R(D) v Camberwell Green Youth Court

The House of Lords held that section 21(5) of the Youth Justice and Criminal Evidence Act 1999, which creates an irrebuttable presumption that child witnesses in specified sexual or violent offences should give their evidence by video-recorded interview and/or live television link, is compatible with the defendant's rights under article 6 of the European Convention on Human Rights. The court confirmed that the statutory scheme presumes such "special measures" will maximise the quality of children's evidence (see sections 16, 19 and 21) and that the limited powers to vary or discharge directions (section 20(2)) and to permit evidence to be given in another way at trial (section 24(3), section 27(7)) are adequate safeguards.

The court rejected arguments that the absence of an opportunity for individualised consideration at the point a direction is made offends article 6(3)(d) or the equality of arms principle in article 6(1). The Lords emphasised Strasbourg authority (eg Kostovski, Van Mechelen, S.N. v Sweden) establishing that the Convention requires an adequate and proper opportunity to challenge witnesses, which can be afforded at trial by live link or by permitting cross-examination, and that Parliament was entitled to adopt a general rule for child witnesses.

The appellants were child defendants challenging preliminary Youth Court decisions concerning whether child witnesses should be required to give evidence by live television link and/or by a video-recorded interview under the Youth Justice and Criminal Evidence Act 1999. The Divisional Court had given conflicting decisions: in some cases justices ordered live link directions and the defendants sought judicial review; in others district judges declined to make directions and the Director of Public Prosecutions applied for judicial review. The Divisional Court certified the question whether section 21(5) is compliant with article 6 of the European Convention on Human Rights insofar as it precludes individualised consideration when a direction is made.

The issues for the House were: (i) whether the statutory presumption and the limited opportunities to disapply or vary directions are incompatible with article 6(3)(d) (the right to examine witnesses) and article 6(1) (fair trial/equality of arms); (ii) whether the court must make an individualised assessment at the time the special measures direction is made; and (iii) the scope of the court's powers to ensure a fair trial for child defendants.

The Lords analysed the statutory scheme (sections 16–21, 24, 27 and 20) and relevant Strasbourg and comparative case law. They concluded that the measures were intended to maximise the completeness, coherence and accuracy of child witnesses' evidence and that Parliament was entitled to adopt a general rule for children in specified offences. The House held that the Convention does not guarantee a right to literal face-to-face confrontation and that article 6 is satisfied so long as the defendant has an adequate and proper opportunity to challenge witnesses, which may be provided at trial by live link and by judicial control over admission of video recordings. The Lords also accepted that domestic courts retain powers (including inherent jurisdiction) to take steps to ensure the defendant can give his best evidence and to discharge or vary directions at trial if genuine injustice arises. The appeals were dismissed.

Appeals dismissed. The House held that section 21(5) of the Youth Justice and Criminal Evidence Act 1999 is compatible with article 6 of the European Convention on Human Rights. The statutory presumption that child witnesses in sexual or violent offences give evidence by video recording and/or live link is lawful because the Convention requires an adequate opportunity to challenge witnesses rather than a literal face-to-face requirement, and the statute contains adequate safeguards (eg sections 20, 24 and 27 and inherent judicial powers) to address any trial-day risk of injustice.

Appeal from the Divisional Court ([2003] EWHC 227 (Admin)) to the Appellate Committee of the House of Lords; the House dismissed the appeals and answered the certified question in the affirmative.