Regina v. Camberwell Green Youth Court (Respondents) ex parte D (a minor) (by his mother and litigation friend) (FC) (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) Regina v. Camberwell Green Youth Court (Respondents) ex parte Director of Public Prosecutions (Respondents) (G (by his mother and litigation friend (FC) (Appellant) (Interested Party)) ((Criminal Appeal from Her Majesty's High Court of Justice

The statutory rule requiring protected child witnesses to give evidence by video recording and live link is compatible with article 6. A fair trial requires an adequate opportunity to know, challenge and question the evidence. It does not invariably require face-to-face confrontation.

The trial court retains powers to depart from an earlier special measures direction where a real risk of injustice emerges. The unequal statutory treatment of child witnesses and child defendants does not itself breach equality of arms. Courts must instead use their powers, where necessary, to ensure that a child defendant can understand, participate and give evidence effectively.

Child defendants were prosecuted for robbery or assault in youth courts. In D's associated cases, the justices directed that young witnesses should give evidence by live link. In G's associated cases, district judges refused special measures because child defendants could not use the statutory scheme available to child witnesses.

The Divisional Court dismissed D's applications for judicial review and allowed the Director of Public Prosecutions' applications in G's cases: [2003] EWHC 227 (Admin). The appeals concerned whether section 21(5) of the Youth Justice and Criminal Evidence Act 1999, which prevents individualised consideration of the necessity for special measures when a protected child witness's direction is first made, was compatible with article 6 of the Convention.

1. The appeals were unanimously dismissed. Baroness Hale answered the certified question affirmatively. Lord Rodger and Lord Brown agreed, as did Lord Nicholls and Lord Hoffmann.

2. Per Baroness Hale, Parliament made video-recorded evidence in chief and live-link evidence the normal procedure for child witnesses in proceedings involving sexual or violent offences. The court cannot refuse the measures merely because a particular child appears capable of giving evidence in court. A special reason is required to depart from the statutory norm.

3. Per Baroness Hale and Lord Brown, the statutory scheme preserves sufficient safeguards against injustice. The trial court may permit evidence outside a live link under section 24(3), and may discharge or vary a direction under section 20(2). The court must begin from the presumption that special measures are not intrinsically unfair, but must take any action needed if a real risk of injustice emerges at trial. Departures are intended to be exceptional.

4. Per Lord Rodger and Baroness Hale, article 6(3)(d) requires an adequate and proper opportunity to challenge and question a witness. It does not guarantee that the accused and witness will occupy the same room or confront one another face to face. Video recording and live-link evidence preserve adversarial testing because the accused can see and hear the evidence and the witness remains available for cross-examination.

5. Per Baroness Hale and Lord Rodger, the absence of equivalent statutory special measures for child defendants does not itself violate equality of arms. The proper response is not to exclude the best evidence of child witnesses. The court must assess whether the defendant is placed at a substantial disadvantage and use its wide and flexible powers to secure effective participation and a fair opportunity to give evidence.

6. Baroness Hale reserved the question whether R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin) correctly denied an inherent power to let a defendant give evidence by live link. That question did not affect the appeals.

1. House of Lords: The appeals were dismissed unanimously and the certified question was answered affirmatively: [2005] UKHL 4.
2. Divisional Court of the High Court: The court dismissed the applications by D, R and N, allowed the Director of Public Prosecutions' applications concerning G, I and AE, and held that the special measures scheme was compatible with article 6: [2003] EWHC 227 (Admin).
3. Youth courts: Justices in D's cases ordered live-link evidence. District judges in G's cases refused special measures because they considered the differing treatment of child witnesses and child defendants unequal.