D, R (on the application of) v Camberwell Green Youth Court

Youth Justice and Criminal Evidence Act 1999, section 21(5), requires a special measures direction for a child witness in need of special protection. That mandatory primary rule is compatible with Article 6. A live link or video-recorded evidence in chief does not itself breach the defendant’s right to examine witnesses, provided the defence can see and hear the witness and cross-examine effectively. Any unfairness arising from later developments can be addressed through statutory safety valves and the court’s powers to ensure a fair trial. Article 6 fairness is ordinarily assessed retrospectively by reference to the trial and any appeal, not prospectively before the trial.

Six judicial review applications concerned special measures directions in youth-court criminal proceedings. In D, R and N, directions had been made for child prosecution witnesses to give evidence by live link. In G, I and AE, District Judges had refused such directions, considering that they would create inequality and prejudice contrary to Article 6.

The central issues were whether section 21(5) was compatible with Convention rights, whether a youth court could decline the mandatory primary rule at the initial stage, and the proper operation of the statutory safeguards.

1. Applications in D, R and N dismissed. The refusals in G, I and AE to make special measures directions were quashed. The matters were to return to the Camberwell Youth Court for redetermination according to the judgment.
2. Section 21(5) establishes a primary rule requiring a timely special measures direction for a child witness in need of special protection. It ensures that appropriate arrangements can be made and gives the witness early certainty about the way in which evidence will be given. The statutory scheme does not permit the court to disregard that rule merely because it considers a direction unnecessary or potentially unequal at the outset.
3. The primary rule does not breach Article 6 or Article 14. Article 6 does not prohibit a vulnerable witness from giving evidence in a room separate from the defendant. A live link and video-recorded evidence in chief are compatible with Article 6(3)(d), provided the defendant’s lawyers can see and hear the witness and can cross-examine.
4. Sections 20(2) and 24(3), together with the court’s common-law powers, provide safeguards if later developments create unforeseen difficulties or impair the fairness of the trial. The fairness of proceedings under Article 6 is generally assessed retrospectively by reference to the trial and any appeal. The District Judges therefore acted prematurely in determining that the proposed arrangements would violate Article 6.
5. The District Judges also failed to perform the statutory task. They should have applied the sequence in section 21, including the deeming provisions concerning the maximisation of the quality of the child witness’s evidence, and then considered the relevant statutory safeguards. Their decisions were therefore unlawful and required to be quashed.

The judgment determined six judicial review applications arising from decisions of the Balham and Camberwell Youth Courts. The applications in D, R and N challenged directions made by the youth courts. The applications in G, I and AE challenged refusals by District Judges to make special measures directions. The Divisional Court dismissed the former applications and quashed the latter decisions.