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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) (03 November 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/3088.html Cite as: [2010] 1 All ER 735, [2009] EWHC 3088 (Admin) |
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COURT
OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
![]() ![]() Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE OPENSHAW
____________________
![]() | ![]() | |
![]() | ||
![]() ![]() ![]() ![]() ![]() | Defendant |
____________________
Computer-Aided
Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications
Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Claimant
MR J
COPPEL
appeared on behalf of the Legal Services
Comission
MR J DICK appeared on behalf of the
Crown
Prosecution Service
MRS L HOGGETT-JONES appeared on behalf of the Interested Party
____________________
VERSION
OF JUDGMENT
"In terms of thecurrent
![]()
circumstances,
the
court
has my recommendation of "
C"
lacking the pre-requisite
capacity
for effective participation in trial proceedings"
But he does not say in terms that "C"
is unfit to plead or unfit to be tried, nor, as I understand it, is that
contended
on his behalf.
"Ensuring adequate social support during the trial is achievable, although heightened anxiety with episodic exacerbation may betray such a high level of anxiety that it may be doubtful whether "C"
![]()
could
draw on and make use of such support".
"28) The right of an accused to effective participation in his or hercriminal
trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings. In the
case
of a
child
it is essential that he be 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 proceeding, including
conducting
the hearing in such a way as to reduce, as far as possible, his feelings of intimidation and inhibition.
29) Thecourt
accepts the government's argument that Article 6(1) does not require that a
child
on trial for a
criminal
offence should understand or be
capable
of understanding every point of law or evidential detail. Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to
comprehend
all of the intricacies and exchanges which take place in the
court
room. That is why the
convention
in article 6(3)
c)
emphasises the importance of the right to legal representation. However, effective participation in this
context
pre-supposes that the accused has a broad understanding of the nature of the trial process, and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary, with the assistance of for example an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in
court.
The defendant should be able to follow what is said by the prosecution witnesses, and if represented to explain to his own lawyers his
version
of events, point out any statements with which he disagrees, and make them aware of any facts which should be put forward in his defence".
"Thecourt
![]()
considers
that when the decision is taken to deal with a
child
such as the applicant, who risks not being able to participate effectively because of his age and limited intellectual
capacity,
by way of
criminal
proceedings rather than some other form of disposal directed primarily at determining the
child's
best interests and those of the
community,
it is essential that he be tried in a specialist tribunal which is able to give full
consideration
to and make proper allowance for the handicaps under which he labours and adapt its procedure accordingly".
"If there are steps which thecourt
![]()
can
take in the exercise of its inherent powers to assist the defendant to give his best quality evidence, the 1999 Act does not exclude this".
She went on to doubt whether the Waltham Forest case
had been rightly decided.
"But still more important in the presentcontext
is the special
constitutional
![]()
convention
which jealously safeguards the exclusive
control
exercised by parliament over both the levying and the expenditure of public revenue. It is trite law that nothing less than
clear,
express, and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of
clear
statutory authority for public expenditure. As it was put by
Viscount
Haldane in Auckland Harbour Board
v
the King 1924 AC 318 at 326: 'it has been a principle of the British
constitution
now for more than two
centuries
... that no money
can
be taken out of the
consolidated
fund into which the revenues of the state have been paid excepting under a distinct authorisation from parliament itself'".
"20(1) Thecourt
may make an allowance in respect of an expert witness for attending to give expert evidence, and for the work in
connection
with its preparation, of such an amount as it may
consider
reasonable having regard to the nature and difficulty of the
case
and the work necessarily involved.
(2) Paragraph 1 shall apply with necessary modifications to a) an interpreter or intermediary; or b) ... as it applies to an expert witness".
"Where in any proceedings in acriminal
![]()
cause
or matter in a Magistrates'
Court,
a
Crown
![]()
Court,
a Divisional
Court,
the Queens Bench division, the
Court
of Appeal, or the House of Lords ... an interpreter is required because of the accused's lack of English, or B)a) a witness
called
by the defendant is examined through an intermediary under section 29(1) of the
Youth
Justice and
Criminal
Justice Act 1999 ... the expenses properly occurred by a witness referred to above ... shall be allowed out of
central
funds in accordance with this part of these regulations, unless the
court
directs that the expenses are not to be allowed out of
central
funds".
To my mind this makes it abundantly clear
that regulation 20 is intended to
cover,
and only
covers,
those intermediaries appointed under section 29 of the
Youth
Justice and
Criminal
Evidence Act 1999.