S, R (on the application of) v Waltham Forest Youth Court & Ors

The Youth Justice and Criminal Evidence Act 1999 deliberately excludes accused persons from its statutory special-measures regime. That exclusion is not incompatible with Article 6, because the Act preserves existing judicial powers and the court’s continuing duty to secure a fair trial and equality of arms.

However, the statutory scheme governing live-link evidence is exhaustive. A criminal court has no parallel inherent or common-law power to permit an accused to give evidence by video link. Section 3 of the Human Rights Act 1998 cannot be used to insert words into the statute where that would amount to judicial legislation. Article 6 fairness is assessed retrospectively by reference to the proceedings as a whole.

S, aged 13, faced robbery charges with three co-defendants. She alleged that threats from co-defendants would prevent her giving evidence in their physical presence. The Waltham Forest Youth Court granted special measures for the complainants but refused equivalent protection for S.

On judicial review, the Administrative Court considered whether S was eligible for special measures under the Youth Justice and Criminal Evidence Act 1999, whether the court had an inherent or common-law power to permit her evidence by live link, and whether the statutory exclusion of defendants breached Article 6 or required a declaration of incompatibility.

1. Statutory eligibility. The District Judge correctly held that S was excluded from the special-measures regime. Section 16 expressly refers to a witness other than the accused, and the exclusion reflected a deliberate legislative choice. Section 35 nevertheless shows that Parliament recognised that a defendant may face intimidation when giving evidence against a co-defendant.
2. Fair trial and equality of arms. The statutory regime does not restrict pre-existing domestic safeguards. Under section 19, the court retains powers, and an obligation, to make arrangements necessary for a fair trial. The presence of special measures for prosecution witnesses may be relevant when assessing whether the defence suffers inequality of arms. Any restriction on confrontation must be exceptional and proportionate.
3. Article 6. The refusal of a special-measures direction did not itself breach Article 6. Fairness must be assessed retrospectively by reference to the trial and any appeal as a whole. The court therefore declined to make a declaration of incompatibility.
4. Common-law video link. Some measures, such as screens or sitting in private, formed part of the court’s existing procedural powers. Live-link evidence was different. Parliament had legislated from 1988 onwards to regulate the circumstances in which such evidence could be used in criminal trials. That statutory regime was incompatible with a parallel inherent jurisdiction for an accused’s live-link evidence.
5. Human Rights Act interpretation. Section 3 could not justify reading additional words into section 16 to include a defendant giving evidence against a co-defendant. That would cross the line from interpretation into judicial legislation.
6. The claim was refused. The District Judge’s rulings of 10 September 2003 and 12 January 2004 were upheld.

This was a first-instance judicial review in the Administrative Court. The court upheld the Waltham Forest Youth Court’s decisions refusing special measures and a common-law live-link direction.