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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lubemba, R. v [2014] EWCA Crim 2064 (09 October 2014) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2014/2064.html Cite as: [2014] EWCA Crim 2064, [2015] WLR 1579, [2015] 1 WLR 1579, [2015] Crim LR 237, [2014] WLR(D) 472, [2015] 1 Cr App R 12 |
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CRIMINAL
DIVISION
Strand London, WC2A 2LL |
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B e f o r
e :
VICE
PRESIDENT OF THE COURT OF APPEAL
CRIMINAL
DIVISION
LADY JUSTICE HALLETT DBE
MR JUSTICE SWEENEY
MR JUSTICE WARBY
____________________
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||
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COKESIX ![]() | ||
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JP |
____________________
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)
Lubemba
Ms C Milsom appeared on behalf of the Crown
Mr I Bennett appeared on behalf of the Applicant JP
Mr B Douglas-Jones appeared on behalf of the Crown
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
The application in JP
The background
"It was my assessment that [the complainant] would not have been able to deal with further questions from people like us that would have added anything useful to the material with which you have to work.
In such circumstances there is a potential for imbalance in the evidence, to which the jury needs to be alert, and if you think there was any disadvantage to the defence from [the complainant's] inability to participate in further questioning, then you should make an appropriate allowance for that in your deliberations. In addition, you should consider carefully the points which are set out in the document which the defence put before you on the morning after [the complainant] has given evidence."
"... and as I shallremind
you tomorrow, it is
very
important, since you will be seeing part of the evidence for the prosecution again, that you should not allow the
replaying
of the
video
![]()
recording
to give an undue significance to that part of the evidence. It will be
very
important that you keep it in proportion, given that you will be having the opportunity to
view
a second time and to hear a second time one of the witnesses in the case. So what I will need you to understand is that you should therefore guard
very
carefully against giving disproportionate, in other words unfair weight, to the evidence of a witness whom you have had the opportunity to hear twice, in contrast to any other witness in the case.
In anticipation of your seeing [the complainant's] evidence again, I will call your attention now to the document in which the defence set out material that they would haveraised,
if it had been possible were this, for example, a case in which there had been no such problem; the material that they would have addressed one way or another in the course of cross-examination. So bear that carefully in mind after tomorrow when you have seen [the complainant's]
video
![]()
replayed."
The ground of appeal
(5) Where arecording
is admitted under this section -
(a) the witness must be called by the party tendering it in evidence, unless -
(i) a special measures direction provides for the witness's evidence on cross-examination to be given otherwise than by testimony in court, or
(ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii); ...
"(1) At every stage incriminal
proceedings all persons are (whatever their age) competent to give evidence.
...
(3) A person is not competent to give evidence incriminal
proceedings if it appears to the court that he is not a person who is able to -
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood."
"(1) Any question whether a witness incriminal
proceedings is competent to give evidence in the proceedings, whether
raised
-
(a) by a party to the proceedings, or
(b) by the court of its own motion, shall be determined by the court in accordance with this section.
(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.
(3) In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 [special measures] which the court has given, or proposes to give, inrelation
to the witness.
(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
(5) Expert evidence may bereceived
on the question.
(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties."
The grounds of appeal
The treatment of vulnerable
witnesses
"38. These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They apply to the infirm. The question in each case is whether the individual witness, or, as in this case, the individual child, is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions. The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give areadily
understood answer to every question. Many competent adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. If the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is not. The questions come, of course, from both sides. If the child is called as a witness by the prosecution he or she must have the ability to understand the questions put to him by the defence as well as the prosecution and to provide answers to them which are understandable. The provisions of the statute are clear and unequivocal, and do not
require
![]()
reinterpretation.
(
R
![]()
v
MacPherson [2006] 1 CAR 30:
R
![]()
v
Powell [2006] 1 CAR 31:
R
![]()
v
M [2008]
EWCA
![]()
Crim
2751 and
R
![]()
v
Malicki [2009]
EWCA
![]()
Crim
365.)
39. We should perhaps add that although the distinction is a fine one, whenever the competency question is addressed, what isrequired
is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria. In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children. In particular, although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end the decision is a decision about the individual child and his or her competence to give evidence in the particular trial.
40. We emphasise that in our collective experience the age of a witness is not determinative on his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow lessreliable
than adults. The purpose of the trial process is to identify the evidence which is
reliable
and that which is not, whether it comes from an adult or a child. If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness. In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the
rest
of the available evidence.
41. The judge determines the competency question, by distinguishing carefully between the issues of competence and credibility. At the stage when the competency question is determined the judge is not deciding whether a witness is or will be telling the truth and giving accurate evidence. Provided the witness is competent, the weight to be attached to the evidence is for the jury.
42. The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood andvaluable
use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in
relation
to cross-examination) or the processes of the court (for example, in
relation
to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the
right
of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to
ventilate
before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be
revealed
to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes
very
young, and it should not take
very
lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or
reciting
a well
rehearsed
untruthful script, learned by
rote,
or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence.
43. The competency test may bere-analysed
at the end of the child's evidence. This extra statutory jurisdiction is a judicial creation, clearly established in a number of decisions of this court (
R
![]()
v
MacPherson:
R
![]()
v
Powell:
R
![]()
v
M:
R
![]()
v
Malicki; see to the contrary effect DPP
v
![]()
R
[2007] EWHC 1842 (Admin)), where it was emphasised that an asserted loss of memory by a witness does not necessarily justify the conclusion that the appropriate level of understanding is absent). If we were inclined to do so, and we are not, it would be too late to question this jurisdiction. This second test should be
viewed
as an element in the defendant's entitlement to a fair trial, at which he must be, and must have been, provided with a
reasonable
opportunity to challenge the allegations against him, a
valuable
adjunct to the process, just because it provides an additional safeguard for the defendant. If the child witness has been unable to provide intelligible answers to questions in cross-examination (as in Powell) or a meaningful cross-examination was impossible (as in Malicki) the first competency decision will not have produced a fair trial, and in that event, the evidence admitted on the basis of a competency decision which turned out to be wrong could
reasonably
be excluded under section 78 of the 1984 Act. The second test should be seen in that context, but, and it is an important but, the judge is not addressing credibility questions at that stage of the process any more than he was when conducting the first competency test."
"All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. Inrelation
to young and/or
vulnerable
people, this may mean departing
radically
from traditional cross-examination. The form and extent of appropriate cross-examination will
vary
from case to case. For adult non
vulnerable
witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise
vulnerable,
the court may dispense with the normal practice and impose
restrictions
on the advocate 'putting his case' where there is a
risk
of a young or otherwise
vulnerable
witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the
reasons
for them. If the advocate fails to comply with the limitations, the judge should give
relevant
directions to the jury when that occurs and prevent further questioning that does not comply with the ground
rules
settled upon in advance. Instead of commenting on inconsistencies during cross-examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness's evidence. The judge should also
remind
the jury of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial."
Conclusions
JP
THE VICE
PRESIDENT: As far as
Lubemba
is concerned, Ms Akuwudike, I do not think anything follows from our decision so thank you
very
much, you may leave if you wish.
As far as JP is concerned, Mr Douglas-Jones?
MR DOUGLAS-JONES: My Lady, inevitably the Crown would seek a re-trial
in a case of this nature, given the seriousness of the allegations and the circumstances in which they arose. A three year sentence
resulted
from the conviction in this case in total and the appellant has served five months merely.
What I would respectfully
suggest is this. In circumstances where this court has taken steps to ensure that this case has been heard expeditiously, I wonder if your Ladyship would direct that the
re-trial
should take place before the end of this term.
THE VICE
PRESIDENT: We can certainly direct it is fit for expedition, if we order a
retrial,
but the Presiding Judges of the Welsh Circuit might have something to say if we directed them to get it on before the end of term. I know they would do everything possible. We could say that it is a case that should be expedited if at all possible.
I have not asked for any submissions from you, Mr Bennett, but I do not think you can really
argue against a
re-trial,
can you?
MR BENNETT: It is a matter for the Crown. There should be some time, I think, for the family of the child to be spoken to. They may have some influence on whether it is necessarily in her good, and therefore the public good, to re-hear
the matter again.
THE VICE
PRESIDENT: I think we can take it that that is what the Crown have already done.
MR BENNETT: One matter I sought to raise
was the appellant's bail position. He had in fact been on conditional bail.
THE VICE
PRESIDENT: Can we come to that in a second.
We allow the appeal. We quash the conviction. There will be a re-trial
on counts 1, 2 and 3. We direct that a fresh indictment be served. We direct that the appellant, as he now is, be
re-arraigned
on the fresh indictment within two months. We also direct that, if possible, the
re-trial
should be expedited.
Now, we come to the question of custody or bail. Yes, Mr Bennett.
MR BENNETT: My Lady, the defendant has some dissimilar relatively
minor convictions, I think there is a drink driving and there may be a matter of disorder as well, but certainly no previous sexual offending to his name. He was on bail entirely before the trial, entirely during the trial and in fact was only
remanded
at the
very
end after he was convicted. There was no indication at all from the Crown that he ever imposed a danger of committing offences whilst on conditional bail. He, of course, was the subject of conditions to keep away from and not approach or contact the named prosecution witnesses, and he was not allowed in fact to
reside
at his own family home, which in fact was
relatively
close in terms of distance to that of the complainant. But I am bound to say in the circumstances I would ask the court to consider granting this man bail as before on the same conditions.
THE VICE
PRESIDENT: Thank you.
Any observations from the Crown?
MR DOUGLAS-JONES: My Lady, no. Plainly it is appropriate though that if he be re-admitted
to bail, as he was before the trial, that those conditions should be
reinstated.
(The Bench conferred for a short time)
- - - - -
THE VICE
PRESIDENT: Mr Bennett, Mr Douglas-Jones, we have concerns about where he would live if
released
on bail. There have already been unfortunate incidents and I suspect the decision of this court may not go down that well in certain quarters. We do not want any interference with witnesses or any trouble. How do we ensure there is no witness interference or any trouble if we were to grant bail?
MR DOUGLAS-JONES: My Lady, my respectful
suggestion would be that I take instructions from those instructing me in
relation
to what matters are on the central management system so that the conditions can be tailored precisely to those
risks.
THE VICE
PRESIDENT: The conditions were not to contact the complainant or any other prosecution witness, not to enter any part of a dwelling where there is a young child. That is it. No condition of
residence.
For my part, I am not happy with that.
MR DOUGLAS-JONES: No. My Lady, there are two options. One is that I be afforded, if you are prepared to allow it, time to take instructions. The other option is that he be remanded
pro tem under paragraph 5 and the matter can be taken up by an application in the Crown Court.
MR JUSTICE SWEENEY: Where is it proposed that he would reside?
MR BENNETT: He has a number of relatives
living in the area who are prepared to take him in.
THE VICE
PRESIDENT: Well, it is the area that I am worried about.
MR BENNETT: It certainly is right
that he should not go anywhere near the current address of the complainant and her family.
One of the complicating factors that arose in the course of his bail position in the trial was that one of the children, not his natural child, living with him at his home address was the subject of some sort of guardianship order and they objected to him having access to that household after the allegations were levelled against him, so in fact the bail conditions had been tailored to prevent him having contact with any young child including his own or his own step children, so that in fact prevented him from going to live back at his former home address. So he was keeping out of the area altogether on the basis that he was not even entitled to go back to his own home address.
THE VICE
PRESIDENT: For my part, I would need a condition of
residence,
I would want to know where that
residence
was, I would want to know who lived in the household. There are a number of questions. You will not be able to persuade me on the information you have at the moment, so I think, unless my colleagues disagree, we should follow the course that Mr Douglas-Jones has proposed, and that is that you can make any bail application to the Crown Court. Our order will be that he is
remanded
in custody unless and until a Crown Court judge decides otherwise.
We need to make sure that there is nothing reported
until the conclusion of the
re-trial
which might prejudice it. We shall include in the perfected judgment the appropriate order.
The venue
for the
re-trial
will be determined by the presiding judge of the Wales Circuit.
Applications for a representation
order: Mr Bennett, apparently you have to make them to the Centralised Legal Aid Unit. The
Registrar will tell you.