![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Criminal Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v B [2010] EWCA Crim 4 (21 January 2010) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2010/4.html Cite as: [2010] EWCA Crim 4 |
[New search] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE KRAMER QC
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE HALLETT
and
MRS JUSTICE MACUR
____________________
R |
||
- v - |
||
B |
____________________
Mr Bernard Richmond QC and Mr R Patton for the Appellant
Hearing date : 24th November 2009
____________________
Crown Copyright ©
The Lord Chief Justice of England and Wales:
The Evidence
"Q…what did you tell the doctor about your bottom, can you remember?
A. S got hurt me.
Q. S hurt your bottom and how did he hurt your bottom?
A. Cos he gave me his willy.
Q. Say that again.
A. He gave me his willy.
Q. He gave you his willy and what did he do with his willy?
A. He got hurt me.
Q. How did he do it. Show me?
A. Well he put it in me.
Q. He put it in you whereabouts?
A. There.
Q. There, at the front, (X nods) OK and what did he do with his hands when he put his willy there?
A. He didn't …he didn't put his hand in there.
Q. What did he put there?
A. He just put his willy in there."
The witness then described where this incident had happened and said that he did hurt her. It happened at night, and the light was on. She was asked what she was doing when it happened.
"A. I was laying down.
Q. You was laying down, where were you laying down?
A. On mummy's pillow.
Q. Your head on mummy's pillow? So on mummy's bed and where was mummy?
A. Mummy was downstairs.
Q. She was downstairs."
The interview then addressed clothes worn by the appellant and the witness said that he "put his willy out" of his clothes. She was then asked.
"Q. And did he say anything when he hurt your willy…when he hurt your bottom, sorry?
A. Hurt my bottom.
Q. Did he hurt your bottom and how did it, and what did you do when it hurt? What did you say?
A. Don't do it.
Q. Don't do it?
A. And my mum.
Q. And who did you tell S had hurt your bottom?
A. My mum.
Q. And what did she say again?
A. (The answer is inaudible to start with and then continues) and hided behind my mum and my mum goes, S don't do it.
Q. Don't do it, alright. OK, and who else have you told about S hurting your bum?
A. Social workers.
Q. Hmm
A. Joan and social workers.
Q. Oh Joan and the social workers, OK that's a good girl because we are all here to help you aren't we?
A. And her Sarah.
Q. Sarah, that's right.
A. And I talked to Sarah."
The child was referring to Sarah Skipper who was the social worker present during this interview.
"Q….I think Kate said this but I want you to show me how you were when S hurt you. Show me what position you was in, do you know what I mean?
A. We was lying down.
Q. You was lying down or he was?
A. He was and I was.
Q. You were both lying down yeh and how was you…show you how you was lying down. Can you show me on the floor, its clean."
The child then gave a demonstration, lying down on her front. The question continued:
"You was like that, so you was lying on your front. Would that be right? On your front, yes OK. And how was S lying?
A. Not very well.
Q. Not very…do you remember what position you were lying? Do you remember? Can you show me?
A. He was lying down like that too."
The child demonstrated.
"Q. He was like that as well? He was like that, the same as you?
Q. So you were both lying on your tummy?
Q. OK
A. Like penguins
Q. Like penguins do?
…
Q. And was S's …did you see S's hands? Where were his hands?
A. They were there (demonstrating that the appellant was holding himself up with his hands.)"
D.C. Wright briefly left the room, and on his return he asked "…you was on your belly, S you said was on his front, and his belly yeh and was he behind you over the top of you …"
"A. Over the top of me.
Q. Over the top of you? Right so if you looked up you would see S, would that be right, OK and when you said it hurt, whereabouts did it hurt?
A. There.
Q. There, OK or was it more round the back?
A. Round the back.
Q. …and what happened after it hurt, tell me exactly what happened after it hurt.
A. My mum come up.
Q. Mummy came up yeh, and what did S do when mummy came in?
A. My mum said, don't do that. I hide (there was then something inaudible)'hind my mum."
The interview then drifted away from matters of importance to an end.
" Q. Can you give me an idea of a fib? Tell me a fib. Can you think of a fib?
A. (Witness shakes head)
Q. Let me think of an example. If I said my name was Curly Kate, would that be a fib?
A. (Witness nods)
Q. Why would that be a fib? Can you think?
A. (Witness shakes her head)
Q. What is my name? I told you didn't I? What is my name? Everyone forgets my name, don't worry. It is Bernard. Do you remember?
A. (Witness nods)
Q. My name isn't Kate, is it?
A. (Witness shakes her head)
Q. Let me think of another one. If I said it was Sunday today, would that be a fib?
A. (Witness nods)
Q Why? What is today?
A. Your name is Bernard. "
Q. Do you ever tell fibs?
A. (Witness shakes her head)
Q. Never? Never, ever, ever?
A. (Witness shakes her head)
Q. Everybody tells fibs, do they not? What about if you do not want to get into trouble?
A (Inaudible)
Q. Say that again
A. I don't say anything rude.
"Q. What about if you thought Y (her older sister) was going to get into trouble? Would you tell a fib then to help her?
A ( Witness shakes her head)
Q What about to help Z (her younger sister)?
A. (Witness shakes her head)
Q. Never? Do you remember Curly Kate asked you a question? When she saw you one time, she asked you whether S had ever touched you. Do you remember?
A. (Witness nods)
Q. You shook your head, didn't you? Do you remember? Do you remember that?
A. (Witness nods)
Q. She touched down here and said: " Did you ever get touched by S there?" You shook your head, didn't not? That is right, isn't it? Do you remember?
A. (Witness nods)
Q. You remember that happening, don't you? Yes or no?
A. (Witness nods)
Q. So you don't fibs and Curly Kate asked you—not in the tape—whether S had ever touched you and you said he didn't. S never touched you with his willy did he? Did he, X?
A. (Witness shakes head)
Q. Was it something Y told you to say?
A. (Witness shakes head)
Q. Was it something Z told you to say?
A. (Witness shakes head)
Q. Was it something you made up?
A. I …. (inaudible)
"Q. Do you remember when you said to me that you do not tell fibs? Is that true or a fib?"
A. Truth."
"Q. You did this, didn't you. You shook your head. Do you remember?
A. (Witness nods)
Q. Curly Kate asked you either here down below. Do you remember?
A. (Witness nods)
Q. You shook your head. Do you remember?
A. (Witness nods)
Q. She touched your bottom, didn't she and asked if S had touched you there. Do you remember?
A. (Witness nods)
Q. You shook your head didn't you…..
"The interpretation of those silences has been placed in question. Was it or may it have been a silence because she was being stubborn, because she was simply refusing to answer, or because she knew what had happened but could not bring herself to repeat before others something which upset her? Was she silent because she had no answer to the question, having been caught out in a fib, or was it or may it have been because she did not understand? Was it or may it have been because the language concepts failed her? Those are matters for your consideration and on which you should come to your own conclusions without speculating."
Prejudice
Competency
" The court deprecates the calling of a child of this age as a witness…the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could…"
That observation was re-emphasised as recently as October 1986 in R v Wright and Ormerod [1990] 90 CAR 91, where it was said, in reference to Wallwork:
"…the validity of, and good sense behind, that proposition has remained untrammelled in the practice of the criminal court… "
"An intelligent child is generally a good witness in matters within his comprehension. Being accustomed to observe more than to reflect, he tells what he has seen or heard without drawing inference or pre-conceived opinion…in cross-examination a young witness generally tells ingenuously whether he has been tutored, and (if so) what he was desired to say."
Indeed at much the same time when the observations in Wright and Ormerod were being made in England, a discussion paper from the Scottish Law Commission in 1988, at para 2.3 included this comment:
"…nowadays many judges …assume that a child is prima facie a competent witness but may, upon a preliminary conversation with the child, reach the conclusion that the child is either incapable of giving intelligible evidence or is not yet able to understand the difference between right and wrong, and so is unable to undertake to tell truth".
"Competence of witnesses to give evidence.
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsection (3) and (4).
(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 to –
(a) Understand questions put to him as a witness and
(b) Give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5) In sub-section (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
Sentence
"From October 2006 to July 2007 he presented from time to time at the doctor's surgery or at hospital with bruising to various parts of his body: his buttocks, his head, his back and his legs; damage to his fingers with missing nails; lesions and scabs to the top of his head and a missing toenail. After he died it was found he had significant recent non-accidental injuries which caused or contributed to his death. There were fractures to his ribs inflicted probably between seven to ten days and two weeks before death, a broken spinal cord inflicted at most three or four days before death and at some time on the day before he died the forceful knocking into his mouth of a tooth which he ended up ingesting."
The appellant was one of the adults who caused or allowed this to happen. He was the only adult who interfered sexually with X. Both Baby P and X were exceptionally vulnerable by reason of their ages, and the appellant's activity represented a gross breach of trust. The judge took the view that the offences were very grave and the level of culpability particularly high.