Defence "mode of evidence"

Equality of arms in a defended case may require special measures concerning the mode in which the accused may give his evidence. Such measures are provided for by statute in relation to child complainants in sex cases (Evidence Act 1908, ss 23C – 23H), but there are no corresponding provisions for child defendants.

In R v Camberwell Green Youth Court [2005] UKHL 4 (27 January 2005) Baroness Hale, delivering the leading speech, pointed out that the court may exercise its inherent jurisdiction to provide appropriate facilities where fairness so requires:

“[57] … the question is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants (see Delcourt v Belgium (1970) 1 EHRR 355, para 28). That can only be judged on a case by case basis at trial and on appeal. …



“[59] … the Court of Appeal also made it clear in R v S.H. [2003] EWCA Crim 1208, 28 March 2003 that the court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity of giving the best evidence he can. In that case the defendant had learning and communication difficulties. The court could allow him the equivalent of an interpreter to assist with communication, a detailed written statement could be read to the jury so that they knew what he wanted to say, and he might even be asked leading questions based upon that document, all in an attempt to enable him to give a proper and coherent account.

“[60] The Strasbourg Court has also held, in V v United Kingdom (1999) 30 EHRR 121, 179, para 86 that

“it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings”.

“[61] The environment and procedures in the Youth Court are already designed with this in mind, although no doubt there will be a need to do more in some cases. The procedures in the Crown Court have also been modified to meet the needs of child defendants following the case of V v United Kingdom, and again more may need to be done in some cases.”



A question exists about the correctness of R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin), 31 March 2004, in which it was held that there was no inherent power to permit defence evidence by video link as Parliament had treated the subject exhaustively in its (earlier) legislation and had omitted provision for that. But as Lady Hale pointed out, para 62, whether that interpretation of the extent of the inherent power is correct remains to be determined on a suitable appeal.

The New Zealand legislation does not contain a provision that expressly leaves the inherent power of the court unaffected, but it seems unlikely that R (S) v Waltham Forest Youth Court would be followed.

Advertisements

Fairness and the issues

In some situations, tribunals may be given powers to make orders affecting the rights of parties without the need for an oral hearing. In applications for revocation of parole, under the applicable United Kingdom legislation, but not in many other jurisdictions, including New Zealand (Parole Act 2002, s 65(4)(a)), the Parole Board need not hear orally from the respondent or his counsel. Fairness issues may consequently arise, and they did in R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005).

Several points were made in this case:

  • Whether absence of an oral hearing affects the fairness of the proceedings depends on the circumstances of each case (Lord Bingham, para 27).
  • The requirement that the proceedings be fair is fundamental, and arises from the common law rather than being dependent upon the existence of the ECHR or any other Bill of Rights document (Lord Bingham, para 44; Lord Hope para 74).
  • An oral hearing may be of use in more circumstances than merely those where some issue of fact has to be decided. Examples are where explanations or mitigating factors may be relevant, or new relevant facts may be brought to light (Lord Bingham, para 35).
  • A risk of unfairness arises if only written submissions are permitted and consequently the respondent is not aware of what the tribunal considers important (Lord Bingham, para 35).
  • A danger posed by procedures that are routinely disposed of on the papers is that assumptions will be made that are prejudicial to the respondent and in favour of the case advanced by the authorities (Lord Hope, para 66).

One significant point that will have implications for appellate procedures is the need to alert the appellant to issues that the court may consider to be important. Appellants who are unable to obtain legal representation often file written submissions for the consideration of the appellate court, and these are sometimes focused on entirely irrelevant matters. In such cases, the question arises whether the court should seek further submissions on what appears to it to be significant (to the extent that the court is able to identify what that may be; this may be impossible, especially in the absence of a transcript of the trial judge’s directions to the jury).

Similarly, where a court is hearing oral argument on a question of law, should it inform the parties of points that concern it? Occasionally, one encounters coyness from judges who are shy about showing their hand, and sometimes decisions are made on points that have not been fully addressed in argument. One might even wonder whether it is fair for courts to conclude hearings, and reserve decisions, without their being clear as to what the ultimate decision will be.

Precedent and particularity in rights balancing

There is a conflict in New Zealand law between two approaches to balancing of interests when a court decides the admissibility of wrongfully obtained evidence. The governing case, R v Shaheed [2002] 2 NZLR 377, (2002) 19 CRNZ 165 (CA), can be read as permitting a close analysis of the particular circumstances of a given case in carrying out the required balancing exercise. Alternatively, it can be read as permitting the influence of precedent to guide the analysis of the competing interests, so that the decision in each case can be less agonised than it would be if the subject were approached as if de novo. This latter approach is, it is suggested, the preferable one. However, a casual reading of a recent Court of Appeal decision might suggest support for the former alternative: R v F 16/12/04, CA351/04.

R v F includes reference to a House of Lords decision, re S (a child) [2004] 3 WLR 1129 (HL) which was mentioned in this blog on Monday November 1, 2004. The Court of Appeal in R v F at para 23 treated this as support, by analogy, for holding that competing public interests can’t be dealt with at a general level, and that close investigation of the facts and evaluation of factors is required. That approach is, no doubt, appropriate where, as in re S (a child), there was a conflict between the right (of the child, not a party to the criminal proceedings) to privacy, and the right of the news media to exercise freedom of speech. But is this approach appropriate to the Shaheed balancing exercise?

Three fundamental points support the precedent approach:

  • The police are entitled to guidance from the courts as to the likely consequences, as far as the admissibility of evidence is concerned, of any of the forms of misconduct that may occur in the purported exercise of search powers.
  • The accused is also entitled to know what are the prospects of success for a contemplated challenge to the admissibility of evidence. Both the prosecution and the defence are only informed by the law if decisions have precedent value.
  • Precedents should help to isolate the material facts. Precedents should also guide the reasoning process. It would be wrong to interpret R v F as a call for a new beginning in each case.

Some aspects of the reasoning in R v F are, with respect, unsatisfactory. These will be considered further below, but first, it should be noted that these were all obiter, as the Court accepted the Crown’s indication that it did not seek to oppose the appeal being allowed. This indication came in response to a potentially controversial step taken by the Court before the hearing: The grounds for the stopping and search of the appellant’s car seemed rather sparse, and indeed the lower court, the High Court, had ruled that the search was illegal and unreasonable, but nevertheless under the Shaheed balancing of interests, the evidence should be admissible. The Court of Appeal, by Memorandum to the Crown, invited the Crown to advance further information as to the grounds for the search, indicating that if disclosure of these to the defence would compromise the Crown’s position (such as, for example, by betraying a promise of confidentiality to an informer), then arrangements might be made to accommodate that concern.

It should be noted that the search in question was carried out without warrant. If there had been an application for a warrant (not at all practical in this case) then any secrecy concerns could have been met, so the extension of this similar offer to the Crown here was not as bizarre as it might otherwise have seemed. Nevertheless, the warrantless search powers are designed for occasions where the necessary grounds for their exercise arise ex improviso, and should be capable of being stated clearly when the challenge arises. Should there be a need to protect the identity of an informer, the relevant police witness would raise that in the course of his evidence and the Court would take the necessary steps to determine an issue of public interest immunity. Therefore the opportunity held out by the Court of Appeal to the Crown came at an inappropriately late stage in the proceedings, and accordingly the appropriateness of the Court of Appeal’s Memorandum procedure in R v F can be doubted.

Having said that, it may nevertheless be conceded that now the court of final appeal, the Supreme Court (which has replaced the Privy Council in this role), is within the reach of ordinary litigants, the Court of Appeal may well take a more activist role in raising issues that could prompt changes in the law.

So, what are the unsatisfactory aspects of the reasoning of the Court in R v F as far as the Shaheed balancing exercise is concerned? The Court referred, para 27, to public attitudes, saying that public opinion would be against exclusion of the evidence. That, with respect, is not a true reflection of the relevant point. Public attitudes that are ill-informed are immaterial. The Court referred separately, para 28, to the nature of the criminal conduct. This is not really separate from the first point, the public interest. The Court did, however, correctly refer to the likely sentence in this case as being the indicator of the weight to be given to the public interest in the bringing of suspects to trial.

Also unsatisfactory is the Court’s reference to the accused’s privacy interests, para 24 – 26. Certainly, privacy in a car is less than in a home, and the Court acknowledged that the accused’s interests, expressed in BORA s 21, 22, and s 18 MDA 1975, were “in general terms significant”. The reference in para 26 to the serious social harm that can arise from the offending, coming as it does immediately after these references to the accused’s privacy interests, appears to be a suggestion that the privacy interests are diminished by the seriousness of the offending. That, of course, would be wrong. The privacy interests are those that everyone enjoys. They have weight reflecting the value that the ordinary person attaches to not being subject to arbitrary official search. This weight may well be outweighed by competing interests, but that would be because those competing interests are stronger, not because the privacy interests are diminished.

In para 25 there is reference to the powers to stop the vehicle that could have been relied upon in this case. The suggestion seems to be that because the police could have lawfully stopped the vehicle, that diminishes the wrongfulness of their stopping the vehicle improperly. That would be a misapplication of authority, which is to the effect that the police are expected to obey the law, so that failure to take available lawful steps counts against admissibility of the wrongfully obtained evidence: R v H 9/11/04, CA61/04 at para 46.