England and Wales High Court (Administrative Court) Decisions

Queen on the Application of DPP v. Redbridge Youth Court [2001] EWHC Admin 209 (22nd March, 2001)

Case No: CO/4444/00 & CO/225/01

Neutral Citation Number: [2001] EWHC ADMIN 209

IN THE SUPREME COURT OF JUDICATURE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 22nd March 2001

LORD JUSTICE LATHAM:

1. These two applications raise different, but overlapping questions in relation to sections 32 and 32A of the Criminal Justice Act 1988. These two sections are concerned with the court's powers to hear evidence by live television link and to receive in evidence a video recording of an interview with a child as the child's evidence in the proceedings. The facts of each case are as follows:

Redbridge Youth Court

2. The defendant before the Youth Court was a 14 year old youth, who had been charged with three offences of indecent assault on two girls both of whom were, at the relevant time, 14 years of age. It was alleged that on the 18th August 2000 he, together with other youths, approached the girls, one of whom was known to him, produced a sum of money and stated that he wished to have sex. After a number of requests of a sexual nature, the defendant was alleged to have assaulted both girls by slapping their bottoms over their clothes. The two girls were interviewed on video tape. An application was made for the video recordings in respect of both girls to be admitted in evidence, under s. 32A of the Act, and for the remainder of their evidence to be given by way of a live television link under s. 32 of the Act.

3. The application was heard on the 27th October 2000 by three justices. The Crown relied on the age of the girls and evidence to the effect that to require them to give live evidence would cause them embarrassment. There was no evidence before the court of intimidation, nor was there any suggestion at that time that they would refuse to give evidence if they were required to give evidence in the courtroom itself. The justices refused the applications. Their reasons are set out in an affidavit from Michael Batten, their Chairman dated the 23rd January 2001:

"5. The court carefully considered the purpose behind the Crown's application of seeking to reduce the risk of embarrassment to child witnesses giving evidence in a reasonably formal setting. Sect 32A Criminal Justice Act 1988 clearly sought to reduce any harm suffered by a child witness when ascertaining the facts of a case without unfairly interfering with the rights of the parties to a fair trial.

6. It was considered by the court that in exercising its discretion it must balance the interests of both parties in a criminal trial. The need to save the child as much trauma as possible and to improve his or her ability to give evidence in ascertaining the true facts of the case had to be balanced against the need to safeguard the interest of the accused. The interest of the accused to have a fair trial generally included the right to be present whilst the case against him was being expounded, to be represented by counsel of his choosing and to test the evidence against him such as by cross-examining the child witnesses and observing the demeanour of the witness during testimony.

7. The court considered that it must exercise its discretion as to when and how the video link procedure is used, so as to ensure that all interests are carefully and independently taken into account. The prosecution may not always be in the best position to assess the likely effect on a child witness. It is difficult to define proceedings in which the procedure would operate fairly in all circumstances and the flexibility and ability to choose to use the procedure for a particular child witness in a particular case is paramount.

8. In exercising its discretion the court considered the following factors:

(a) the fact that the defendant and the witnesses were of similar age, thus eliminating the potential for any intimidation by an older defendant in a position of authority. The Crown offered no evidence to suggest that there were any additional factors of relevance including personality, intelligence and immaturity in assessing if the witnesses would be competent to give live evidence or disability to which the child may or may not be subject. The court considered both witnesses to be competent to give evidence.

(b) The nature and importance of the matters on which the witnesses were being called to give evidence. The allegations related to slapping the girls bottoms whilst fully clothed. The court considered that the allegation of indecent assault fell towards the lower end of the scale of seriousness.

(c) The court noted that the Crown at no stage asserted that either witness would suffer trauma or intimidation by giving live evidence but claimed that the Crown witnesses would suffer embarrassment, which although not conclusive, was a relevant factor for consideration in all the circumstances of this case. The court concluded that neither witness would suffer emotional harm or significant embarrassment if required to give live evidence in camera, in a relatively informal court setting accompanied by an appropriate adult who would offer support.

(d) The court was concerned to ensure that as far as possible both prosecution and defence should be afforded an opportunity to present their evidence under conditions that did not substantially advantage or disadvantage either party, thus ensuring equality of arms.

(e) The court considered the issue of the quality of evidence and if such evidence would be more reliable if adduced by way of video link, the court concluded that it would not. The impact of the witnesses' evidence through an electronic medium may be lessened and the circumstances in which the recorded interview was made may affect the quality and reliability of evidence. Moreover, the best evidence rule would be breached and the accused may be disadvantaged by being unable to confront the witness in the court room.

(f) The court considered that additional complications could arise as an interpreter was required for the defendant who spoke little English.

9. The court in exercising its discretion balanced the nature of the allegation, the proximity in age of the parties, the characteristics of the witnesses, the potential risk of embarrassment or intimidation (although not asserted by the Crown) which may have been occasioned by the witness giving evidence in camera supported by an appropriate adult, against the risk of prejudice to the defendant, the detraction of the immediacy of live testimony in the courtroom which would provide the court with the best opportunity to test the credibility of the witnesses prior to cross-examination and the desire for equality of arms to be preserved and a fair trial to be secured.

10. The court concluded having regard to all the above factors that in the particular circumstances of this case it was not in the interests of justice that evidence by video recording and live TV link should be admitted in accordance with s. 32A(3)(c) of the Criminal Justice Act 1988"

Bicester Youth Court

4. In this case the claimant is also 14 years of age. He was charged with inflicting grievous bodily harm contrary to s. 20 of the Offences Against the Person Act, 1861 and firearms offences contrary to sections 16A and 19 of the Firearms Act, 1968. On the 8th August 2000 the adult complainant was crossing a playground in Banbury on which a number of children were playing. His account was that two of the boys pulled out air guns and began shooting at tin cans. Then one of the boys, who was alleged to be the claimant, pointed the gun at him and shot him in the face from a short distance, hitting him in his cheek.

5. The incident was witnessed by a number of children who made witness statements. Perhaps not surprisingly, these statements disclose considerable discrepancies. On the 25th October 2000, the Crown applied for the use of a live television link in relation to the evidence of three of the boys, a ten year old, an 11 year old, and two 13 year olds. The application was not ultimately pursued in relation to one of the 13 year olds. The basis of the application was that each of the witnesses was vulnerable and that in relation to the two younger ones, that they were threatened by the claimant with the air gun at the time of the incident. The applications were ultimately heard by District Judge Wicks who gave his decision on the 8th November 2000. We have been provided with a note of his reasons. The relevant parts are as follows:

"My decision is as follows and I believe that the factors that I can properly take into account have to be geared to ensuring that justice is achieved to the maximum extent possible as this requires a very careful balancing of interests of the defendant that a fair and just outcome ensuring that the witnesses who might otherwise not be available to give evidence at all are capable of giving evidence if that is achieved. Of course it does not mean any person under the age of 14 who has to give some evidence should not automatically give their evidence through video link. There has to be some factor from which a court can deduce the witness's potentially so vulnerable for whatever reasons may be applicable that without video link they either would not appear at all or their evidence would be affected by factors of stress which would adversely affect the value of the evidence. [Original emphasis.]

Taking the three children in turn:

SH 10 years of age ...

.... His father says he is extremely frightened at the prospect of giving evidence and a police officer indicates willingness may turn on video evidence my view in his case is that the exercise of the court's discretion should result in my saying that he has a degree of vulnerability that justifies me to ensure that justice in the widest sense authorising TV link for his evidence. ..... I am satisfied in the case of SH the fear I anticipate is fear going beyond mere giving evidence.

BO'N aged 11

He is personally threatened by the defendant according to the evidence "Do you want a pellet in your mouth?" and threatened to get one if he doesn't shut up. He is very frightened by the experience and is described as a crucial witness although not subsequently alleged to have been threatened by the defendant. He is scared and apprehensive. I believe I can properly say that in the case of a child of 11 he shares characteristics I have attributed in more detail to the other and permit his evidence also by video link.

AA Born 8/04/87 Is 13.5 years old - very fact that he is that much older makes the application more difficult to resolve ..... I am told he is very frightened and I find that to be not simply the fact of giving evidence but of the whole surrounding circumstances he finds himself in following the incident and the stress of giving evidence. I am told his willingness and ability to come to court and provide evidence the court regards as important more persuasive (sic) If the video link is available - not to the quality of the evidence but the ease with which his presence in court to give evidence is achieved.

I have considered with the greatest care whether the anxiety of the witness and the Crown can be sufficiently alleviated behind the screens - after long and careful consideration I am mindful that the paramount outcome the court strives to achieve is that of justice in its widest sense. I have concluded that I should permit the evidence of this witness also to be given by video link. I am satisfied that the tribunal hearing this case will be able to accord the evidence of the witness whatever is the appropriate weight and the fears Mrs Conway understandably expressed of the witness giving less than full and proper evidence will not arise and the tribunal will be able to protect itself from any wrong assessment. I have decided in reaching my conclusion I had at all times had paramount in mind that the defendant must receive a fair trial and I am satisfied the order I am making will not in any way preclude this."

The statutory provisions

6. The relevant provisions of the Criminal Justice Act 1988, as amended, are as follows:

"32. Evidence through Television Links.

(1) A person other than the accused may give evidence through a live television link in proceedings to which sub-section (1)(a) below applies if .....

(b) The witness is a child or is to be cross-examined following the admission under s. 32A below of a video recording of testimony from him and the offence is one to which sub-section (2) below applies;

But evidence may not be so given without the leave of the court.

(1) (a) This subsection applies ....

(b) To proceedings in Youth Courts .....

(2) This sub-section applies

(a) To an offence which involves an assault on, or injury, or threat of injury to, a person; .....

(c) To an offence under the Sexual Offences Act 1956 ......

32A. Video Recordings of Testimony from Child Witnesses.

(1) This section applies in relation to the following proceedings, namely ........

(c) Proceedings in Youth Courts [for any offence to which section 32(2) above applies] ......

(2) In any such proceedings a video recording of an interview which:

(a) Is conducted between an adult and a child who is not the accused or one of the accused ("the child witness"); and

(b) Relates to any matter in issue in the proceedings, may with the leave of the court, be given in evidence in so far as it is not excluded by the Court under sub-section (3) below.

(3) Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under sub-section (2) above unless:

(a) It appears that the child witness will not be available for cross-examination;

(b) Any rules of Court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the Court; or

(c) The court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted ....... "

7. The issues and arguments in relation to the two cases are as follows.

Redbridge Youth Court

8. In this application we heard submissions from Mr Perry on behalf of the Director of Public Prosecutions and Mr Keith as amicus curiae. We are very grateful to them both. Neither the defendant in the criminal proceedings nor the justices were represented, although as I have already indicated, the Chairman of the justices provided us with an affidavit, and a full acknowledgement of service was filed giving more detail of the nature of the argument before the justices upon which they came to the decision which is the subject of challenge. An acknowledgement of service was also filed on behalf of the defendant in the criminal proceedings supporting the justices' decision

9. On behalf of the DPP Mr Perry submitted that s. 32A sets out a scheme for the purposes of protecting child witnesses in which the primary rule is that where there has been a video interview, that shall be admitted as the evidence of that witness. The statutory purpose is, he submitted, to encourage witnesses to come forward knowing that there is a presumption in favour of their evidence being presented to the court in video form, to improve the quality and reliability of such evidence, and to reduce the trauma to a child of appearing in court. He accepts that the court has to exercise a discretion if it is submitted under s. 32A(3)(c) that the video adduced should not be received in the interests of justice, that the court then has to carry out a discretionary exercise, which he submitted is restricted to issues of competence and reliability. He submitted that those are the only relevant issues which could give rise to prejudice to a defendant. The statutory presumption which he submitted is contained within s. 32A, namely that such a video interview is to be admitted, precludes any argument that such a procedure in some way prejudices a defendant. Parliament has determined that this procedure is appropriate in the case of child witnesses and therefore it cannot, of itself, be said to amount to injustice to the defendant. He submitted that the justices were wrong as a matter of law in inquiring into the nature of the objection that the girls had to giving evidence in court. If a court is required to make such inquiries, he submitted that that could result in the court becoming embroiled in a difficult exercise in establishing the state of mind of the child in question.

10. He further submitted that the justices wrongly imported into the resolution of the issue the concept of equality of arms, alternatively misunderstood its effect. He submitted that what is necessary in order to meet the obligations of the European Convention of Human Rights is that the proceedings, taken as a whole, are fair and that the rights of the parties adequately respected. He referred us to Doorson -v- The Netherlands [1996] 22 EHRR 330 where the court held in paragraph 70:

"The principles of a fair trial also require in appropriate cases the interests of the defence are balanced against those of the witness or victims called upon to testify."

11. He submitted that the defendant in the present case would have a full opportunity to see and hear the evidence and to cross examine the witnesses, so that his rights were properly respected. In these circumstances, he submitted that the justices were clearly wrong in the way they carried out the exercise under s.32A(3)(c).

12. Mr Keith did not accept that the court was only concerned with competence and reliability. He submitted that the purpose of the statutory provisions was to provide protection for child witnesses so that their evidence was not affected by any stress or fear engendered by having to give evidence in court. He submitted that in every case the statute effectively provided a presumption that this would be achieved by the admission of a video interview, and that it would be for a defendant to show that in any given case the interests of justice would not be best served by taking that course. He further submitted that it is unlikely that a defendant could, save in an exceptional case, be prejudiced by the use of a videoed interview. He would be free to identify and challenge the witness by way of cross-examination; and the court itself would be helped by an account given by a witness, as is usually the case in videoed interviews, close to the time of the alleged offence. He submitted that the justices erred in carrying out the balancing exercise which he accepts they were required to do by failing to consider the extent to which the girl's testimony would be less reliable by reason of their expressed embarrassment, as against the contents of the interviews, and to determine precisely what prejudice would be suffered by the defendant if the video interviews were admitted.

Bicester Youth Court

13. Mr Knowles on behalf of the claimant, and Mr Ross on behalf of the defendant, also made helpful submissions to the court in the different context of s.32 of the Act. Mr Knowles submitted that unlike s. 32A, of the Act, the court's discretion is not affected by any presumption as to the admissibility of evidence which is sought to be tended through a live video link. He submitted that the primary rule is that evidence should be given in court in the presence of a defendant. Any special measures taken to protect a witness whether by the use of a live television link, or by any of the other measures which a court can take to protect a witness detract from that principle to the potential prejudice of a defendant. It deprives both the court and the defendant of the opportunity to see most clearly the demeanour of the witness and avoids the inherent discipline of having to give evidence openly and not in artificially protected circumstances. He submitted that a Youth Court is in particular required to take into account the fact that the procedure and the layout of the court are all designed to minimise the stress imposed not only on a defendant, but also on witnesses. Accordingly, he submitted, the use of a live television link is only justified if the quality of the evidence would be substantially impaired if such a link were not used. The court is also required, he submitted, to consider any steps short of a television link which could make it easier for a witness to give evidence on the basis that the court should only interfere with the normal process of the court to the minimum extent necessary. In relation to the facts of the case itself, he submitted that the District Judge was wrong in principle in using the provisions of s. 32 as an alternative to the issue of a witness summons. This was particularly clear in the case of AA, where it would appear that the District Judge was of the view that if the witness was brought to court, the lack of a television link would not affect the quality of his evidence.

14. Mr Ross submitted that the fact that a witness indicated a reluctance to come to court in the absence of a television link was not irrelevant. It was a fact from which the court could infer that the witness would be sufficiently affected by the stress of the process of giving evidence that the quality of his evidence would be affected, or that he may not be ultimately able to give any evidence to the court. In relation to SH and BO'N he submitted that the District Judge was entitled to take the view that the evidence before him was such as to justify the conclusion that their evidence would be affected particularly because of the intimidation to which it was said they had been subjected. As far as AA was concerned, he accepted that the evidence was not so compelling, nor were the District Judge's conclusions as clear. Nonetheless, he submitted that a fair reading of the District Judge's reasons shows that he was satisfied that AA was frightened, which would of itself have justified the inference that there was a real risk that the quality of his evidence would be affected.

Conclusion

15. In my judgment, there is a distinction to be made between the approach of the court under s. 32 and s.32A of the Act. In the case of video interviews, Parliament has provided that the primary method of presenting evidence of a child witness where there is a video interview is by means of such an interview. There is no such presumption in s. 32. But the general legislative purpose of both sections is the same, namely to provide, in relation to a child, conditions which are most conducive to ensuring that a child is able to give as full an account as possible of the events in question. The procedures are intended to provide a mechanism whereby a child witness who might otherwise be upset, intimidated or traumatised by appearing in court is not as a result inhibited from giving a full and proper account of the events of which he or she was a witness: see R -v- McAndrew Bingham [1991] 1 WLR 1897. It follows that orders under either section are appropriate where there is a real risk that the quality of the evidence given by that child would be so affected or that it might even be impossible to obtain any evidence from that child. Fairness to the defendant is achieved by enabling the defendant to see the witness giving evidence in interview, or by a television link, and having a full opportunity to cross examine by way of the television link.

16. In relation to s. 32A, there is a further purpose, namely that the evidence of a child should be the account of the child given as contemporaneously as possible, so that evidence in chief is not a memory test. The wording of sub-section (3) makes it clear that leave must therefore be granted for a video recording of an interview to be given in evidence, unless any of the exceptions are established. If the exceptions in (a) or (b) are established leave must be refused. If under (c) the question is raised whether or not in the interests of justice the recording should not be admitted, the court is required to carry out a balancing exercise bearing in mind the legislative purposes to which I have referred. This requires the court to consider whether there will be any arguable injustice in admitting the video. If the injustice alleged is simply the fact that the witness will not be giving live evidence, it is unlikely that that could ever prevail if there was material which established that the witness could be upset, intimidated or traumatised by appearing in court as a result of which there was a real risk that the quality of the child's evidence would be affected or that no evidence would be forthcoming. To permit such an argument to succeed would defeat the legislative purpose. This principle in my view applies whatever the age of the defendant. It follows that the court is required to consider on the one hand the extent to which the witness's evidence would be so affected if the video recording was not admitted in evidence, and on the other the prejudice to the defendant if the video recording were to be admitted in evidence. In carrying out that exercise, the court must bear in mind that Parliament has determined that the primary method by which a child witness's evidence should be given to a court is by means of the video interview. It seems to me to follow that it is for a defendant to establish that any prejudice to him displaces this parliamentary intention.

17. In relation to s. 32, as I have said, the position is different. Parliament has provided no presumption one way or the other as to the way in which the evidence should be given. It is necessary therefore to consider in every case the extent to which justice is best achieved by making or not making the order applied for. In doing so the court will bear in mind that the paradigm or norm in our courts is that a witness should give evidence in court in the presence of the defendant. It follows that some good reason must be shown in accordance with the legislative purpose if an order is to be made under s. 32. Again the court is required to strike a balance, on this occasion between the right of the defendant to have a hearing in accordance with the norm and the need to provide protection in accordance with the legislative purpose, in 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.

18. In the instant cases, the only prejudice suggested by the defendants to the criminal proceedings is that they would be deprived of the benefits of seeing and hearing the witnesses live in court. Whilst there is no doubt that this procedure has the advantage of enabling a defendant and the court to see directly the demeanour of the witness and the way in which his or her evidence is given, the court must bear in mind the fact that both the video recording and a television link provide an opportunity, albeit in an indirect form, to carry out that same exercise. The court should also bear in mind that although there may be disadvantages in the indirect method of giving evidence, they do not necessarily disadvantage only the defendant. The impact of evidence given directly to the court is likely to be greater whether it be in favour of the prosecution or the defence.

19. Article 6 of the European Convention on Human Rights does not, in my judgment, provide any further assistance in resolving the difficult question which the court has to answer under either section. As the European Court of Human Rights recognised in Doorson -v- The Netherlands [supra] it is appropriate to provide protection to certain classes of witness. It seems to me to be clear that child witnesses fall into a category of witness which is entitled to such protection. Provided that a decision of a court is based on the purpose for which such protection is provided, steps taken to provide that protection cannot result in unfairness to a defendant provided always that the defendant is given a fair opportunity both to test that evidence and to answer it. The procedures under s. 32 and 32A of the Act provide that opportunity.

The individual cases

20. Redbridge Youth Court

I pay tribute to the care with which the justices considered what was a difficult question in this case in the absence of any guidelines. It seems to me that in essence the justices determined that the embarrassment which they accepted would be suffered by the complainants, was not such as to give rise to a real risk that the quality of their evidence would be affected: see paragraph 8(c) and (e) of Michael Batten's affidavit. That being the conclusion of the justices, it follows that the defendant had discharged the burden of establishing that the legislative purpose would not be compromised by not making the an order. In those circumstances, the justices were entitled to take the view that fairness, and therefore justice, required that the complainants' evidence be given live in court. The disadvantages to the defendant, and to the court's ability to assess the quality of a witness's evidence, were the evidence to be given by way of a video recorded interview or by a video link could properly be said to justify that conclusion. Accordingly the justices were entitled to refuse to make the orders applied for in this case; and the application must therefore be refused.

21. Bicester Youth Court

The District Judge in this case was simply dealing with applications under s. 32 of the Act. It is apparent from the extract from the notes of his reasons to which I have already referred that he applied the correct burden of proof. He directed himself that there had to be some factor from which a court could deduce that the witness would either not appear at all or the quality of the evidence would be adversely effected. I have no doubt that he was correct in taking the view that if there was evidence that by reason of the witness's vulnerability he might not appear at all were there no live television link, that was a fact which he was entitled to take into account. If a child witness is so frightened that he is unwilling to come to court unless his evidence is given by live television link, the likelihood is that were he to be forced to come to court he would either give no evidence, or the quality of his evidence would be affected by his fear. In relation to SH and BO'N, who are respectively 10 and 11 years of age, the District Judge was clearly entitled to take the view that the fear that they were expressing, based partly on the threats to which each said he was subjected, justified the making of the order. AA is in a different position. Doing the best one can from the note of the judgment, it would appear that the District Judge was not concerned about the quality of his evidence, nor did he express any concern about the witness's willingness to give evidence once he got to court, but justified the making of the order on the "ease" with which he might be bought to court. That is not, in itself, a justifiable reason for making the order. As Mr Knowles submitted, a witness summons could achieve that objective. It is only if the District Judge came to the conclusion that the use of that method of ensuring his presence at court would not ensure that he was either willing to give evidence or to give evidence of value, that an order would have been justified. For this reason, I consider that the application so far as it relates to AA should be quashed, and remitted to the District Judge for further consideration.

MR JUSTICE ASTILL: I agree