QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE EADY
| The Queen on the application of S
|- and -
|Waltham Forest Youth Court
The Crown Prosecution Service
The Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Perry for the Secretary of State for the Home Department
Mr Parishil Patel for the Crown Prosecution Service
Crown Copyright ©
Mr Justice Eady:
The general legal background
The statutory regime of the 1999 Act
"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".
"(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".
"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…"
"(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 ".
(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).
"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
(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.
The issues now before the Court
(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
The written submissions of the interested parties.
(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.
"… 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".
"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  2 AC 326, 371 F–H per Lord Steyn.
(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?
"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.
"(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).
"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".
Lord Justice Laws: