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Cite as: [2001] NICA 36

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Appeal 2000/11, In the Matter of [2001] NICA 36 (29 June 2001)





Judgment: approved by the Court for handing down
(subject to editorial corrections)


IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPEAL No 2000/11
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CARSWELL LCJ


1. This is an appeal brought with leave against a decision of Higgins J given on 6 June 2001 in the Family Division, whereby he held that videotape recordings of interviews by social workers and police of three children could be admitted as hearsay evidence under the terms of the Children (Admissibility of Hearsay Evidence) (Northern Ireland) Order 1996 (the 1996 Order). The relevant facts and issues have been set out in detail by the judge in his written judgment and accordingly we are able to summarise our decision on the issues in short compass.

2. The substantive applications were brought by a health and social services trust for care orders in respect of the six children of Mrs W. The trust’s case is founded upon allegations of sexual abuse and other maltreatment of the children, as appears from the document entitled “Categories of Threshold Facts”. Interim care orders have been in place since August 1999, and the children have not been resident with the mother. At the hearing of the application for care orders the trust wishes to place before the court, apparently as the only substantive evidence of the maltreatment, the testimony of three of the children, all male , S, aged 14 years, D, aged 10 years, and G, aged 9 years. Each related his account of the material facts relating to the complaints of maltreatment in a joint protocol interview, which was recorded on videotape. The trust proposes to put these in evidence, but has decided not to call the children to give oral evidence or to permit them to be cross-examined. No evidence has yet been placed before the court concerning the effect which giving oral evidence and being cross-examined is likely to have on any of the three children, although counsel for the trust indicated that he may wish to adduce such evidence at a later stage. At a directions hearing on 24 May 2001 the trust applied to the judge to be permitted to adduce the videotape recordings in evidence and by his reserved decision given on 6 June 2001 the judge acceded to the application.

3. The grounds on which counsel for the mother opposed the admission of the videotape evidence on appeal before us were:

  1. Such videotape evidence is not properly to be regarded as hearsay evidence and so is not admissible under the 1996 Order.
  2. To admit it without giving the mother’s representatives an opportunity to test it by cross-examination would constitute a breach of Article 6(1) of the European Convention on Human Rights, in that it would deprive her of her right to a fair hearing of the determination of her civil rights.

4. These issues tend to shade into each other, in that some points are relevant to both.

5. Paragraph 2 of the 1996 Order, made under the powers conferred on the Lord Chancellor by Article 169(5) of the Children (Northern Ireland) Order 1995 (the Children Order), provides:

“In –

(a) civil proceedings before the High Court or a county court; and

(b) civil proceedings under the Children (Northern Ireland) Order 1995 or under the Child Support (Northern Ireland) Order 1991 in a magistrates’ court

evidence given in connection with the upbringing, maintenance or welfare of a child shall be admissible notwithstanding any rule of law relating to hearsay.”

6. The admission of hearsay evidence was not the introduction of a novel concept in proceedings relating to children, as it has long been admitted in the paternal atmosphere of the wardship jurisdiction, with its inquisitorial flavour: see Re K (Infants) [1965] AC 201 at 242, per Lord Devlin. In H v H and C [1989] 3 All ER 740 at 757 Butler-Sloss LJ expressed the view (before the enactment of the Children Act) that in wardship proceedings hearsay evidence could be admitted, since the jurisdiction was one in which the strict rules of evidence did not apply. The 1996 Order has given the former practice a statutory foundation throughout all proceedings relating to children under the Children Order, but we consider that in principle in those proceedings which have replaced the old wardship jurisdiction the strict rules of evidence should not be applicable in their full rigour. If this is correct, then the videotape evidence may be admissible irrespective of whether it constitutes hearsay under the 1996 Order. It is necessary to bear in mind, however, the cautionary words of Neill LJ in Re W [1990] 1 FLR 203 at 227, where he said that although hearsay evidence is admissible as a matter of law –

“this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed.”

7. In the Civil Evidence (Northern Ireland) Order 1997 “hearsay” was defined by Article 3(3)(a) in the following terms:

“’hearsay’ means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated”.

8. A comparable definition contained in Cross on Evidence was approved in the House of Lords in R v Sharp [1988] 1 WLR 7 and R v Kearley [1992] AC 228. The content of the videotapes satisfies this definition in that the children will not be giving oral evidence and what they said in the interviews will be tendered as evidence of the truth of those matters.

9. Mr O’Hara QC for the mother argued, however, that the videotape material should not be classed as hearsay because it is virtually indistinguishable in effect from oral evidence in chief given by the children in court in answer to questions by counsel. He submitted that because the judge could see the demeanour and hear the voices of the children it would have a much greater impact on him than simply reading a bald transcript of what they told the interviewers. It would be unfair to the mother to allow this cogent material to go before the judge without giving her representatives an opportunity to test it by cross-examination. If admitted under the provisions of the 1996 Order, it must be unqualified, whereas under the Civil Evidence (Northern Ireland) Order 1997 there is the built-in safeguard contained in Article 4, whereby in an appropriate case the maker of the statement can be required to attend for cross-examination.

10. The judge acknowledged that a videotape recording of an interview –


“goes further than the written transcript. It enables the listener to hear the inflection in the child’s voice and see his demeanour at the same time, neither of which is available through the printed page. Therefore if hearsay evidence, it is an enhanced form of hearsay.”

11. It has to be observed, however, that this enhancement is not necessarily against the interests of the person accused of child abuse. It may equally reveal signs of hesitation or coaching which would not appear from a written transcript, and so weaken the effect of the evidence. Moreover, the evidence, if admitted, will bear as much or as little weight as the judge thinks fit to attribute to it. Factors which may affect his view on the weight to be placed on the evidence will include such matters as the ages of the children concerned, any medical evidence about the effect which giving evidence may have upon them, the inherent likelihood or unlikelihood of the evidence and signs of inconsistencies in the accounts given (see the list of matters which the judge will take into account set out by Ward LJ in Re N [1996] 2 FLR 214 at 221). In the present case the trust has not adduced any medical evidence at this stage, but may do so later if we admit the evidence. Counsel pointed to the well-accepted opinions that it is potentially harmful to children to have to confront persons who may have abused them and may lead to the court failing to receive evidence which should be before it (see R v B County Council, ex parte B [1991] 2 All ER , passim).

12. In our opinion videotape recordings of interviews are more akin to transcripts of interviews than to oral evidence given in response to questions by counsel. As a matter of principle we think that it would be possible either to class such videotape recordings as hearsay or to hold the contrary. We have not found any direct authority on the point in the case-law, but it was assumed by the Court of Appeal, apparently without argument, as a necessary step in the reasoning in Re P [1997] 2 FLR 447 that a videotape recording of an interview was admissible under the equivalent of the 1996 Order; cf Ward LJ’s remark in Re N [1996] 2 FLR 214 at 221 that it “is admitted as a form of hearsay evidence”. Moreover, it is so stated without discussion in Hershman & McFarlane, Children Law and Practice , paragraph 3098. We think it useful to consider whether Parliament intended such evidence to be included in the definition of hearsay in the 1996 Order, which would lead to its admission without the opportunity to cross-examine. It seems to us that it is proper to look at the objective of the legislation, which is to uphold and promote the interests of children. This can most effectively be achieved by admitting the evidence and leaving it to the judge to decide upon the weight which he attributes to it. That is in our view more useful than declining to class the evidence as hearsay, with the consequence that either the children have to undergo cross-examination or evidence has to be omitted from the proceeding which might be of great importance for the court in making decisions affecting the welfare and future of the children. These considerations lead us to the conclusion that Parliament intended to include videotape recordings of interviews with children in the category of hearsay evidence which could be admitted under the 1996 Order. If, contrary to our opinion, they should not be classed as hearsay evidence, they would in our view be admissible in proceedings concerned with issues formerly dealt with in the wardship jurisdiction, on the ground that the strict rules of evidence do not apply to them.

13. We then have to consider whether the admission of the videotape recordings would deprive the mother of her right to a fair trial and so constitute a breach of Article 6(1) of the European Convention on Human Rights. It has to be borne in mind that the mother is not on trial and that the considerations are not necessarily the same as in a criminal trial for child abuse: Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213. Nevertheless, her rights to the care of her children are affected by the making of a care order and extremely harmful allegations may be made in this type of proceeding which those affected may strongly desire to rebut. We are prepared, as at present advised, to hold that if the method of proceeding by the reception of videotape evidence operates unfairly against the mother there may be a breach of Article 6(1); cf the view expressed by the Commission in X v Austria Application no 5632/72.

14. Several other principles applicable in this field are material. First, the rules of evidence at a trial are a matter for each contracting state. The ECtHR will not substitute its own views about the admissibility of evidence for those of the national court, although it will scrutinise the effect of the operation of the rules in the proceedings to see whether the proceedings were fair. And, as Lord Bingham observed in Procurator Fiscal, Dunfermline v Brown [2001] UKHRR 333 --

“What a fair trial requires cannot, however, be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done.”

15. Secondly, although Article 6 is an absolute right and not subject to the qualifications which are expressed in respect of other provisions of the Convention, the constituent rights within Article 6 are not themselves absolute. As Lord Bingham said later in his judgment in Procurator Fiscal, Dunfermline v Brown –

“Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.”

16. Thirdly, while a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies: Lester & Pannick, Human Rights Law & Practice, pages 73-6, approved in Procurator Fiscal, Dunfermline v Brown ; and cf R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at 380-1, per Lord Hope of Craighead.

17. The United Kingdom legislature has devised a system of law for the protection of Children, which operates under the supervision of the courts. Under Article 3 of the children Order, where a court determines any question with respect to the upbringing of a child, the child’s welfare is to be the court’s paramount consideration. In pursuance of that principle Parliament has provided by the 1996 Order that hearsay evidence shall be admitted, in order to place the material facts before the court while sparing children the necessity to give oral evidence in the presence of persons who they claim have abused them and protecting them from the rigours of cross-examination. Although we do not have specific medical evidence about the likely effects of giving evidence upon the children in the present case, there is ample material to support the conclusion that it has in general adverse effects upon them: see, eg, R v B County Council, ex parte P [1991] 2 All ER 65 at 71, per Butler-Sloss LJ. While this may deny some advantages to a person accused of child abuse, it is designed to achieve a proper balance between the needs of the child and the rights of the parent or other person accused. In our judgment this is a proper balance and the means adopted are proportionate to the legislative aim. The mother is not altogether bereft of resources if the videotape recordings are admitted. She can obtain the services of an expert to comment on the way in which the evidence has been given, and she is entitled to ask the judge to give reduced weight to the evidence if there are grounds to do so. This in our opinion achieves a reasonably fair balance between the interests of the children and those of the mother. We accordingly agree with the judge’s conclusion that the admission of the videotape recordings would be compatible with the mother’s right to a fair hearing.

18. We therefore dismiss the appeal and confirm the judge’s directions.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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IN THE MATTER OF AN APPEAL No 2000/11
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JUDGMENT




OF




CARSWELL LCJ




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