England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 March 2004

Mr Justice Eady:

General Introduction

1. The Claimant ("S") is aged 13, having been born on 31 March 1990. She is of hitherto good character and has never before this incident had contact with the police or the courts. She is charged with two counts of robbery contrary to s.8(1) of the Theft Act 1968. Three other girls have been charged as co-defendants in respect of the same events, which are said to have taken place in Lloyd Park, London E17, on 3 June 2003. S is the youngest of the four defendants. The others are aged between 14 and 16 years of age.
2. What is alleged is that they all approached two girls ("the complainants"), who were playing basketball, and one or more of the Defendants asked to see the complainants' mobile phones. When they were handed over, all four ran off. Later that day S was interviewed and made certain admissions but also made allegations against her two co-defendants. At her solicitors' office on 6 August last year, she informed them that she wanted to testify on her own behalf but was too scared to do so in the physical presence of her co-defendants. Rather than take that course, she would choose not to give evidence in her own defence. She confirmed this in a witness statement of 12 August 2003 and deposed that she and her mother had been threatened by some of her co-defendants and perceived the threats to be real.
3. On 10 September 2003 an application was made on behalf of the Crown Prosecution Service before District Judge Gott at Waltham Forest Youth Court for a "special measures" direction for the protection of the complainants, in accordance with the statutory regime introduced by the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act"). This was passed by the legislature in order to address concerns about the protection of vulnerable witnesses in the criminal justice system, as discussed in the Council of Europe "Recommendation No. R(97)13 on Intimidation of Witnesses and the Rights of the Defence" and, in this jurisdiction, the Report of an Interdepartmental Working Group published in June 1998 under the title Speaking Up for Justice.
4. District Judge Gott accordingly made a special measures direction, but he declined to make a corresponding direction for the protection of S. It is to be noted that, in doing so, the District Judge said that he could understand that there might be very good reasons why a 13 year old defendant such as S might wish to have such protection, but in view of the unambiguous terms of the statute there were no powers to make a special measures direction in favour of a defendant. More specifically, the legislature had not sought to draw a distinction between a sole defendant and one who was facing trial with co-defendants against whom he or she might wish to make allegations consistent with the prosecution case. Nevertheless, the District Judge made the suggestion that S might wish to seek a review of his decision.
5. On 7 November 2003 a claim for judicial review was lodged on the Claimant's behalf and permission was granted, on the papers, by Gibbs J on 22 December. On that occasion, the learned Judge suggested that "consideration might be given to the extent of the Court's powers to direct evidence by TV link aside from special measures directions". He also expressed the view that there was an important issue relating to justice and "equality of arms".
6. No doubt with those observations in mind, a further application was made to the District Judge on 12 January 2004 at a pre-trial review inviting him to exercise a common law discretion to permit S to give her evidence by means of a video link. Again, however, he declined to do so. Meanwhile, in view of the order made on 10 September, the trial had been arranged to take place at Stratford Youth Court because there were available at that court (unlike at Waltham Forest) facilities for special measures.
7. It is against that background that S now seeks judicial review of the decision on 10 September refusing her the video link facility.
8. Before turning to the legal framework, it is appropriate at this stage to record that S has serious learning difficulties and is deemed by Camden Educational Psychology Service to be a "vulnerable child". Those considerations are relied upon, along with the alleged threats to which I have referred, as pointing to the need for some protective measures in her particular case (assuming that the court has, by one route or another, the power to take such steps in the case of any defendant).

The general legal background

9. The Court is indebted to Counsel for their industry in researching the law. The extent of that indebtedness will only be apparent to those who have read their clear and helpful skeleton arguments. It is therefore appropriate to acknowledge it expressly.
10. At common law it had come to be recognised that an accused person does not have an unqualified right physically to face his accusers. In R v Smellie (1919) 14 Cr. App. R. 128, it was held by the Court of Appeal that there is no reason why a trial judge should not remove a defendant from the presence of a witness for the purpose of securing the ends of justice. That case concerned evidence being given by an 11 year old girl against her father.
11. In R v DJX and others (1990) 91 Cr. App. R. 36, 40 the practice was approved whereby it was appropriate sometimes to shield child witnesses from an accused person by the use of screens.
12. In R v Brown (Milton) [1998] 2 Cr. App. R. at p.371 the Court of Appeal stated that a trial judge has a clear duty to do everything possible, consistently with giving the defendant a fair trial, to minimise the trauma suffered by "other participants".
13. In due course it became possible through statutory means to take advantage of modern technology. The Criminal Justice Act 1988 provided that, with the court's permission, a child witness could give evidence by means of a live link from a room adjacent to the court. Subsequently, in the Criminal Justice Act 1991, it was permitted that a child's video taped interview could stand as evidence in chief. In those circumstances, as is now commonplace, cross-examination would take place through a live video link after the court and the child witness have seen the original interview. It is to be noted, however, that these provisions did not have any application to child defendants.
14. The matter of an accused's right to confront witnesses in open court has been considered also by the European Court of Human Rights in the context of Article 6 of the Convention on Human Rights and Fundamental Freedoms: see e.g. Barbera v Spain (1989) 11 EHRR 360; Kostovski v Netherlands (1990) 12 EHRR 434; and Van Mechelen v Netherlands (1998) 25 EHRR 647. It is recognised that a fair trial would generally require that the evidence against an accused should be produced in his presence and a proper opportunity given to challenge the testimony by cross-examination and adversarial argument. It was held, for example, in Van Mechelen that there had been a breach of Article 6 when anonymous witnesses were linked only by sound to the room where the defendant and his lawyers were. It was not possible to see them or to judge their demeanour.
15. On the other hand, it has been recognised that there is no unqualified right to confrontation and that every allegation of a breach of Article 6 needs to be judged on the particular facts. In some situations, the circumstances may require restrictions to be imposed in the interests of justice.
16. In appropriate cases the interests of the defence may need to be carefully balanced against those of witnesses or victims called upon to testify, in order to achieve a fair trial: see Doorson v Netherlands (1996) 22 EHRR 330 at para [70]. As in this jurisdiction, it has also been acknowledged that in criminal proceedings concerning sexual abuse measures may be taken for the purpose of protecting the alleged victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence: see Baegen v Netherlands, App. No. 16696/90, 20 October 1994. One aspect of fairness includes "equality of arms", which involves striking a balance so as to afford each side a reasonable opportunity to present his or her case: Dombo Beheer BV v Netherlands (1993) 18 EHRR 213; Kress v France App. No. 00039594/98, 7 June 2001.
17. It is clear that, so far as evidence is concerned, the European Court of Human Rights recognises that questions of admissibility and the means by which evidence is to be given are primarily matters for regulation through domestic law. Whenever a challenge to Article 6 arises, the function of the European Court is to determine whether the rights of the participants have been adequately respected in the context of the proceedings as a whole: see Barbera v Spain at para [68].
18. It is of some interest to note that there is in the United States of America a constitutional right to confrontation, but even so the Supreme Court has recognised that there may be some inroads upon that principle provided that there are individualised findings that particular witnesses need special protection: Coy v Iowa (1998) 487 US 1012 and Maryland v Craig (1990) 497 US 836.

The statutory regime of the 1999 Act

19. As already noted, the "special measures" regime introduced by the 1999 Act was to a large extent intended to implement the recommendations of the 1998 Report Speaking Up for Justice. In that document it appears that the view was taken that there was no need to have statutory "special measures" for an accused, since the law affords other elementary forms of protection such as the right to a hearing in open court, legal advice and representation, the burden and standard of proof, and the right to choose whether or not to give evidence: see paragraph 3.28.
20. No consideration appears to have been given to the situation of a defendant vis à vis co-defendants; nor, in particular, as to whether any degree of protection is required for a defendant who might be characterised as a "vulnerable witness" when giving evidence contrary to the interests of co-defendants. This omission was the subject of academic debate and comment. In characteristically trenchant terms, for example, Professor Birch and her co-author Dilys Tausz observed at [2001] Crim. L.R. 473, with obvious frustration, that the accused was "the only witness to be specifically written out of the 1999 legislation" and they continued:

"The government has been told, time and again, that this is unacceptable, but has not so far budged… 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".

21. The mischief was identified as being that the exclusion of defendants meant that they would be deprived of competing on even terms, and the court would also be deprived of "the chance of supervising an equal contest". Similar criticism was made by Laura Hoyano at [2001] Crim. L.R. 948.
22. There is no doubt that the decision to confine the regime of "special measures" to victims and vulnerable witnesses other than the accused was a quite deliberate choice by the legislature. However much it may be regretted by experts in the field, it is not for the courts to go behind that choice or to attempt to remedy perceived deficiencies in the legislation. It is salutary to remember the warnings of Lord Lowry against judicial legislation in such circumstances (albeit prior to the advent of the Human Rights Act) in C v DPP [1996] 1 AC 1:

"(1) If the solution is doubtful, the judges should beware of imposing their own remedy; (2) caution should prevail if parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched; (3) disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems; (4) fundamental legal doctrines should not lightly be set aside; (5) judges should not make change unless they can achieve finality and certainty".

23. It is necessary now to set out or summarise the relevant provisions of the 1999 Act. Section 16(1)(a) provides as follows:

"For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section

(a) if under the age of 17 at the time of the hearing…"

24. There is provision in s.16(1)(b) that a witness "other than the accused" is eligible for assistance if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within s.16(2). Those circumstances are:

"(a) that the witness -

(i) suffers from mental disorder within the meaning of the Mental Health Act 1983, or

(ii) otherwise has a significant impairment of intelligence and social functioning;

(b) that the witness has a physical disability or is suffering from a physical disorder ".

25. A witness (other than the accused) is eligible for assistance under s.17 provided that the court is satisfied as to the likelihood that fear or distress connected with testifying in the course of the relevant criminal proceedings will reduce the quality of his or her evidence.
26. Various "special measures" are identified in sections 23 to 30 of the Act:

(a) screening a witness from the accused (s.23);

(b) evidence by live link (s.24);

(c ) evidence given in private (s.25);

(d) removal of wigs and gowns (s.26);

(e) video recorded evidence in chief (s.27);

(f) video recorded cross-examination (s.28);

(g) examination of a witness through an intermediary (s.29);

(h) aids to communication (s.30).

27. So far as the magistrates' court is concerned, the introduction of special measures on 24 July 2002 was confined to evidence by live link and video recorded evidence in chief. It was available only for child witnesses "in need of special protection". There is a definition in s.21(1)(b) indicating that such a witness must be under the age of 17 and participating in a case relating to any offence included in s.35(3)(a) to (d) of the 1999 Act. These include sexual offences, offences of cruelty, kidnapping and any offence that involves assault on, or injury or a threat of injury to, any person. It is clear that an offence of robbery contrary to s.8 of the Theft Act 1968 would fall within s.35(3)(d). It is provided also in s.35(1) that no person charged with an offence to which the section applies may cross-examine in person a protected witness. What is more, unusually for the purposes of this section, "witness" includes a witness who is charged with an offence in the proceedings. Thus, it follows that a defendant may not cross-examine in person "a protected witness" who is a co-defendant. Parliament there appears to be expressly recognising that in at least this limited respect a defendant may be vulnerable to threats or intimidation and needs some degree of protection.
28. Subject to certain limitations contained in s.21(4), "the primary rule" provided for in s.21(3) is that in the case of a child witness the court must give a special measures direction so that he or she may give evidence in chief in the form of a video recording. Any evidence which is not given by such means is to be provided through a live link. This primary rule is only excluded by s.21(4) if the special measure is not available within the meaning of s.18(2); or it is in the interests of justice that all or part of a recording should not be admitted; or compliance is not likely to maximise the quality of the witness's evidence. Nevertheless, it is to be noted that by of virtue of s.21(5) this third exclusion does not apply in the case of child witness in need of special protection. The effect of these provisions is that there is a presumption that the court will give a special measures direction to admit a video recording of the evidence in chief and/or the giving of evidence over a live link unless one or other of the first two exclusory provisions applies.
29. For present purposes, it also necessary to note the provision in s.19(6):

"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, or

(b) in relation to an eligible witness where (as, for example, in case where a foreign language interpreter is to be provided) the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness".

The tension between "special measures" and inherent powers

30. "Special measures" is a statutory term of art applicable to the specific regime provided for in the 1999 Act. It is thus clear that it can have no direct relevance to those persons expressly excluded from it. Nonetheless, the following propositions should be borne in mind:

(1) The courts have powers (in some cases, as s.19(6) recognises, inherent powers at common law) and indeed an obligation to make such provisions as may be necessary for the purpose of ensuring a fair trial;

(2) The 1999 Act does not purport in any way to restrict those pre-existing powers;

(3) Insofar as it is necessary, for the purposes of ensuring a fair trial, for the court to redress the balance between "sides" in criminal proceedings in order to achieve "equality of arms", one factor that may have to be taken into account in striking the balance is that an accused person is confronted by a witness or witnesses with the benefit of special measures. There is no reason to suppose that this consideration must be put "out of bounds" when addressing the question whether any imbalance has arisen which requires to be redressed.

31. Although it would be inappropriate and confusing to apply the statutory language of "special measures", it has been recognised over the years that there are available to the court a range of steps which can be taken where appropriate and necessary for facilitating a fair trial process. There are a number of familiar examples that can be given, such as shielding a witness by means of a screen, allowing a witness to be accompanied by a reassuring member of the court's witness service, providing an interpreter, or excluding members of the public. The list is not exhaustive or the categories closed. More specifically, in relation to children or young witnesses brought before the court, whether as offenders or otherwise, it has long been provided by s.44 of the Children and Young Persons Act 1933 that the court should have regard to the welfare of such persons.
32. Nevertheless, however desirable it may be to protect vulnerable witnesses, restrictions upon an accused's qualified right to confront an adverse witness should not be imposed lightly. In R v Taylor (1994), The Times, 16 August, the Court of Appeal emphasised that the right should only be encroached upon in exceptional circumstances. The court's discretion in this respect will therefore in practice be exercised only rarely. It is to be borne in mind, however, that in that particular case the witness gave evidence anonymously and behind a screen (although she could be seen on a video screen). Despite the anonymity, the court declined to interfere with the Common Serjeant's exercise of his discretion. He had taken into account all relevant considerations. These included the questions of whether there were real grounds for fear of the consequences if the witness's identity was revealed and whether the defendants would suffer "undue prejudice". One factor mitigating any prejudice in that case was the fact that the witness (albeit anonymous) could be seen on the video screen. Importantly, the Court also observed that there was no apparent reason why a defence witness should not be treated in the same way in an appropriate case.
33. Where no question of anonymity arises, as here, it is difficult as a matter of first impression to see why, if screens can be permitted, it would be inappropriate to have the evidence on a video link. At least the defendants and their lawyers would have the opportunity, in such circumstances, of seeing the witness and making some assessment of demeanour.
34. It was said in Scott v Scott [1913] AC 417, albeit not in the context of criminal proceedings, that the court should not become a "place of moral torture". Exceptionally, therefore, it may be necessary sometimes to achieve a just outcome that a witness should be allowed to give evidence without being subjected to public gaze. Indeed, that discretion is a very broad one and will be exercised in a variety of circumstances.
35. In R v Richards (1999) 163 JP 246, the Court of Appeal was confronted with a situation where the Crown's central witness in a murder trial had refused to give evidence unless the public gallery was cleared. She had said that no one could force her to give evidence and that, if necessary, she would accept any punishment imposed. The judge decided that the administration of justice required the gallery to be cleared for her evidence – despite a general presumption that trials should take place in open court.
36. An application for leave to appeal was made by the defendant, following his conviction, on the basis that the ruling was inconsistent with Article 6 and with the principles explained in Scott v Scott. The application was dismissed because the judge was entitled to exclude the public if it was strictly necessary for him to do so. He had formed the view that the witness's protestation that she would otherwise not give evidence was genuine. Despite the general principle that a criminal trial should take place in public, it was recognised that a more fundamental principle was that justice should be done. This case has led both Professor J R Spencer, at [1999] Cambridge Law Journal 497, and Professor Birch, at [1999] Crim. L.R. 765, to highlight how difficult it is to reconcile the inherent powers of the court to exclude the public, on as broad a basis as in the Richards case, with the apparent need for statutory intervention, partly for the purpose of achieving the same objective, in the 1999 Act. There is no doubt, however, that some of the "special measures" do overlap with pre-existing common law powers (e.g. the use of screens and the removal of wigs – apart from the ability to take evidence in private).
37. According to the evidence of S in this case, it is not simply that she would find it distressing to give evidence in the presence of her co-accused but rather that, like the witness in the Richards case, she would choose not to give evidence at all. The effect of this decision would thus be to deprive her of a genuine choice whether or not to give evidence in her own defence, and therefore (assuming that she is telling the truth) to allow threats to prevail to the detriment of the fair trial process. It is noteworthy that in paragraph 3.28 of Speaking Up For Justice the Working Group identified as one of the "considerable safeguards" afforded to accused persons that there is "a right to choose not to give evidence". This was one of the factors which had led them to recommend the exclusion of defendants from the "special measures" regime. Accordingly, in a case where that right is effectively undermined by fear or threats, the court may wish to consider redressing the balance by some proportionate procedural step.

The issues now before the Court

38. Judicial review is sought of the District Judge's decision on 10 September 2003, whereby he refused to make a "special measures" direction for the protection of the Claimant. In the course of argument, however, the following closely related issues have been canvassed:

(1) Did the District Judge have power to make a special measures direction in favour of the Claimant under s.16 of the 1999 Act?

(2) Although it does not strictly arise on the application before the Court, it would be unreal not to give consideration also to the question decided on 12 January 2004, namely whether the District Judge had a power or discretion at common law to permit the Claimant to give evidence by video link.

(3) The question has also been raised as to whether there has already been a breach of the Claimant's right to a fair trial under Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

The Claimant's written submissions

39. It is accepted that there would be no breach of Article 6 merely by virtue of a special measures direction in respect of a child witness in accordance with s.21(5) of the 1999 Act, as a result of the presumption, and without addressing whether there was an actual need for special measures: see R (on the application of D) v Camberwell Green Youth Court [2003] EWHC 227 (Admin), [2003] Cr. App. R. 16. There could thus be no criticism of the District Judge's order for special measures in respect of the complainants.
40. The issue in these proceedings is framed differently. It is suggested that an absence of a power to make a special measures direction protecting any defendant (specifically to enable him or her to give evidence by way of video link) may amount to a violation of the Convention. It was submitted before the District Judge that the word "sole" should be read into s.16 before the word "accused", so as to make it clear that special measures can be applied in respect of a co-defendant. A different adjustment to the wording was suggested before this Court (see para 49 below).
41. Since Parliament has expressly recognised in s.35 of the 1999 Act that a defendant may be intimidated when giving evidence against a co-defendant, so as to justify the prohibition of cross-examination in person, it is difficult to see why a vulnerable witness finding herself in those circumstances should be excluded from protection by other means also. The statute recognises that special measures directions may have the effect of minimising the impact of intimidation and thus facilitating the objective of achieving truthful evidence and a just outcome.
42. It was submitted that the absence of any power to order special measures (i.e. in the 1999 Act) in circumstances such as these may amount to a violation of the Convention because it may prevent a court from providing a vulnerable witness with the protection needed.
43. It was also suggested that the absence of any power to order special measures in such a case may amount to a violation of the presumption of innocence in Article 6. As here, absent a sufficient degree of protection, a defendant may feel unable to go into the witness box and exercise his or her right of giving evidence.
44. Reference was also made to Article 6(3)(d) of the Convention because of the requirement that defence witnesses should be examined under the same conditions as prosecution witnesses. If prosecution witnesses are able to benefit from "special measures" for the purpose of maximising "the quality of their evidence", in accordance with s.17(1) of the 1999 Act, it may be unfair for a vulnerable defendant to be denied comparable facilities. There would be (it is said) a violation of the principle of equality of arms.
45. It was recognised on the Claimant's behalf that Article 6 rights can be qualified if there is sufficient justification: see e.g. Brown v Stott [2003] 1 A C 681. Nevertheless, here it is submitted there is no countervailing reason to justify interfering with the Claimant's rights. There is no justification for drawing a distinction between prosecution and defence witnesses and, indeed, no adequate explanation was provided in Speaking Up For Justice.
46. Despite all the protective safeguards which are available for the benefit of defendants, and which were highlighted in Speaking Up For Justice, none of them is relevant to the present mischief; that is to say, a situation where a defendant requires or may require protective measures in respect of a co-defendant who threatens or intimidates her.
47. Attention was also drawn to the fact that the Scottish Executive proposes to provide for defendants to benefit from special measures in the Vulnerable Witnesses (Scotland) Bill.
48. It was also argued on the Claimant's behalf that any potential violation of the Convention could be avoided by the court's relying upon common law powers to enable her to give evidence by video link. Reference was made to the general acceptance that, in appropriate circumstances, a screen can be used to shield a witness: see R v DJX and others (1990) 91 Cr. App. R. p. 36 and R v Taylor (1994) The Times, 16 August. Mr Southey submits that the analogy is sufficiently close to justify the use of a live link.
49. In the alternative, reliance was placed upon s.3 of the Human Rights Act 1998 which requires that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with rights under the European Convention. He argues that it is possible to read s.16(1) of the 1999 Act in a manner that is compatible by construing it to refer to "a witness in criminal proceedings (other than the accused save where the accused intends to give evidence against any other person charged in the same proceedings)". In other words, the statute should be read as though the italicised words had been inserted by the legislature.
50. It is said that such an interpretation does not do violence to the legislative intention that, in general, "special measures" shall not apply to an accused. It creates a limited extension confined to circumstances where a defendant is giving evidence, comparably to a prosecution witness, against the interests of a co-defendant. Such a reading, it is submitted, would have sufficient clarity and certainty. An analogy was drawn with R v Charisse Crawford [1998] 1 Cr App R 338, in which the Court of Appeal recognised that a co-defendant was entitled to cross-examine an accused person on her previous convictions in accordance with s.1(f)(iii) of the Criminal Evidence Act 1898. There, however, it was observed that the relevant sub-paragraph was "plainly directed to the situation where a defendant is called as a witness and gives evidence against a co-defendant jointly charged in the same proceedings": per Lord Bingham C.J. at p.431. Here, it may be said, there is nothing "plain" about it.
51. As a final resort, Mr Southey submitted that, if his argument based on s.3 of the Human Rights Act were rejected, then the provisions at present under consideration in the 1999 Act could not be read in a manner compatible with the European Convention. He went so far as to submit, therefore, that the Court should make a declaration of incompatibility in accordance with s.4 of the Human Rights Act.

The written submissions of the interested parties.

52. Mr David Perry represented the Secretary of State for the Home Department, and Mr Parishil Patel the Crown Prosecution Service, as interested parties. Their submissions may be summarised as follows.
53. Any suggestion of a breach of Article 6 of the Convention has to be assessed in the light of the proceedings as a whole, including any appeal process. The question should always be whether the particular defendant has been accorded a fair trial. As to "equality of arms", it is necessary to strike a balance between the parties with a view to ensuring that each has a reasonable opportunity to present his or her case. That must be judged against the circumstances of the particular case. Plainly it is not always appropriate or possible to require the parties to be put in exactly the same position.
54. There is no requirement under the Convention for evidence to be given by any particular method. Such questions are normally left for determination by domestic law. It has been recognised in this jurisdiction for many years that it is sometimes necessary to balance the interests of a defendant "against those of witnesses or victims called upon to testify": see Doorson v Netherlands (1996) 22 EHRR 330 at para [70]. Where and how the balance is struck is largely left for resolution by national legislators.
55. It is also to be noted that in Trivedi v United Kingdom [1997] EHRLR 175, a challenge to the provisions of s.23 of the Criminal Justice Act 1988, whereby hearsay evidence is often admitted in criminal proceedings, was declared inadmissible by the European Commission.
56. In Baegen v Netherlands, App. No. 16696/90, 20 October 1994, complaint was made by the applicant that he had been unable to cross-examine, in person, an anonymous complainant in criminal proceedings in which he was charged with rape. It was recognised by the European Commission that there are "special features" in cases concerning rape and other sexual offences, so that measures for the protection of an alleged victim may have to be taken - while having due regard to "an adequate and effective exercise of the rights of the defence".
57. In the light of these considerations, it was submitted on behalf of the Secretary of State that there is on the face of the 1999 Act an appropriate balancing of the rights of the defence, on the one hand, and those of vulnerable witnesses on the other. Moreover, so far as the present case is concerned, the Claimant has the advantage of legal representation; there is an overriding duty in the Youth Court to ensure that the proceedings at her trial are fair; and the Court would be entitled to take into account the concerns of the Claimant in, for example, deciding what weight to give to her evidence (assuming, of course, that she decided to give evidence) and whether any steps needed to be taken to protect her from her co-accused (e.g. by means of physical separation or the use of a screen).
58. Mr Perry emphasised that consideration of these issues is premature in a number of respects, not least because the time has not yet arrived when the Claimant has to decide whether or not to give evidence. One has to allow, in assessing Article 6 considerations at this stage, for a number of possibilities:

(i) The co-accused may plead guilty;

(ii) The prosecution witnesses may exonerate the Claimant in the course of cross-examination;

(iii) The co-accused may give evidence and accept the Claimant's account of events;

(iv) The Claimant may decide not to give evidence and to rely upon the account she gave in interview;

(v) The Claimant may be acquitted.

59. In this context it is important to bear in mind the words of the Administrative Court (Rose L.J. and Henriques J.) in R (on the application of D) v Camberwell Green Youth Court (2003) 167 JP 210 at para. [49]:

"… the fairness of proceedings challenged by reference to Article 6 can only be judged retrospectively by reference to the trial and any appeal not prospectively before the trial has taken place".

60. It is well recognised that in criminal proceedings, perhaps especially where they concern vulnerable young victims or accused, it is undesirable to bring about delays through collateral challenges. As Lord Bingham observed in Dyer v Watson [2002] 3 WLR 1488 at para. [62]:

"Sometimes such delay may prejudice the fairness of the trial: a better developed, more mature, accused may make a different impression on the mind of the tribunal of fact than a more obviously childish accused might have done. But prejudice to the fairness of the trial altogether apart, delay has the highly undesirable result of prolonging the stress to which a vulnerable accused is inevitably subject and retarding the date at which his problems (if he has such) can be addressed and full counselling given to young victims without the risk of tainting their evidence".

See also R v Director of Public Prosecutions, ex parte Kebilene and others [2000] 2 AC 326, 371 F–H per Lord Steyn.

61. Turning to the question of whether the District Judge had relevant powers at common law to enable the accused to give evidence by video link, Counsel for the interested parties made the following submissions.
62. There is no authority to support such a power at common law, which would give rise to a number of delicate and difficult questions:

(i) On what basis would such a direction be made?

(ii) Which witnesses would be eligible?

(iii) What would be the status of the evidence so given?

(iv) Would there be a power to revoke such a direction and if so, on what basis?

(v) Would it be necessary to give, at least in cases proceeding in the Crown Court, a warning?

63. As to the powers contained in the 1999 Act, either expressly or by implication, it was submitted that the learned District Judge came to the correct conclusion. The statute affords him no power. No accused person is eligible for a "special measures" direction.
64. What is more, it is said that there is a legitimate and rational basis for discriminating in this respect between witnesses and accused persons. Witnesses are expected to make themselves available to give evidence and have little or no choice in the matter. Nor do they have the benefit of legal representation. The giving of evidence in court may be disturbing and traumatic – particularly in the case of victims. So too, where the witness is a victim, confrontation in open court with the accused may be especially distressing.
65. In relation to s.3 of the Human Rights Act, it was submitted that the interpretation for which the Claimant contends would radically alter the effect of the legislation and go way beyond mere interpretation. It is clear that a provision "does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator": R v Lambert [2001] 3 WLR 206, per Lord Hope at para. [79]. See also Re S [2002] 2 WLR 720, per Lord Nicholls at para. [39].

The hearing

66. By the time of the hearing, the issues had narrowed considerably. Attention was focused primarily upon the question of whether there has existed an inherent or common law power to direct, in appropriate cases, that a defendant shall be permitted to give evidence by video link – at least when giving evidence against a co-defendant. If so, it would presumably continue to exist in parallel with the statutory powers to grant "special measures", since s.19 would have the effect of preserving any such pre-existing discretion. This is surely the position with regard to some of the special measures, as I have already noted, such as the power to sit in private (if necessary to do so according to established criteria).
67. Mr Southey for the Claimant submits that it would fall within a range of options open to the court, such as e.g. the use of screens or physical separation. Indeed, since the use of a video link would be less prejudicial to the defendants, it would be to that extent the preferable option.
68. There is here perhaps an analogy with the court's powers to take less restrictive measures to protect a witness's evidence than going into camera, such as according anonymity. In Att.-Gen. v The Leveller Magazine Ltd [1979] AC 440, it was recognised by Lords Diplock, Russell and Scarman that the greater includes the lesser. That is to say, the court can always resort to a device sufficient to provide the requisite protection but which involves less derogation from the principle of open justice. Mr Southey asks, rhetorically, if screens are permitted why not a video link?
69. It can be no answer to say that a common law power cannot exist in relation to modern technology, which has only been developed relatively recently. No one suggests that a judge needs statutory authority for jurors to see and evaluate documentary evidence by electronic means, or to take his own notes on a laptop computer.
70. Focusing, however, on the specific question, Mr Perry advanced half a dozen reasons why statutory sanction would be required for this particular measure. Mr Patel for the CPS associated himself with all the submissions.
71. If such a power has existed all along, Mr Perry argues, it is odd that it has never being spotted by Parliament, or by academic commentators, or by the authors of Speaking Up For Justice. In effect, he argued that as soon as this technology became readily accessible the legislature stepped in to regulate it and impliedly also to confine its use in the context of criminal trials.
72. First, in the Criminal Justice Act 1988, provision was made for young and vulnerable witnesses to give evidence by live link in certain circumstances and, later, in the 1991 Act, measures were introduced to enable video taped interviews to stand as evidence in chief. Insofar as evidence is to be given by this means, therefore, authority must be found within the four corners of a statute.
73. Mr Perry supported his argument by reference to s.18(2) of the 1999 Act, dealing with the availability of "special measures":

"Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless –

(a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and

(b) the notice has not been withdrawn ".

The consequence of the Claimant's argument, as to the existence of a common law power, would be that s.18(2) would be simply of no effect. It would not matter what the Secretary of State said; the relevant "special measures" would effectively be available anyway. This argument only applies where the "special measures" in question cannot be made available without "arrangements" being made available. That applies to video link facilities; but not to other "special measures" such as removing wigs and gowns, or taking evidence in private.

74. Mr Perry focused closely also on s.19(6). It makes clear that nothing in the Chapter is to be regarded as affecting any existing power to make an order or to exercise a discretion but only:

"(a) in relation to a witness who is not an eligible witness; or

(b) in relation to an eligible witness where (as, for example, in case where a foreign language interpreter is to be provided) the order is made or the leave is given otherwise than by reason of the fact that the witness is an eligible witness" (emphasis added).

75. This strongly suggests that where special measures are sought for someone who falls into the category of an "eligible witness" the matter is governed exclusively by this statutory code. This is perhaps a less impressive argument, since ss.16 and 17 define "eligibility" in such a way as expressly to exclude the accused. Therefore, if any common law power or discretion exists which is apt to cover an accused, there is nothing in the wording of s.19(6)(a) or (b) that would preclude its application.
76. Reference was also made to s.31 of the 1999 Act. This is partly directed to overcoming hearsay problems in relation to statements "not made by the witness in direct oral testimony in court" by reason of having been made in accordance with a special measures direction. This would clearly not apply to statements made in private (under s.25) or after removal of wigs (under s.26), and must be taken as referring to video recorded or live link evidence. It is implicit in this, submits Mr Perry, that no such evidence would be admissible unless introduced pursuant to the "special measures" regime or some other statutory provision.
77. It is necessary also to have in mind how any live link direction would impact upon the rights of a co-accused. In the Crown Court, where a special measures direction has been given to protect a prosecution witness, the judge may need to give the jury a warning that the direction does not prejudice the accused: see s.32 of the 1999 Act. The problem is not, of course, new. The point has arisen in cases where prosecution witnesses have been screened or separated from the accused in the past. In R v DJX and others (1990) 91 Cr. App. R. 36 the trial judge warned the jury that the mere presence of the screen should not prejudice them against the accused, because its purpose was to protect the child witnesses from being intimidated by their surroundings (rather than by the accused). Lord Lane C.J. (at p.40) expressed the view of the court that no sensible jury could have been prejudiced by the presence of the screens – even without such a warning.
78. Mr Perry suggests that the problem becomes more acute when it is an accused who is being shielded, or who is giving evidence by live link. I am not sure why it could not be covered by a similar warning – if that were the only difficulty. But it is not. As I have already noted, there has long been a presumption that an accused is entitled to face his accusers in open court. As Taylor makes clear, there is a special difficulty in overcoming prejudice where the relevant witness is anonymous and invisible. Here there is no question of anonymity and, if S were to give her evidence by live link, there would be an opportunity to judge her demeanour. Nevertheless, there is apparently another traditional inhibition about separating co-accused. Mr Perry also drew our attention to R v Grondkowski [1946] KB 369, 371-2, where Lord Goddard C.J. said this:

"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous-looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime. Another instance would be the case of an indictment against husband and wife. The latter is no longer presumed in law to be acting under the coercion of her husband, but may nevertheless prove that she was. It would be very desirable, not only in the interest of the prisoners, but of justice, that the same jury should try them both, and it is by no means beyond the bounds of possibility that so far from finding that the wife acted under the coercion of her husband, it might be found that the husband was coerced by the wife, and if the same jury ought to try them, it would be absurd to say that they should be tried separately".

79. It was there observed that joint trial might serve the purposes of the accused as well as the Crown. In the present case, for example, it might be argued by the co-defendants that to separate S from them when she was describing their respective roles would give her an unfair advantage and create corresponding prejudice for them. Thus, the fact that such a step has never been taken before should not be dismissed as mere coincidence. Where accused persons are to be tried together, it could surely only be an exceptional case where they are to be separated in the course of the trial process. (If thought appropriate, in order to achieve a just solution, there is always the option to order separate trials – provided the considerations discussed by Lord Roskill in Chief Constable of Norfolk v Clayton [1983] 2 AC 473 are properly addressed.)
80. For these reasons, Mr Perry and Mr Patel both submitted that the District Judge was quite right to conclude on 12 January 2004 that he had no power at common law to order that the Claimant's evidence be given by live link. Such a major departure from long standing practice would require to be sanctioned by the legislature.

Conclusions

81. In the light of the very full and helpful arguments, I have come to the following conclusions on the issues canvassed.
82. The District Judge was plainly right to hold that he had no power to make a "special measures" direction under the framework of Chapter 1 of Part II of the 1999 Act in relation to the Claimant's evidence. It was Parliament's clear intention to exclude defendants from those provisions. Moreover, it cannot be said that the terms of the statute are incompatible with Article 6 of the European Convention on Human Rights, since it does not in any way derogate from the powers and safeguards already in place under the provisions of domestic law: see s.19. It is concerned not to restrict the rights of defendants but to augment the protection available for other witnesses. In any event, there remains the obligation to ensure a fair trial and, in particular, to see that a defendant does not suffer injustice through inequality of arms.
83. It is thus impossible to say that the refusal to order a "special measures" direction, as such, involved any breach of the Claimant's Article 6 right to a fair trial. The fairness of the trial can only be judged in retrospect, taking into account the trial process as a whole.
84. Nor is this a case in which it would be appropriate for the court to declare that the provision of the "special measures" regime for the protection of vulnerable witnesses is incompatible with Convention rights – even though defendants are expressly excluded.
85. It is not possible by reference to s.3 of the Human Rights Act 1998 to read in any of the wording suggested, either before the District Judge or before this court, since that would be to cross the line between interpretation and judicial legislation.
86. I was tempted on reading the papers to conclude that permitting a defendant to give evidence by live link would be within the range of measures open to the court, in its discretion, to regulate the trial process. I was not so much impressed by the "equality of arms" argument, as by the apparent derogation from the Claimant's right to choose whether or not she gives evidence in her own defence; her evidence was to the effect that she would only do so if able to use a live link facility. In the light of the arguments, however, I have come to the conclusion, albeit with some reluctance, that the District Judge was also entirely correct in his decision that no power exists to make the desired order under any inherent or common law power.
87. Although there are some "special measures" contemplated by the statute which were always part of the court's armoury in choosing how to regulate a criminal trial (such as taking evidence in private, or protecting a witness behind a screen), I am satisfied that this is not so in the case of the use of video facilities.
88. What seems to me to be conclusive is that Parliament from 1988 onwards, in the statutes to which I have referred above, up to and including the 1999 Act, has sought to provide exclusively for the circumstances in which live link evidence may be utilised in the course of a criminal trial. That statutory regime seems to me to be incompatible with any inherent or common law jurisdiction existing in parallel. As to civil litigation, there is a different regime under CPR 32.3: see e.g. Rowland v Bock [2002] 4 All ER 370 and Polanski v Condé Nast Publications Ltd [2004] 1 All ER 1220, C.A. (in respect of which permission has been given to appeal to the House of Lords).
89. Accordingly, I would refuse the relief sought, since no legitimate criticism can be made of the District Judge's ruling of 10 September last year or, for that matter, of his further ruling on 12 January 2004.

Lord Justice Laws:

90. I agree.