(back to preceding text)

    60.  The Strasbourg Court has also held, in V v United Kingdom (1999) 30 EHRR 121, 179, para 86 that

"it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings".

    61.  The environment and procedures in the Youth Court are already designed with this in mind, although no doubt there will be a need to do more in some cases. The procedures in the Crown Court have also been modified to meet the needs of child defendants following the case of V v United Kingdom, and again more may need to be done in some cases.

    62.  Section 19(6) of the 1999 Act expressly provides that:

"Nothing in this Chapter is to be regarded as affecting any power of a court to make an order or give leave of any description (in the exercise of its inherent jurisdiction or otherwise) - (a) in relation to a witness who is not an eligible witness, . . ."

    63.  Clearly, therefore, if there are steps which the court can take in the exercise of its inherent powers to assist the defendant to give his best quality evidence, the 1999 Act does not exclude this. However, in R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin), 31 March 2004, the Administrative Court held that there was no inherent power to allow a defendant to give evidence by live link, on the ground that Parliament had sought since 1988 to provide exclusively for the circumstances in which live link might be used in a criminal trial. With respect, while it is true that section 32 of the 1988 Act did not contain an express saving for any inherent power the court might have to assist the accused, section 19(6) makes it clear that the 1999 Act does not purport to make exclusive provision for any of the special measures it prescribes. The point does not arise for decision in this case, and so it would be unwise to express an opinion upon it. It is in any event better taken on an appeal against conviction in which the defendant argues that he was not given a proper opportunity to defend himself. For the reasons given earlier, the situations of defendants and other witnesses are so different that it would only very rarely be necessary for a defendant to give evidence by live link, but the case of a younger child defendant who was too scared to give evidence in the presence of her co-accused might be an example. I would therefore prefer to reserve my position on whether the Waltham Forest case was correctly decided. It cannot in any event affect the result of this case. The fact that the accused may need assistance to give his best evidence cannot justify excluding the best evidence of others.

    64.  I would therefore answer the certified question in the affirmative and dismiss these appeals.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    65.  The Youth Justice and Criminal Evidence Act 1999 deals differently with three categories of witnesses eligible for assistance by way of the special measures provided for in sections 24 and 27, provisions respectively for live link evidence and video recorded evidence in chief. One category is witnesses aged 17 or more with regard to whom there are no presumptions either way. In their case the court must determine whether these special measures would be "likely to maximise" (section 19(2)(b)(i)) the "quality [of their evidence] in terms of completeness, coherence and accuracy" (section 16(5)) having regard to all the circumstances of the case including in particular whether it "might tend to inhibit such evidence being effectively tested" (section 19(3)(b)).

    66.  The second category is child witnesses (witnesses under 17) not deemed to be "in need of special protection", ie child witnesses in proceedings which do not involve offences of sex or violence. As to these there is a presumption that these two special measures will be "likely to maximise" the quality of their evidence (section 21(2)) but the presumption is rebuttable: it is open to a party to seek to satisfy the court to the contrary (section 21(4)(c)).

    67.  The third category is child witnesses deemed to be in need of protection (who may, of course, be witnesses for the prosecution or for the defence and who may or may not themselves be the victims of the alleged offences of sex or violence). For these witnesses the presumption that these two special measures will be likely to maximise the quality of their evidence is irrebuttable. In their case section 21(5) disapplies section 21(4)(c) which itself in category two cases disapplies the primary rule that these two special measures must always be directed in the case of child witnesses. It is, of course, this third category of witnesses with which this appeal is directly concerned.

    68.  Although I share Lady Hale's view that there will be very few cases when it will be disadvantageous to the defendant for a child witness to give evidence by way of video recording and/or live link, it seems to be that just occasionally this will be so. Indeed, to my mind this is implicit in the legislation. Why otherwise is provision made in section 21(4)(c) for the possibility of satisfying the court that the quality of the child witness's evidence will not be likely to be maximised by these measures, perhaps because they "might tend to inhibit such evidence being effectively tested"? It by no means follows, however, that the legislation is in any way defective or incompatible with article 6 of the European Convention on Human Rights.

    69.  If in a particular category three case the mandatory special measures direction for live link evidence were to be regarded at the trial as having created a real risk of injustice to the defendant, the court has ample power under section 20(2) to discharge the direction, alternatively, under section 24(3), notwithstanding the direction, to allow the witness to give evidence in open court. (If the risk of injustice were perceived in a video recording case, of course, the court would probably not have made the direction in the first place: such an order would not in those circumstances be mandatory (see sections 21(4)(b) and 27(2)). The number of cases, however, in which the court will conclude that a live link order, mandatorily made at the initial direction stage, would create injustice for the defendant, will be exceedingly small. I reject the appellant's argument that, because the court will be exercising its discretion and reaching a judgment for the first time at trial, the assurance which the witness seeks is, on this approach to the legislation, delayed by the mandatory requirement to make the direction at the earlier stage. The initial lack of absolute certainty implicit in the statutory scheme is more than compensated for by the near certainty that the mandatory direction will in fact continue to operate at trial.

    70.  Nor am I in the least persuaded that this statutory scheme is in any way inconsistent with the requirements of article 6. The hearing does not cease to be "public" merely because a witness's evidence may be given by live link and/or in part by video recording. Nor is it necessary to justify such measures in each individual case. Parliament was perfectly entitled to conclude that the interests of justice generally would be better served by introducing an almost invariable rule such as will not merely in the vast majority of cases maximise the quality of child witnesses' evidence but will also encourage their full cooperation with the criminal justice system, than by retaining the maximum opportunity for face to face confrontation with child witnesses at trial.

    71.  For these reasons and those more particularly given by my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond with which I fully agree I too would answer "yes" to the certified question and would dismiss these appeals.