The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence presented to a court. There was no absolute right for a defendant to be allowed to face his accusers. Special measures to protect a vulnerable or intimidated witness form the accused would not normally be applicable to a defendant witness, but other means were available to a court to assist a defendant in ensuring that where he had communication difficulties, his case was put across properly. The court had an obligation to achieve fairness in each particular case, and that requirement was met by the system. Appeal dismissed.
Lord Rodger stated: ‘the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused . . An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge.’
Judges:
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Citations:
[2005] UKHL 4, Times 01-Feb-2005, [2005] 1 WLR 393, [2005] 1 All ER 999
Links:
Statutes:
Youth Justice and Criminal Evidence Act 1999 21, European Convention on Human Rights 6(3)(d)
Jurisdiction:
England and Wales
Citing:
Cited – Unterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
Cited – Regina v Redbridge Youth Court and Another Admn 22-Mar-2001
The sections were exceptions to the normal practice of giving evidence in the court room, for which in the case of live link an individual case had to be made each time. The court should strike a balance between the ‘right of the defendant to have a . .
Cited – Crawford v Washington 2004
(US Supreme Court) The Court examined the historical background to the Sixth Amendment.
Held: The principal evil against which it was directed ‘was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as . .
Cited – Van Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
Cited – Rex v Smellie CCA 1919
The defendant was accused of mistreating his eleven year old daughter. He was ordered to sit upon the stairs leading to the dock, out of her sight, in order to avoid her being intimidated.
Held: A judge could, using the courts own powers to . .
Cited – California v Green 1970
(US Supreme Court) There was no violation of the Sixth Amendment when the defendant was convicted of supplying marijuana on the basis of pre-trial statements of a witness who gave evidence at the trial and who was subject to full and effective . .
Cited – Kostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
Appeal from – Regina (D) v Camberwell Green Youth Court; Regina (N) v Same etc Admn 4-Feb-2002
Defendants appealed orders allowing children to give evidence by video link, and children appealed orders requiring them to attend court to give evidence.
Held: The right to a fair trial had to be interpreted broadly. Special measures taken to . .
Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
Cited – Visser v The Netherlands ECHR 14-Feb-2002
The applicant alleged that in criminal proceedings against him, there was used in evidence a statement from an anonymous witness, and his defence rights had been unacceptably restricted in breach of Article 6. The police said that witnesses were . .
Cited – Hols v Netherlands ECHR 19-Oct-1996
The court arranged a live link transmission where both counsel were in the room with the witness while the judge and accused remained in the courtroom.
Held: The application was declared inadmissible. The Convention does not guarantee the . .
Cited – Delcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
Cited – Regina on the Application of S v Waltham Forest Youth Court, The Crown Prosecution Service, The Secretary of State for the Home Department Admn 31-Mar-2004
There was no inherent power to allow a defendant to give evidence by live link, on the ground that Parliament had sought since 1988 to provide exclusively for the circumstances in which live link might be used in a criminal trial. . .
Cited – T and V v The United Kingdom ECHR 8-Apr-1999
Public trial in an adult court of juvenile charged with murder and imposition of a sentence of detention during Her Majesty’s pleasure with a tariff of fifteen years fixed by a member of the executive. The trial of two ten year olds in a public . .
Cited – SN v Sweden ECHR 2-Jul-2002
A trial involving a child witness was conducted by the video-recording of an interview conducted by a police officer with the child complainant, and an audio-recording of a second interview conducted by the same police officer, putting questions . .
Cited – Regina v S H CACD 28-Mar-2003
The court discussed the difficulties in admitting a video recorded interview as a defendant’s evidence in chief. The court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity . .
Cited by:
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – AG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff PC 19-Jul-2005
(Akrotiri and Dhekelia) The defendant had appealed convictions for rape and attempted rape. He had criticised the arrangements for protecting the complainant when giving evidence, which had not complied with the 1999 Act. His appeal succeeded in . .
Cited – H, Regina v CACD 25-Apr-2006
The defendant youth appealed his conviction and sentence for rape by oral penetration of a six or seven year old boy. He complained that the evidence contained such inconsistences that the case should not have proceeded. Complaint was also made that . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Cited – Gardner, Regina (on the Application of) v Parole Board CA 5-Sep-2006
The prisoner challenged his exclusion from a parole board hearing whilst evidence was taken. He was serving a long sentence for a violent attack, and had re-offended only shortly after his release. His ex-wife had been unwilling to confront him, and . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – Diane, Regina v CACD 9-Jul-2009
Whether the judge had been right to admit evidence given by telephone only from a witness in Belgium.
Held: The appeal succeeded. Parliament authorised in sections 30 and 31 that witnesses who are present in the United Kingdom could be heard . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence, Human Rights
Updated: 27 March 2022; Ref: scu.222049