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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Edwards, R. v  EWCA Crim 3028 (16 November 2011)
Cite as:  EWCA Crim 3028,  Crim LR 563
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London, WC2A 2LL
B e f o r e :
MR JUSTICE MACDUFF
RECORDER OF NORWICH
(His Honour Judge Peter Jacobs)
(Sitting as a Judge of the CACD)
|R E G I N A|
|SIMON DAVID EDWARDS|
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Mr R Bond appeared on behalf of the Crown
Crown Copyright ©
"But it is probably a time when it would be sensible to say to you, Mr Whitehead, in front of the jury that whilst cross-examination of witnesses is commonly and properly robust, in the case of a very young child it isn't. I shall say to you that you must ask such questions to which you want actual answers, but I will say to the jury that the nature of the defence in this case has been set out in writing, [in a defence case statement] and you are neither required, nor should you, to put that to the witness.
MR WHITEHEAD: Thank you. I may at times draft questions in advance ... I don't intend to be very long with [C].
THE JUDGE: But it may help you any way, and I think it would help the jury, to know that there's been a direction along those lines as far as cross-examination is concerned. I shall probably also tell the jury that unless the witness has asked to see lawyers and judges in their robes we shall be in suits tomorrow morning."
Later, in the presence of the jury he said:
"The directions that I have given to Mr Whitehead in this case are that he can and should ask any question to which he actually wants answers, but he should not involve himself in any cross-examination of [C] by challenging her in a difficult[?] way. In this case the defendant has already set out in some detail what his defence is. It is not a question of putting it to a witness and challenging her about it, so you won't hear the traditional form of cross-examination. I thought you ought to know that from the outset."
Later, as the jury was brought in and the judge was running through the usual housekeeping task of timetable, he said:
"...as you heard yesterday as we discussed, Mr Whitehead will have a chance to ask questions but it won't be a cross-examination as you know it at all. He'll be asking some questions of her. It's always difficult with very young children. When you think that the event that we're talking of took place in August 2009, how much more difficult is it for a five year-old to remember that far back? So, the questions he asks of necessity be limited in that way. That's something that's unfortunate but we have to deal with it."
Dr Sprigg reviewed the scan. The injuries dealt in C he would for example expect as a result of a lap strap seat belt, worn during a head-on impact or from a fall from a bicycle, where a child impacted upon a hard object, perhaps the handlebars. Both doctors had seen similar injuries common in children of an age to play contact sports, for example rugger. That was nowhere near the case of this little girl, aged 5 years 2 month. Dr Sprigg thought that a punch, if hard enough, could cause the injury with which he was concerned.
Cross-examined he accepted that there were no injuries arising from an incident on a school trip and that everything on both Tuesday the 14th and Wednesday 15th July 2009 had seemed normal. He had not fallen out with C and she had not complained of abdominal pain or sickness before Thursday 16th. He could not explain why she should lie about him.
Grounds of appeal are as follows: first that a material irregularity occurred in that the judge gave the impression, certainly to counsel, that the interests of C outweighed the appellant's right to a fair trial. His counsel was wrongly restricted in the way he was permitted cross-examine C. That restriction gave the impression that C may have given evidence more reliable than that of an adult and he was prevented from putting his case, restriction emerging in the presence of the jury, during cross-examination. On that ground leave was granted.
The second ground, on which application is renewed, was that the judge formed a preliminary view that C, due to her age and the 18 months since the allegation, would be unable to remember or incapable of remembering specific events. Mr Whitehead was prevented from challenging her competency and formulating submissions that her evidence should, under the provisions of section 78 of the Police and Criminal Evidence Act 1984, be excluded.
We give some flavour now of the detail of C's ABE interview which although barely audible replays scrutiny:
"Do you know what I've come to talk to about [C]? (shakes head)
Last week when I came to see you in hospital you had some nasty bruises, do you remember?
Where did you get them bruises C?
Erm, if I fell out of bed and keep falling out (inaudible).
Do you? Oh dear.
And somebody punched me when I was at school."
A little later:
"What about the hurt in your tummy, that's the one that's been really bad (inaudible). Do you know how you hurt your tummy?
A little later:
"Fell out of bed?
And then well let's have a think for a minute who lives in your house. Who lives in your house? ... and who normally looks after you?
Simon. Simon someone who lives in your house, does he?
Nods. Do you like it when Simon looks after you? (Shakes head)
Will you will you tell me [C] [and the child says]
Cos erm, cos erm Simon keeps punching me.
Does he? Oh dear.
Tell me about that then [C], about Simon punching you in your tummy.
Erm, cos erm, cos I was eating my porridge ...
And what happened then? Then I saw him again and he just punched me in my tummy."
The child makes plain this was when she was in the living room and seated on the floor, eating her porridge. The obvious inference is that this was before she went to bed and she was later to confirm it:
"Can you tell me how he punched you?
He done it with his hand [when asked where, she showed her tummy].
Did he say anything when he punched you, did he say any words?
(Shakes her head)."
She is later to demonstrate a second punch to her tummy and that is after her mother had come back from work the next day, again in the living room, because C hadn't finished her meal:
"Do you remember the bruise that I'd seen on Monday, the really big one that's down here.
Yes down there isn't it underneath your knickers. Remember how you did that one?
There is, of course, more dialogue but we have identified those comments to give a flavour to the submissions upon which Mr Whitehead founded his argument.
"Okay, and whilst you ate your chocolate cake Simon was feeding [E]? Do you remember that?
And then you all went to bed? You went to your room? You slept in your bed, didn't you?
And [E] slept in her room in a cot?
Simon and mum, they had another room, didn't they? THE JUDGE: Could we stop for a moment?
MR WHITEHEAD: Yes.
JUDGE: Just stop it. [We interpose, the judge is clearly not saying "just stop it" to Mr Whitehead, but the technicians, so that C cannot hear].
I am concerned you're making suggestions to the witness, and ordinarily that would be absolutely appropriate, but making suggestions to a six-year-old about matters so long ago, I wonder whether we're sure we're getting accurate information. Could you make the questions a little bit open so we can test whether she does remember?
MR WHITEHEAD: I'll do my very best.
THE JUDGE: Thank you."
Obviously the link was switched back on because the judge says:
"It's all right, [C] I've just asked Darron to ask you things in a slightly different way if he can"
And on goes Mr Whitehead, through the clearest of approaches, he having told the child that he had 10 areas to question her upon, and, one by one and enumerating them, he went through them. He picks her evidence up again and says:
"Good, okay. We're still on number 3. All right? I'll try and change the way I ask you some questions, if that's okay, but the rules are still the same. If you don't understand or you can't remember please say to us. All right [C]? You won't be in any trouble at all."
He says a moment or two later, having once again centred her, this time by reference to a house whose name she would recognise:
"Simon didn't stay in your room, did he? No, all right. Okay. I know."
Then next recorded comment is "yes" from the judge. We infer having between us some little experience, that Mr Whitehead had seen the judge's demeanour change and knew that the judge was becoming anxious. We think we are right because the consequential comment from Mr Whitehead is to C:
"I have to think about the questions as well. All right? So if I go quiet a bit, just sit and say that looks like great fun. All right?
MR WHITEHEAD: I can see you like that [whatever it was]
THE JUDGE: You could certainly ask which room he slept in if you wanted to.
MR WHITEHEAD: I'm trying to tread very carefully"
He picks the child up again:
"I'm still staying with number 3. All right [C]?"
And off he goes, through Blockbusters, and figuratively speaking, brings C home and deals with the appellant going out that night.
"Do you remember Simon going out shopping to get the food?
And I think he did bring a film home for you in the end, didn't he?
And he went out again that night? He left you and [E] and mum alone at the house? Yes?
Okay. This is what you remember, is it? You're not just agreeing with me? It's what you remember?
THE JUDGE: I am concerned, Mr Whitehead, about this. MR WHITEHEAD: Can we switch this off for a moment?
THE JUDGE: Yes. Can we just switch off for a moment. [It is obviously switched off].
MR WHITEHEAD: Your Honour, I don't mind [inaudible] on what I ask, but I have to ask some questions.
THE JUDGE: I do agree entirely, but it is a matter of I think very general knowledge that when you're talking about days before the specific events and then even though [C] is able to recite the days of the week then asking about what happened on the Tuesday or the Wednesday is very difficult, and I'm only saying that if you can make the question more open so that she's demonstrating what she can remember rather than agreeing with you I think it will be more help to demonstrate her memory rather than an ability to agree or disagree.
MR WHITEHEAD: I understand.
JUDGE WAIT: All right.
MR WHITEHEAD: I'm doing [my best].
THE JUDGE: I know it's a very difficult task, and it isn't intended as a criticism."
On goes Mr Whitehead through his topics 5, 6, 7, 8, 9 and 10.
"The judge ... seemed to suggest that it was necessary for the court to balance on the one hand the interests of justice generally, and of the victims, against the defendant's right to a fair trial. We do not agree. There is nothing set against a defendant's right to a fair trial. Nothing can deprive a defendant of that right, enshrined, as it is, in Article 6..."
It would be impossible more clearly to express the position.
In R v B  EWHC Crim 4, the Lord Chief Justice provided guidance upon the way in which very small children may, in criminal trials, give evidence. The defendant's counsel in a trial which saw a child of four-and-a-half describing events when she was 3, was, Mr Whitehead points out, permitted to put his client's case. Here the complaint is that Mr Whitehead could not explore inconsistencies, credibility and reliability, or fundamental material for cross-examination. With the playing of ABE video in-chief and several bland and general questions from him, the effect was that the jury was denied the opportunity to see C throughout the adversarial process and come to its own conclusions. The danger Mr Whitehead identifies is that it was left with a lasting reminder of the video but without exploration of whether C had been truthful or consistent. Effectively it became and had the appearance of a one-sided trial.
In the R v B  EWCA 313 Pitchford LJ considered the overriding objectives in the Criminal Procedural Rules and said:
"However, our system is adversarial and it is a matter for the parties to present the evidence in the way which they consider best serves their case... they should be permitted to conduct and present the case to the jury without unnecessary interference. It is the responsibility of the judge, it seems to us, to assist the jury's task by seeking and at times perhaps insisting on the orderly presentation of the evidence."
The complaint here is that the learned judge's intervention and directions had the unintended net effect of the appearance of unfairness.
Necessarily, submits Mr Whitehead, grounds 1 and 2 are intertwined. If a witness be deemed competent then she is exposed to cross-examination, with allowances in the use of terminology and language for age differences and intellectual abilities. Ground 2 therefore is put in this way: although there were some leading questions within the ABE interview, competency did not appear to be an issue at the outset of the trial. However, the judge seems to have assumed that the 18 month delay between alleged offence and trial, coupled with C's extreme youth, meant that she would be unable to remember specific events. He fell into error in that he should have considered competency before permitting her to give evidence. There was no invitation to counsel to address any concern over the judge's preliminary view. Arguably, the competency test had already, at that stage, been failed if the judge's views were well founded, and C should not have been allowed to give evidence at all. Cross-examination would have been designed to probe what actually happened during the incident and immediately after. Any answer would have moved the process of considering competence on and consequently, after the normally permitted range of cross-examination, the judge could, dependent on answers, have been better placed to analyse C's competency. Because, at an early stage, he decided to restrict and constrain cross-examination, he prevented himself from exercising that duty to monitor her competency.
For the Crown, Mr Bond, who appears here and appeared below, answers the complaint of material irregularity thus. The judge neither invited submissions from counsel, nor expected any. He made it quite plain that the modus of cross-examination was his decision. The defence could ask any necessary questions save about the assault itself or any "suggestion" questions. Because of her age and the passage of time the judge was obviously concerned that C would not be giving accurate information if suggestions were put to her. The jury heard him say so during cross-examination, as we have already rehearsed. In addition, it was obvious that the judge thought the defence did not need to put its case on the incident itself, and the result of such questioning would be to cause confusion in one so young, unhelpful to a jury trying to conclude, at the end of the day, whether the Crown had made it sure of guilt.
The judge, says the Crown, plainly had regard to the overriding objective expressed in the Criminal Procedure Rules 2010. They impose a positive duty to manage a trial, so as to achieve a just result both for Crown and the defence. Where relevant they read as follows:
THE OVERRIDING OBJECTIVE
1.1(1)The overriding objective of this new code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes ... (e) dealing with the case efficiently and expeditiously...
(g) dealing with the case in ways that take no account-
(i) the gravity of the offence alleged.
(ii) the complexity of what is in issue."
The reality, says the Crown, of questioning children of tender years is that direct challenge that he or she is wrong or lying could lead to confusion and, worse, to capitulation. Capitulation is not a consequence of unreliability by a function of the youngster's age and the circumstances in which she finds herself. Experience, says the Crown, has shown that young children are scared of disagreeing with a mature adult whom they do not wish to confront. This was a just decision because the judge took account of the gravity of the case, the complexity of what was in issue and the severity of the consequences for the defendant and others affected. In addition, he was dealing with the case efficiently and expeditiously. His decision did not make this an unfair trial, so the submission goes, and as a consequence the conviction is not unsafe. We agree. The judge did not give the impression that the interests of C outweighed those of the defendant who had an absolute right to a fair trial. Throughout the jury was fully aware of the defendant's case. It knew he denied punching C. It knew from cross-examination of C that the defence were exploring alternative mechanisms for her injuries. It knew it from skilled cross-examination of the Crown's doctors, Ibrahim and Sprigg. They were asked, for example, to deal with C's bouncing on her bed, with her falling off a bed onto a floor, onto a window sill, or the end of the bed. They were invited to deal with the post-Blockbuster fall on concrete steps leading to her front door. It follows that two possible mechanisms were fully and appropriately explored with the two experts there to assist the jury.
The jury was not, in our view, left with the impression of a one-sided trial. No criticism is made, nor could it be, of the terms of the summing-up, which, as one would expect from this experienced Tribunal, was scrupulously fair and balanced. It fully identified the issues. The jury knew that the defendant disputed the evidence of C. The judge clearly explained his decision as to cross-examination technique and why he had taken it. In addition, the jury was specifically directed "to make proper fair allowances for the difficulties faced by the defence in asking questions about this."
The tenor of the exchanges between Bench and Bar, through which we have in some detail gone, make plain that the judge was astute to the difficulties faced by Mr Whitehead, sympathetic to the skill with which he approached his task and wholly understanding of how hard an exercise for him it was. The real complaint here, in our view, is that the defence was deprived of the opportunity to confront C in what we might venture to call "the traditional way". It is common, in the trial of an adult, to hear, once the nursery slopes of cross-examination have been skied, the assertion: "You were never punched, hit, kicked as you have was suggested, were you?" It was precisely that the judge was anxious to avoid and, in our view, rightly. It would have risked confusion in the mind of the witness whose evidence was bound to take centre stage, and it is difficult to see how it could have been helpful. Putting the same thing a different way, we struggle to understand how the defendant's right to a fair trial was in any way compromised simply because Mr Whitehead was not allowed to ask: "Simon did not punch you in the tummy, did he?" In any event the Crown was far from wholly reliant on the evidence of C. It called strong supporting evidence, not only doctors Ibrahim and Sprigg. It was agreed that when C became poorly she was in the care of the appellant. The injuries were non-accidental and caused by significant trauma. The blood in her vomit - the prompt from Mrs Davis asking the appellant to take her to hospital - was significant because it can be part of a stress reaction to trauma or due to the injury to the stomach itself. The judge's case management, in our view, came nowhere near rendering this trial unfair.
We deal, for the sake of completeness, with ground 2. It is without foundation. The defence did not at trial challenge C's competency and no application was made pursuant to section 78 of Police and Criminal Evidence Act seeking to persuade the judge in his discretion to exclude her evidence even after restrictions upon cross-examination. Section 53 of the Youth Justice and Criminal Evidence 1999 reads where relevant:
"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence...
(3)A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able toŚ
(a)understand questions put to him as a witness, and
(b)give answers to them which can be understood."
Section 54 of the same Act, which need not in detail be rehearsed, sets out how competence should be determined. If the parties do not raise it, the court, of its own motion, may. This judge did not. Although young, C's age was not the sole determinant. He must have been satisfied about her competence not simply by virtue of her age and the words she used but also by virtue of way she gave evidence in her ABE recording and over the television link during cross-examination and re-examination.
We referred earlier to the judgment of the Lord Chief Justice in B. He there said (paragraph 38) that the issue of competency is entirely witness-or-child specific:
"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 a readily 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."
Here the judge was more than entitled, in our view, to conclude that C understood the questions put in her ABE interview and in court and that the answers she gave were understandable.