QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CPS HARROW||(CLAIMANT)|
|BRENTFORD YOUTH COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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MR L WALKER (instructed by Tringfellow Gowthorpe, London W1H 8UZ) appeared on behalf of the DEFENDANT
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"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  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."
"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.
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.