R, R v

Once section 27 of the Youth Justice and Criminal Evidence Act 1999 had been commenced without geographical restriction, it formed part of the substantive law of evidence throughout the Crown Court. Section 18(2) did not permit a Secretary of State, by administrative notification, to control whether that law applied at particular Crown Court locations. It was an administrative provision concerning the availability of arrangements.

In any event, where a statutory requirement is not met, the decisive question is whether Parliament intended total invalidity. The absence of notification did not render video-recorded evidence in chief inadmissible. A conviction was also safe where the witness was sworn before the recording was played and was fully cross-examined.

The appellant was convicted at Chelmsford Crown Court of raping his wife and assault occasioning actual bodily harm. He received eight years’ imprisonment with a three-year extension period.

The wife’s police interview was played as her evidence in chief under section 27 of the Youth Justice and Criminal Evidence Act 1999. She then gave further evidence and was cross-examined by live television link. Although section 27 had been commenced, the Secretary of State had not notified Chelmsford Crown Court under section 18(2) that arrangements for video-recorded evidence in chief were available for intimidated witnesses.

The appeal asked whether that absence of notification deprived the judge of power to admit the recording and, if so, whether the evidence became inadmissible or the conviction unsafe.

1. Appeal dismissed. Section 27 had been brought into force by a commencement order without geographical restriction. It was therefore part of the substantive law governing evidence in every Crown Court. The court’s inherent procedural powers could not independently alter that law.
2. Section 18(2) was construed as an administrative mechanism to notify a court that the necessary arrangements and training were available. Its language did not clearly authorise the executive to decide, by unpublicised notification, where substantive rules of criminal evidence applied. Such a construction would conflict with the constitutional principle that Parliament, unless it uses clear language, determines changes to substantive law. It would also sit uneasily with the Crown Court’s single jurisdiction. The judge consequently had power to direct admission of the recording under section 27.
3. Alternatively, even if notification had been a precondition to the direction, Parliament did not intend its absence to make the evidence inadmissible. Applying the consequences-of-non-compliance approach in R v Clarke and McDaid [2008] UKHL 8, Attorney General’s Reference No. 3 of 1999 [2000] UKHL 63 and R v Soneji [2005] UKHL 49, the question was whether Parliament intended total invalidity. The statutory purpose was to assist witnesses and permit phased introduction, not to exclude otherwise reliable evidence.
4. The conviction was safe. The application disclosed that no oath had been administered during the recorded interview. The wife was sworn before the recording was played, maintained her account during extensive cross-examination, and suffered no relevant prejudice from giving evidence by video link.
5. The court added, obiter, that future legislation should clearly distinguish a geographical pilot changing substantive law from staged administrative implementation of an enacted change.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction.
• Crown Court at Chelmsford — convicted the appellant on 12 July 2004 of rape and assault occasioning actual bodily harm, and imposed eight years’ imprisonment with a three-year extension period.