COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
Her Honour Judge Norrie
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE AIKENS
|- and -
|A City Council
SW (by a Children's Guardian)
Mary Lazarus (instructed by The City Council Legal Services) for the First Respondent
Hearing date: 16 November 2011
Crown Copyright ©
Sir Nicholas Wall P
(a) that the bundle of authorities should be agreed;
(b) that it should be filed at least seven days before the hearing;
(c) that it should not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation;
(d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report in the All ER. Bailii reports (with neutral citation numbers) should only be used if no other recognised reports are available and the case really needs to be cited; and
(e) that the passages in the authorities which are relevant and on which counsel will seek to rely must be marked.
"I asked her why (TW) had taken them off telling her that she wasn't in any kind of trouble, she just said she didn't know. I was very suspicious at this point, if she had said about him helping her to go to the toilet or something like that I might have accepted it but by her saying she didn't know I was extremely concerned."
"……KW told me there were several pairs of knickers in the bathroom but she didn't know which belonged to (her granddaughter) or (LR). I told her to look inside as (LR's) ones would be 5-6 years old. (KW) then said she must have wet herself as they were wet. I said that was ok and told my dad to get them for me. I then went back to (LR) and asked her if she wet herself, she looked very sheepish, looked away and said yeah. This was very unusual for her as she never wets herself. My dad then rang again and I told him that it was all okay because she had wet herself. My dad told me she couldn't have as they [the knickers] were bone dry. I then went back to (LR) and asked her again what had happened with her knickers. Without prompting she said that (TW) had tried to pull her trousers down and she had to cover her Minnie. I was absolutely devastated by what she was saying, she refers to her vagina as her Minnie. "
"Later that evening I got a call from (TR) saying that (LR) had come home with no knickers on and asked if I could go round to (KW) to get them. When I got there (KW) opened the door, as I stood in the doorway I could see (TW) sitting at the top of the stairs. I asked (KW) for the knickers. (KW) asked (TW) where they were. He went off and moments later appeared with a pair of girl's knickers and came down and handed them to (KW) saying something about (LR) wetting herself. (KW) and I felt the knickers and they were bone dry. I put them in my pocket and walked back to my house and handed them to my wife. They were then put into a little plastic bag."
The criminal trial
… is the key to skilful interviewing. A good interviewer is someone who can adapt their interviewing style in accordance with the interviewee sitting in front of them. However, the sound legal framework should not readily be departed from by the interviewer unless they have fully discussed and agreed the reasons with their senior manager or interview adviser … It may be necessary to explain such deviations in court …
1. establishing rapport;
2. asking for free narrative recall;
3. asking questions; and
"Truth and Lies
There is no legal requirement to administer the oath …… but since the video may be used as evidence in court, it is helpful to the court to know that the child was made aware of the importance of telling the truth … It is inadvisable to ask children to provide general definitions of what is the truth (a task that would tax an adult): but, they should be asked to judge from examples. The interviewer should use examples suitable to the child's age, experience and understanding …. It is important that the examples chosen really are lies, not merely incorrect statements. (paragraph 2.143: emphasis in the original)
Establishing the purpose of the interview
The interviewer should provide an explanation of the outline of the interview appropriate to the child's age and abilities. Typically the outline will take the form of the interviewer asking the child to give a free narrative account of what they remember and follow this with a few questions in order to clarify what has been said. … (paragraph 2.144).
…. It is also important to stress that what the interviewer wants to discuss with the child is their memory of the incident(s) which give rise to the complaint, not the complaint itself (i.e. what the child remembers about the incident, not what they remember telling someone else) .. (paragraph 2.145: emphasis supplied)
The child should be given every opportunity to raise the issue spontaneously with the minimum of prompting…..Again, on no account must the explicit allegation be raised directly with the child because this might jeopardise any legal proceedings and could lead to a false allegation (paragraph 2.146).
Phase two: initiating and supporting a free narrative account
….. the child should be asked to provide in their own words an account of the recent event. The free narrative phase is the core of the interview and the most reliable source of accurate information. During this phase, the interviewer's role is that of a facilitator , not an interrogator. Every effort should be made to obtain information from the child that is spontaneous and free from the interviewer's influence. (paragraph 2.147).
… The child should not at this stage be interrupted to ask for additional details or to clarify ambiguities: This can be done in the questioning phase … Interviewers should be careful to ensure that affirmative responses are provided throughout the interview and do not relate solely to those sections of the interview dealing with allegations … Such prompts should relate only to the child's account and should not include relevant information not so far provided by the child … (paragraph 2.148).
It is quite in order for the interviewer to refer to a child by their first or preferred name, but the use of terms of endearment ('dear'. 'sweetheart'), verbal reinforcement (telling the child they are 'doing really well') and physical contact….. are inappropriate (paragraph 2.149: emphasis supplied).
….. Prompting is quite in order provided it is neutral ('and then what happened?') and does not imply positive evaluation ('right', 'good') (paragraph 2.150)".
"It is important, therefore, that the questioning phase should begin with open ended questions and that this type of question should be widely employed throughout the interview".
"2.171 Put simply, a leading question is one which implies the answer or assumes the facts that are likely to be in dispute. Whether a question is construed as leading will depend not only on the nature of the question, but also on what the witness has already said in interview. When a leading question is put improperly to a witness giving evidence at court, opposing counsel can make objection before the witness replies. This, of course, is not possible during recorded interviews but it is likely that should the interview be submitted as evidence in court proceedings, portions might be edited out or, in the worst case, the whole recording may be ruled inadmissible…..
2.172 In addition to legal objections, research indicates that interviewees' responses to leading questions tend to be determined more by the manner of questioning than by valid remembering. Leading questions can serve not merely to influence that child's answer, but may also significantly distort the child's memory in the direction implied by the leading question. For these reasons, leading questions should only be used as a last resort, where all other questioning strategies have failed to elicit any kind of response. On occasions, a leading question can produce relevant information that has not been led by the question. If this does occur, the interviewer should take care not to follow up this question with further leading questions. Rather, they should revert to open-ended questions in the first instance or specific-closed questions. ...Emphasis in the original)
2.173 A leading question which prompts a child into spontaneously providing information going beyond that implied by the question will normally be accepted by the courts. However, unless there is absolutely no alternative, the interviewer should never be the first to suggest to the witness that a particular offence has been committed, or that a particular person was responsible. Once such a step has been taken it will be extremely difficult to counter the argument that the interviewer 'put the idea into the witness's head' and that the account is therefore tainted.
2.174 Of course, there may be circumstances in the interview where the use of leading questions is unlikely to result in any legal challenge; for instance, during the rapport phase when a witness is being taken through their name and address or is being asked for agreed factual information, such as members of the family and their names. However, good interviewing practice should discourage leading questions with all but the youngest and most reticent witnesses. The use of leading questions in the rapport phase may inhibit the child from responding in their own words later in the interview and it is not always possible at the time to anticipate what facts might subsequently be in dispute. Moreover, the use of inappropriate leading questions may produce nonsensical or inconsistent replies, which may damage the child's credibility as a witness."
The ABE interview in this case
Officer: Okay, LR, you know that you told your mummy something last night that happened.
Officer: Tell, tell, tell Jo (the officer's name) about that. Don't be shy. It's very important isn't it that you tell somebody what happened. Yeah? What happened?
Officer: Did you? But when you were at (TW's) house, who took them off?
LR: TW, I mean
Officer: TW, TW took them off
LR: (nods head)
Officer: And what did you do?
LR I tried to tell him not to.
Officer: OK, and what about your knickers?
LR: He lost them.
Officer: You've lost them. Who, who took your knickers off?
Officer: Did he?
LR: (Nods head)
Officer:` And what did you say?
LR: "Don't lose the knickers" – and he still losed them.
Officer: …just a couple more things cos its very important, yeah you're doing very well, what happened when he touched your mini?
LR: I went home.
Officer: OK, did you have any knickers on when he touched your mini?
LR: (nods head)
Officer: Did you have your knickers on or were they off?
LR: They were on, then he took them off.
Officer: Then he took them off. So then what happened when he took them off?
LR: I told you already.
Officer: OK. Did he touch you when your knickers were off?
LR: (nods head)
LR: Not anywhere else.
Officer: No, just, but just on your mini.
LR: (nods head)
Officer: LR, when TW touched you, ok, did he touch you with his hands?
LR: (Nods head)
Officer: Did he touch you with his, with his fingers? And you know when you've got your mini, did, did he touch you on the outside of your mini or did he go right in your mini?
Officer: Just outside your mini. OK.
LR: (nods head)
Officer: Erm, that's alright my darling, that's fine.
LR: Can I go back downstairs?
Officer: You certainly can, you've been a good girl.
The approach of the judge
"I remain impressed by what (LR) said and the way she presented. She was not a "yes" girl agreeing to everything that was put to her and she clearly followed and thought about the questions asked of her."
"The alleged incident had taken place when the child was 4 and a half. I trust I can take judicial notice of the capacity of a child of that age to recall the events and indeed it is important to disclose that I have a granddaughter who I see weekly and who is almost the same age as LR."
The grounds of appeal
51. 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.
52. 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.
Do we remit?