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19 JAN 2007

CRIMINAL LAW: R v Davy [2007] EWCA Crim 55

(Court of Appeal; Hughes LJ, Rafferty J and Sir Charles Mantell; 19 January 2007)

The mother had been convicted of perverting the course of justice, of 6 instances of forgery, of using a false instrument, and of 3 instances of obtaining property by deception. The mother raised domestic violence by the father as an issue in mitigation and the judge decided to conduct a Newton hearing. The mother sought to call the 11-year-old child of the marriage, whose evidence was videoed. The judge declined to view the video, or to read the transcript of the child's evidence, because of a concern about the effect on the child of giving evidence against a parent. The mother appealed her sentence of 30 months.

The judge had been wrong to decline to receive the evidence; once a Newton hearing had begun it was important that the judge absorbed what could properly be absorbed from it. Had the judge taken the view that in the best interests of the child the giving of evidence could be avoided by the judge receiving (by agreed means) the information contained in the evidence, taking account of it so as to reflect it at its highest for the mother, no criticism could have been mounted. The sentence was not reduced, as it had not been manifestly excessive, indeed might be said to have been remarkable in its generosity.

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