CPS Harrow, R (on the application of) v Brentford Youth Court

Evidence of prior conduct may be admitted as background where it is necessary to make the evidence concerning the charged offence complete and comprehensible. The trial judge must assess that issue and then weigh probative value against prejudice. An appellate or reviewing court should interfere only for legal error, consideration of irrelevant matters, failure to consider relevant matters, or legal perversity.

Section 27(2) and (3) of the Youth Justice and Criminal Evidence Act 1999 does not generally enlarge the common-law or statutory rules of admissibility. It may permit inclusion of otherwise inadmissible material in an unusual case where a child or disabled witness cannot give coherent and understandable evidence without it.

A 15-year-old complainant alleged that another 15-year-old pupil indecently assaulted her at school. The prosecution sought to play her video-recorded interview as evidence in chief under section 21 of the Youth Justice and Criminal Evidence Act 1999, including allegations of earlier conduct by the defendant.

The district judge excluded the earlier allegations. He rejected their admission as similar-fact evidence and concluded that they were neither necessary to make the account of the charged incident complete or comprehensible nor sufficiently probative when weighed against prejudice. The prosecution sought judicial review, arguing that the earlier conduct was admissible as background and that section 27(2) and (3) extended the ordinary rules of admissibility.

1. Background evidence. Similar-fact reasoning was inapplicable because evidence from one complainant about separate conduct by the same defendant could not mutually support itself. The relevant question was whether the earlier conduct formed part of a continuing background without which the account of the charged incident would be incomplete or incomprehensible.
2. The assessment was primarily for the trial judge. Once the judge had addressed the correct test, the decision could be challenged only if irrelevant matters had been considered, relevant matters omitted, or the conclusion was legally perverse. The district judge had applied the correct approach, found the charged incident intelligible without the earlier allegations, and concluded that their prejudicial effect outweighed their probative value. His decision was one reasonably open to him.
3. Section 27. Section 31(5) preserved the operation of evidential rules. The word desirability in section 27(3) did not make otherwise inadmissible evidence admissible merely because it appeared in a video recording. Sections 27(2) and (3) concerned whether a recording, or part of it, should be admitted in the interests of justice and whether prejudice was outweighed by the desirability of showing substantially the whole interview.
4. An exceptional case could arise where a child or disabled witness could not give coherent and understandable evidence by any available method without including otherwise inadmissible material. In such a case the material might be played, subject to an appropriate judicial direction that it must not be relied upon. That exception did not apply here.
5. The judicial review application was dismissed. No order for costs was made. Publication identifying the complainant or defendant was prohibited.

This was a judicial review application in the Administrative Court. The judgment does not state any earlier appellate decision.