. Further, as a party could only apply for a variation or discharge if there had been a change in the circumstances, he argued that the court could only vary or discharge the direction if there had been such a change. The power in section 24(3) to permit a witness to give evidence other than by live link is in the same terms. Hence, he argued, the court was unable to disapply the primary rule if there was a risk of injustice which was apparent at the outset.

    45.  It is clear that, by enacting the primary rule and limiting the circumstances in which it may be disapplied, Parliament did not mean to allow defendants to challenge the use of a video recording or live link simply because it is a departure from the normal procedure in criminal trials. There is no question, as there was for live link applications under the old law, of the court striking a balance between the "right of the defendant to have a hearing in accordance with the norm" and "the interests not only of the child witness but also of justice, to ensure that the witness will be able to give evidence and give evidence unaffected by the stress of appearing in court itself" (see Redbridge, para 17). Parliament has decided what is to be the norm when child witnesses give evidence. Hence there will have to be a special reason for departing from it. The fact that there is no particular reason to think that this particular child will be upset, traumatised or intimidated by giving evidence in court does not make it unjust for her to give it by live link and video if there is one (cf Redbridge, para 16).

    46.  It is very difficult, and counsel found it difficult, to think of reasons which might make a live link or the admission of a recording unjust which were unrelated either to the quality of the equipment on the day, to the content and quality of the video recording, or the unavailability of the recorded witness for cross-examination (express power to exclude the video recording in these circumstances is preserved by section 27(4)). He gave the example of an assault charge in which the defence was self defence, where it might be important to see the witness in person and gain an impression of how threatening he could be, especially when angry. This is exactly the sort of question which should be considered only at the trial and not at any preliminary hearing. Only then will the court be able to judge whether there is a real risk of injustice if the fact finders are not allowed to see the witness in the flesh. Even if there is, there are several ways of counter-acting it, for example by bringing the witness into the courtroom after he has given his evidence. But there is nothing in section 20(2) or, more to the point, in section 24(3) to prevent the judge or magistrates trying the case considering the matter and taking whatever action is needed to secure a fair trial on the day. The object of requiring a change in circumstances before a party may apply is simply to avoid repeated attempts to revisit the issue. The court is there to see justice done on the day. But the court must always start from the statutory presumption that there is nothing intrinsically unfair in children giving their evidence in this way.

    47.  Second, therefore, it is argued that this approach is contrary to the defendant's right to a fair trial guaranteed by article 6 of the European Convention on Human Rights. The relevant parts read as follows:

"(1) In the determination of . . . any criminal charge against him, everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal . . .

(3) Everyone charged with a criminal offence has the following minimum rights: . . .

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

    48.  The European Court of Human Rights has considered this in a series of cases dealing with anonymous prosecution witnesses. It has enunciated the basic principles time and again, most conveniently in Kostovski v Netherlands (1989) 12 EHRR 434, 447-8:

"39. It has to be recalled at the outset that the admissibility of evidence is primarily a matter for regulation by national law. Again, as a general rule it is for the national courts to assess the evidence before them. . .

41. In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of Article 6, provided the rights of the defence have been respected.

As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."

    49.  It is difficult to see anything in the provisions of the 1999 Act with which we are concerned which is inconsistent with these principles. All the evidence is produced at the trial in the presence of the accused, some of it in pre-recorded form and some of it by contemporaneous television transmission. The accused can see and hear it all. The accused has every opportunity to challenge and question the witnesses against him at the trial itself. The only thing missing is a face to face confrontation, but the appellants accept that the Convention does not guarantee a right to face to face confrontation. This case is completely different from the case of anonymous witnesses. Even then the Strasbourg Court has accepted that exceptions may be made, provided that sufficient steps are taken to counter-balance the handicaps under which the defence laboured and a conviction is not based solely or decisively on anonymous statements (see Doorson v Netherlands (1996) 22 EHRR 330, 350, para 72; Van Mechelen v Netherlands (1997) 25 EHRR 647, 673, paras 54, 55; Visser v Netherlands, Application No 26668/95, Judgment 14 February 2002, para 43).

    50.  Our attention has been drawn to only two cases in which measures similar to those in question here were considered. One was a live link transmission where both counsel were in the room with the witness while the judge and accused remained in the courtroom. The application was declared inadmissible (see Hols v Netherlands, Application no 25206/94, Commission decision, 19 October 1995). Another was a video-recording of an interview conducted by a police officer with the child complainant, and an audio-recording of a second interview conducted by the same police officer, putting questions which he had been asked by the accused's counsel to put. Despite the fact that counsel had had no opportunity to question the child directly, no violation of article 6(3)(d) was found (see S.N. v Sweden, Application No 34209/96, Judgment, 2 July 2002). The Court reiterated "that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care"; but it was satisfied that the national court had done just that (ibid, para 53).

    51.  The measures with which we are concerned do give the accused the opportunity of challenging the witness directly at the time when the trial is taking place. The court also has the opportunity to scrutinise the video-recorded interview at the outset and exclude all or part of it. At the trial, it has the fall-back of allowing the witness to give evidence in the court room or to expand upon the video recording if the interests of justice require this. There is nothing in the case law cited to suggest that this procedure violates the rights of the accused under article 6.

    52.  Mr Starmer stressed that the Strasbourg case law should be seen in the light of the traditions of our domestic legal system. The nature of criminal proceedings in each contracting State affects the European Court's approach to the basic principle that "all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument." In our system the starting point is that all the evidence is given literally in the court room in front of the accused. Thus any departure should be shown to be necessary.

    53.  However, this cannot mean that the Strasbourg Court would regard our domestic legal system as so set in stone that Parliament is not entitled to modify or adapt it to meet modern conditions, provided that those adaptations comply with the essential requirements of article 6. In this case, the modification is simply the use of modern equipment to put the best evidence before the court while preserving the essential rights of the accused to know and to challenge all the evidence against him. There are excellent policy reasons for doing this. Parliament having decided that this is justified, the domestic legal system is entitled to adopt the general practice without the need to show special justification in every case.

Equality of arms

    54.  Thirdly, the appellants argue that it is unfair to the child defendants in these cases if they are denied the same opportunity to give their evidence under the conditions which are now presumed to produce the best evidence from other child witnesses. This was the argument which impressed the District Judges in the cases of G, I and AE. The scheme of the 1999 Act has attracted academic criticism in this respect. Thus, Professor Birch, in her commentary on the Redbridge case [2001] Crim LR 473, 477:

"It is really something of a farce that in proceedings concerning, say, a fight between gangs of boys in which one 'side' ends up in the dock and the other in the witness box, only the latter are deemed to benefit from the live-link. Perhaps, then, the real prejudice identified in these cases is not that the court or accused is deprived of witnessing demeanour at first hand, but that the accused is deprived of the chance to compete on even terms, and the court of the chance of supervising an equal contest."

    55.  To similar effect is Laura Hoyano, "Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?" [2001] Crim LR 948, 968:

"If we value the presumption of innocence and the premise that the search for truth demands that witnesses give their best evidence and are fairly tested in cross-examination, then the case for withholding special measures from children accused of crimes must be made, not assumed."

    56.  Mr Carter Stephenson was concerned that we should understand the realities of life in the Youth Court. The child defendants appearing there are often amongst the most disadvantaged and the least able to give a good account of themselves. They lack the support and guidance of responsible parents. They lack the support of the local social services authority. They lack basic educational and literacy skills. They lack emotional and social maturity. They often have the experience of violence or other abuse within the home. Increasing numbers are being committed for trial in the Crown Court where these disadvantages will be even more disabling.

    57.  These are very real problems. But the answer to them cannot be to deprive the court of the best evidence available from other child witnesses merely because the 1999 Act scheme does not apply to the accused. That would be to have the worst of all possible worlds. Rather, the question is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants (see Delcourt v Belgium (1970) 1 EHRR 355, para 28). That can only be judged on a case by case basis at trial and on appeal.

    58.  The defendant is excluded from the statutory scheme because it is clearly inappropriate to apply the whole scheme to him. There are obvious difficulties about admitting a video recorded interview as his evidence in chief, referred to by the Court of Appeal in R v S.H. [2003] EWCA Crim 1208, 28 March 2003, paras 23 and 24. Who would conduct it and how? What safeguards against repeated interviews could there be given, that it would not be made available to the other side before the trial? There are also obvious difficulties about applying binding advance presumptions about how his evidence is to be given, if indeed it is to be given at all, when the defence is ordinarily free to make such decisions in the light of events as they unfold. Further, the special measures designed to shield a vulnerable or intimidated witness from the accused would not normally be applicable to a defendant witness.

    59.  But the Court of Appeal also made it clear in R v S.H. that the court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity of giving the best evidence he can. In that case the defendant had learning and communication difficulties. The court could allow him the equivalent of an interpreter to assist with communication, a detailed written statement could be read to the jury so that they knew what he wanted to say, and he might even be asked leading questions based upon that document, all in an attempt to enable him to give a proper and coherent account.