Practice and Procedure


PUBLISHED August 1, 2003

The evidence of a young witness, given by video link, had been lawfully admitted and the appellant's conviction for murder was safe.Appeal against the appellant's conviction for murder on 16 August 2002 in Swansea Crown Court. The appellant and his co-accused ('Heale') were found guilty of subjecting the victim to a savage beating, which rendered him unconscious and caused brain injury that later resulted in his death from pneumonia. The appeal turned on whether the evidence of a significant witness was lawfully admitted. The witness was Heale's sister, who was 16 years of age. She indicated that she wished to give evidence by video link. An application was therefore made under s.16 Youth Justice and Criminal Evidence Act 1999 for a "special measures" direction in accordance with s.24. At the time it was understood that the relevant special measures provisions under the Act had come into force on 24 July 2002 pursuant to a Home Office circular made under s.18(2) of the Act. The judge had made a special measures direction on 1 August 2002, allowing Heale's sister to give her evidence by way of live video link. On 16 August 2002 the Home Office issued a second circular indicating that the relevant notification required by s.18 had not been given and the date of 24 August 2002 now applied. The grounds of appeal were that: (i) the witness' evidence could not and should not have been admitted under the Act; (ii) the judge's error in making the special measures direction amounted to a material irregularity in the course of the trial; and (iii) on the particular facts of the case, the procedural irregularity was the source of significant potential prejudice to the appellant and that the conviction was therefore unsafe.HELD: (1) The provisions of the main part of the Act related to criminal proceedings generally as from the date of the Act coming into force. It was the clear purpose of s.18 that, once an appropriate notice had been given to a court pursuant to s.18(2), the special measures identified in the notice should become available in any criminal proceedings unless or until the withdrawal of such notice under s.18(4). The first Home Office circular constituted appropriate notice under s.18(2). However, no withdrawal of that notice had occurred at the time when the judge made his order. In those circumstances, whatever the effect of the second circular, the terms of the notification were sufficient to validate the special measures direction made in this case. (2) There was no reason to suppose that the witness would have refused to give evidence in open court. There was no substantial prejudice caused to the appellant by reason of the mere fact that the admissible oral evidence of the witness was given by video link rather than in the face of the court. There was no doubt as to the safety of the conviction. (3) (Obiter) Even if it had been found that the judge lacked the power to make the special measures direction because of a technical defect in the first circular, this would not have been a material irregularity going to the safety of the conviction.Appeal dismissed.

[2003] EWCA Crim 2245