B e
f
o
r
e :
LORD JUSTICE TREACY
MR JUSTICE SAUNDERS
and
HIS HONOUR JUDGE MILFORD QC
(Sitting as a Judge of the Court of Appeal
Criminal
Division)
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Mr I Dixey appeared on behalf of the Applicant
Miss E Laws QC appeared on behalf of the
Respondent
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VERSION
OF JUDGMENT
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LORD JUSTICE TREACY:
- This case is to be
reported
as
Regina
v
F.
Although the judgment to be given does not identify any party by name, we make clear that any
report
should be in anonymised
form.
- This is an application by the prosecution
for
leave to appeal against a terminating
ruling
pursuant to section 58 of the
Criminal
Justice Act 2003. The
respondent,
F,
is charged on an indictment containing one count of
rape
and one count of sexual assault. The complainant, H, is profoundly deaf and has mild to moderate learning difficulties.
- The
respondent
is the partner of H's sister. The offences are alleged to have occurred during a
visit
by H to the
respondent's
flat
on 29 April 2011. H, who was aged 24, alleges that on the occasion of the
visit
the
respondent
touched her breasts and had
vaginal
intercourse with her. She says that those acts took place without her consent. She had
visited
the
respondent's
flat
in order to
retrieve
a pram
for
her sister or her cousin.
- In interview the
respondent
denied the offences. He stated that he had never been alone with H.
- The Crown asserts that its case is supported by CCTV
footage
showing H's movements in the
vicinity
of the
flat
in a 15 minute period on the evening in question.
- Although a complaint was made promptly, there have been a number of unfortunate delays in the case prior to 11 January
2013.
On 11 January
2013
the judge held a competency hearing in
relation
to H, the defence having
raised
the issue about a month beforehand. In 2012 there had been prepared a
report
from
Craig
Flynn,
a
registered
intermediary, who had assessed H. His
report
recommended
special measures, including the use of an intermediary to enable H to give her account to the court. By January
2013
Mr
Flynn
was unavailable and so another intermediary was instructed, Miss de la Croix. She, too, prepared a
report
which again
recommended
special measures, including an intermediary. Both Mr
Flynn
and Miss de la Croix proceeded on the basis that it was possible
for
H to give evidence. Miss de la Croix said that H had the communicative ability to give evidence.
- In addition to those
reports,
the prosecution
file
included a transcript of an ABE interview with H which had been
video-recorded.
- On 19
February
2013
the judge delivered her
ruling.
She
found
that H was not a competent witness. Her
reasons
were,
firstly,
that there were difficulties in asking H questions about body parts, without partially suggesting the answer to her by way of leading question. Her second
reason
was that H had difficulty with concepts of time, and abstract concepts would also be difficult if not impossible
for
H to grasp, let alone answer.
- The test of competence is set out in section 53(3) of the Youth Justice and
Criminal
Evidence Act 1999. It provides:
"A person is not competent to give evidence in
criminal
proceedings if it appears to the court that [she] is not able to --
(a) understand questions put to [her] as a witness, and
(b) give answers to them which can be understood."
- Once the issue of competence has been
raised
by the defence, it is
for
the Crown to satisfy the court on the balance of probabilities that its witness is competent. In determining the question of competency, the court is to treat the witness as having the benefit of any special measures which the court has made, or proposes to make, in
relation
to the witness: see section 54(4). In this case it appears that the parties proceeded on the basis that the witness would have special measures, including an intermediary and a British sign language interpreter, and that the witness would give evidence over a live link. Moreover, it was intended that H's ABE
video
interview would be played at trial as part of her examination in chief.
- Section 67 of the 2003 Act provides that the Court of Appeal may not
reverse
a
ruling
on an appeal under this Part of the Act "unless it is satisfied (a) that the
ruling
was wrong in law; (b) that the
ruling
involved an error of law or principle; or (c) that the
ruling
was a
ruling
that it was not
reasonable
for
the judge to have made".
- The Crown argues that the competency hearing was
flawed
or ineffectual and that as a
result
the judge's
ruling
was premature or wrong and/or unreasonable in the circumstances. The Crown also argues that the judge applied the wrong statutory test in considering the competency of H.
- However, before we address those grounds there is a preliminary point which is taken by the
respondent.
It is argued that this court has no jurisdiction to hear this appeal because the prosecution
failed
to comply with the terms of section 58 and
rule
67.2(1)(a) and (2) of the
Criminal
Procedure
Rules
2012. In particular it is submitted that the terminating
ruling
was made on 16 January
2013
and was communicated to the
respondent,
and that no notice was given of the prosecution's decision to appeal either to the judge or to the defence until 19
February
2013.
-
Rule
67.2(1)(a)
requires
an appellant to tell the Crown Court Judge of any decision to appeal "immediately" after the
ruling
against which the appellant wants to appeal. As was confirmed in
R
v
T [2010]
EWCA
Crim
711, that strict obligation exists, notwithstanding the absence of the word "immediately"
from
section 58(4) of the Act.
- The
factual
position is this. The hearing took place on 11 January
2013.
At the end of the hearing the judge said that she would give her
ruling
in the
following
week.
From
the transcript, the judge's comments implicitly envisaged a
ruling
to be given in open court. What in
fact
happened was that on 16 January the judge e-mailed her
ruling
to counsel. That was later
forwarded
to the CPS. The court did not, in
fact,
reconvene
until 19
February
2013,
but in the interim the prosecution had considered the e-mail and had decided that it would appeal. On that date the court had listed the matter "
for
judgment".
- When the court
reconvened
counsel
for
the prosecution
referred
to the e-mail as the judge's "proposed judgment in this case" and enquired whether "
for
present purposes that is your judgment?" The judge confirmed that it was, and said that it was not necessary to
repeat
what was in the e-mail. The prosecutor said that what was in the e-mail was what they had expected to be in the court's judgment and so, having considered that, the Crown wished to appeal "that
ruling
formally
being delivered on 19
February
2013".
To that observation the judge
replied
"Yes". The Crown then proceeded to give the necessary undertakings.
- The point which is taken is that the Crown had been aware
for
some time prior to 19
February
of the judge's e-mail and had not indicated to the defence any intention to appeal, (at least certainly not before 16
February
2013);
nor had the Crown so notified the judge at any point prior to 19
February.
Accordingly, the
rules
had not been complied with and this court has no jurisdiction.
- We do not consider that this objection has substance. It is plain
from
a
reading
of the terms of section 58 and
rule
67 that the
ruling
after which the Crown must indicate its desire to appeal is a
ruling
given in the court
room.
The judge had proceeded by
rather
more informal means, which did not involve making a
ruling
in court, or anything which would be
recorded
as a
formal
order of the court prior to the hearing of 19
February.
Accordingly, we do not consider that judgment was delivered until 19
February
when the judge confirmed that her e-mail
represented
her
ruling
on the matter in open court.
- Quite apart
from
the inconsistency of the more informal procedure with the language of the statute, it seems to us that the informal procedure adopted is one which has the potential to be bedeviled with imprecision if it were to suffice as a step in proceedings
requiring
immediate action by the Crown. The e-mail was not something that the judge had proposed or indicated to the parties. The transcript implies a
ruling
at a
further
court hearing. The e-mail itself, beyond stating that the prosecution's application is not granted, makes no order of any sort
relating
to the consequences of the
ruling
or the next stage in the proceedings.
20. There was in this case an undesirable degree of informality surrounding what happened. It is easy to envisage
various
practical problems arising if an e-mail of this sort were to suffice. These provisions under the terminating
ruling
legislation are strict, and an informal procedure is wholly inconsistent with them. The e-mail which was sent to counsel contained the warning that it was intended "only
for
the attention of the addressee". We
regard
this informal procedure as a courtesy by the judge to counsel, but no more. It would be wrong to accord it the status of a
formal
ruling
triggering the strict
rules
applying to appeals against terminating
rulings.
We
reject
the argument as to jurisdiction.
- We turn to the substance of the application. This court has considered the ABE interview and accompanying transcript. It shows that H was, with the assistance of sign language interpreters, able to give a comprehensible account of her allegations
relating
to both offences charged. We do not say that the process was a straightforward one, but with time and patience an account emerged which
revealed
alleged offences and when, where and how they came to take place. By the time of the hearing the judge had not seen the DVD
recording
of the ABE interview. She asked to see "perhaps half a dozen questions" so as to get the
flavour
of it. We understand that a
relatively
brief extract was played in court. Then, using the proposed special measures, including an intermediary and a signing interpreter, prosecuting counsel asked H questions of a general nature, to which she
responded
satisfactorily. Counsel then started to embark on questions asking H to point to different parts of her body. At that point the signing interpreter intervened, indicating that any question posed would have to be leading in part because the interpreter would have to point to a body part as part of the question. There then
followed
a discussion involving the judge, the interpreter and prosecution counsel about the difficulties posed by this situation. The interpreter could not use
finger
spelling to see whether H could understand the name of the body part because he was unprepared
for
that. The intermediary suggested that drawings or pictures might be used, but that suggestion was not taken up. In the event the prosecutor asked no more questions.
- We have seen a witness statement showing that the intermediary had brought anatomical drawings
for
use and that after the parties' questions had ceased, H saw them and indicated animatedly that she could point to places where she could
recall
being touched.
- Counsel
for
the
respondent
asked some questions of a general nature, to which H was able to give intelligible answers. The judge then asked questions
from
which it became clear that the witness had difficulty dealing with concepts of time and abstract matters. It became apparent that those topics had not been covered by those assisting H in their assessment. After that the judge moved on to submissions.
- The Crown argues that, having
regard
to the ABE interview and the
responses
which H had been able to make both to prosecution and defence counsel before difficulty was encountered over parts of the body, time and abstract concepts, it would have been appropriate
for
the judge to
regard
H as competent, but to keep that under
review
during the trial. The
reports
from
the intermediaries had supported competence to understand and answer questions and to describe, as long as questions were put in a simple
fashion
and as long as appropriate assistance
from
an intermediary and signing interpreter was provided. In addition, the Crown argues that the decision as to competency was
flawed
because the difficulty over the body parts issue, which was identified by the judge as a
reason
for
regarding
H as not competent, was a
reflection
of the questioner's inability to
find
an effective and appropriate method of asking questions at the competency hearing. The problem arose over an issue of ability to communicate with H in a non-leading way,
rather
than an issue of H's comprehension and thus her competence. The attempts of counsel and judge to deal with the body parts issue
represents
a
failure
by them to communicate in a way which would enable the witness' competence to be properly tested. We note that the intermediary's suggestion of asking the witness to identify body parts by
reference
to pictures was not adopted.
- As this court indicated at paragraph 42 in
R
v
B [2010]
EWCA
Crim
4, the trial process must cater
for
the needs of witnesses. The competency test is not
failed
because the
forensic
techniques of the advocate or the processes of the court have to be adapted to enable the witness to give the best evidence of which he or she is capable. It is our clear conclusion that the hearing did not effectively explore H's ability to communicate.
26. We do not underestimate the difficulties of questioning
vulnerable
witnesses. It
requires
not only training,
flexibility
and sensitivity, but also time and patience. It seems to us that when difficulties were encountered, it became apparent that the intermediary had not had sufficient time to carry out a
full
assessment of H's skills which might enable communication to take place. Questions of time and more abstract concepts
ran
into difficulty when the judge, in an effort to obtain an answer to the witness' understanding of the seasons, posed questions about what a daffodil looked like. When the intermediary said that she did not think that the witness knew a daffodil as such, the judge said that she did not wish to ask any
further
questions.
- We have come to the conclusion that in the circumstances the exercise carried out was not a
fair
test of the witness' competency. The shortcomings of this process seem to us to owe much to a lack of preparation and a lack of ability to
respond
flexibly
to the difficulties which arose. There are now substantial materials available to those who have to deal with the questions of competency and the use of intermediaries. We draw attention to the publication "
Raising
the Bar: the Handling of
Vulnerable
Witnesses,
Victims
and Defendants in Court" -- a
Report
of the Working Group of the Advocacy Training Council of the Bar published in 2011. In the same
vein
the Crown Court Bench Book has a section dealing with intermediaries.
Relevant
issues are also discussed by this Court in
R
v
B (already
referred
to), particularly at paragraphs 33 to 43.
- In
response
to the submissions made, in his helpful written submissions to the Court Mr Dixey argued that the procedure indicated in
R
v
MacPherson [2006] 1 Cr App
R
30 at paragraphs 25 and 26 was
followed.
That authority gives the briefest of
references
to the practicalities of handling competency issues. Since that judgment was given, matters have moved on considerably and much more detailed guidance is now available, not least in
R
v
B and elsewhere.
- The
respondent
also submits that the judge adopted the correct test of competency, as set out in section 53(3), the Crown having submitted to the contrary. True it is that in her
ruling
the judge had set out the appropriate test, but she based her conclusion that H was not a competent witness
firstly
on the body parts issue. In
relation
to that the judge proceeded on the basis that the interpreter would have to point to the body part in question and that in doing so it would shed little or not light on the witness' true understanding of the question.
- In our judgment, the judge substituted the issue of the interpreter's difficulties in communicating
for
the test of whether the witness could understand questions and give intelligible answers.
- The second limb of the judge's
reasoning
related
to difficulty with concepts of time and other more abstract concepts. In this
respect
the procedure adopted was
for
the
reasons
already mentioned an unsatisfactory way of testing the witness' understanding and ability to make herself understood. It did not
represent,
in our judgment, a
valid
or thorough test, and so the judge's conclusion in this
respect
is thereby undermined.
- It is
further
submitted by Mr Dixey that the
ruling
was essentially a decision of
fact
and an exercise of judgment based on evidence heard by an experienced judge. As we have said, we do not underestimate the difficulties confronting the judge below, but we have
found
that the procedure was so
flawed
that the conclusions
reached
cannot be
relied
on as any
fair
test of competency.
-
Finally
it was argued that, since the burden of proof was on the Crown, their
failure
to ask appropriate questions should preclude them
from
appealing this matter. We
regard
the
failure
which took place as one which,
for
whatever
reason,
was not solely that of the Crown. Whilst it can in no sense be said to be the
fault
of the
respondent,
the
reality
is that what was intended to be a test of competency was seriously
flawed.
Moreover, there were in our judgment strong indications that H did indeed satisfy the competency test. They are: (a) the ABE interview; (b) the
reports
from
the intermediaries; and (c) the ability by both counsel at the hearing to pose questions which were understood and which
received
intelligible answers. The judge herself
recorded
in her
ruling
that H could understand and answer questions posed in a simple and uncontroversial manner.
- Those matters were not addressed in the judge's
ruling.
Instead, the judge based herself on what transpired when difficulties arose in the hearing, but which in our judgment
represent
a
failure
by those involved to engage in a true and
fair
test of competency.
- The interests of justice are plainly broad enough to encompass the interests of the alleged
victim
in having the opportunity to have her competency to give evidence considered properly by the court. The exercise carried out below
fell
short of that. It led to a
ruling
by the judge which cannot be sustained. Although the
respondent
is in no way at
fault
for
what occurred, that does not mean that this court should decline to grant the
relief
sought. Nor does the
reference
by the
respondent
to other asserted delays and
failures
by the Crown and the history of these proceedings provide a
reason
why leave should not be granted.
- We have considered Mr Dixey's submissions about the
very
substantial delays which have occurred in this case and the
fact
that the
respondent
was told of the judge's
ruling
by defence counsel or solicitors after the e-mail had been sent to defence counsel. That was a disclosure which was not authorised by the e-mail. It serves to illustrate the problems which arise when informal procedures are adopted. Counsel, however, makes the point that the
respondent
had been informed through those channels of the judge's apparent
ruling
on the issue of competency. We
view
the situation as one which is
very
different
from
that which obtained in
R
v
M [2012]
EWCA
Crim
792, where the defendant was told in court at the time of the judge's
ruling
in court that the proceedings against him were being terminated. That situation is not comparable to the present one.
- Accordingly, we are not persuaded that this is a case
for
refusing
leave. We grant leave.
- We conclude that section 67 is satisfied. We
find
that the
ruling
was wrong in law and that it was not a
reasonable
one
for
the judge to have made. Accordingly, we
reverse
the
ruling
on the lack of competency and we order that the proceedings are
resumed
in the Crown Court pursuant to section 61(4)(a), the judge below having adjourned those proceedings.
- It will be a matter
for
the parties to consider how the matter should proceed below. The
respondent
might seek a
fresh
competency hearing. Alternatively, the parties may agree to proceed without pursuit of the competency issue, at least initially. The authorities make clear that, even if competency is assumed or
ruled
upon in
favour
of the witness by the judge, the judge is under a continuing duty to keep the matter under
review.
Moreover, a party is not precluded
from
raising
the issue during the course of the trial if matters develop in a way which justifies it. When there is material of the sort which was available in this case,
for
example the ABE interview and the
reports,
the court and the parties should carefully consider whether a competency hearing is, in
fact,
necessary at the initial stage of the case. In some circumstances such a hearing may serve to do no more than cause delay, increase expense and put unnecessary strain on the witness. Those, however, are matters
for
the parties and the judge to consider at the
resumed
hearing.
- We conclude our judgment by expressing our deep concern about the delay which has occurred in this case. The allegations which were made were
raised
as long ago as 29 April 2011. Accordingly, we direct that the
resident
judge at the court concerned be informed of this court's judgment and of this court's great concern that the matter be listed as a matter of extreme urgency.
- Mr Dixey, Miss Laws, is there any other matter with which the court needs to deal?
MISS LAWS: Might I have one moment, please?
THE LAW
REPORTER:
Might I ask about
reporting?
I believe there are statutory
restrictions
in place, unless they are specifically lifted by the court. I was not clear
from
your opening
remarks
whether you are lifting those
restrictions?
LORD JUSTICE TREACY: We will deal with that in a moment. We will treat that as an application, and I will hear what counsel have to say in a moment.
THE LAW
REPORTER:
Thank you.
MISS LAWS: I have nothing more to add.
MR DIXEY: My Lord, the question arises as to whether in all the circumstances it is appropriate
for
the same judge to continue with this case?
LORD JUSTICE TREACY: That is not a matter
for
this court. That will be a matter, it seems to us,
for
the judge herself to consider and
for
the
resident
judge who has
responsibilities
which
relate
to the allocation of work to consider as well. It is not
for
us to express an opinion about that. Thank you
for
raising
it though.
We have been asked about the question of
reporting.
You will see that the way in which the judgment has been given identifies no party concerned with the case, nor does it identify the court centre at which this matter has been listed. In those circumstances is there any objection to the
reporting
of the matter in an anonymised
form?
MISS LAWS: No.
LORD JUSTICE TREACY: Mr Dixey?
MR DIXEY: I cannot immediately see that there could be.
LORD JUSTICE TREACY: Speaking
for
myself -- and I invite you to
respond
to this comment -- I cannot see any
realistic
possibility that publication of this judgment in the
form
in which it has been delivered is something that can prejudice the trial which will take place, subject to any
further
issue about competency issues.
MR DIXEY: Yes.
LORD JUSTICE TREACY: Do you have any counter-submission to that?
MR DIXEY: I do not think I can sensibly
raise
an objection.
LORD JUSTICE TREACY: No, thank you
very
much. The matter may be
reported
within the strict constraints which I indicated at the start of the judgment. Thank you
very much.
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