Brown & Anor, R v

A judge may permit witnesses to give evidence behind screens where the statutory conditions are met and the quality of their evidence is likely to be diminished by fear or distress. The decision is discretionary and must fairly accommodate the defendants and the witnesses.

A late application for a special-measures direction is not automatically invalid. The timing requirement in the Special Measures Directions Rules is directory, although any resulting disadvantage to the defence requires careful consideration. A suitable warning that screens must not prejudice the jury against the defendants need not be repeated in the summing-up if it has already been given clearly and effectively at the appropriate time.

The appellants were convicted at Blackfriars Crown Court in July 2003 of aggravated burglary. Brown received four years’ imprisonment and Grant received five years.

The prosecution alleged that the appellants and a co-defendant entered a flat as trespassers, armed and threatening, intending to inflict grievous bodily harm on members of the Steventon family. The trial judge permitted three prosecution witnesses to give evidence behind screens under Youth and Criminal Evidence Act 1999, section 17.

The conviction appeals challenged both the use of screens and the adequacy of the jury direction. Brown also appealed his sentence. The central issues were whether the special-measures directions were properly made despite late applications, whether the jury had been adequately warned, and whether Brown’s sentence was excessive.

1. The conviction appeals and Brown’s appeal against sentence were dismissed.
2. The trial judge was entitled to conclude that the witnesses’ evidence was likely to be diminished by fear or distress within section 17(2)(a) of the Youth and Criminal Evidence Act 1999. The alleged armed and threatening entry into the witnesses’ home supplied a proper basis for that conclusion. The decision was one of judicial discretion, requiring fairness to both defendants and witnesses, and disclosed no basis for appellate intervention.
3. The fact that one witness chose to testify without a screen did not require the same course for other witnesses. Individual witnesses could make different choices, provided the jury received a correct direction about the significance of screens.
4. Although Rule 2 subrule (4) of the Special Measures Directions Rules 2002 envisaged an application 28 days before trial, Rule 4(2)(b) was directory rather than mandatory. A late application could therefore be granted. Any substantial resulting handicap to the defence would require careful consideration, but none arose here. The judge was also not at fault for failing to address a procedural provision which had not been raised before him.
5. The judge’s contemporaneous direction made clear that screens were a statutory procedure and must not prejudice the jury against any defendant. No absolute rule required repetition in the summing-up. The question was whether the jury had effectively received the necessary warning; they had.
6. Brown’s four-year sentence properly reflected a planned, concerted and intimidating aggravated burglary. Daniel [2000] 2 Cr App R(S) 184 was materially different, including because it involved a guilty plea and circumstances absent here. Brown had already received appropriate credit for his age and previous good character.

• Court of Appeal (Criminal Division) — dismissed the appellants’ conviction appeals and dismissed Brown’s appeal against sentence: [2004] EWCA Crim 1620.
• Crown Court at Blackfriars — in July 2003, convicted Brown and Grant of aggravated burglary and sentenced them to four and five years’ imprisonment respectively.