Hillman, R (on the application of) v Richmond Magistrates' Court

A direction preventing an accused from personally cross-examining a witness must be made by the justices after applying the statutory criteria and giving the accused a proper opportunity to make representations. The relevant considerations under Youth Justice and Criminal Evidence Act 1999, section 36(3), must be addressed by the justices themselves. A later application to discharge a direction under section 37(2) raises a different question from the original application under section 36. Confusing those statutory functions, or failing to establish what order was made, renders the decision unsafe and justifies quashing it.

The claimant sought judicial review of directions allegedly made by Richmond Magistrates under section 36 of the Youth Justice and Criminal Evidence Act 1999, on 14 November and 5 December 2002. The directions purported to prevent him from personally cross-examining the complainant. The records were conflicting and it was unclear whether a direction had been made on 14 November.

On 5 December the justices considered both the section 36(3) factors and whether there had been a material change of circumstances, apparently treating the matter as both an original application and an application under section 37(2). The central issue was whether either direction had been lawfully made.

1. The directions were quashed and the matter was remitted. It was unclear whether any order had been made on 14 November 2002. If an order had been made, it was unlawful because the claimant had not been given an opportunity to make representations, the relevant section 36(3) matters were not shown to have been considered, and the direction appeared to have been pronounced by the clerk rather than the justices.
2. Under section 36 of the Youth Justice and Criminal Evidence Act 1999, the justices must themselves consider the statutory matters, including the witness's views, the nature of the questions likely to be asked, the accused's behaviour, and the relationship between the witness and the accused. The accused must have a full opportunity to address representations to the justices in their presence.
3. The decision of 5 December disclosed a fundamental confusion between sections 36 and 37(2). If the claimant was applying under section 37(2) to discharge an existing direction, the question was whether there had been a material change of circumstances. If the justices were considering a fresh direction under section 36, material change of circumstances was irrelevant. The two statutory functions could not properly be conflated.
4. The justices were directed to reconsider the section 36 matters afresh. Any representations were to be addressed to the justices, not merely to the clerk, and the justices themselves were to announce their decision.
5. The court also observed that the material concerning the letters did not readily disclose actual threats and that the prosecution might wish to reconsider the continuation of the proceedings, although that was a matter for the prosecution.