England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		2 October 2003

Thursday, 2 October 2003
1. MR JUSTICE MITTING: The complainant, AL, and the defendant, MG, were both 15 year-old pupils at the same secondary school. The complainant alleges that on 4 October 2002, during the morning break at school MG indecently assaulted her in a corridor by pinning her against a wall and penetrating her vagina with one of his fingers. She alleged that the offence was not witnessed, but it seems that two school friends of hers may have come into the corridor while MG was still holding her; and I am told that one, or both of them, state that they pushed him off. Later that day AL told her mother what she said had happened and the mother reported the incident to the police on 9 October. AL was interviewed on video tape on 16 October and gave a detailed account of the incident. During the interview she alleged that on other occasions before 4 October MG had pushed her out of view of the CCTV camera and attempted to kiss her, had pinched her bottom, had put his hand down her neck and when she responded by grabbing his testicles had told her that she would have to fuck him. She spoke also of other incidents in which he had forced his attentions upon her.
2. The defendant was arrested and charged with indecent assault arising out of the incident on 4 October. In the course of the proceedings in the youth court the Crown applied without opposition for a video recording of the interview with the complainant to be played as her evidence in chief under section 21 of the Youth Justice and Criminal Evidence Act 1999. The application was heard by District Judge Day on 14 February 2003.
3. For the defence it was submitted that the recording and any transcript should be edited to exclude references to incidents alleged to have occurred before 4 October. The Crown submitted that the evidence should be admitted on one or all of three grounds. First, under the similar fact principle; secondly, as evidence of background and thirdly under section 27(2) and (3) of the 1999 Act. The district judge rejected those submissions and concluded that the evidence should be excluded.
4. As far as the first proposition is concerned Mr Mather, who appeared below and before me for the Crown, now accepts that the similar fact principle has no bearing on the issue. Similar fact evidence is commonly admitted in two circumstances: first, in cases of sexual misconduct where two complainants give evidence about sexual conduct in relation to them in circumstances in which the evidence of one complainant is potentially supported by the evidence of another; secondly, when there is evidence of two or more incidents otherwise unconnected with each other with sufficient similarities to suggest that one person, the defendant alone, is culpable of both. The principle is not engaged here for the obvious reason that the evidence of one complainant about matters that have occurred to her which she alleges have been done by one defendant cannot be mutually supportive.
5. Mr Mather submitted to the district judge and submits to me that the evidence of what occurred before 1 October is admissible as part of the background to what occurred on that occasion. He founds himself upon secure ground of principle. In Sawoniuk [2000] 2 Crim App R 220 at 234, Lord Bingham approved an unreported judgment of the Court of Appeal given by Purchas LJ in Pelleman on 2 May 1985 in these terms: at 234E-G:

"Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed. This, as we understand, is the approach indicated by this court in Pelleman ... approved in Sidhu (1994) 98 Cr App R 59 at 65 and Fulcher [1995] 2 Cr App R 251 at 258: 'Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

6. The Crown contend that the complainant's evidence about conduct before 1 October demonstrates persistent importuning of her by GM and is necessary to set the events of which she speaks on 4 October in proper context or, in summary, that without such evidence her evidence of the incident on 4 October is both incomplete and incomprehensible.
7. Whether or not that is so is pre-eminently a matter of judgment for the trial judge, in this case the district judge. Provided that he has addressed the issue and reminded himself correctly of the potential relevance of background evidence, and the principle upon which it is to be admitted, then his judgment can only be impugned by this court if he has taken into account irrelevant matters or not taken into account relevant matters, or if his decision is legally perverse. In directing himself and in giving his decision on this question, the district judge referred to an authority, R v M, which was cited to him, and correctly distinguished its facts, and went on to direct himself about the admission of background evidence in these terms:

"I cannot see that the evidence of this incident alone renders it incomplete or incoherent - it is not necessary to have an understanding of other behaviour between these young people to judge this piece of behaviour."

He went on to conclude that the prejudicial effect of the evidence outweighed its probative value.

8. Although his decision was shortly stated it is clear that it contains two parts. First, he has considered whether or not this background material is necessary to understand the complainant's evidence about the incident on 4 October. He has asked himself the proper question whether, if it is not admitted, her evidence of that incident is incomplete or incoherent. He has decided that it is not. He has then gone on to ask himself the alternative question whether or not if it were admissible as part of the background its admission would have a prejudicial effect without weighing its probative value. He concluded that it would.
9. I cannot read in the district judge's reasoning any failure to take into account the proper test; or that he has taken into account material which he should not have or failed to take into account material which he should; and I cannot conclude that his decision is legally perverse. On material such as this there is room for more than one judgment. The district judge's judgment about the relevance and admissibility of this evidence is one to which he was entitled to come and cannot be impugned.
10. Mr Mather goes on to make the novel submission, which he made before the district judge and repeated before me, that the effect of section 27(2) and (3) of the 1999 Act is to extend common law rules as to the admissibility of evidence so as to lead to the admission of evidence in some instances which would not otherwise be admitted.

It is necessary to consider the statutory context. First, section 21(3)(a) and (4)(b) provide that the primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements:

"(a) it must provide for any relevant recording to be admitted under section 27 (video recorded evidence in chief)."

But under (4) the primary rule is subject to, amongst others, the following limitation: "

(b) the requirement contained in subsection (3(a) also has effect subject to section 27(2)."

Section 27(2) provides:

"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."

Subsection (3) provides:

"In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview."

Section 31(5) provides:

"Nothing in this Chapter (apart from subsection (3)) [which is not relevant to present purposes] affects the operation of any rule of law relating to evidence in criminal proceedings."

Mr Mather submits that the use of the word "desirability" by Parliament in section 27(3) produces the change for which he contends.

I do not accept his submission for a number of reasons. First, section 31(5) expressly provides otherwise. Secondly, how can it be desirable that what is otherwise inadmissible as of no probative value should by a side wind under section 27(3) become admissible simply because of the manner in which the evidence is to be given? If Parliament had intended to legislate that, save in unusual circumstances to which I will refer in a moment, it was desirable that otherwise inadmissible evidence should be given, it would surely have done so by express words. Thirdly, why should evidence given by one means (video recording) be permitted to contain inadmissible material, whereas evidence given by any other means should not? Again, save in exceptional circumstances to which I will refer in a moment, I can see no sensible reason for Parliament so providing; and indeed if that were the effect, there would be practical disadvantages. Video recordings are nowadays almost invariably taken in cases in which children make complaints of criminal offences. If otherwise inadmissible evidence was contained in the video recordings which would not be admissible if, for example, the child were to give evidence by television link, then applications on the part of defendants that the video recording should not be played but that the child should give evidence by other means would be routine. The argument would be that simply because of the manner in which the evidence was to be given, prejudicial evidence against a defendant would be given when it could not be given by any other means; therefore it would be contended the evidence cannot be given by the means which Parliament has said is the primary means by which such evidence should be given by a child witness. Courts are now thoroughly familiar with the giving of video evidence. The editing of video recordings is now routine to exclude inadmissible material. It would, in my judgment, be a seriously retrograde step if the use of such a technique for the giving of evidence by a child witness were to be diminished as a result of well-founded applications by defendants based on the unfairness to them resulting from more extensive evidence being given by video recording than if given otherwise.

It seems to me that the legislative purpose of section 27(3) was two-fold. First, to resolve in favour of video recording what is now the historical debate about the relative worth of video recording by contrast with live evidence; secondly, it is capable of covering, and in my judgment does cover, unusual cases in which the evidence of a child or disabled witness cannot be given in a way that is coherent and understandable to the listener without the inclusion of inadmissible material. I take as an example the evidence of a handicapped child who may not be able to give evidence whether from the witness box or by television link or on video tape without referring to matters which, in the case of an adult, would be capable of being excluded by proper questioning either by interviewing police officer or by prosecuting counsel. Such material may readily slip into the answers of the child which would then be recorded on video. If those answers simply cannot be understood by the listener without hearing the whole of a passage of tape being played, then it may be desirable that the whole passage should be played, notwithstanding that it contains some inadmissible material. In these circumstances it would be the duty of the judge sitting alone to direct himself that he must not pay heed to such material, or of a judge sitting with a jury that it must not. But save in those circumstances I cannot conceive of circumstances in which it is desirable that evidence should be given which has no probative value merely because it is given by means of a video recording.

For those reasons I reject Mr Mather's submissions as to the construction of section 27(3), and I conclude that it does not affect common-law or statutory rules concerning the admissibility of evidence.

For those reasons this application for judicial review is dismissed. I add that no publication of anything must occur which might lead to the identification of AL or GM.

***

Mr Mather, I think I am right in saying that the way I have phrased the judgment cannot lead to that. I have made no reference either to their names or to their school and therefore, subject to correction by me in due course, this judgment is freely available to anyone who may wish to refer to it.

11. MR MATHER : My Lord I am grateful.
12. MR JUSTICE MITTING : you had some submission about Hansard.
13. MR MATHER : My Lord, it was a minor submission with regard to costs. I realise we are in civil procedure here. It was a matter of costs. The point regarding Hansard being relied on was not used, but my Lord it is just with regard to costs. Obviously it is for your Honour. The defence skeleton argument was only delivered to chambers two days before today's hearing, whereas under CPR the right construction should have been 14 working days prior to the hearing. I make that point if there is any apportionment of costs with regard to the late submission of the defence skeleton.
14. MR JUSTICE MITTING : Has anybody in fact been put at a disadvantage by late delivery of the defence skeleton argument? I certainly have not because they are not routinely sent to judges until the night before in short cases.
15. MR MATHER : My Lord, aside from inconvenience, I do do some civil work and I am well aware of the Civil Procedure Rules engaged. The timetable has not been adhered to so I am very aware of it. There was a certain amount of inconvenience particularly when the skeleton argument did reveal the mention of Hansard, which was anticipated, and the need to do further research; but otherwise, my Lord, I just make that comment. If there are costs to be apportioned I would like that to be taken into account.
16. MR WALKER: My Lord, I can only apologise to my learned friend. Any late service of documents would solely be down to me. I understand from my clerks they had some trouble with tracking Mr Mather down. The skeleton was sent to his old chambers and I can only sincerely apologise that Mr Mather has been put to any inconvenience.
17. MR JUSTICE MITTING : So far both of you have only addressed a minor part of what might otherwise be a global costs order. Is there anything either of you want to say about the costs of the application for judicial review?
18. MR WALKER: My Lord, I have to say at this juncture my knowledge of Civil procedure in costs implications are rather limited. I would have to, unless your Lordship required me to ---
19. MR JUSTICE MITTING : You are publicly funded, are you not? I assume you are.
20. MR WALKER: I am, my Lord.
21. MR JUSTICE MITTING : I do not know whether you are seeking to have one public pocket pay the costs of another.
22. MR WALKER: I have no instructions on that basis. I had considered the option, however, and I have no instructions and it seems to me it would be difficult to go to the Legal Aid Board and see what they wanted me to do. On that basis I do not have any instructions.
23. MR JUSTICE MITTING : So you do not have any applications?
24. MR WALKER: No.
25. MR JUSTICE MITTING : In which case I make no order, and no question of apportionment can arise.