Richmond Magistrates' Court had erred in holding that an order under s.36 Youth Justice and Criminal Evidence Act 1999 had been made against the claimant in circumstances where only the clerk to the court had informed the claimant that he could not cross-examine the complainant on an allegation of harassment against him.Application for judicial review of decisions of Richmond Magistrates' Court ('C') on either 14 November 2002 or 5 December 2002, purporting to make an order under s.36 Youth Justice and Criminal Evidence Act 1999, refusing to allow the claimant ('H') to cross-examine in person the complainant in H's pending trial for harassment. On 14 November 2002, H attended for a pre-trial review. H was told by the clerk to the court that he could not cross-examine the complainant in person. H informed the clerk that he wished to put his views to the justices but the clerk refused to allow him to do so and his case was subsequently adjourned. On 5 December 2002, C held that: (i) it was "satisfied that the indication given on 14 November 2002 was correct"; (ii) "there had been no change in circumstances" since that hearing and; accordingly, (iii) that H could not cross-examine the complainant. On this application H argued that: (a) at the first hearing he had had no opportunity to make representations to either the clerk or the justices on matters relevant to the issue of whether he should be permitted to cross-examine under s.36(3) of the Act; (b) at the second hearing C had stated that it was taking into account s.36(3)(b) and (c) of the Act but had then gone on to consider whether there had been a change in circumstances; (c) C had clearly erred because s.36(3)(b) and (c) of the Act were matters that were required to be taken into account when deciding whether to make an order to refuse cross-examination in the first place, whilst consideration of a "change in circumstances" was required under s.37(2) of the Act when the court had to decide whether to continue an order that was already in force; and (d) accordingly, insofar as C had purported to make an order under s.36 such an order had not been validly made and should be quashed.HELD: (1) H had not been allowed to make representations either to the clerk or to C at the first hearing and C had not been invited to consider the matters in s.36(3) of the Act. (2) At the second hearing, C had proceeded upon the basis that an order under s.36 of the Act had been made. If such an order had been made it was difficult to see why it had not been made by C rather than by the clerk. If an order had been made at the first hearing it would be incumbent upon the court to quash it on the basis that H had had no opportunity to make representations and C's attention had not been brought to s.36(3) of the Act. However, the court was satisfied that no such order had in fact been made. (3) It was plain from C's consideration of both s.36(3) and s.37(2) of the Act that there had been confusion at the second hearing. If C had been considering whether to discharge an order under s.36 then the only matters for consideration would be those under s.37(2) but if it had been considering whether to make an order under s.36, s.37(2) would have been irrelevant. (4) In those circumstances, insofar as C had purported to make any order under s.36 of the Act on either of the hearing dates, such an order would be quashed and the matter remitted back to C.Application allowed.

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