Video-recorded evidence

The proper handling of witnesses from whom evidence is to be obtained by video examination ahead of a trial is now to be carried out in accordance with the Home Office publication: Achieving best evidence in criminal proceedings: guidance for vulnerable intimidated witnesses including children.

This replaces the old memorandum of good practice which should be destroyed.

In R (D) v Camberwell Green Youth Court (2003) The Times, 13 February, it was confirmed that special measures directions do not themselves prevent a fair trial.

In R v D & S (2002) 166 JP 792, it was further confirmed that a breach of good practice did not automatically render a video inadmissible.

In this case, an inappropriate person acted as the appropriate adult for the witness and neither this nor the fact that there had been earlier discussions of the incident, thus allowing a coherent account to be more easily given on video, prevented the tape being used.

A similar conclusion was reached in R v B (K) (2002) 10 Archbold News 1, where a video was held to be admissible, notwithstanding an interview which contained comments to a child witness that 'you're doing really well', though a warning to disregard such comments should be given to the tribunal of fact.

However, in the same judgment it was confirmed that questions asked by an advocate to build up a rapport were admissible and not prejudicial, and, while this may often benefit the Crown, there is no reason why it should not also be of benefit to the defence.

Furthermore, it was held that it will be exceptional for a jury, and thus magistrates, to have further access to the video of evidence once the tribunal has retired.

Such a video is not an exhibit but rather a way of giving evidence other than by live evidence in court.

It should be considered in the same way as such live evidence.

Burden of proof

One of the few areas in which the Human Rights Act 1998 has had a significant effect on criminal justice is in that of the burden of proof.

Every reverse burden of proof now has to be examined to see whether it places on the defence a true legal (sometimes called persuasive) burden of proof, namely to prove to the civil standard that the defence is made out, or whether a provision should be reinterpreted merely to indicate that it raises an evidential burden - that is a duty on the defence merely to raise by evidence the issue, placing the full criminal burden on the Crown then to disprove the defence suggested.

Significant guidance is given as to the appropriate outcome in R v S (trademark defence) (2002) The Times, 2 Dec, when the following are identified as factors suggesting a full legal burden on the defence:

- The legislation provided consumer protection;

- The matters were particularly within the knowledge of the defence;

- It was impractical to require the prosecutor to prove an absence of belief;

- There was less obloquy than a 'truly criminal' case notwithstanding the penalty available;

- The main ingredients of the crime still had to be proved to the criminal standard;

- The real penalties were below the maximum ten years prescribed.

However, in Sheldrake v DPP (2003) The Times, 25 February, the court came to a different conclusion in relation to the statutory defence to being drunk in charge of a motor vehicle.

This matter is now subject to review by the House of Lords.

For the time being, a defendant merely needs to raise by evidence the issue that there was no likelihood of his driving while he was still over the limit and it will then be for the Crown to prove such a likelihood to the criminal standard.

However, likelihood is defined at a relatively low level, requiring only that a 'real risk' or a 'risk that ought not to be ignored' existed.

By Anthony Edwards, TV Edwards, London