ON APPEAL FROM THE FAMILY DIVISION SITTING IN KINGSTON-UPON-HULL
Strand, London, WC2A 2LL
B e f o r e :
| RE W: RE F (CHILDREN)
Taryn Lee QC and Gaynor Hall (instructed by Local Authority Solicitor) for the First Respondent
The other respondents were not present or represented
Hearing dates : 12 November, 2015
Crown Copyright ©
Mr Justice Baker :
"(1) K, P, T, M, C, and L have suffered significant sexual abuse whilst in the care of J, S and X, perpetrated by X.
(2) The children have (with the exception of U) displayed inappropriate sexualised behaviour and inappropriate sexual knowledge way beyond their years. That conduct/knowledge has arisen either as a result of being exposed to inappropriate sexual knowledge and/or conduct or experiencing the significant sexual harm as is alleged whilst in the care of J, S and X."
"173. With respect to the sexual abuse allegations against X, I note that C, K and P do not make any allegations against X. I further note that Dr. O, on examination of the children, found no abnormalities in respect of C or P. Therefore, I have to conclude that there is insufficient evidence that X sexually abused C or P.
174. Having considered the totality of the evidence before me, I find that L was sexually abused by X in the manner she described it in her interview. I found her evidence to be compelling and to have the hallmarks of a real life experience. The inconsistencies and the issues of timing were in my assessment of her evidence, age appropriate and not surprising. I do not find that the inadequate police investigations and the leading questions during the pre-interview and the interview stages to be fatal to the reliability of her evidence. Whilst this was concerning and damaging to the quality of the evidence that was taken, it was not such that would render it entirely unreliable. Her evidence was further corroborated by her brother, M. I note that M was removed from the A household on 5 November 2013. From that moment, he only had supervised contact with his siblings and mother. The observations of that contact note that M struggled with his siblings being present during contact and, in the main, he did not interact with his siblings. The medical findings are also consistent and supportive of this finding.
175. I have further considered all of the relevant material before me concerning M's allegations against X. I have allowed for the characteristics of this troubled young man, his behaviour towards his peers, his lies and being described as a manipulative child. I have put into the balance all of the submissions on behalf of X in respect of M's allegations. I find that M is prone to exaggerating certain aspects of his evidence against X and the behaviour of the children when in the company of each other. However, I find the main thrust of his allegations of sexual abuse against his father as being true. These have been largely consistent, with a lot of contextual detail that are appropriate to his age. Given the nature of his allegations, one would not expect there to have been any medical findings that would be supportive of his allegations .
176. K has not made any allegations. She is the eldest child of her sibling group, who is clearly aware of the issues in the family and very loyal to her mother. However, the medical findings in respect of K are very worrying. Not only she has a notch at 8 o'clock, she is the only child who was found to display anal reflect dilatation. The latter having resolved by 9th May 2014. As Dr. O said, that meant that K had been 'protected' in the intervening period between the two medical examinations. My decision in respect of K is finely balanced, particularly so in the absence [of] any specific allegations against any other person. However, having considered the totality of the evidence before me and on the balance of probability, I find that she has also been the subject of sexual abuse at the hands of X.
177. As for T's allegation of sexual abuse against X, I note that this allegation was made in the course of the pre-interview at her school. The notes of this meeting are woefully inadequate and in my judgment are not sufficiently reliable. The DVD interview that follows records T as stating X touched her vagina in the course of what has been referred to as the 'toilet incident'. This latter account is corroborated by the evidence of the other children. The description of this incident does not amount to anything other than an innocent attempt by X to clean T. Having taken into account Dr. O 's evidence and his findings in respect of T, I am not satisfied that there is sufficient evidence to support a finding that T was sexually abused by X."
1) The recorder was wrong to make findings of sexual abuse against the appellant in respect of any of the children;
2) The investigation of alleged sexual abuse was characterised by wholesale and serious breaches of the "Achieving Best Evidence guidelines". As a result, the "evidence" of what the children said was wholly unreliable and there was no cogent evidence supportive of abuse to justify the findings;
3) On behalf of the appellant, counsel then made a number of specific complaints in respect of the recorder's treatment of allegations concerning the three children L, M and K in respect of whom the findings were made.
4) The evidence of M and L had not been given on oath, or subjected to cross examination or explored in relation to inconsistencies, reasons for being untruthful or why disclosures made against X were not made at the outset. The recorder failed to explain how he took this into account in determining what weight could be attached to the evidence of each of the children in the light the fact that he had refused an application for them to give evidence, and further failed to give valid reasons for accepting their evidence.
5) Having found that X had lied, the recorder failed to give himself a "Lucas" style direction in relation to his evidence or to set out why and in what ways he regarded X's lies as probative;
6) The recorder failed to give adequate reasons for his decision and was wrong to fail to accede to the written request on behalf of X to clarify matters in his draft judgment.
Achieving Best Evidence
"This document describes good practice in interviewing victims and witnesses, and in preparing them to give their best evidence in court. While it is advisory and does not constitute a legally enforceable code of conduct, practitioners should bear in mind that significant departures from the good practice advocated in it may have to be justified in the courts."
The scope of the Guidance is described in paragraph 1.3:
"This document considers preparing and planning for interviews with witnesses, decisions about whether or not to conduct an interview, and decisions about whether the interview should be videoed-recorded or whether it would be more appropriate for a written statement to be taken following the interview. It covers the interviewing of witnesses both for the purposes of making a video-recorded statement and also for taking a written statement, their preparation for court and the subsequent court appearance.
"A well-conducted interview will only occur if appropriate planning has taken place. The importance of planning cannot be overstated."
"2.4 The need to consider a video-recorded interview will not always be immediately apparent, either to the first police officer who has contact with the witness or to other professionals involved prior to the police being informed. Even where it is apparent, the need to take immediate action in terms of securing medical attention and making initial decisions about the criminal investigation plan might be such that some initial questioning is necessary.
2.5 Any initial questioning should be intended to elicit a brief account of what is alleged to have taken place; a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Such a brief account should include where and when the alleged incident took place and who was involved or otherwise present. This is because this information is likely to influence decisions made in respect of the following aspects of the criminal investigation plan:
- Forensic and medical examination of the victim;
- Scene of crime examination;
- Interviewing of other witnesses;
- Arrest of alleged offender(s); and
- Witness support
2.6 In these circumstances, any early discussions with the witness should, as far as possible, adhere to the following basic principles:
a) Listen to the witness
b) Do not stop a witness who is freely recalling significant events
c) Where it is necessary to ask questions, they should, as far as possible in the circumstances, be open-ended or specific-closed rather than forced-choice, leading or multiple
d) Ask no more questions than are necessary in the circumstances to take immediate action
e) Make a comprehensive note of the discussion, taking care to record the timing, setting and people present as well as what was said by the witness and anybody else present (particularly the actual questions asked of the witness)
f) Make a note of the demeanour of the witness and anything else that might be relevant to any subsequent formal interview or the wider investigation
g) Fully record any comments made by the witness or events that might be relevant to the legal process up to the time of the interview."
"It is important to remember that the phased interview was primarily developed for interviewing witnesses who are reasonably articulate. The fact that the phased approach may not be appropriate for interviewing some witnesses with the most challenging communication skills (e.g. those only able to respond "yes" or "no" to a question) should not mean that the most vulnerable of witnesses are denied access to justice. Neither should what follows be regarded as a checklist to be rigidly worked through. Flexibility is the key to successful interviewing. Nevertheless, the sound legal framework it provides should not be departed from by interviewers unless they have discussed and agreed the reasons for doing so with their senior managers or an interview advisor".
"For all witnesses, interviews should normally consist of the following four main phases.
1. Establishing rapport
2. Initiating and supporting a free narrative account
3. Questioning; and
Further guidance on each of these phases follows in the subsequent paragraphs. Under "Phase 1: Establishing Rapport", the guidance provides at paragraph 3.8
"Rapport is essential and good rapport between the interviewer and the witness can improve both the quantity and quality of information gained in the interview. One of the reasons for rapport being so important is that the witness's anxiety, whether induced by the crime and/or the interview situation (or otherwise) needs to be reduced for maximum recollection."
As part of the rapport phase, the Guidance indicates that the interviewer is expected to introduce the "ground rules" for the interview (for example, an explanation of the outline of the interview; telling the witness that if he or she does not know the answer to a question they can say so; telling the witness that he or she can ask for a break at any time). Paragraph 3.13 provides:
"Some vulnerable witnesses may be under the false impression that the interviewer already knows much or all that happened and that their role, being eager to please, is merely to confirm this. It is crucial that interviewers inform witnesses, in ways that the latter understand that:
- they were not present at the event(s);
- they do not yet know what occurred;
- supplying detail is important."
In addition, the Guidance suggests that the interviewer should advise the witness to give a truthful and accurate account of any incident they describe, and ask questions designed to demonstrate the child is aware of the importance of telling the truth (see paragraphs 3.18 3.20).
"3.24 In this phase of the interview the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open-ended invitation.
3.25 Interviewers should not usually try to initiate an account by focussing on the witness's background or the general background to the incident. In the most instances, interviewers should initiate a free narrative account by simply asking the witness to concentrate on the matter in issue; the incident that is the subject of the investigation."
"3.35 During the free narrative phase of an interview most witnesses will not be able to recall everything relevant that is in their memory. Their accounts could, therefore, greatly benefit from the interviewer asking appropriate questions that assist further recall."
Under the sub-heading "Types of questions" paragraph 3.44 provides:
"Interviewers need fully to appreciate that there are various types of question which vary in how directive they are. Questioning should, wherever possible, commence with open-ended questions and then proceed, if necessary, to specific-closed questions. Forced-choice questions and leading questions should only be used as a last resort".
The Guidance proceeds over the ensuing paragraphs to expand upon what is meant by these different types of questions and to give advice as to the form of questioning that should be deployed.
"If appropriate, interviewers should in this final main phase consider briefly summarising what the witness has said, using the words and phrases used by the witness as far as possible. This allows the witness to check the interviewer's recall for accuracy. The interviewer must explicitly tell the witness to correct them if they have missed anything out or have got something wrong."
At paragraph 3.84, it provides:
"An interviewer should always try to ensure that the interview ends appropriately. Every interview must have a closing phase. In this phase it may be useful to discuss again some of the "neutral" topics mentioned in the rapport phase."
"52 the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we were left with a clear impression from the interview that the officer was using it purely for what she perceived to be an evidence-gathering exercise and in particular to make LR repeat on camera what she had said to her mother. That, emphatically, is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.
53 Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not in our judgment stand up to analysis .it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed, in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required and the child's interview must be assessed in that context."
Allegations made by L and M
Allegations made by L and the other children against M in November 2013
"In using dolls in the room L was able to explain that M has hurt her all over including her forehead. L had a small faded bruise on her left side of her forehead. She showed using the dolls that M had headbutted her causing the bruise. She states that he scratches and pinches her all the time and hurts her."
The report continues:
"L was asked what she had told her mother. She became very shy so the dolls were used again. She showed us that M had scratched her on her body and then put his hand in her privates which she called her vagina. She was asked if he had used anything else in her vagina. She said he had also used his foot and put a sandwich inside her vagina. She was asked to clarify this and stated that she was in the living room with her other siblings and mother. Mother had made them a sandwich which was cut up and contained salad and egg. She states that M then took her knickers off and put a sandwich inside her vagina. L states that she was wearing a dress at the time but was unable to give a time frame on the incident. She states that mother was present and told M off for doing it. She states that there was incident where all the children were in her bedroom and mother was downstairs listening to music. She states that M was not wearing any clothes and took off C's knickers and then got on top of C in the missionary position. Was kissing her and his privates were touching C's. L states that when M touched her vagina was on a different day to when he did this to C. L states that her vagina feels sore and hurts when she goes for a wee. L states that nothing has gone inside her bottom but M does scratch her bottom. L confirms that she told her mother 5/11/13 and heard C confirm that he had done the same to her."
Statements made by L in December 2013
"Attended "school" with LH. L disclosed that X told her to drop her pants, told her "fuck" "bitch" to her and scratched her fanny. Put his hand inside her vagina and hurt her. S told him to leave but he didn't. She told mum who told X to leave. She gave L a hug."
The incident report on the computer, which was written three days later, gave a slightly different version of this conversation:
"L was given a scenario of truth and lies which she was fully able to distinguish the difference between telling the truth and telling a lie. L disclosed that X had pulled her trousers and pants down and then inserted his finger inside her vagina. She states that he did this to C and M too. She states that S had seen this and shouted at M to get out of the house and then told her mum the same day who told X to leave but he didn't and then she hugged her. L states that X called her "Fuck" and "Bitch" and scratched her vagina inside and out."
DVD interview of L 17th December 2013
"Tell me about X. What X did."
To this, L replied:
"He pulled my trousers down and my pants down."
The interview continued:
"DC: Okay. And then what happened?
L: He just
DC: It's alright to tell me. Do you remember what you told me at the school?
DC: Okay. What did you tell me at the school L? So X pulled down your trousers, pulled down your pants, then what did X do? What do you call that that he's done?
DC: Scratch and where are in your body did X scratch you?
L: [indicates her groin area]
DC: There. And what do you call that bit there. What did you call it earlier?
DC: A fanny. Okay. So when he scratched you, did you have your pants on or off?
DC: Off. So where were your pants.
L: [points to her feet]
DC: Down on your feet. Okay, and when he scratched your fanny, was it on the outside of your fanny or the inside?
DC: Inside. And then what did X say when he did that L?
L: Fucking bitch. And bitch fuck.
DC: Right. And what mood was X in when he said that L?
L: (draws face in the air)
DC: What mood is that?
DC: A smiley because you're thinking of those face that I showed you didn't you? Yeah."
"DC: So what happened after X did that to you L, what happened?
L: I told my mummy and S.
DC: You told your mummy and S. What did S say to X?
L: Get out that house and then he didn't.
DC: And what did mummy say?...
L: Get out the house
DC: so did mummy say get out of the house as well?
L: Yeah. And then X did get out of the house.
DC: And then did he get out of the house. Okay have you seen X do what he did to you to anybody else?
L: K, P, T, C."
L proceeded to state that X had also touched M and later (in answer to a leading question) that M had touched her and also that K, P and T had hurt her "fanny". She said that her mother had been next to her when this had occurred.
Conversation with M 17th December 2013
"M then stated that X had tried to touch him. I stopped him and informed him that I would like to take his full account on DVD and that we would like to get him medically examined. He agreed."
The incident report (said to have been compiled later that day) is fuller:
"M was spoken to at school about the allegations made against him, he states that the allegations of sexual activity with his siblings and the B children are not true. He states he did wee on K's bed because he wanted them to continue playing flips on the bed and they didn't want to so he wee'd on her bed,. He states that he did not wee on C and has not done anything sexual on C or L.
He states that L tells the truth and corroborates that X has touched L in her private area. This is believed to have happened just before the summer holidays 2013, he states that they were at S's house and the other girls were playing, L came downstairs to X's room and after a short while came out and approached M in the front room and told him that X had put his hands down her pants. She [sic] told L to tell someone because he stated that if he told someone they would not believe him.
M states that L was touched by T,C K but not P. K and T have touched P. P pushed T away but then allowed her to do so. C was touched by K and C touched T who told her to stop but then C and T both touched each other. M states that he was witness to these sexual activity.
M states that T and K tried to touch M over his clothing but he punched them. He states that X has not touched his privates but has tried. M was stopped from disclosing further and advised that he would be invited to the DVD suite to give us his full account. He has stated that he did throw a cat out of the window because he was angry at his mother because he felt he was being treated differently from his siblings i.e. he was not allowed to go out and play with his siblings.
He has stated that he would have to stay in a room when at S's house by X but this is to be explored further on DVD. He states that X has punched him on his leg and his private area. He states that when he was living with his mother they would go daily to S's house."
DVD Interview of M 20th December 2013
"DC: So I saw you the other day and we had a bit of a chat didn't we. And I said to you I sort of stopped you didn't I and I said that I wanted to talk to you here so we can record it all and get it all on DVD. If we start with X first okay. Tell me about X.
M: Erm. What about him?
DC: Right do you remember we discussed, cos you used to live at home didn't you, but now you're in foster care.
DC: And X, we discussed that you didn't want to call X your dad, so I said okay we would use [his first name]. And you wanted to tell me something, and I stopped, about X tried to touch you.
DC: Tell me about that M.
M: He tried to touch me, right there (indicates to his groin area)".
"DC: Describe in more detail for me, M, what he actually did. You went into the living room.
M: And I, I said hi daddy, and then I just started drinking my drink. And he just said "what are you drinking" and I just said I'm drinking fizzy pop and he just went like that on me (hitting groin area). "
Further on in the interview, this exchange took place
"DC: So how would you describe, did that, it hurt you when he grabbed you?
DC: Okay. And you've described on your hand someone pulling.
M: Yeah it's like he cupped it like that but then he got me, digged his nails in and then pulled like that
DC: Okay and I know, I said to you, you know I don't want you to get embarrassed or anything about what we talk about, I know you talk about your bits and how boys have got different bits than girls, yeah, and I know you have your long bit, what do you call the long bit.
M: Sometimes I just call it sausage or something
DC: Okay so you've got your sausage, then you've got your little bits haven't you?
DC: What do you call those little bits?
DC: Meatballs. So you've got your meatballs and you've got your sausage. Which bit did X grab?
DC: Both. Okay. Did you have any marks or bruises from him doing that to you?
M: I had like a little scratch
DC: Okay on what part? The meatballs or the sausage?
M: The meatballs
DC: On the meatballs. Okay. Did anyone else see that scratch at all M?
DC: Okay, right
M: Because um I didn't let anybody else see it, because it was my parts.
DC: Did it hurt you?
M: Yeah, every time I went to the toilet it stung.
DC: Right. Okay. It stung your sausage part or
M: It stung my privates down underneath
DC: What near the meatballs?
M: It was
DC: The meatballs that hurt?
M: Yeah. I feel really silly saying meatballs."
"DC: So is there anything else about X that's happened between the two of you?
M: Erm, not really anything else, but he's tried to touch L.
M: I don't think, I don't think erm that, I don't know even if he has touched her or hasn't but I think he has because it was after when he touched me.
DC: Tell me about that then. What do you know about that then?
M: Erm L was outside, she ran into the house and I was chasing her, cos I was the monster, we were playing tig. And she ran into my dad's room and then like two minutes after she came running out and saying that he's just touched me and I said, on let's go tell mummy, and she run ahead of me and I was waiting because I was waiting for my dad to come out so that I could shout at him, because I'm protective of my little sister. And then she, and then he, but he didn't come out, and then I just, I was running and I thought she's told, I thought she's told my mum but I don't think she has."
M's further allegation before second interview
M's second DVD interview 3rd March 2014
"Officer: Have you spoken [to] SC about your dad at all recently?
M: [nods] Yeah
Officer: What did you tell her?
M: I've been telling her like about what he's tried to be doing, what he's trying to do to me and stuff. And what is trying to do to my little sisters.
Officer: Okay. And has he done anything else to you what you've not told me already?
M: [shakes his head] Um no
M: He has, he's touched me there before, and he's made me try and touch him, but I didn't, I didn't let him cos I kicked him.
Officer: Something else you mentioned there as well, which was something that you didn't tell me initially, um was that he also tried to get you to touch him.
Officer: Alright, tell me all about that
M: I was sat, I was sat with S on her, on her bed, and then daddy was sat on the other side of the bed, I was sat right next to S cos I didn't like want him to touch me or owt. And then S went and then she said "M stay here for a minute" and then, cos I wasn't allowed out because it was like really wet and stuff, and she went outside to go to talk to this lady, and then because um she was, her lads were throwing stones at the windows, and then my dad yeah he grabbed my arm like this yeah and he went like that towards his privates and then I just went like that to him [giving a kicking motion] and then he went like that, and I just ran out of the bedroom and then I went outside to my mum but my mum told me to get back inside."
"Officer: Um was there any reason why you didn't tell DC A about that bit when you first came in to do your first DVD?
M: Cos I was, because I was like really embarrassed, I was feeling really embarrassed if I didn't, if I had told her."
M's allegations generally
Discussion and conclusion
Lady Justice Gloster
Lord Justice Richards