R, R v [2008] EWCA Crim 678

[2008] EWCA Crim 678Case No 2007/00443/D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
HHJ GRATWICKE
T2004/7102
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/04/2008
Before
LORD JUSTICE THOMASMR JUSTICE IRWINMR JUSTICE COULSON
Between
ReginaRespondentRAppellant
T Griffiths QC for AppellantD Holborn for RespondentHearing Hearing date: 26 February 2008
JudgmentLord Justice Thomas :
[1]On 12 July 2004 the appellant was convicted at the Crown Court at Chelmsford of the rape of his wife and assault on her occasioning actual bodily harm. He was sentenced to a custodial term of 8 years imprisonment and an extension period of 3 years. He appeals against his conviction by leave of the full court on a single issue.[2]That issue relates to whether the evidence given in chief by means of a pre- recorded video had been properly admitted under the special measures provisions of the Youth Justice and Criminal Evidence Act 1999, in the light of the way the Home Secretary had chosen to implement the provisions. S. 18(2) of the Act had provided that such measures were not to be taken to be available until the particular court had been notified by the Secretary of State. Although the provisions had been commenced by Commencement Order, the Secretary of State had not given any notification to the Crown Court at Chelmsford.[3]It was the contention of the appellant, made attractively by Miss Griffiths QC, that there was therefore no statutory power at the Crown Court at Chelmsford to admit the evidence in chief of the wife by playing the video recording and that evidence was therefore inadmissible. As this was the evidence on which the conviction was based, if the material was not admissible, there was no evidence which could sustain the elements of the offence and the conviction for rape had to be quashed: R v Bedwellty Justices [1996] 2 Cr App R 594. The appeal raises issues as to a novel process for making and implementing primary legislation relating to criminal trials in the Crown Court and the effect of this on a conviction for a serious offence.[4]For these purposes, it is necessary to give only a brief description of the facts relating to the rape and the assault. It will be necessary to say more in relation to how those facts came to be given in evidence.

The facts relating to the rape

[5]By May 2004 the appellant and his wife had been married for 16 years; his wife had moved out of the matrimonial home and had entered into a relationship with another man. The appellant had learnt of this. On 7 May 2004, the wife went to visit the former matrimonial home. There sexual intercourse took place between the appellant and his wife.[6]The wife’s account was that this took place without her consent in brutal circumstances that it is unnecessary to describe in detail; those circumstances included forcing her upstairs, stripping her, tying her to the bed and having oral sex as well as vaginal sex. The appellant’s account was that, although they had quarrelled initially, all the sexual activity took place with her consent. There were statements from a general practitioner who had given her medical treatment as to cuts and bruises and from a female postal worker who had been seen by the wife immediately after the incident and to whom the wife had complained of the rape.[7]It is clear, however, that the conviction of the appellant depended on the evidence of the wife and without such evidence there would have been no conviction.[8]The wife was interviewed the same day and the evidence was recorded on videotape.

The way the wife’s evidence was adduced

[9]Unfortunately brevity is not possible in relation to the way in which the evidence was introduced. In the light of the argument made, it is necessary to set out the provisions of the 1999 Act, the procedures followed at the Crown Court and the details of circulars and letters sent by the Home Office and then the Ministry of Justice in relation to the implementation of the special measures provisions of the Act.

(a) The provisions relating to special measures

[10]In 1999 Parliament enacted the Youth Justice and Criminal Evidence Act; Chapter 1 of Part 2 of the Act made provision for what were described as special measures in relation to the giving of evidence by vulnerable and intimidated witnesses. The scheme of the chapter was broadly as follows: i) Sections 16 and 17 set out the criteria for witnesses who would be eligible for special measures; s.16 applied to those who were under 17 and to anyone who had an incapacity; s.17 applied to those whose evidence was likely to be affected by fear or distress in giving evidence. ii) Section 18 made provision for the availability of special measures. iii) Section 19 made provision for the determination by the court of whether special measures were needed and if so which. iv) Sections 23-30 set out the special measures that were available; s.24 dealt with giving evidence by live TV link and s.27 with giving video recorded evidence in chief. S.27 provided as follows:
“(1) A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness. (2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted. (3) In considering for the purposes of subsection (2) whether any part of a recording should not be admitted under this section, the court must consider whether any prejudice to the accused which might result from that part being so admitted is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview. (5) Where a recording is admitted under this section – (a) the witness must be called by the party tendering it in evidence, unless – (i) a special measures direction provides for the witness’s evidence on cross-examination to be given otherwise than by testimony in court, or (ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and (b) the witness may not give evidence in chief otherwise then by means of the recording – (i) as to any matter which, in the opinion of the court, has been dealt with adequately in the witness’s recorded testimony, or (ii) without the permission of the court, as to any other matter which, in the opinion of the court, is dealt with in that testimony.” (a) the witness must be called by the party tendering it in evidence, unless – (i) a special measures direction provides for the witness’s evidence on cross-examination to be given otherwise than by testimony in court, or (ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); and (b) the witness may not give evidence in chief otherwise then by means of the recording – (i) as to any matter which, in the opinion of the court, has been dealt with adequately in the witness’s recorded testimony, or (ii) without the permission of the court, as to any other matter which, in the opinion of the court, is dealt with in that testimony.”
[11]These sections of the chapter (except sections 28 and 29 which are not material) were brought into force on 24 July 2002 by paragraph 2 of the Youth Justice and Criminal Evidence Act 1999 (Commencement No. 7) Order, S.I. 2002 No. 1739 made on 8 July 2002 by the Secretary of State under s.64(4) and 68(3) of the Act; the Secretary of State did not exercise his power under s.64(4) to make different provision for different areas. The Crown Court (Special Measures Directions and Directions Prohibiting Cross Examination) Rules 2002 were made and brought into force on 24 July 2002; Rule 2 of these Rules made provision for prescribed forms and Rule 8 made provision for a special measures direction enabling a video recording of a witness to be admitted as evidence in chief.[12]The provisions of the 1999 Act amended the substantive law relating to the admissibility of evidence before the Crown Court. Evidence is admissible either because it is admissible at common law or under a statutory provision enacted by Parliament. If evidence is not admissible at common law or by statute, then it cannot form a basis of evidence on which a conviction can be founded.[13]It was common ground that the only basis on which the evidence through a video recording or evidence by live link could properly be admitted in the trial of the appellant, was under the statutory provisions of the 1999 Act. The power to alter the law of evidence is not something that is within the very considerable inherent powers of the court to regulate its own procedures irrespective of statute or rules of court. As was made clear by the Divisional Court in R(S) v Waltham Forest Youth Court [2004] EWHC 715 Admin, permitting a defendant to give evidence by live link is not within the range of measures open to a court in its discretion to regulate the trial process: see paragraphs 86 and 87 of that decision. Counsel for the Crown made it clear that he did not contend that the court had any such power and the admissibility of the evidence depended on the applicability of the provisions in the 1999 Act. (b). The application made to the Crown Court at Chelmsford in 2004[14]The application for a special measures direction in relation to the proceedings against the appellant was made to the court to admit the video as evidence in chief and cross examination by the live television link at the court. The application was heard on 12 July 2004. i) The application was made on the form prescribed by the 2002 Rules; the section of Part A of the form which required details of the arrangements which were to be made was in the following terms: “Give a description of the arrangements relevant to the measures applied for which may be made available in the area in which it is likely that the hearing will take place. It was answered: “THE COURT HAS TELEVISION LINK FACILITIES” “THE COURT HAS TELEVISION LINK FACILITIES” ii) Part C of the application form was required to be completed if the application was to tender the evidence of a video recording under s.27; various questions about the recording were asked. These were properly completed by the CPS.[15]Although a copy of the Order made on the hearing cannot now be found, it is clear from the court log that such an order was made. As made then (or as subsequently varied) it provided for the giving of evidence in chief by means of the video recording and cross examination by live TV link. At the hearing when the Order was made and on the hearing of the appeal, the following were common ground: i) It was not in issue that the wife fell within the provisions of s.17; there was evidence on which the judge could properly determine under the terms of s.17(1) that “the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings”. ii) A video recording had been made of the interview on the day of the incident. Again, it is not disputed that there was material before the judge on which he could properly exercise the discretion given to him to make a special measures direction under s.27 and 24.[16]On 24 November 2004 the trial commenced. At 12.29 the wife was sworn in as a witness over the live link. The video recording was then played. At 16.03 the wife was asked questions in chief by counsel for the prosecution over the live link. On the following day, 25 November 2004 the wife was cross-examined over the live link and then re-examined.[17]No point was taken in relation to what had happened until January 2007 when Chris Saltrese Solicitors, who were then members of the Historic Abuse Appeal Panel,advised the appellant that he had grounds for appeal against his conviction on the basis that s.27 had not been made applicable to the Crown Court at Chelmsford under the provisions of s.18 of the 1999 Act, though it was accepted that the additional evidence given in chief and the cross examination were admissible when given by means of the live link as s.24 had been made applicable under s. 18. (c). s. 18 of the 1999 Act[18]Section 18(1) (2) and(3) provide as follows: “18. – Special measures available to eligible witnesses (1) For the purposes of this Chapter – (a) the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and (b) the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17; but this subsection has effect subject to subsection (2). (2) Where (apart from this subsection) a special measure would, in accordance with subsection (1)(a) or (b), be available in relation to a witness in any proceedings, it shall not be taken by a court to be available in relation to the witness unless – (a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and (b) the notice has not been withdrawn. (3) In subsection (2) “relevant arrangements” means arrangements for implementing the measure in question which cover the witness and the proceedings in question.” (a) the provision which may be made by a special measures direction by virtue of each of sections 23 to 30 is a special measure available in relation to a witness eligible for assistance by virtue of section 16; and (b) the provision which may be made by such a direction by virtue of each of sections 23 to 28 is a special measure available in relation to a witness eligible for assistance by virtue of section 17; but this subsection has effect subject to subsection (2). (a) the court has been notified by the Secretary of State that relevant arrangements may be made available in the area in which it appears to the court that the proceedings will take place, and (b) the notice has not been withdrawn.[19]The provision, as can be seen, in essence required the Secretary of State (then the Home Secretary and now the Secretary of State for Justice) to notify courts that arrangements for implementing the measure in question were available in the area in which it appeared to the court that the proceedings would take place. Thus, although sections 24 and 27 were commenced in July 2002 by the Commencement Order and were therefore in force, s.18 provided that a special measure was not to be ‘taken by a court to be available’ unless it had received such notification.

(d) The notifications given

[20]Prior to the hearing, despite the sustained efforts of counsel for the Crown, he had had very considerable difficulty in obtaining the relevant documentation which provided for the giving notification to the court. This is not the least surprising to this court; we know of the vast volume of circulars and letters sent to Crown Courts on a wide range of matters from changes in the law to matters of staff relations. Not only is the quantity vast, but managers face the further difficulty of leading hard pressed court staff at courts with resources that are not plentiful; furthermore there are clear and obvious difficulties in storing such documentation in a manner in which a particular circular can readily be found. No criticism could therefore possibly be made of the counsel for the Crown nor the Crown Court managers or those in the CPS who had tried to help him assist the court; finding the information was simply not practicable for him. As notification to the court was contended to affect the applicability of the power to make special measures, the difficulty experienced is not without significance.[21]In these circumstances we had to ask the Court of Appeal Office, during the course of the hearing of the appeal, to obtain full information from the Ministry of Justice. As a result of the enquiries made of the Better Trials Unit of the Office of Criminal Justice Reform at the Ministry of Justice, it is now clear that in the period 2002-2007 a series of circulars and letters entitled “The implementation of ‘Speaking Up for Justice’” were sent on the subject of the commencement of the provisions of chapter 1 of Part 2 of the 1999 Act and the giving of notification to the courts under s.18(2): i) A circular dated February 2002 (06/2002) was sent by the Home Office to Chief Constables, Chief Crown Prosecutors, court managers, judges and members of the legal profession. The circular made clear it followed on from an announcement of a revised implementation timetable “at an event held to launch the 6 month lead into implementation.” The circular annexed a table which showed that the majority of special measures would be implemented on 24 July 2002; the table indicated that video recorded evidence in chief would be available for witnesses within s.16 on that date and available in the Crown Court for those within s.17 in 2003-2004 after evaluation of the implementation for witnesses within s.16. It pointed out that there was guidance for those conducting video recorded evidence in chief for vulnerable and intimidated witnesses which should be being used. ii) A circular on 24 June 2002 (35/2002)was sent by a senior official at the Home Office to Chief Crown Prosecutors, Chief Constables and others (but not to judges or Crown Court managers) enclosing a copy of the draft rules. It stated: “The phased implementation of the special measures will be provided for by notification issued under s.18(2) of the 1999 Act and not the Commencement Order itself. This notification will take the form of a letter issued to the courts by a senior Home Office Official. We intend to issue the letter as soon as the Commencement Order has been made” iii) On 12 July 2002, a circular (38/2002) was sent by the Justice and Victims Unit of the Home Office to Chief Constables, Chief Crown Prosecutors, court managers, judges and members of the legal profession. This notified the commencement of the sections relating to special measures and annexed the rules and form; it stated that the phased implementation of special measures would be provided for by “notification issued under s.18(2) of the Act”. iv) The circular attached a letter from a senior official at the Justice and Victims Unit of the Home Office which had been sent on 10 July 2002 to all Crown Court Managers (and Justices Clerks) notifying them under s. 18(2) that they might make arrangements for special measures for vulnerable and intimidated witnesses detailed in the annex to the letter to be made available in “your area” from 24 July 2002. The table in the annex made clear that special measures under sections 23, 24, 25 and 26 were available in the Crown Court for witnesses covered by s.16 and s.17 from 24 July 2002. As regards s.27, courts were notified that relevant arrangements had been made with effect from 24 July 2002 for witness who fell within the provisions of s.16, but were not available for witnesses who fell within the provisions of s.17. v) The letter of 10 July 2002 failed to deal with the transitional provisions. That was cured by a further letter on 16 August 2002 from a senior official at the Home Office to Court Managers; see the facts set out in the decision of this court in Bottomley [2003] EWCA Crim 2245 to which we refer at paragraph 34. vi) On 12 December 2003 the Head of the Justice and Witness Unit at the Criminal Justice Performance Directorate at the Home Office sent a further circular (58/203) addressed to Chief Constables, Chief Crown Prosecutors, court managers, judges and members of the legal profession. It pointed out that some misunderstanding had arisen as to the availability of the special measures; it made it clear that no notification had been given under s.27 to the Crown Court in respect of witnesses within s.17 - those in fear or distress. A note to the table to that circular made it clear that wider implementation in respect of witnesses within s.17 would be delayed pending investigation of alternatives to transcription in less serious cases which were to be piloted in 2004/5 and if successful implementation was planned from 1 May 2005. vii) On 19 August 2004 the Head of the Vulnerable, Intimidated and Protected Witness Team at the Office of Criminal Justice Reform wrote on behalf of the Home Secretary to the court managers at the Sheffield and Wood Green Crown Courts to state that s. 27 might be “made available” at the Sheffield and Wood Green Crown Courts from 6 September 2004; directions could be given in accordance with the transitional provisions to proceedings instituted before 6 September 2004. No such notification was given in respect of other courts until 2007. viii) In 2004, further circulars were sent notifying the availability of other special measures; they are not material to notifications under s.27 ix) A further circular 39/2005 was issued on 8 May 2005 by the Vulnerable and Intimidation Witness part of the Trial Policy and Procedure Unit of the Home Office. Paragraph 7 stated: “7. No decision on the extension of video-recorded evidence in chief (section 27 of the Act) to all vulnerable and intimidated witnesses will be made until after the final evaluation report of the Record of Visual Interview (ROVI) pilot has been received in September 2005. This will inform the development of implementation plans for extending the availability of video-recorded evidence in chief. The implementation plan will incorporate a suitable period of notice to enable criminal justice agencies to prepare.” x) On 25 June 2007 the Head of the Better Trials Unit of the Office for Criminal Justice Reform at the Ministry of Justice sent a letter to HMCS Area Directors and Justices’ Clerks in the following terms: “Dear Sir/Madam YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999: IMPLEMENTATION OF SECTION 27 IN THE CROWN COURT FOR COMPLAINANTS IN SERIOUS SEX OFFENCE CASES I am writing on behalf of the Secretary of State, by way of notification under section 18(2)(a) of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) and section 13 of the Interpretation Act 1978 (anticipatory exercise of powers). Please note that arrangements should be made available for the purposes of a special measures direction under sections 19 and 27 of the 1999 Act (video recorded evidence-in-chief) in relation to complainants, eligible by virtue of section 17(4), in proceedings for sexual offences tried in the Crown Court where the investigation of the offence started on or after 1 September 2007. The effect of this notification is that a special measures direction, providing for a video recording of an interview of the complainant to be admitted as evidence-in-chief, pursuant to sections 19 and 27 of the 1999 Act, may be given in proceedings for sexual offences tried in the Crown Court where the investigation of the offence started on or after 1 September 2007. The accompanying circular of the same date addressed to Chief Constables, Chief Crown Prosecutors, court managers, judges and members of the legal profession from the Head explained that a full assessment of a record of visual interview (ROVI) had been made and set out information in relation to the use of ROVIs.[22]Now that this ostensibly complete collection of documents has been supplied by the Ministry of Justice, it would appear clear that no notification of the availability of a special measure under s.27 for a witness within s.17 was given until late in 2007, save in respect of the Crown Courts at Sheffield and Wood Green, and then it was given only in respect of sexual offences where the investigation commenced after that date.

(e) The explanation of the purpose of the notifications

[23]This Court was informed by the Ministry of Justice that the intention to implement the special measures on a phased basis was made clear by Circular 2002/38 and that it was done in this way because of the need to monitor the effectiveness and the impact on resources. It was only after a public consultation “Convicting Rapists and Protecting Victims – Justice for Victims of Rape” in the spring of 2006 that Ministers agreed to extend the availability of special measures in the Crown Court to complainants in sexual offence cases within s.17.[24]Although that may have been the intention of the Ministry, what is material is the intention of Parliament. We are therefore greatly indebted to both counsel, who after the conclusion of the hearing examined the passage of the Bill through Parliament in 1999 and further occasions in Parliament when question were asked about the Act. During the passage of the Bill, Parliament was told by the Minister of State that some of the special measures required training and guidance; there would be pilots and that there would be a phased implementation plan so that all measures were implemented “syllogistically”. Nothing of assistance to the court was said during the passage of the bill in relation to the clause which became s.18, other than it was to be used in connection with phased implementation.[25]It was argued by Miss Griffiths QC for the appellant that, from this material, it was clear that it was the intention that the special measures were to be piloted to test their effectiveness and therefore Parliament cannot have intended the measures to have been of general application until it was clear that they were a safe method of adducing evidence. Thus until the Secretary of State had satisfied himself that they were safe, the powers were not to be used. It was submitted that it was evident that that was the intention from the answers given by Minsters to Parliamentary questions in October 2002 and November 2004 and circulars including that dated February 2002 (see paragraph 21i) above). It was only in June 2007 (as was apparent from the circular of June 2007) that the Secretary of State for Justice was satisfied that it was safe to permit courts to use the powers under s.27. A conscious decision had therefore been taken to delay giving the courts power to use s.27. The only reason for this was that until 2007 the Secretary of State was not satisfied that it was safe to implement the measures. The obvious conclusion was that it was considered unsafe, untried and untested to permit evidence to be given in such form until 1 September 2007. It followed therefore that the intention must have been that notification under s.18(2) was not an administrative matter, but was a precondition to the use the powers; although the s.27 was in force, no court could use the power until the Secretary of State said it could by giving notification under s. 18(2).[26]We note that the materials on which Miss Griffiths QC relied were not statements to Parliament during the passage of the bill, but claims by the Home Office and the Ministry of Justice in(a) its circulars as to its intentions and by necessary implication as to its powers and(b) in answers to questions in Parliament in October 2002 and November 2004, long after the enactment of the Act.[27]After enquiries had been made by counsel for the Crown, we were told that there had in fact been no evaluation of the operation of s.27 at Wood Green and Sheffield. However the fact that there was no evaluation at the pilot courts does not affect the argument made by Miss Griffiths QC as this depends on the meaning of the 1999 Act and the intention of Parliament as to that Act and not the action (or inaction) of the Ministry in relation to the pilots.

(f) The position of the Crown Court

[28]It is quite clear from the detailed enquiries made by counsel for the Crown that everyone who took part in the hearing on 12 July 2004, in subsequent pre-trial hearings and in the trial in December 2004 thought that the court was entitled to make a special measures direction under s.27 of the Act which had been commenced in July 2002. The court had for many years had the requisite equipment, as it had been used for giving evidence in this way by children and the court staff were experienced in its use; the police had the facilities to record the evidence and the necessary guidance was in place. However, in what no doubt seemed to everyone concerned as a sensible approach to the giving of evidence by the wife in this case under a provision that was in force, it plainly occurred to no one to consider what was in effect a possible trap created by s. 18(2). Paragraph 8-55 of the 2008 edition of Archbold now sets out a short passage after s.18 which deals with the availability of the special measures; this was not in the 2004 edition.[29]Nor can anyone be criticised for so believing. That is because of the legal, constitutional and curial background of which Parliament must have been aware: i) The conventional and proper means of bringing into effect primary legislation (not itself commenced by the legislation) is by statutory instrument normally a Commencement Order. It was the way in which the sections of the 1999 Act relating to special measures were brought into force. ii) There was no reason why a staged implementation of the provisions by geographic area could not have been done in the conventional means by Commencement Order; s.64(4) gave this power. This was done in respect of various provisions of the Crime and Disorder Act 1998 – see the Crime and Disorder Act 1998 (Commencement No 2 and Transitional Provisions) Order 1998 (SI 1998 2327). It is important to note that it was clearly the view of the officials at the Home Office that this could be done in respect of the 1999 Act – see the circular letter of 24 June 2002 to which we have referred at paragraph above 21.ii). No reason was given for the departure from the conventional method. iii) A judge of the court would obviously know whether the physical facilities (in this case the video link and video playing equipment) were available at the court and whether training had been undertaken by the court staff. The judge might not know whether the physical facilities and training required by the prosecution (video recording equipment) were available to the police and whether the necessary training had been undertaken. As a matter of good administration, it could have been seen as sensible to make provision in the statute for this information to be conveyed by a Secretary of State to the court, even though such information could be ascertained by simple enquiry of the CPS. A judge would no doubt anticipate that an administrative matter of this kind might be carried out by circular letter. iv) However no judge or lawyer had any reason to anticipate that the applicability of primary legislative provisions to the substantive law of evidence to be given in criminal trials would be governed by anything other than the legislation itself or secondary legislation. v) Nor would any judge anticipate that the applicability would depend on a letter sent to the court manager at the Crown Court or to the area director of the court service; if notification was to be given to the court, it would be anticipated that this would be given to the judges of the court by a suitable letter. The court manager is an employee of the executive branch of the state as is the Area Director who holds a more senior position; although court managers are based at court, area directors are generally not based at courts. vi) If legislation was to be made applicable to a particular Crown Court by letter to the court manager or area director, this would have had the inevitable consequence that the information was not in the public domain. It is axiomatic that the applicability of legislation must be within the public domain. vii) Applications for special measures would be made by the CPS and referred by the court staff to the judge; they would then be considered by defence solicitors and counsel. None of these would expect to have to ask the court manager or area director whether provisions of primary legislation were applicable to proceedings in the Crown Court at which the trial was to be heard. viii) If the sections were commenced by Commencement Order without differentiating between areas, it would still be open to the executive branch of the state to pilot and monitor the use of evidence being given by video recording suitable requests to other arms of the executive – the police and the CPS – who respectively could decide, within the measure of independent discretion open to them, whether to interview on video and whether to make an application to the court for special measures in the light of progress they were making locally and discussions with the court and those representing defendants. Our conclusion on the effect of the lack of notification under s.18 (2) (a). The power of the judge to make the special measures direction under s.27[30]It is against that background, we turn first to consider the question as to whether the judge had power to make the special measures direction under s.27 (which was in force) despite the lack of notification under s.18(2). This question is a similar question to the first question which arose in R v Clarke and McDaid [2008] UKHL 8, where an indictment had not been signed despite a clear statutory provision that it should be: see paragraphs 17 to 19 of the speech of Lord Bingham of Cornhill.[31]We consider that that the judge had the power: i) The Commencement Order commencing s.27 had been made in July 2002 and had come into force. S.27 was therefore part of the substantive law relating to the admissibility of evidence applicable in the Crown Court. ii) The Commencement Order contained no geographic restriction; it had the force of law in all courts in England and Wales. iii) Can it have been intended by Parliament that under s.18(2) the Secretary of State could specify whether a particular court could use such a measure or to withdraw the applicability of the provision at a particular court? We could not construe this section as giving a Secretary of State (as a member of the executive branch of the state) the power to decide whether the substantive law in a criminal trial was to be applied or disapplied at a particular location of the Crown Court without clear statutory language. If Parliament had intended this, the terms of this power would no doubt have been subject to restrictions and qualifications, given the constitutional and practical implications to which we refer in the next subparagraph, and in paragraph 32 in answer to the argument advanced by Miss Griffiths QC. The absence of such language is a clear pointer against it having that effect. iv) If it had been intended that notification under s. 18(2) was a precondition to the power of the Crown Court to use a special measure, the provision would in any event have had to be very differently worded, as the Crown Court is a single court: see s.76 and 78 of the Supreme Court Act 1981 and see the decision of Hooper J in R (Britton) v Croydon Crown Court (2000) 164 JP 729. Cases can be transferred between different locations of the Crown Court under the procedures specified in Practice Directions (see now Consolidated Practice Direction IV.31-33; if the power was to have been of the type suggested, then special provision would have to have been made. The fact that it was not is significant. v) The language of s.18 (2) uses the words a special measure “shall not be taken by a court to be available”; the language “not be taken by a court to be available” is apposite for administrative notification to the court dealing with the availability of arrangements. If the power to use a provision of primary legislation was not to be used by a court until the Secretary of State had said it could, that could have been said in simple and clear language. vi) It seems to us giving the section a purposive construction the provision was simply intended to give the court a clear means of knowledge that the necessary equipment was available and the necessary training had taken place, without the court making its own enquiries. vii) All Parliament was therefore doing was providing for what is known as “good administration” by making sure the courts had the requisite information before considering whether to make directions under a section which was in force. Unfortunately, it would be difficult to apply that descriptive epithet to what actually happened in relation to the administrative arrangements in respect of the 1999 Act.[32]We cannot accept the argument put forward by Miss Griffiths QC to the contrary. Indeed her argument raises two issues of more general importance which add further support to our construction of s.18(2). i) First, under our constitution, unless Parliament has by very clear language conferred powers on the executive, it is Parliament which decides whether the substantive law should be changed, not the executive. Unless there was very clear language (which cannot be found in s18(2)) we cannot accept that, Parliament would give power to a Secretary of State to decide by administrative action and not by Statutory Instrument whether to implement legislation, in the light of the Secretary of State’s subsequent evaluation of the legislation subsequent to passage of an Act. The commencement of legislation by Commencement Order is subject to various safeguards and ensures that it is public. It is a central element of the control over legislation by Parliament and of its duty to make the laws passed publicly known and accessible. Parliament could of course confer that power on the executive, but in view of the constitutional principles in issue, clear language would be required. This is the more so in the case of legislation governing the admissibility of evidence at a trial where the liberty of the subject is at stake. In our judgment, there was nothing in s.18(2) of the 1999 Act which gave to the Secretary of State such powers in relation to the application by the judiciary of law which was in force. Miss Griffiths’ argument that this was the intention of Parliament rests on circulars of the Home Office and the Ministry of Justice and answers to Parliamentary questions long after the enactment of the Act. However, as we have pointed out at paragraph 26, those represent the views of Ministers expressed after the enactment of the legislation which are not an aid to construction of the 1999 Act. In our view, in so far as the circular and Parliamentary answers purport to suggest that the Secretary of State had the power under s.18, by means of executive notification (without recourse to Parliament through primary legislation or without powers under a statutory instrument), to restrict the use of legislative powers by the judiciary, they were wrong and the views expressed were contrary to basic constitutional principles. ii) Secondly, it has for a long time been accepted that the criminal law is the same and trials take place under the substantive law in the higher courts throughout England and Wales. The basic principle that a person within the jurisdiction of England and Wales must be subject to the same substantive laws, underpins the legislative provision that created a single jurisdiction for the Crown Court, where cases can be and are regularly transferred between different locations for reasons relating to the good administration of justice. Parliament could of course enact that the law of evidence was to differ between different parts of England and Wales or could by Order make the legislation progressively applicable to defined geographic areas (as it did in respect of the Crime and Disorder Act 1998), but it would require clear language and, as we have stated, the legislation would have to make special provision in the light of the fact that the Crown Court has a single jurisdiction. We cannot for this further reason accept the argument that s.18 gave the Secretary of State the power to determine the substantive law of evidence was different at different locations of the Crown Court. If this was so, then a person could be convicted of rape on the basis of video recorded evidence at Sheffield (as notification was given in respect of that court) but not at Doncaster (though both are in the same police and CPS area of South Yorkshire); he could be convicted similarly at Wood Green in north London, but not at Snaresbrook in north east London.[33]We therefore conclude that, as s.27 had been commenced, it applied and applies to all Crown Courts in all proceedings; it gave the judge power to make a special measures direction, notwithstanding the fact no notification of availability had been given under s.18(2). S. 18(2) was simply an administrative provision designed to help the court, but it in no way affected the power of the Crown Court to make a special measures direction under s.27 in any proceedings at any time after the provision was commenced by the Commencement Order. In so far as any circular sent by the Minster suggested otherwise, the Minister was wrong; he had no such power and the Crown Court has been able to make special measures in all cases since July 2004 under those provisions which have been commenced.[34]We must refer briefly to the issue which arose in Bottomley as to the transitional provisions of Schedule 7 to the 1999 Act as we have mentioned at paragraph 21.v). Although the appeal touched on s.18(2), the issue in this appeal did not arise. We will briefly explain why. Under the transitional provisions the court had power to make a special measures direction in existing proceedings unless the court had exercised certain powers before “the specified date”. Paragraph 7(4) of the schedule defined “specified date” as:
“the specified date”, in relation to a witness in any proceedings, means such date as may be specified by the Secretary of State in a notice given to the court in question under section 18(2), where the date is expressed to apply— (i) for the purposes of this paragraph, and (ii) in relation to any description of witnesses and proceedings within which the witness and the proceedings fall.”
As set out at paragraph 21.v), the circular of 10 July 2002 omitted to deal with this transitional provision; it had to be corrected by the circular of 16 August 2002. The appellant was convicted of murder on 16 August 2002 and part of the evidence had been given by live link. It was contended by the appellant that, as the provisions had not been brought into effect at the time of the trial in the manner set out in the schedule, the evidence could not have been heard by live link and that there was therefore a material irregularity in the course of the trial. This court held that once the 1999 Act was in force, it applied to all proceedings whether existing or not and covered the giving of the evidence by live link in the trial of the appellant; the transitional provisions merely provided for the validity of directions made in the anomalous case where the court might have made a direction under powers under the earlier Act referred to in the provisions. No issue arose as the notification to the court under s.18(2) about the general availability of a live link at all Crown Courts, as the letter of 10 July 2002 had given such a notification. (b). The position if there was no power without notification under s.18(2)[35]If we were wrong in our view that the judge had power to make a special measures direction that evidence in chief could be given under s.27 at Chelmsford (as at any other location of the Crown Court) without notification under s.18 from the Secretary of State and the correct construction of s.18 was that the court had no such power, the question would arise as to the consequences.[36]The availability of special measures under s.24 (livelink) had been notified. It was therefore argued that as the order to permit cross examination was one that was validly made, then as there was sufficient evidence to sustain the conviction on the cross examination, then the fact that the evidence in chief may have been admitted wrongly did not matter. We cannot accept the contention; as Miss Griffiths QC put it, if there was no admissible evidence in chief, the cross examination would never have taken place.[37]As that argument cannot provide a solution, we must address directly the question of the consequences of the court permitting the evidence to be given when no notification had not been given and therefore in circumstances when it had no power to make a direction under s.27. The question is answered by asking whether Parliament intended the consequence to be that the evidence given in consequence of the special measures direction which the court had no power to make had to be treated as inadmissible; if it was inadmissible, then there would have been no admissible evidence to sustain the conviction.[38]This question is similar to the second question in R v Clarke and McDaid which the House of Lords derived from two of its earlier decisions. In the first, Attorney General’s Reference No. 3 of 1999 [2000] UKHL 63 [2001] 1 Cr. App. R. 34, the House of Lords made clear that the question to be asked in respect of the failure to comply with a statutory requirement was to focus on the consequences of non-compliance (see paragraphs 15 to 17 of the speech of Lord Steyn). In the second decision, R v Soneji [2005] UKHL 49 [2006] 2 Cr. App. R. 20, Lord Steyn returned to this issue at paragraphs 14-23 of his speech; after a review of the authorities he concluded:
“The emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.”
[39]In Clarke and McDaid Lord Bingham identified the second question as ascertaining the intention of Parliament as to the consequences; Lord Rodger of Earlsferry approved at paragraph 28 the test set out by the High Court of Australia as, “Whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”[40]From the matters we have set out above, it is clear that even if the Crown Court at Chelmsford was not to be permitted to make a special measures direction under s.27 until it was notified by the Secretary of State under s.18(2), Parliament cannot have intended the consequence to be that the evidence was inadmissible; the whole purpose of the legislation was to help witnesses give evidence. There is nothing in the language of the Act or in any of the materials from Parliament that indicated that s.18(2) was to do anything other than permit a phased introduction. The submission that until the safety of the measures had been evaluated, they were not to be used by a court rests solely on material from the Ministry and from answers to Parliamentary questions given long after the Act had been passed; those views cannot assist us in ascertaining the intention of Parliament. We have therefore come to the clear conclusion that if the evidence given at the Crown Court at Chelmsford was given when the court had no power to make the special measures direction because no notification had been received under s.18(2), the evidence was still not inadmissible.

Conclusion

[41]We are therefore satisfied that the court not only had the power to make a special measures direction under s.27, but even if it did not, then the fact that the Court acted beyond its powers in making the special measures direction at the trial of the appellant without having been given notice under s. 18(2) did not render the evidence inadmissible.[42]It is clear that the re-opening of the validity of the conviction has caused strain and stress to the wife whom the jury by its verdict at the trial found to be the victim of rape. If the appeal had succeeded, there would have had to be a re-trial of the facts four years after the events. In the light of our decision, a re-trial is not necessary, but the fact that the victim has been subjected to the stress of this appeal is deeply regrettable. It has arisen because of the lack of clarity in relation to the real difficulties that can arise in relation to the phased implementation of the changes to the criminal law. Those difficulties can be acute if the phased implementation is not merely on a temporal basis but on a geographic basis.[43]This appeal has highlighted the fact that there are two quite different situations in relation to implementation and piloting which were not clear as regards the 1999 Act. We would observe, though it is a matter entirely for Parliament, that it would be desirable in any future legislation in which there is a question of phased implementation on a geographic basis or the piloting of substantive changes to the law that the two situations are clearly differentiated: i) The first situation is the testing of the merit of changes to the substantive law in one area of England and Wales by applying those changes to criminal trials heard in that area before deciding whether such changes should be applied to the whole of England and Wales. The effect of such a course has the necessary consequence that the substantive law is for a time different between one part of England and Wales and another. We would point out that if it is thought proper for this to be done (and it is not for us to comment on it), then a great deal of thought needs to be given as to how it is to be done and who is to make the judgment on whether the legislation should be implemented in other areas; important issues of principle need to be resolved and the legislation should be clear. ii) The second situation is the implementation of a change in the law on a staged basis to provide for orderly introduction. No argument addressed to us suggested that there was any good reason for departing from the conventional method of using a statutory instrument. This appeal has highlighted the issues that would arise if this is to be done by executive notification to the courts. If the phased implementation is to be carried out on a geographic basis and not merely temporal basis, we would also observe that it is important to make proper legislative provision for the single jurisdiction of the Crown Court.[44]Furthermore, no reason has been identified in the course of this appeal as to why local issues cannot be handled locally by the court rather than being managed by circular from central government. Quite apart from the difficulties created which this appeal has highlighted, it is clear that those at Chelmsford who dealt with this case in 2004, dealt with it in a manner that was not only manifestly in the interests of justice but in a manner with which all then present agreed. The view might be taken that it would have been better if they had been left to do so, as we have held they were entitled to do under the Act. The way this was in fact dealt with at Chelmsford, in our experience of the Crown Court at its various locations in of England and Wales, is a clear example of the good sense of trusting Crown Courts to deal with practical problems in a sensible fashion. (d). An irregularity not affecting the safety of the conviction?[45]In the light of the approach in Clarke and McDaid, it is not necessary for us to consider the observations of this court in Bottomley at paragraphs 52-54 as to whether what was done amounted to an irregularity not affecting the safety of the conviction.[46]If it had been necessary to do so, there was sufficient evidence before us to enable us to consider that issue. It is clear that the evidence could have been admitted either by the transfer of the case to Wood Green (where no argument could have been raised as to the power of the court under s.27 to make a special measures direction in respect of the video recording) or by asking the claimant to give evidence in chief over the live link at Chelmsford. The evidence before us made it clear that she would have been prepared to give evidence in this way. However in the light of the conclusion to which we have come, it is not necessary for us to consider this further.[47]There remains one further issue.

Was the conviction nonetheless unsafe?

[48]It was the submission of Miss Griffiths QC that even if we came to the conclusion that the evidence of the wife was admissible on either of the grounds on which we have held it to be, this appeal should be allowed as the conviction was neither just nor safe.[49]The essence of her submission was that the interview had not been conducted in circumstances where the obligation of the wife to tell the truth had been made clear. She relied on the following passage at the commencement of the interview:
“Police Officer: It’s tongue in cheek and I realise that. Erm, but I need to know that you know the difference between truth and lies. Wife: Yes Police Officer: Erm, could you give me an example of say for instance give me an example of a lie. Wife: Erm, my eyes are brown. Police Officer: and what colour are your eyes? Wife: Blue. Police Officer: That’s good. ”
After that question and answer the officer proceeded to ask for a detailed account of what had happened. It was submitted that the admission of this as the evidence in chief of the wife without the formality of an oath or affirmation or anything to make clear on the tape that the evidence was the truth, beyond the passage quoted, was not evidence that a court could safely rely upon. Miss Griffiths referred us to the explanatory note to 117 to the Act and the requirements of Rule 8(2)(d) of the Rules which required the application to state whether an oath was administered. Wife: Yes Police Officer: and what colour are your eyes? Police Officer: That’s good. ”

Police Officer: and what colour are your eyes?

[50]We cannot accept this submission: i) The giving of evidence over a video link cannot in general be regarded as prejudicial; see for example the observations of Lord Nicholls of Birkenhead in Polanski v Conde NastPublicationsLtd [2005] UKHL 10 at paragraph 14. ii) The application for special measures did comply with paragraph 8(2) (d) of the Rules as it made clear an oath had not been given during the video. As we have already set out, the wife was sworn before she gave her evidence and the video recording played. iii) She was cross-examined at very considerable length and maintained her evidence in cross examination consistent with the evidence given on the video recording. iv) There was no prejudice caused by her being tearful.[51]We therefore conclude this conviction is safe and dismiss the appeal.

Cited in 1 later judgment