B e f o
r
e :
THE
VICE
PRESIDENT
(LORD JUSTICE HUGHES)
MRS
JUSTICE
RAFFERTY
DBE
MR
JUSTICE
MADDISON
____________________
____________________
Computer Aided Transcript of the Stenograph Notes of
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____________________
Miss
L Strudwick appeared on behalf of
W
Miss
C Patel appeared on behalf of
M
Miss
R
Cottage appeared on behalf of the Crown
____________________
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VERSION
OF JUDGMENT
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Crown Copyright ©
- THE
VICE
PRESIDENT: The legal issue in these applications for leave to appeal is a strictly limited one. It is
whether
or not the evidence led by the Crown as a
whole
established a case upon
which
it
was
properly open to the jury to conclude that the offences charged
were
proved to the criminal standard of proof.
- It is fundamental to the system of jury trial
which
we
operate in this country that it is the jury and not the judge
which
makes
up its
mind
which
evidence it accepts and
which
it does not. The judge has
vital
duties
relating
to the
management
of the case, the admissibility of evidence and
rulings
upon questions of law
where
they arise. But
when
it comes to the assessment of evidence the judge's
role
is confined, and it should be confined, to deciding, if there is dispute about it,
whether
the evidence if taken at its highest is evidence upon
which
a jury could properly convict - see
R
v
Galbraith [1981] 73 Cr.App.
R
124. If that question arises at the trial for decision, the judge's
ruling
on it is a
matter
of law and can accordingly be challenged on appeal, if it is contended that he
was
wrong.
If that happens, the
role
of this court is as confined as that of the judge. Our task is to say
whether
or not the judge
was
wrong
on the grounds that the evidence, taken at its highest,
was
such that no jury could properly be sure that the offence had been committed. The
words
we
have underlined are of fundamental importance.
Whether
the evidence ought in fact to be accepted at its highest, or
whether
it should be
rejected
altogether, or
whether
the correct position is somewhere in between those two poles, are all
matters
for the jury to decide and not the judge. On those questions neither the judge's
view
nor, for that
matter,
ours are of any significance at all. Of course trial judges, and for that
matter
judges
who
sit here, cannot avoid forming some at least tentative opinions, but it is their and our plain duty to put them firmly to one side.
- The present case is unusual. It
will
have attracted a
measure
of public attention. For that
reason
it is important that anybody considering it, and especially anybody tempted to comment upon it, should understand the confines of the law
within
which
courts are obliged to operate.
- The jury in this case found itself enquiring at the Crown Court into the exact details of
what
physically had occurred
when
three children of primary school age
were
playing together outside during half term. The two defendants, both boys,
were
children of 10 years of age. There
was
no suggestion that either of them habitually
misbehaved.
In the case of one of them there
was
a glowing
report
from his school
which
demonstrated him to be a
model
pupil, as
well
as quite lacking in any aggression or sexualised behaviour.
- The age of these children is significant because until a child is 10 he cannot in law be guilty of any criminal offence. If he or she
misbehaves
under that age
what
is done
may
lead to a
variety
of
remedial
actions of one kind or another, but it cannot
result
in a criminal trial. These children
were
10 years and three
months
and 10 years and six
months
old
respectively.
- The complaint of the prosecution
was
that in the course of playing together and
with
a little girl neighbour of eight, all those three children had looked at each other's private parts, but then that the boys had gone on to put their penises into the girl's
vulva
and anus, or at least had tried to do so. There
was
no sign of any physical injury to the girl, but all that tells anyone is that if there has been any degree of penetration it has not gone beyond the hymen. The absence of physical injury tells nobody anything at all about the
vital
question
which
is
whether
there has been a lesser or indeed
minimal
element of penetration of the labia or of the anus. The law is and has been for as long as anyone can
remember,
and for obvious
reasons,
that it is impossible to distinguish between degrees of penetration and, accordingly, any degree of penetration
whether
of the
vulva
or the anus suffices, however
minimal
it
may
be.
- Next, the Sexual Offences Act 2003
made
a change by Parliament in the definition of sexual offences.
Where
the child is under 13 years of age any act of penetration of the
vulva
or the anus is now defined as
rape
- see section 5(1). This is often
misunderstood
because if one is considering an act
with
a person over 13,
rape
involves proof that that person did not consent to the act. However, a child under the age of 13 is unable to consent in law,
whether
he or she in fact agrees to
what
happens or not. It is easy enough to see
why
this is
what
the statute says if one contemplates the case of an adult abuser and a child under 13. But the Act of Parliament does not confine the
rule
to a case
where
the defendant is an adult and it applies equally to young defendants, even to those
who
are only a few
months
past their tenth birthday. It follows that it
was
technically open to the Crown Prosecution Service to charge these two 10-year-old defendants
with
rape
because it
was
alleged that one of them had put his penis (however
minimally)
into the girl's
vulva
and that the other had put his penis (however
minimally)
into her anus. Once they had been thus charged the inescapable duty of the courts is to try them.
- In this case, accordingly, the two boys
were
charged
with
joint offences of
rape
and they
were
alternatively charged
with
joint offences of attempted
rape.
Those latter alternatives
were
clearly added to the indictment by the prosecution in case there should be doubt about
whether
any degree of penetration at all had actually occurred. Given the absence of any physical evidence and the inevitable difficulty for any child of this age in knowing how far any physical contact had gone, doubt on this topic
was
plainly foreseeable and foreseen. In the event, the jury acquitted the boys unanimously of the offence of
rape.
However, after further
retirement
they
reached
majority
verdicts
of guilty of attempted
rape
in each case.
- This appeal is now brought by both boys on the principal ground that
whilst
the case necessarily depended almost entirely on the evidence of the eight-year-old girl, she
was
said to have changed her account significantly at the trial. The question for us
reduces
itself to this: "
Was
the judge entitled to leave to the jury the question of
whether
she truly had altered her account?"
- It follows from
what
we
have said about the legal framework that the jury
would
convict if it
was
sure that there had been an attempt at penetration, however
minimal,
and
whatever
the little girl's attitude towards
what
was
happening
was.
The evidence
- On a Tuesday, early in the afternoon, during half term, the little girl,
who
we
will
call A,
was
playing outside her home. So too
were
the two little boys
who
lived nearby. Their
respective
mothers
knew in general terms
where
they
were.
At least one of them
was
in touch by text
messaging
and there
was
no suggestion that any of the children
was
being in any
way
neglected. The boys, on the evidence,
were
playing at jumping over a thorn bush. A, on any
view,
joined them there. She
was
at the time
with
a younger boy
who
was
only six,
whom
we
will
call C. Her younger sister
was
somewhere outside also but not in their company. That
meant
a group of four: the girl, C and the two boys. They
moved
around together. Their exact
movements
remain
less than crystal clear, but this
much
is plain. They
went
into a block of flats
where
they all knew one or
more
children
whose
families lived there and in that block of flats they spent a little time in the general stairwell area and a little time in a bin shed either downstairs or outside at the back. After they left the bin shed they
went
outside again and into some parkland or grassy area.
When
A's younger sister came home their
mother
went
to look for the girl. En
route
she
met
C (by now separated from the other three),
who
told her that the boys
were
doing something
really
bad to A and hurting her.
Mother
then
met
the group of three (that is to say the two boys and A)
returning
together. At that point A
was
showing no sign of distress and had not separated herself from the two boys.
Mother
asked
what
they had been doing and all of them
returned
an answer familiar to any parent, namely "nothing".
- Having taken A home, however,
mother
was
sufficiently concerned to notice that she appeared a little quiet. She asked her
what
had happened and A then told her that the boys had taken down her pants and "had sex
with
her".
When
mother
asked
what
she
meant
by that, A said that they had put their
willies
inside her.
- By the time of the trial there
was
no dispute that in the block of flats at the two places
which
we
have
mentioned
and then again on the grassy area the two boy defendants and the little girl had all had their underwear down and all had looked at each other's private parts.
- In the event neither of the boys gave evidence. Given their ages the judge inevitably directed the jury that their absence from the
witness
box could not begin to support the case against them. It
was,
as he put it, "completely neutral". The case
which
was
advanced on behalf of both of them
was
that A had pulled her own underwear down and that each of the three
was
participating in looking at each other's private parts. On behalf of the defendant
W
the case advanced
was
that by the time they got to the park he had put his penis against A's skin at the base of her spine, thus in the general
region
of her backside, but not immediately by her anus and not in it. On
W's
behalf the case advanced
was
that
M,
for his part, had put his penis between A's thighs. On behalf of
M
the suggestion
was
advanced that he had pulled at A's skirt as he
was
walking
behind her, but as to any contact
with
his penis that
was
simply disputed.
- It follows that
while
there
was
in effect no dispute on behalf of
W
that there had been some physical contact by his penis, there
was
no admission by either boy of any attempt to penetrate.
- Understandably a good deal of time
was
spent at the trial investigating
whether
whatever
had happened, both before the park and in it, had or had not been against A's
wishes.
Whilst
the investigation of that
was
entirely understandable, it
was
not in fact the critical question for the jury. For the
reasons
which
we
have endeavoured to explain, the critical question for the jury
was
not
whether
A
minded,
but exactly
what
contact there had or had not been and in particular
whether
there had or had not been some attempt, however childish, at penetration.
- The jury
was
made
aware of the successive accounts given by A. First, as
we
have said, on first speaking to her
mother
of anything untoward she said that the boys had had sex
with
her and either had or had tried to put their
willies
inside her. Second, to the first police officers
who
came
when
called she had said either that they took her pants down and "put their thingies in
me"
or that they had asked her to take her pants down. The
recollection
of the officers
varied.
Thirdly, however, to the specialist police officer
who
saw her by about 5 o'clock that same afternoon, she said that they had told her to pull down her pants and
when
she
refused
they had done it themselves, in, she said, each of the three locations
where
something had happened. Then she said they had dragged her along the ground to the park because she did not
want
to go there. In the park one had put his
willy
up her "
minnie"
and the other put his
willy
behind her bum and, she said, "they picked
me
up to do it properly".
- The following day she
was
interviewed in accordance
with
the usual Achieving Best Evidence ("ABE") procedure and her interview
was
video
recorded.
She said that the boys had pulled her pants down on each occasion. They had been tricking her, she said, by pointing at something and then pulling her clothing down
when
she looked away. She said that she had not
wanted
to go to the park, but asked about being dragged (
which
is
what
she had said before) she said she could not
remember.
However, in the park she said they had put their
willies
into her, one in her
minnie
and one in her bum and, as the night before, she said they picked her up for the purpose.
- Approximately five
weeks
later a second
recorded
interview took place because it
was
clear she had something to add. Her account in this second interview differed in one significant
respect.
She now told the police that she had
met
the boys near the bush
where
they had been jumping and that one of them had then thrown her scooter into the bush. She had been told, she said, that if she
wanted
it back she should pull her knickers down. She now said that she had done that herself, although she said that it
was
because of
what
had happened to the scooter.
- Thus things stood until the trial. At the trial she gave evidence by
way
of
video
link, as one
would
expect. It is plain to us that a good deal of thought
was
given by all concerned into
making
the experience as non threatening as it could be. The day
was
broken up into 45
minute
slots, separated by a break, both in the
morning
and in the afternoon. A's answering of questions on behalf of the defendants
was
in the end limited to a 45
minute
slot in the
morning
and one 45 and one 15
minute
slot in the afternoon. The judge
made
it clear that counsel need not feel that they
must
examine individual contentions item by item. It
was
important that the exercise should not be prolonged.
- All that said, this
was
nevertheless, once the charges had been brought, an exercise in
which
the prosecution
relied
upon the evidence of this child to prove its case and to establish against two boys of ten findings of guilt for an offence of
rape.
It
was
an exercise in
which
the defendants similarly had to explore the question of how far A could safely be
relied
upon. That
meant
investigating first of all
whether
she
was
deliberately truthful or untruthful, but as importantly,
whether
she
was
accurate.
- In due course submissions
were
made
at the close of the Crown case that there
was
by then a state of evidence
which
was
insufficient for the jury properly to convict. Those arguments turned chiefly upon
what
A had said or had agreed to in cross-examination.
- A number of things had by then become clear
which
had not been clear before. First, A had told the jury that she had played
with
one of the boys,
M,
before. She
mentioned
that her younger sister kept
wanting
to kiss
M.
She told the jury that she knew and liked the other defendant's brother. That fell to be considered alongside her ABE interview in
which,
when
asked if she knew the boys, she had said no
more
than that sometimes they came to her area to play
with
their own friends and that they kept singing songs about her and C (the six-year-old) and love. Next, it
was
now clear that A
was
agreeing that she had first
met
the boys that afternoon
when
they
were
jumping the thorn bush. She had joined them, plainly of her own
volition
at that stage. Next, it
was
plain that she
was
now saying that she had herself pulled down her own underclothes, at least on some of the occasions; there
was
not always a distinction between separate parts of the afternoon's activity. Next, there had been shown to the jury closed circuit television footage
which
showed a little girl, accepted by the Crown before us to have been A,
walking
in the general direction of the park, a little
way
after one of the boys and C had preceded her there. She
was
on her own and she
was
not being dragged there. She had followed
voluntarily.
She told the jury that they still had her scooter and there
was
some evidence that
when
they all
returned
afterwards the scooter
was
with
the group.
- From that it follows thus far, and indeed as
we
understand it it is expressly accepted on behalf of the Crown, that to the extent that she had previously said that prior to
what
was
seen on the closed circuit television she had had her underwear forcibly
removed
by the boys and been dragged by them, that had not been true.
What
was
seen on the closed circuit television
must
have followed
whatever
happened at the two places in the block of flats, the stairwell and the bin shed and it is plain that she
was
still at that stage (a) undistressed and (b) following the boys.
- The principal focus, however, of the defence submissions
were
her answers to specific questions. First, near the end of the cross-examination on behalf of
M,
counsel asked this question:
"S did not pick you up at any time, did he? Do you annoy
what
I
mean
by saying 'pick you up'?
A. I can't
remember.
Q. S did not put his
willy
in your bum, did he?
A. No.
Q. S did not put his
willy
in your
minnie,
did he?
A. No."
There
was
a not dissimilar exchange during the cross-examination on behalf of
W.
We
should say that the cross-examination on behalf of both boys
was
not in any sense confined to the few questions
which
we
now identify. But in answer to questions on behalf of
W,
the little girl said these things:
"Q. Did K take his trousers down and show you his
willy?
A. Yeah.
Q. Did you take your skirt down or up and show your
minnie?
A. No.
Q. Do you
want
to think about that one again? No one is going to be cross
with
you.
A. Yeah.
Q. That is
very
brave because I know it is difficult to say
when
you have done something naughty but no one is going to be cross
with
you. Did S show his
willy?
A. Yeah.
Q. This
was
the three of you just being a little bit naughty. Do you agree?
A. Yeah."
Then a little later:
"Q. If you
wanted
to go home you could have gone home, could you not?
A. Yeah."
Then a little later:
"Q. You just
went
with
the boys because it
was
going to be fun?
A. I didn't know they
were
going to do that.
...
Q. Then you took your knickers down and you showed your
minnie,
did you not?
A. Yeah.
Q. Little bit naughty but do not
worry.
Nothing too terrible. Are you all
right
because I cannot quite see you.
A. Yeah.
Q. You
were
all giggling at that time,
were
you not? Do you--
A. [Interrupting] Yeah.
Q. --
remember
giggling?"
Then
Miss
Strudwick on behalf of
W
put specifically the suggestion that
what
he had done had been confined to touching the base of her spine
with
his
willy.
The answer to that
was:
"Yeah." She asked:
"But that is the only time he touched you. Do you agree?"
And the answer to that
was
"Yeah". A little further on she put:
"He never put his
willy
in your
minnie.
Do you agree?
A. Yeah."
And the child agreed also
with
what
was
being put on behalf of
W
about
what
S had done, limited as
we
have said to putting his penis between the girl's thighs.
- In the course of the same cross-examination A
was
asked questions about
what
she had said to her
mother.
She had already
mentioned
that she had been hoping that her
mother
would
take her to get some sweets, but that if she had been naughty there
would
not be any sweets. The time came
when
Miss
Strudwick on behalf of
W
suggested to her that her
mother
had been "not
very
pleased"
with
her. The judge
was
anxious to
replace
assertions put
with
open questions, asked a series of questions himself and the exchange proceeded as follows:
"THE JUDGE: So
what
were
you
worried
about
with
your
mother?
A. No sweeties.
THE JUDGE: 'No sweeties.'
Why
would
you not get any sweeties?
A. Because if she
would
find out I had been naughty, I
would
get no sweeties.
THE JUDGE: Had you been naughty?
A. Only a tiny bit.
THE JUDGE: How had you been naughty?
A. I can't
remember."
And that
was
confirmed. Then
Miss
Strudwick put to her directly this question:
"
Was
the naughty bits the taking down of your knickers?"
And
received
the answer "Yeah".
- The nub of the submission
made
to the judge and
repeated
to us today
was
that by assenting, as she did, to the propositions put to her that the boys had not attempted or actually penetrated her, the child had contradicted
what
she had previously said and effectively
retracted
the allegations. The submission
made
to the judge and
which
is
repeated
here today
was
and is that in those circumstances the jury could not be satisfied so that it
was
sure that
what
she had originally said about
what
happened in the park had indeed occurred.
- The judge
was
very
concerned that
most
of the answers on
which
those arguments
relied
had been the
result
of questions in
which
a proposition had been directly put to the child, usually
with
an invitation to agree. He
was
acutely alive to the
real
possibility that a child as young as this
may
wish
to please or if not to please to bring the questioning to an end, especially in the
very
foreign atmosphere of a formal trial. He
was
alive to the
risk
that such a child
might
assent to propositions
rather
than take the
more
difficult course of disagreeing. He
was
also conscious that the child
was
showing some signs of getting tired.
We
would
echo
what
this court said about child
witnesses
in
R
v
Barker [2010] EWCA Crim 4. The judgment delivered by the Lord Chief Justice, Lord Judge, included this observation:
"
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."
- There is undoubtedly a danger of a child
witness
wishing
simply to please. There is undoubtedly a danger of a child
witness
seeing that to assent to
what
is put
may
bring the questioning process to a speedier conclusion than to disagree. To say that those
risks
plainly exist is not, as
may
have appeared at times during the argument in the court below, to offer any criticism
whatever
of the
manner
of cross-examination. It is particularly important in the case of a child
witness
to keep a question short, and even
more
important than it is
with
an adult
witness
where
it also
matters
to avoid questions
which
are
rolled
up and contain, inadvertently, two or three at once. It is generally
recognised
that particularly
with
child
witnesses
short and untagged questions are best at eliciting the evidence. By untagged
we
mean
questions
we
do not contain a statement of the answer
which
is sought. That said,
when
it comes to directly contradicting a particular statement and inviting the
witness
to face a directly contradictory suggestion, it
may
often be difficult to examine otherwise. No doubt if a
way
can be found of engaging the
witness
to tell the story and then the content differs from
what
had been said before, that
will
be a yet better indication that the original account is
wrong.
But that is difficult to achieve and indeed
may
itself have the disadvantage of prolonging the child's time giving evidence. Even then there
may
be no guarantee as to
which
account is the
more
reliable.
We
want
to
make
it clear that
we
are quite sure that neither counsel cross-examined this child inappropriately. However, the
risks
which
we
have identified plainly existed.
Most
of the questions
which
produced the answers
which
were
chiefly
relied
upon, unlike
many
others, constituted the putting of direct suggestions
with
an indication of the answer: "This happened, didn't it?" Or: "This didn't happen, did it?" The consequence of that is, as the judge
remarked,
that it can be
very
difficult to tell
whether
the child is truly changing her account or simply taking the line of least
resistance.
We
agree
with
the judge that in the end the question of
which
it is is not for the judge but for the jury, unless the stage has been
reached
when
taken at its highest the evidence is such that no jury could safely be sure of guilt. This case troubled the judge. He
worried
about it and said he found it difficult. So have
we.
He
ruled,
however, that that stage had not been
reached.
The assessment of the total net effect of this child's evidence on the crucial question
which
was
limited to exactly
what
had happened in the park
was,
the judge held, for the jury and not for him. He
was
acutely conscious that A had assented to the propositions directly put to her that she had, but he said this by
way
of conclusion:
"However, having heard and seen the cross-examination, I take the
view
that it
would
be open to the jury to conclude, particularly in the light of the other evidence, that A
was,
for any of, or for a number of, the
reasons
suggested by the prosecution, not actually agreeing in any
meaningful
way
to
what
was
being suggested to her."
We
do not agree that in arriving at that conclusion the judge
was
in effect establishing for a child
witness
a
rule
that no submission of no case can be
made.
The law is just the
reverse.
Of course it can and it
may
well
succeed in some cases. It is acutely fact-sensitive. Sometimes the
witness's
own original account
may
be so contradictory that it cannot be
relied
upon or it
may
fail to establish evidence
which,
taken at its highest,
would
entitle a jury to convict. On other occasions the
witness
may
convincingly demonstrate by her evidence in cross-examination or otherwise that the original account is so
modified
or contradicted that it cannot be
reliable.
We
wish
to say plainly that it is not the law that once a child has given an original ABE interview or similar, it can never happen that the child's evidence at trial demonstrates that a jury could not safely convict. It
may
well
do. The difficult question is
when
it has. It is quite impossible to ignore the fact that the
witness
is a child. Nor can you ignore the
risks
which
the judge identified and
which
we
have attempted to explain. To that extent the approach to the
witness
is specific to him or to her and it certainly involves not treating him or her as if he or she
was
an adult.
Without
doubt the best judge of
whether
the line has been crossed is the trial judge
who
hears and sees the
witness.
Unlike the
members
of this court, this trial judge had not only heard the
words
spoken but he had seen and heard the
manner
in
which
they
were
spoken. Unlike this court,
which
only has a transcript to
rely
upon, he had seen the person. He could judge the body language. He could judge far, far better than
we
could possibly do
whether
the
witness
might
just have been giving up.
We
are satisfied, having looked carefully at the evidence in this case and the judge's
ruling,
that the judge applied the correct test and that he
was
entitled to come to the conclusion
which
he did,
which
was
that the assessment of the
whole
of the evidence of this child
was
for the jury. It had to consider, certainly,
what
she had said in her original accounts and also, certainly,
what
she had said at trial both in chief and in cross-examination. It
was
entitled to attach significance to
what
she had said originally and soon after the event to her
mother
about the boys having had sex
with
her and about one or other of them, or both, picking her up to do it properly. In the end
whether
she had assented to the propositions put to her in cross-examination because they
were
true and she
was
changing her account, or because she
was
giving up,
was
what
the jury had to decide.
- It follows from that that the defendants' principal contention that the judge approached the question
wrongly
and
reached
the
wrong
conclusion is one
which
we
are unable to support.
- A second submission
was
made
to us that the complaint
made
by A to her
mother
ought to have had attached to it from the judge a clear
warning
to treat it
with
caution. It is said that that should have been the case because of the
retractions
(as they are termed)
made
by the child in cross-examination. The
recent
complaint
was
undoubtedly admissible under section 120(4) and (7) of the Criminal Justice Act 2003. It is almost universal experience that the first thing that a child says in a case such as this is capable of being extremely
revealing,
whether
because it tends to show that the offence has been committed or for the opposite
reason.
The judge's decision to admit it
was
plainly
right.
He
made
it clear in summing up precisely
what
the
rival
contentions on either side
were
about it. He did not need to administer any further specific caution. In any event, the submission, as
we
understood it, is that the additional caution ought to have been given because the
retractions
made
by the child had been genuine but that
was
the
very
issue
which
the jury needed to confront.
We
should say that like the judge
we
have found this a painful case to consider and a difficult one in
which
to apply the
rules
of law
which
we
are obliged to apply.
We
are however satisfied that the judge
was
right
and entitled to come to the conclusion that he did. It follows that our order is that leave to appeal should be given, but the appeal has to be dismissed.
We
add a postscript. Having spent quite a long time
reading
the transcripts in this case,
we
want
to express our admiration for the
manner
in
which
the judge, counsel and solicitors all did their level best to adapt the
machinery
of an adult trial in a formal courtroom at the Crown Court to the needs of the three principal parties in this case, none of
whom
was
more
than 11.
We
are unable, however, to leave the case
without
recording
our dismay that it became necessary for two 10-year-olds and an eight-year-old, all of impeccable upbringing, to be the key participants in a trial before the Crown Court.
We
are particularly concerned about the effect of a publicly staged trial in this arena
was
likely to have on the ability of the little girl,
whatever
had happened, to
move
on
with
her life
with
the
minimum
adverse impact.
We
pass no comment on the decision that this particular charge needed to be brought in a case of this kind,
rather
than some lesser offence
which
if proved
would
more
than adequately equip the court
with
powers to deal
with
the children accused.
We
are not privy to that decision and it is not for us. But even if this charge had to be brought,
we
are unable at present to see
why
it could not be tried in the Youth Court.
We
are told that the
view
was
taken by the Crown Prosecution Service that because
rape
was
a "grave crime", that is to say one
within
section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the necessity for committal followed. That proposition having been put to the Justices, as
we
understand it, they agreed. That however is not the test. All those
who
are concerned
with
cases involving children as young as this, if they ever arise, need to have in their briefcases the
report
of
R
(on the application of) H, A and O
v
Southampton Youth Court [2004] EWHC 2912 (Admin). The judgment of the court delivered by Leveson J (as he then
was)
makes
clear at paragraph 33 the following three cardinal principles:
The general policy of the legislature is that those
who
are under 18 years of age and particularly children of under 15 should,
wherever
possible, be tried in the Youth Court. It is that court
which
is best designed to
meet
their specific needs. A trial in the Crown Court
with
the inevitably greater formality and greatly increased number of people involved, including a jury and the public, should be
reserved
for the
most
serious cases.
2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14, and all offenders under 12, should not be detained in custody and decisions as to jurisdiction should have
regard
to the fact that the exceptional power to detain for grave offences should not be used to
water
down that general principle.
3. Those under 15
will
rarely
attract a period of detention and even
more
rarely
those
who
are under 12.
- The test, in other
words,
is the
real
likelihood of a sentence
which
would
be beyond the powers of the Youth Court. If the Justices'
minds
were
not in this case directed to that test, then they should have been. The Youth Court is particularly attuned to enquiries into the alleged activities of children,
whether
as
witnesses,
or as defendants, or both. It is staffed by judges
who
are used to dealing
with
them. It does not have to sit in a formal courtroom. It can adapt the court premises so as to
make
the necessary exercise of the trial one
more
suited to the
very
young. It has judges
who
may
well
have encountered
very
similar factual disputes also in the family jurisdiction
where
this kind of thing is not in the least uncommon.
We
do express the hope that if similar facts should
recur
again those principles
will
be kept in
mind
and every effort be
made
to keep the proceedings as low key as possibly can be done.
Miss
Strudwick,
Miss
Patel, had you a
representation
order already
made,
or not?
MISS
STRUDWICK: Yes,
my
Lord,
we
did.
- THE
VICE
PRESIDENT: Then the order is simply that leave is granted, but the appeal
must
be dismissed and
we
remind
everybody that the order preventing publication of anything
which
might
identify any of these children on either side
remains.
That does not just
mean
naming them, it
means
reporting
anything
which could lead to them being identified.