Crown Prosecution Service v Harvey

A magistrates’ court considering an application to protect witnesses should give brief reasons explaining why the application succeeds or fails. The prosecution must place before the court sufficient material to establish that protective measures are necessary. Where an application for screens is refused, judicial review is available only if the decision is Wednesbury unreasonable. A general possibility of reprisals is insufficient without supporting evidence. The use of screens is materially less stringent than witness anonymity, but it remains a discretionary protective measure. A refusal will not be quashed where it was open to the magistrates, on the material before them, to conclude that the need for screens had not been established.

The Crown Prosecution Service sought judicial review of a decision by a District Judge sitting at Stoke-on-Trent Magistrates’ Court. The District Judge had refused an application for two covert football stewards to give evidence behind screens in proceedings against Andrew Harvey for racially aggravated disorderly behaviour.

The application did not seek anonymity and was not made under Part 2 of the Youth Justice and Criminal Evidence Act 1999. It relied instead on the court’s common-law jurisdiction to protect witnesses. The central questions were whether reasons should have been given, whether the evidence established a need for screens, and whether the refusal was susceptible to judicial review.

1. The application was refused. The District Judge’s decision was not manifestly unreasonable in the Wednesbury sense. It was open to him to conclude that the case for screens had not been made out.
2. The District Judge should have given reasons for refusing the application. Those reasons could have been brief, but they should have made clear why the application had failed. The absence of reasons was not relied on as an independent ground of challenge, and the court nevertheless considered the substantive decision.
3. The prosecution, as the party seeking protective measures, had to place appropriate material before the District Judge to support the asserted risk of reprisals. The mere assertion that the stewards might be at risk if their appearance became known did not establish that screens were necessary.
4. The court recognised that circumstances involving covert stewards might justify screens, while other cases might not. The question was fact-sensitive and fell within the District Judge’s discretion. On the material presented, refusal was a lawful conclusion.
5. The application was not made under Part 2 or section 17(1) of the Youth Justice and Criminal Evidence Act 1999, which concern special measures where the quality of a witness’s evidence is likely to be diminished by fear or distress. The court therefore considered the application under the common law.
6. Witness anonymity is a substantially more stringent measure than screens. Authorities concerning anonymity therefore did not determine the present application, although they formed part of the relevant context.

The judgment describes a decision by District Judge Richards at Stoke-on-Trent Magistrates’ Court on 8 August 2007 refusing the application for screens. The Administrative Court refused the Crown Prosecution Service’s judicial review application and did not quash or remit that decision.