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.