The Lord Chief Justice of England and Wales:
- On 1st May 2009 at the Central
Criminal
Court
before
His Honour Judge Kramer QC and a jury, S
B
was convicted of anal
rape
of a child under 13 years of age (count 1). His co-accused, T C, was acquitted
by
the jury on cruelty to the same child
by
wilful neglect (count 2). On 22 May
B
was sentenced to imprisonment for life with a specified minimum term of 10 years. Appropriate orders were made in
relation
to time spent in custody on
remand,
and he was made subject to a sexual offences prevention order, a notification
requirement,
and disqualified indefinitely from working with children.
B's
applications for leave to appeal against conviction and sentence were
referred
to the full court
by
the
Registrar.
The application for leave to appeal against conviction
requires
the court to address the circumstances in which
very
small children may give evidence in
criminal
trials. Although it was not quite how Mr
Bernard
Richmond
QC advanced it, stripped to essentials, the argument at the heart of this application is that it is not acceptable for a conviction,
very
heavily dependent on the evidence of a child as young as
4½
years, describing events said to have occurred when she was not yet 3 years old, to
be
regarded
as safe: more formally, the competency
requirement
was not satisfied. The argument merits attention. Leave to appeal against conviction and sentence are granted.
The Evidence
- The appellant is now aged 33. He
became
involved with T C, a young woman with children and in early 2007, he moved into her home in Tottenham. There he came into contact with a number of young children. X, as we shall call her, was
born
in November 2004. On 3
rd
August 2007, together with her 2 somewhat older sisters, she was taken into care following the unnatural death of her younger
brother.
The appellant was arrested on 6 May 2008 and interviewed in connection with an allegation that he had sexually abused X. He denied any inappropriate touching, and could advance no
reason
why she should make the allegation. T C was arrested a few days earlier. She made no comment in interview. In the meantime, she, the appellant and his
brother
were all charged with causing or allowing the death of a child known in the media as "
Baby
P" or "
Baby
Peter", contrary to section 5 of the Domestic
Violence,
Crime
and
Victims
Act 2004. They were convicted on 11 November 2008. For his involvement in that offence the appellant was sentenced to 12 years' imprisonment. It has not
been
suggested that the case for the prosecution that the appellant
raped
X can or should
receive
any support or confirmation from the lamentable circumstances in which
Baby
P died. However, if the present conviction is upheld, the death of
Baby
P will
become
relevant
to the appeal against sentence.
- X and her sisters went to live with Joan Evans on 3
rd
August 2007. Mrs Evans kept a notebook
record
of her care of the children. She
remembered
an occasion in October 2007, shortly
before
the complainant's third
birthday.
As X was dressing herself after
breakfast
and about to put on her knickers, she said something indicative of sexual abuse
by
the appellant. Mrs Evans made a contemporaneous or
virtually
contemporaneous note which was in evidence
before
the jury. In it she wrote: "I was dressing X. She was sitting on the floor, taking off her PJ and was TO (short for touching) herself. I asked her was she sore? She said no. Her dad does that to her fanny. Asked was it in the
bath?
She said no, in Mum's
bedroom
and Mum said: Don't do that again. Not Kenny, other Dad". It is unnecessary to summarise the evidence given
by
Mrs Evans in chief, save that X described her mother telling her "other dad" not "to do that again", as she wagged her finger at him with an angry expression on her face. Mrs Evans was also asked about the
relationship
between
the three children. She confirmed that X's elder sister would
boss
the others around and was
very
much in charge. Mrs Evans insisted however that she had not heard her using the language used
by
X when making her disclosure.
- DS Kate
Bridger
is a child protection officer. She spoke to X at her home on 21st November 2007. In what seemed to us a
rather
curious exchange with a young child, the officer asked X about what she had told Joan. DS
Bridger
indicated with
both
hands the general area around her hips, genitals and
bottom.
X either could not
recall
or had no idea what she was talking about. The officer then "narrowed the question" and asked her whether anyone had touched her in the area which she again indicated with her hands. X shook her head. The officer was unsure whether the complainant was effectively saying no one had touched her or that she did not understand. The officer then asked whether S had ever touched her around "here", indicating the same area. X shook her head.
- DS
Bridger
was cross examined and agreed that her questions were designed to establish whether X had
been
subjected to sexual abuse. Her note of the conversation was
read
out to the jury: "I attended the children's home and spoke with X. She is a
very
young girl, 3 years old. We had a discussion
regarding
what she had told her foster carer and who had touched her inappropriately. She made no disclosures and when asked directly if S touched her genital area, she shook her head. X has never mentioned the incident since. With
regard
to this allegation X is too young to ABE interview. When spoken to
by
myself, she made no disclosures. When asked about any possible sexual abuse she made no disclosure. All enquiries
regarding
this incident are now complete." DS
Bridger
confirmed in cross examination she did not pursue the allegation
because
X had said nothing about sexual abuse and she "did not have much speech at the time". No further action was contemplated.
- The allegation
resurfaced
when Dr De Jong, a consultant child psychiatrist and her colleague, Mrs Seymour,
became
involved with the children. They were asked to make a
behavioural
assessment in
relation
to care proceedings.
- On 11th January 2008 the doctor interviewed each girl separately at Great Ormond Street Hospital. A
verbatim
note was made. X was then just over 3 years old. Her speech was not as developed as it should have
been
for a child of her age and was occasionally indistinct. She was asked about members of her family. She said she cried when she missed her mum
but
she did not cry about S. Unexpectedly, and spontaneously, she announced that she hated S and said, "I saw his willy". The doctor asked how this had happened. "S took his trousers off. He got it all down me." "I saw S's willy in Mummy's
bedroom.
Mummy was there, Mummy told him not to do it, S. He tries to get me into trouble". She was asked where and she said: "He did it in my
bedroom.
S took his trousers off and showed me his willy". The doctor asked what she was wearing and she said she had her pyjamas on. She said "I kept it on. S did it in my
bedroom.
I saw S's willy. It was not nice what he did". Dr De Jong asked if he had touched her and she said, "S hurt me. It was harder. I do not know how." She put
both
her hands on her
bottom
and said "it hurt all day" and "he hurt me with his willy". She demonstrated what had happened, using a table to
represent
the
bed
and dolls. She put the girl doll down on the table, face up. Then she turned the girl doll over and placed her face down and the
boy
doll
representing
S face down on top of her. She said: "I felt his willy". Asked what it felt like she said he hurt her and again without hesitation twice put the dolls one on top of the other in the same position. The doctor asked her what she did. She said "I went to the toilet. I needed to go to the toilet. My
bottom
was sore." During this exchange the doctor noted that X had stopped smiling. She said she had not told Jo her foster carer,
but
she had told her eldest sister and her mummy. She said it happened lots of times. She was asked specifically whether S put his "willy" in any other place, and said no. She was asked whether anyone else had done this to her and said no. She said she asked S to stop
but
he never did.
- In cross examination Mr Patton pressed the doctor on whether it would have
been
important for her to know that the child had apparently denied any sexual abuse. She said that she was not involved as an investigator. She agreed that she ended her conversation with X
by
praising her for
revealing
what had happened to her, and accepted that this might have
reinforced
in the child's mind the notion that to give an account of abuse is a good thing.
- Mrs Seymour, the family therapist, confirmed the evidence of Dr Jong, and the complaint made
by
X. She also explained that X's disclosure was completely unexpected and came in the course of a general conversation about her family. Although X had difficulties articulating what she wanted to say, Mrs Seymour was sure that she was telling them that the applicant had hurt her, that it had happened several times, that she had wanted him to stop, and had asked her mother to make him stop.
- Dr Hodes is a consultant paediatrician. She saw X on
4th
April 2008. During the course of her examination, she asked X: "Did anyone hurt your
bottom?"
and the complainant
repeated
the allegation, "Yes, S did it." On examination Dr Hodes found no injury to X's genitalia and her
vagina
intact. She examined the anus using a colpascope. There was no evidence of scarring, anal fissures and tags,
but
there was one finding upon which the doctor
remarked.
Normally, in a child of this age, the external sphincter muscle
remains
closed. However after ten seconds of gentle movement the complainant's sphincter opened and the doctor could see up into the
rectum.
This is an unusual finding,
but
of itself not diagnostic or conclusive of anal penetration. Even when there is no allegation of sexual abuse the condition may occur in as many of 11 % of children who are examined in this way. However, the doctor said that, absent a medical condition such as constipation (and no such condition was canvassed in evidence), the finding could
be
supportive of an allegation of penile anal penetration.
- Dr Hodes was cross examined about the fact that
reflex
anal dilatation has caused major controversy and the
Royal
College of Paediatrics has expressed considerable
reservations
about its use as any kind of diagnostic tool. It may
be
explained
by
various
medical conditions, or it may simply
be
a natural anatomical
variation.
The doctor accepted the
Royal
College has commented on the lack of good quality comparative studies to assist.
- As a
result
of what X said to Dr Hodes the decision was taken to carry out an ABE interview.
Before
admitting the evidence the judge examined X's competence as a witness. He studied the ABE interview itself. He heard evidence from experts on
both
sides who proffered their opinions about X's competence. Dr Weir, called on
behalf
of the appellant, questioned the extent to which X had the ability to understand questions and whether she would
become
confused. He criticised the way in which the ABE interview was conducted, arguing that the officers were guilty of putting leading questions to X. He expressed considerable doubt as to the
value
of her evidence given "her age at the time of the alleged offence, her apparent developmental difficulties, the passage of time
before
the ABE interview, her exposure to multiple and possible flawed interviews and the further passage of time". However he accepted that she appeared to understand the questions put to her in the ABE interview and could provide answers to questions that could
be
understood, provided the questions were put in simple language. On this evidence, X passed the competency test. Dr
Baker,
called on
behalf
of the Crown, acknowledged the considerations which led Dr Weir to form his opinion, including the child's
very
young age and immaturity of speech,
but
he nevertheless concluded that X had the capacity to give "cogent" evidence of her "own
remembered
experience". He saw no
reason
to doubt her
veracity.
Mr
Richmond
on
behalf
of the appellant, accepted that it was open to the judge to find on the
basis
of this evidence and his own consideration of the ABE interview that X was competent to give evidence. We ourselves have studied the ABE interview. We should immediately
record
not only that it was open to the judge to find that X was competent as a witness,
but
that he was
right
to do so.
- X's evidence-in-chief was the
video
recording
of that interview conducted on 8th April 2008
by
DS
Bridger,
known to X as Curly Kate or Kate, and DC Wright, known to her as Tony. A social worker, Sarah Skipper, was present throughout. The first half of the interview was conducted
by
DS
Bridger
and was focussed on the present allegation. DC Wright participated in the interview at a later stage, and investigated whether the child could throw any light on the circumstances in which
Baby
P came to sustain his injuries. A few days
before
the trial X
viewed
the ABE interview. This process itself was
video
recorded
and the
recording
was disclosed to the parties. She watched it intently and silently. No point was taken on
behalf
of the appellant. Immediately
before
the trial she was given the opportunity to watch the
video
recording
in the presence of her Guardian ad Litem and the court trained usher. This
became
her evidence in chief. She was then cross-examined and
re-examined
by
video
link. As already indicated, we have watched the
video
ourselves and we also have the
benefit
of a full transcript of cross examination and
re-examination.
- It was not in dispute that the child's account described an incident of anal penetration, sufficient to found the allegation against the appellant. The
relevant
passages from the
video
recording
include:
"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.
- DC Wright continued the interview and eventually
returned
to the current allegation.
"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.
- In cross-examination X was asked
by
Mr
Richmond
about the difference
between
the truth and a lie. She was asked what happens when you tell fibs. She answered: "You'
re
lying". The questions continued in the following
vein:
" 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.
"
- Pausing there, Mr
Richmond
suggested the child's
response
"your name is
Bernard"
indicates she was not following his questioning. However, on one
reading,
once she had worked out what he meant, X provided the answer as to why it was a fib for him to say his name was Curly Kate. Mr
Richmond
made a similar criticism of the next passage:
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.
- Mr
Richmond
claimed her answer "I don't say anything
rude."
was a non sequitur and an indication of her inability to follow and
respond
to his questioning. To our mind it shows the opposite. Mr
Richmond
asked 2 questions in one: "everyone tells fibs don't they?" and "what about if you don't want to get into trouble?" X answered the second question: if she did not want to get into trouble she didn't say anything
rude.
She was then asked about her sisters to which she
responded
by
saying her sister was
rude
in calling people "loser". Mr
Richmond
reverted
to the question of whether she told fibs. She shook her head to indicate she did not. He asked her what happened if she told fibs and she
replied,
"You get told off".
- Mr
Richmond
then put his case to her that she was
being
truthful when she saw DS
Bridger
the first time and said nothing had happened and that she later changed her account
because
one or
both
of her sisters put her up to it:
"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)
- Later Mr
Richmond
repeated
his question that Y had told her to say the applicant touched her and again she shook her head. He asked her whose idea it was and she
replied:
"No-one's". He asked her if she made it up herself and she shook her head. After a
break
Mr
Richmond
again
reverted
to the question of truth and lies and asked her this question:
"Q. Do you
remember
when you said to me that you do not tell fibs? Is that true or a fib?"
A. Truth."
- He then asked her a series of questions on the subject of whether she had told Curly Kate the truth when she first saw her. She
responded
by
either nodding or shaking her head, for example she nodded to indicate she
remembered
Curly Kate asking her if S touched her:
"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…..
- A short
break
was then necessary
because
the child was tiring. After the
break,
Mr
Richmond
asked X what she meant when she shook her head and she said: "No". Again, he asked her if she
remembered
telling Curly Kate S didn't touch her. She nodded. Mr
Richmond
asked her: "you were not fibbing to Curly Kate, were you?" She shook her head.
- X was cross-examined
by
leading counsel on
behalf
of her mother. The questions were short and simple. It is effectively conceded on
behalf
of the appellant that they demonstrated that she clearly understood what she was
being
asked and was well able to answer the questions.
- In
re-examination
X said she
remembered
the
video
interview and that the applicant had done something to her,
but
when she was asked twice what he had done she did not answer.
Referring
to the ABE interview she said she had told Curly Kate and Tony the truth.
- At the conclusion of X's evidence, the judge was invited to
re-visit
the competency issue, and alternatively, to exclude X's ABE interview under section 78 of the Police and
Criminal
Evidence Act 1984. He closely examined the factual
background
in the light of then
recent
authorities on the issue. He concluded that "when simple questions were asked, the defence were able to put their cases sufficiently to ensure that the defendants have a fair trial. Inconsistencies…or matters of credibility and
reliability
and not competence…the interpretation of those silences… goes to credibility and
reliability
and not competence. The jury observed X with care throughout and are capable, properly directed, of coming to their own conclusions…It may indeed
be
that this case concerns a child at the edge of competency
but,
in my judgment, having seen and heard her, although inevitably her intelligibility and, therefore, her ability to
be
understood were at times difficult, X did pass the test of understanding and intelligibility sufficiently for me to say that she is and was a competent witness". In
relation
to the submission under section 78, which was
based
on the difficulties said to
be
experienced
by
X in answering questions in cross-examination, the judge did not
rehearse
what he had already said,
but
effectively for the same
reasons
he
rejected
the submissions. Later, consistently with this approach, he also
rejected
a submission that there was no case for the appellant to answer.
- The appellant did not give evidence and
relied
upon the account given during his police interview when he denied touching X inappropriately. He was unable to think of any
reason
why she should make up the allegation. An appropriate direction was given to the jury about the potential significance of the defendant's decision not to give evidence
- Mr
Richmond
submitted to the jury that they could not safely
rely
upon the evidence of the complainant
because
it was inconsistent and contradictory. Dr Hodes' evidence was less than compelling: it certainly did not prove that the child had
been
anally
raped.
Criticisms were made of the ABE interview and of the lack of investigation of and explanation for the inconsistencies in the complainant's accounts. The jury were
reminded
of the complainant's evidence that she "hated" the complainant. It was submitted that the complainant had fabricated the allegations and that she may have
been
influenced
by
her sisters or she may have
been
seeking attention.
- In the course of the summing up the jury was given detailed and fair directions about the way in which they should approach X's evidence. The judge
began
by
reminding
the jury that the procedure adopted in her case was not "intended to pre-judge the evidence" that she would give, and went on to
remind
the jury that the question whether she was "
reliable,
credible and truthful" had to
be
decided in exactly the same way as it would with any other witness. The jury was to judge "her accuracy,
reliability
and credibility,
both
in the interview and at court" and he advised them to take 5 specific matters which were said to undermine confidence in X's credibility into account. In
very
brief
summary (the judge dealt with them in much more detail) they were: the child's age at the time of the alleged offence, the date of the interview, and her age when she gave evidence; the
various
gaps in time which might effect her memory; the sequence of events which culminated in her evidence at trial; the need for the jury to make their assessment of whether she was able to understand and
be
intelligible
both
in her
video
interview and her evidence; the way she gave evidence, and in particular whether her evidence about what the appellant had done was spontaneous or simply
responding
to questions which suggested the answers, and whether she agreed with everything suggested to her, or whether she was prepared to "stick to her guns and disagree" when she thought the question was wrong. Finally, he asked the jury to consider the way in which X had given evidence, making appropriate allowances for her age. One short extract from this part of the summing up will illustrate the fairness with which the issues were put to the jury.
"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."
- The judge then continued the summing up
by
reminding
the jury of the criticisms directed
by
the defence at the way in which the ABE interview had
been
conducted.
- At the end of the summing up the judge summarised the
respective
submissions made to the jury on
behalf
of
both
defendants, and the prosecution. No criticism of the summing up is advanced. None could
be:
it was meticulous, comprehensive and fair.
Prejudice
- We can dispose swiftly of the second ground of appeal against conviction. A powerful surge of public
revulsion
against those involved in the dreadful events which led to the death of
Baby
P led the judge, unusually,
but
in the interests of a fair trial, to order that the appellant, and his co-accused should
be
tried using pseudonyms. Thus, to avoid the
risk
of prejudice, neither would
be
linked with the
Baby
P case. All went well until the summing up when the judge was
reading
out part of a document and inadvertently
referred
to the actual surname of the appellant's co-accused which had
been
redacted
from the document
before
the jury. This was immediately noticed
by
counsel. The choices facing the judge were to discharge the jury, or to proceed with the trial, either
by
ignoring the mention altogether, or, after explaining to the jury that they must ignore his mistake (with the inevitable consequence of highlighting it). This was essentially a case specific decision for the trial judge
vested
with the
responsibility
of ensuring that his error did not unbalance the fairness of the trial to the prejudice of the appellant and his co-accused. He decided that the
best
course was to leave the error unremarked. A specific direction to the jury to ignore what he had said would serve only to draw attention to it. The slip had
been
minor. The situation was not so grave as to
require
the discharge of the jury. We have found no
basis
for interfering with his decision. None has
been
demonstrated. Without
resiling
from that conclusion our
view
is
reinforced
by
the fact that notwithstanding the mention of the name of the co-accused
by
the judge, she was acquitted
by
the jury.
Competency
- We must analyse and address the essential point in the appeal, that is the principles which apply nowadays when young children give evidence in
criminal
trials. Many accreted suspicions and misunderstandings about children, and their capacity to understand the nature and purpose of an oath and to give truthful and accurate evidence at a trial have
been
swept away. The former approach was typified
by
an observation in
R
v
Wallwork [1958]
42
CAR 153, when a little girl of 5 years had
been
called as a witness, and Lord Goddard CJ observed:
" 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… "
- Not
very
much later, in February 1990 in
R
v
Z [1990] 2 WB 355, Lord Lane CJ underlined that "…despite those observations…it still
remains
a matter for the judge's discretion". Perhaps with the then
recent
Report
of the Advisory Group on
Video
Evidence, chaired
by
Judge Pigot QC in mind, he drew attention to a changing attitude "to the acceptability of the evidence of young children and of increasing
belief
that the testimony of young children, when all precautions have
been
taken, may
be
just as
reliable
as that of their elders". In this jurisdiction these observations
represented
a dramatic change of approach.
- This intimation of a changed approach to the evidence of children was consistent with long standing principles in Scotland. As Spencer and Flin describe in their
valuable
and illuminating study, The Evidence of Children, The Law and the Psychology, 1993, (2nd Edition) things were different there. The testimony of children was not subject to any prescriptive arbitrary age limit
below
which the child was deemed to
be
incompetent. As long ago as Treatise on the Law of Evidence in Scotland (1864) at section 1679 W. G Dixon commented:
"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".
- The
result
of a complex legislative process is that the old misconceptions no longer apply and have no
relevance
in England and Wales. The principles are encompassed in and governed
by
statute.
- Section 53 of the Youth Justice and
Criminal
Evidence Act 1999 (the third legislative attempt to address these issues) provides that:
"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).
- 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 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. 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.)
- We should perhaps add that although the distinction is a fine one, whenever the competency question is addressed, what is
required
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.
- 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 less
reliable
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.
- 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.
- 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 and
valuable
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.
- The competency test may
be
re-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.
- Mr
Richmond
submitted that a close analysis of X's evidence
reveals
that attempts to examine her were futile and that he was unable effectively to challenge her account and to put the appellant's case to her. There was no other evidence of guilt, and without the evidence of the complainant, there could have
been
no conviction. The argument was developed on the
basis
that it was not practicable for Mr
Richmond
to put the full details of his case to the witness. As he could not do that, the end
result
was an unfair trial.
- We are
very
conscious of the extreme youth of the child, and that the ABE interview took place long after the alleged indecency occurred. The first question for decision is whether the judge was wrong when he concluded that the child's competence had
been
established not only
before
she gave evidence
but
after its conclusion. We have the advantage of the ABE interview of the child, which we studied closely. As we have
recorded,
we ourselves are satisfied that
both
the child's answers and her
behaviour
during the interview demonstrated her competence to give evidence. We did not observe the child
being
cross-examined: the judge did. We have studied the transcript of her evidence, and taken note and commented on specific features of it which concerned Mr
Richmond.
We note that she gave clear answers although, from time to time, she
responded
by
nodding her head or shaking it. That is what she had done during the ABE interview. No one entertained the slightest doubt that a nod meant "yes", and a shake of a head meant "no". Neither indicated uncertainty nor lack of comprehension
by
her of the question or her intended
response,
or left any doubt about her meaning. Having
reflected
on these submissions, and considering the matter with anxious care, there is in our judgment no
basis
which would justify this court interfering with the judge's conclusion that the competency of the child as a witness was established, and
remained
established after her evidence had concluded.
- We are unable to accept that Mr
Richmond
could not put his case to X. Indeed as the transcript demonstrates, he did. His case was that the child was not telling the truth, and that she was advancing fabricated allegations against the appellant
because
of the influence and pressure exerted on her
by
her older sisters to improve the position of her mother at the expense of the appellant. He also asked questions with a
view
to demonstrating that the child's
responses
to the first interview with the police officer, when she did not formulate a complaint of sexual misbehaviour against the appellant,
represented
the truth. Her answers were that she was telling the truth about what had happened to her and that she was not acting on her sister's instructions or at her
behest
to fabricate a false story. Indeed given the extreme youth of the child, it seems plain that if she had
been
advancing a story manufactured for her
by
her older sisters, a
very
short cross-examination would have
revealed,
"ingenuously", as W.G. Dixon had observed in 1864, that the child had
been
tutored, and what she was "desired to say".
- Mr
Richmond's
fallback position was developed in the context of delay. He suggested that although an abuse of process submission on this ground had failed, and the argument on appeal is not focussed on abuse of process as such, Mr
Richmond
identified two earlier decisions of the court,
R
v
Powell and
R
v
Malicki in support of his contention that the conviction should, in any event,
be
quashed on the
basis
of delay.
- In Powell, after considering a
video
recording
of the child's evidence, as well as evidence of the officer
responsible
for the interview and expert evidence, the judge decided that a girl of 3½ years satisfied the competence test. This court concluded that her decision was justified,
but
went on to examine whether the competency decision should have
been
revisited
in the light of the cross-examination of the complainant, which, taking it
briefly,
provided serious grounds for doubting whether she was "simply not intelligible in the context of the case". The court suggested that the competency issue should have
been
revisited,
and that if it had
been,
the competency of the witness would not have
been
established. Accordingly the case should have
been
stopped. The court expressed concerns about the delay which had overtaken the preparation of the child's
video
evidence. Expert evidence in that case suggested that
very
young children did not have "the ability to lay down memory in a manner comparable to adults". However the conviction was not quashed on this ground, the court simply observing that "looking at this case with hindsight, it was completely unacceptable that the appellant should have
been
tried for an offence proof of which
relied
on the evidence of a 3½ year old when the trial did not take place until over 9 months had passed from the date of the alleged offence".
- In
R
v
Malicki the complainant was
4
years 8 months at the date of the alleged indecent assault. The
video
interviews suggested she was competent. After cross-examination the question of her competence was
re-visited.
In cross examination the complainant had asserted a
recollection
of the incident,
but
it was "impossible to discern whether she was actually
remembering
the incident herself or simply
recalling
her
video,
which she had just seen twice: once on the Friday
before
the Monday of the trial, and once at the trial
before
she was cross-examined". It was suggested that the problem of cross-examining the child arose from the fact that it was not possible to ask whether "her
being
licked was a
recollection
of a question put to her
by
the police officer on the
video
rather
than a direct
recollection
of the event itself". The court identified two problems arising from the delay, first that a child that young would not have any accurate
recollection
of events which took place 14 months earlier, and second, what was described as an "even greater
risk"
that she might merely
be
recollecting
what was said on the
video
and incapable of distinguishing
between
what was said on the
video
and he underlying events themselves. These considerations led the court to conclude that the evidence should have
been
excluded under section 78 of the 1984 Act and "stopped
because
of the lapse of time".
Both
Powell and Malicki underlined the importance to the trial and investigative process of keeping any delay in a case involving a child complainant to an irreducible minimum. Unsurprisingly, we agree, although we draw attention to the circumstances which did not appear to arise in either Powell or Malicki, that the complaint itself, for a
variety
of understandable
reasons,
in the case of a child or other
vulnerable
witness may itself
be
delayed pending "
removal"
to a safe environment. The trial of this particular issue was delayed
because
of the trial arising from the death of
Baby
P. With hindsight it can now
be
suggested that perhaps the
better
course, given the age of X, would have
been
to try her allegation first.
Be
that as it may, in our judgment the decisions in Powell and Malicki should not
be
understood to establish as a matter of principle is that where the complainant is a young child, delay which does not constitute an abuse of process within well understood principles, can give
rise
to some special form of defence, or that, if it does not, a submission
based
on "unfairness" within the ambit of section 78 of the 1984 Act is
bound
to succeed, or that there is some kind of unspecified limitation period. There will naturally and inevitably
be
case specific occasions when undue delay may
render
a trial unfair, and may lead to the exclusion of the evidence of the child on competency grounds. Powell, for example, was a case in which after the evidence was concluded it was clear that the child did not satisfy the competency test, and if the child in Malicki was indeed "incapable of distinguishing
between
what she had said on the
video
and the underlying events themselves" it is at least doubtful that the competency
requirement
was satisfied. However, in cases involving
very
young children delay on its own does not automatically
require
the court to prevent or stop the evidence of the child from
being
considered
by
the jury. That would
represent
a significant and unjustified gloss on the statute. In the present case, of course, we have
reflected,
as no doubt the jury did, on the fact of delay, and the
relevant
timetable. Making all allowances for these considerations, we are satisfied, as the judge was, that this particular child continued to satisfy the competency
requirement.
- There
remains
the
broad
question whether the conviction which is effectively dependent upon the truthfulness and accuracy of this young child is safe. In
reality
what we are
being
asked to consider is an underlying submission that no such conviction can ever
be
safe. The short answer is that it is open to a properly directed jury, unequivocally directed about the dangers and difficulties of doing so, to
reach
a safe conclusion on the
basis
of the evidence of a single competent witness, whatever his or her age, and whatever his or her disability. The ultimate
verdict
is the
responsibility
of the jury.
- We have examined the evidence and asked ourselves whether there is any
basis
for interfering with the jury's
verdict.
Despite justified concerns about some aspects of the way in which it was conducted, the ABE interview shows an utterly guileless child, too naive and innocent for any deficiencies in her evidence to
remain
undiscovered, speaking in matter of fact terms. She was indeed a compelling as well as a competent witness. On all the evidence, this jury was entitled to conclude that the allegation was proved. Unless we simply
resuscitate
the tired and outdated misconceptions about the evidence of children, there is no justifiable
basis
for interfering with the
verdict.
- Accordingly, the appeal against conviction is dismissed.
Sentence
- The appellant was
born
on 5 June 1976 (33 years old) and had no previous convictions or cautions. He is a man of limited intelligence who claims to have
been
the
victim
of sexual abuse as a child. He suffers from depression. When interviewed
by
the author of a pre sentence
report
he maintained that the allegations were untrue. Given his denials, the writer was unable to offer any
real
insight into his offending
behaviour
and suggested that a psychological assessment should
be
carried out. The probation officer assessed the applicant as posing a low
risk
of
re-offending
against an adult,
but
a significant
risk
of causing serious harm to children
by
the commission of further specified offences, as defined
by
the
Criminal
Justice Act 2003. A psychiatrist found no evidence of mental illness.
- The judge
rightly
bore
in mind that the appellant had
been
convicted of two different offences in
relation
to two children under the age of three within the same family. X had suffered anal
rape,
an abhorrent office.
Baby
P died in horrific circumstances set out in the judgment of this court differently constituted in
R
v
Owen [2009]
EWCA
Crim
2259 . He suffered a catalogue of abuse and injuries of increasing severity culminating in his death aged just 17 months. Hughes LJ,
Vice
President of the Court of Appeal
Criminal
Division, giving the judgment of the court in Owen summarised what happened to him in this way at para 7.
"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.
- Nevertheless, Mr
Richmond
argued that the sentence was manifestly excessive and or wrong in principle. He criticised the judge for, as he would have it, failing to identify why he had decided to sentence outside the Sentencing Guidelines Council Definitive Guideline. Mr
Richmond
conceded the offence of anal
rape
was committed in
breach
of trust and on a
very
young child. However, the appellant stood to
be
sentenced for one offence of offence of "non
violent"
anal
rape.
There was no evidence of ejaculation or lasting injury. Even if the offence was committed on a child as young as X and aggravated
by
the applicant's involvement in
Baby
P's death, Mr
Richmond
maintained a life sentence with a minimum term of 10 years was excessive.
- We disagree. The flaw in Mr
Richmond's
argument is that the judge stated in terms the minimum term was intended to
reflect
the seriousness not simply of the anal
rape
"aggravated
by
Baby
P's death"
but
the totality of the appellant's
crimes.
The questions for this court, therefore, are whether a life sentence was justified and the minimum term excessive for these associated offences of causing or allowing the death of
Baby
P and the anal
rape
of X.
Both
P and X were
very
young children and
both
entrusted to the care of the appellant. One died aged 17 months of appalling injuries and the other suffered an anal
rape
when she was under 3 years old. The trial judge was satisfied, on the evidence
before
him, that the appellant played a major
role
in the events of December 2006 to August 2007 which led to P's death. At about the same time as he was causing or allowing one toddler to
be
physically abused he abused another sexually.
- All the
reports
upon the appellant indicate he is a danger to young children. We agree with the judge that his culpability was high and the offences particularly grave. These
crimes
were simultaneously incomprehensible and truly appalling. The sentence of life imprisonment was merited, and further, given the gravity of the two offences, for which consecutive determinate sentences could with every justification have
been passed, the minimum term was neither excessive nor wrong in principle. The appeal against sentence is dismissed.