England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11th December 2007

1. MR JUSTICE JACK: On 8th August 2007 District Judge Richards, sitting in the Stoke-on-Trent Magistrates' Court, heard an application that two witnesses in proceedings pending against Andrew Harvey should be permitted to give their evidence behind screens. The District Judge refused the application. He gave no reasons and was not requested to give any.

2. The charge faced by Andrew Harvey is of racially aggravated disorderly behaviour contrary to section 5 of the Public Order Act 1986, and section 31 of the Crime and Disorder Act 1998. It is alleged that at a match between Stoke City and Colchester United at the Stoke City football ground on 28th April 2007 Mr Harvey shouted racial abuse at a black Colchester United player.

3. The witnesses who would have been called to give evidence of his behaviour are two covert stewards employed by the club who sit among the spectators. A covert steward is one who appears to be an ordinary spectator. One of their functions is to report any problems they see at an early stage, so aiding the safety of the general body of spectators.

4. The application was not to conceal the names of the two stewards, nor where they were sitting on the occasion in question. Their names and seat numbers have been disclosed. What was sought was an order that they should give their evidence behind screens so their appearances should be concealed from the defendant and the public in court. The court was not asked to make this order as a special measure under Part 2 of the Youth Justice and Criminal Evidence Act 1999. Thus, section 17(1), which applies where the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on his part, was not relied on. What was relied on was the court's jurisdiction of common law to take measures to protect witnesses.

5. We have been referred to some of the cases relating to the granting of anonymity of witnesses. Probably the most recent of the Court of Appeal decisions concerning anonymity is R v Davis, R v Ellis [2006] 2 Cr App R 32, [2006] EWCA Crim 1155, where the court dismissed the appeal. Anonymity is a much more stringent measure than the use of screens and gives rise to difficulties which are absent where the order is for the use of screens. The use of screens pursuant to the 1996 Act is now commonplace.

6. The order that is sought is to quash the decision of the District Judge and to remit the case back to the Magistrates' Court for the issue to be reconsidered in the light of this court's judgment. It is unfortunate that we are asked to consider the case without knowing why the District Judge exercised his discretion as he did. As I have stated, he gave no reasons for his decision, nor was he asked to give any.

7. We have been referred to cases concerning the giving of reasons by Magistrates, but unfortunately not the more recent decisions dealing with the application of Article 6 of the European Convention on Human Rights, in particular, McKerry v Teesdale and Wear Valley Justices [2001] ELMR 127 and R (on the application of McGowan v Brent Justices [2002] Crim LR 412. In the former case it was held that the reasons given by the magistrates for ordering that the name of a young person might be published were sufficient. In the latter it was held that the reasons given for a conviction were sufficient. The cases are collected in volume 1 of Stones Justices Manual at paragraph 1-702, footnote 5, and in Halsbury's Laws of England, Volume 29, paragraph 761.

8. It seems to us that in the circumstances here the District Judge should have given reasons for his decision to refuse the application. That could have been done briefly, probably very briefly. What was necessary was for it to be made clear why the application had failed. We also consider that, given the present application, it was unfortunate that no request was made to the District Judge to give his reasons. However, we should make it clear that Mr David Bennett, making the application to us today, does not rely upon the failure to give any reasons as part of his application.

9. What Mr Bennett has submitted to us today is that the two covert stewards requested that they give evidence behind screens in order to protect themselves from reprisals if what they looked like was known to the defendant and to others who might be associated with the defendant. We have asked Mr Bennett if any material was put before the District Judge to support the assertion that they would be at risk if they continued to act as covert stewards and it had been seen at the trial what they looked like. It appeared it was not.

10. It seems to me that in the circumstances the District Judge must simply have decided that the case for the use of screens was not made out, that is to say, it was not established before him that screens were necessary to protect the witnesses in the way that Mr Bennett was submitting to him was necessary. That is not something that is really capable of very much elaboration. We can understand that there might be situations involving covert stewards where they were at risk in the way that Mr Bennett has submitted. We can also understand that there could be situations in which no such fears were justified. It was for the prosecution in this case, making their application, to lay before the District Judge appropriate material to support it.

11. In order for the application for judicial review to succeed, it has to be established that the decision of the District Judge was manifestly unreasonable in the sense that that is used in the well known Wednesbury case. We are satisfied that that cannot be said of the District Judge's decision. It was well open to him, in the circumstances of this application, to decide that it was not made out, that screens were not appropriate and so the application for them should be refused. The consequence is that this application for judicial review of his decision must be refused.

12. LORD JUSTICE DYSON: I agree. Thank you, Mr Bennett.