Two principal objections have been raised to the use of the recorded evidence or live links for prosecution witness. The first is that it deprives the defendant of the opportunity to ‘confront’ his accusers. The second is that it is unfair to give the protection of special measures to prosecution witnesses, but not to a child defendant. The House of Lords had to consider both of these objections in two conjoined applications for judicial review, in R. v. Camberwell Green Youth Court, (ex parte D), and (ex parte DPP, respondent G) [2005] UKHL 4. The special measures at stake were chiefly the use of video links, but the reasoning is equally relevant to the use of recordings. The judgments include only a cursory summary of the facts:

      "40. In the cases before us the making of a special measures direction was opposed at the outset. In the case of D (and in the associated cases of R and N), justices in the Youth Court ordered that the evidence of child witnesses then aged 13 or 14 be given by live link in prosecutions for robbery of child defendants then aged 14, 16 and 15 respectively. The justices were advised by their clerks that the effect of section 21(5) (see para 28 earlier) was that they had no discretion. The accused applied for judicial review.

      41. In the case of G (and of I and AE associated with it) District Judges in the Youth Court declined to make special measures directions in respect of witnesses then aged 12, 16 and 15 in prosecutions for robbery or assault of child defendants then aged 14, 16 and 15. The special measures in question were live link and, in the case of G, a video-recorded interview of the witness O, who was 11 at the time of the events giving rise to the charge. According to the written reasons later given by District Judge Black, the directions were refused because of the inequality of arms between the prosecution and the defence where both the prosecution witnesses and the accused were children, but the accused children did not qualify for special measures. The Director of Public Prosecutions applied for judicial review."

The reported judgments do not discuss the Youth Court’s exercise of discretion in these particular cases. They merely explain why the relevant statutory provisions are compliant with Art. 6 of the ECHR. A unanimous House or Lords agreed with the Divisional Court. The Divisional Court had decided that in D’s case the justices were right to make the special measures direction; and granted the DPP judicial review of the decision to refuse a special measures direction in G’s case. (The Divisional Court decision, which was heard urgently almost two years ago, is reported at [2003] EWHC 227, [2003] Cr. App. R. 16; it adds nothing by way of factual background to the judgments of the House.)

Strasbourg jurisprudence is not adapted to adversarial criminal trials: Lord Rodgers makes the point (although not in these terms) that, even if one thinks the special measures regime is grossly unfair, the Human Rights Act and ECHR do not help. The broad reason why Art. 6 does not help defendants who object to special measures directions is that the Strasbourg case law has grown up in a civil law environment, where criminal cases are conduction in a relatively inquisitorial fashion. Equality of arms, and the right to confront witnesses, which are necessary in an adversarial trial, are probably much less necessary to a fair trial in a criminal law system where the culture and the method of fact-finding is more inquisitorial. Therefore, the idea that a defendant has a right to confront witnesses in open court, and the idea that the defendant should have equality of arms with the prosecution, have not taken root in the jurisprudence of the European Court of Human Rights. Lord Rodgers also points out that the Sixth Amendment to the US Constitution is interpreted in way far more jealous of the rights of defendants.

This was surely case, if ever there was one, where the House of Lords would have been justified in doing what they did in Harrow v. Qazi [2003] UKHL 43. That was a housing case brought under Art. 8. A 3-2 majority took the technically dubious course of asking, not what the European Court had done in similar cases, but instead of using the European jurisprudence to tease out the underlying purpose of the Article. Then they applied that underlying purpose to domestic legislation having regard to the special UK context. I do not suggest that was a correct approach, but having done it Qazi, the House could equally have done it here. The House could have teased out from the jurisprudence the underlying purpose of Art. 6, then applied to the English adversarial system of criminal litigation to come up with different conclusions than those the European Court has come to when applying it to inquisitorial proceedings. In Qazi the outcome was the reverse of what the outcome would have been if the House had followed the Strasbourg case law more ‘literally.’ Lady Hale did consider briefly the possibility of adapting the underlying principle of Art. 6 to the English context, at paragraphs 52 and 53 of R. v. Camberwell Green. She did not say such a technique would be wrong in principle, but merely observed, "However, this cannot mean that the Strasbourg Court would regard our domestic legal system as so set in stone that Parliament is not entitled to modify or adapt it to meet modern conditions, provided that those adaptations comply with the essential requirements of article 6."

Some comfort for defendants: Although the case shows that the Human Rights Act does not help defendants who object to special measures for witnesses, it is by no means all bad news for defendant. The first point worth making applies only to vulnerable defendants. It is that the solution to any lack of equality of arms is not to deprive the witnesses of the protection of special measures, but to do more for defendants. Lady Hale makes this point. She suggests, though expressly does not decide, that a court could, using its inherent jurisdiction, permit defendants to give evidence by video link. Of course, anything which reduces the adversarial style of criminal proceedings is likely to commend itself to the Strasbourg court. In a well-known example, that court found that the young defendants in the Bulger case, T v United Kingdom [1999] ECHR 170 , had been denied a fair trial because the proceedings were not of a kind in which they could adequately understand and participate in. Lady Hale seems to give a strong hint that in appropriate cases courts should be ready to explore the possibility of giving more protection to vulnerable defendants by exercising their inherent jurisdiction to give directions for the manner in which evidence is to be given.

The second point which could help defendants indirectly is that Lady Hale (at paragraph 25) reiterated the point that inadmissible or prejudicial material should be excluded. The Home Office guidance on the conduct of recorded interviews, issued in the form of a consultation paper, Achieving Best Evidence in Criminal Proceedings (in .pdf), gives clear warnings against leading questions, or witness coaching. Defence advocates will sometimes consider it arguable that interviews which comprise evidence in chief have been conducted in ways prejudicial to their client. In those cases the advocate need not accept that the courts will allow a latitude, when dealing with this type of evidence, which would not be permitted with a live witness. The defence advocate can afford to be robust and confident in seeking the editing or exclusion of any interview which suffers from substantial imperfections, and should be familiar with, and ready to demand, the high standards of interviewing for evidence in chief which the guidance in that consultation paper requires.

Dr John Birchall - Professional English, Legal English, and Common Law Training