England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT HARROW
(Her Hon Judge Tapping)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/01/2006

Lord Justice Scott Baker:

1. This appellant is 43. On 25 November 2004 in the Crown Court at Harrow before Her Honour Judge Tapping and a jury the appellant was convicted of indecent assault. He was sentenced to an extended sentence of 5 years imprisonment comprising a custodial term of 3 years and an extension period of 2 years. He was disqualified from working with children and ordered to register indefinitely with the police.
2. He appeals by leave of the single judge. On 15 November 2005 we allowed his appeal against conviction. We now give our reasons.
3. The complainant in this case is a little girl of 3½ and the first question on the appeal is whether she was a competent witness.
4. The facts of the case are as follows. On 13 February 2004 there was a birthday party. A group of 15 to 20 met at a public house to celebrate it. The group included the appellant and his wife and the complainant's parents.
5. The complainant and her siblings stayed at home with a babysitter. The complainant was born on 2 August 2000. So she was just 3½ at the time. The trial did not take place until over 9 months later, a point to which we shall return in a moment.
6. After the pub shut the group went back to the complainant's family home. The complainant's mother had not met the appellant or his wife before that evening. When they arrived back at the house the men congregated around the dining table and the women sat in the living room. As the evening wore on, the women went upstairs and sat on the complainant's mother's bed talking. The appellant came into the room about 4 or 5 times, each time to discuss drinks with his wife. On the first occasion he asked if his wife had a drink. The appellant then went downstairs to look for his wife's drink. He came back up the following time to say that he could not find it. The complainant's mother went back downstairs with her friend, Julie. They had only been sitting there for 3 to 5 minutes when the complainant came and sat on the edge of the sofa. The complainant told her, "That man licked my nunny". This was the family's word for a girl's private parts. The mother asked the complainant which man, and the complainant pointed to the appellant. At that point the appellant's wife came over and said they were leaving as the appellant did not feel well.
7. The mother asked the complainant where this had happened and she said the kitchen. She said the complainant was confused at first but said that he had stood her on the kitchen worktop, pulled her knickers down, licked her and then pulled her knickers back up. They then went to her bedroom and the complainant tapped the end of her bed. She again said he had put her on there, pulled down her knickers, licked her nunny and then pulled her knickers back up again. The complainant then showed her a one pound coin she was holding and said that the man had given it to her. She then told her husband and the police. She said that when the complainant was examined the following day there were two scratches on the top of each leg that she had not noticed before.
8. Julie Payne, whose husband's birthday party it was, gave evidence that she had known the appellant and his wife for around three years and the complainant's parents for about a year. She said that she was friendly with both couples. She recalled the appellant flitting around that evening. She said that at one point she heard a loud noise, saw the appellant at the foot of the stairs and the complainant standing on the stairs above him. He asked her if the complainant was allowed to come down or whether she should be in bed. Towards the end of the evening he came in and spoke to his wife saying that he felt unwell. At that point she said they all went downstairs. She said the appellant stood in the hallway whilst his wife gave her and the complainant's mother a kiss goodbye. The complainant approached her mother and told her that she did not like the man and pointed to the appellant. When asked why, she said that he had licked her "nunny". She had seen the complainant playing with a pound coin earlier in the evening and assumed initially that her father had given it to her. Then the complainant told her that the man had given the money to her.
9. A forensic scientist gave evidence that analysis had been carried out on the complainant's knickers. DNA matching that of the appellant was found on the inside and the outside of the knickers. It was her opinion that the findings did not assist in addressing whether the appellant had licked the complainant or whether she had touched his beard, which was wet with saliva, and then put her hand in her knickers. She said that there was no obvious vomit staining or smell on the knickers, though she said that vomit that consisted mostly of water would not necessarily have any detectable food particles or odour.
10. In interview the appellant accepted being alone upstairs with the complainant. He said that he was on the landing and picked the child up just after he had been sick in the bathroom. She had touched his beard and then put her hand down her knickers. He put her down and told her off for being naughty. This was the only reason he could think of for her complaint. He said he gave her a one pound coin but that this was motivated by kindness.
11. The complainant was interviewed and a video recording made but not until 9 weeks later. The Crown applied for this video recording to be admitted in evidence under section 27(1) of the Youth Justice and Criminal Evidence Act 1999. The defence objected but the judge agreed that it should be admitted.
12. The account in the video recording lacked the detail of the recent complaint to her mother on the night of the incident but did include an allegation of indecent assault by the appellant by licking the complainant's private parts.
13. The appellant gave evidence on the same lines as his answers in interview. He said that he did not want to associate himself with the conversations at the dining room table and that was why he left the table. He said he came across the complainant in the kitchen. She pointed up at the cupboard by the cooker and said "sweets". He lifted her onto the kitchen worktop where she picked up a container designed as a clown and then he lifted her down again. He took her into the living room and asked her parents if she was allowed sweets. The complainant's father accepted that there were two "clown" containers of sweets but could not recall the appellant asking if the complainant could have any. At some point he gave her a pound coin. He said that this was his common practice with children and that his wife had given one of the children 50 pence earlier that night. The complainant had said, "Whoo, pound". He went upstairs to find his wife and there was a brief conversation about her drink. He went up the second time because he could not find it and the third time because he had been told that the drink had already been brought up. He said that later on that night he was sick in the bathroom. When he came out of the bathroom he saw the complainant on the landing. He crouched down and picked her up to take her downstairs but then decided not to carry her downstairs as he had had too much to drink. Before he put her down, she saw spit on his chin and beard and rubbed it with her right hand and said, "Ooh, sticky". She then wiped her hands down her knickers. It appeared to him that she was rubbing it around her crotch, maybe to clean her hand. He quickly put her down and told her that was naughty and that she was a bad girl. He said he thought it was totally inappropriate for a girl of her age. He told her to come downstairs. He said that what happened next was very strange; she turned around and wiggled her bottom at him. He said it was as if she had been trained. He said he got down the stairs quickly. He was feeling unwell and asked his wife if they could leave. The complainant went to sit with her mother. He said goodbye and left. He later received a threatening telephone call from the complainant's father. Afterwards he rang Peter Payne to find out what had been said.
14. In cross-examination he said that when he was sick there was no food in it only beer. He said that he had not realised that he still had saliva on his beard after he came out of the bathroom. He said he wiped his face with the back of his hand, but had obviously missed a bit. He said that he saw his saliva on her fingers but that there was no colour to it. He said that he had picked the complainant up in the kitchen as he was not sure what she was pointing at. He agreed that she was dressed only in her knickers, but he said that it did not cross his mind that he should not have done it. He ridiculed the suggestion that he had given the complainant "hush" money to keep quiet about what he had done. He said that he had picked her up on the landing because he did not believe a child of that age should use the stairs on her own. He recalled the conversation he had had with Julie when he asked, "Is she allowed to go up and down stairs"? He said that when he picked her up she did not have the one pound coin in her right hand. He said that when he picked her up he had one hand under her bottom and one hand on her back so that she was sideways onto him so she could get her hand down her knickers. He thought that she was touching herself. He said that when he put her down quickly his hand slipped down her front. He denied that his account in interview and in evidence was made up to explain why his DNA was on the complainant's knickers.
15. The appellant's wife agreed that she had given Peter Payne 50 pence earlier that evening. She gave evidence that when the ladies went downstairs she asked her husband if he was feeling all right. He told her that he was not feeling well and that he had been sick. She could not remember which of them suggested that they left. She said that she did notice some spit on the centre of the front of his chin. She was shocked by the allegation. She described the appellant as an open, honest, loving person and said she had no concerns over his behaviour with children. In cross-examination she said that the spit that she saw was white spit and that she had mentioned it to him at the time and that he rubbed it off.
16. Mr David Bentley, for the appellant, advanced three main grounds of appeal.

(1) The Crown failed to prove competence.

(2) Because of the deficiencies in the video interview the judge should have excluded it either under section 27(2) of the Youth Justice and Criminal Evidence Act 1999 ("the 1999 Act") or section 78 of the Police and Criminal Evidence Act 1984.

(3) The judge should not have left the case to the jury.

We take these points in turn.

Was the complainant a competent witness?

17. Section 53(1) of the 1999 Act provides:

"At every stage in criminal proceedings, all persons are, whatever their age, competent to give evidence."

But section 53(3) provides:

"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

(b) give answers to them which can be understood.

Section 54(2) provides that the onus of proof of competence is on the party calling the witness on the balance of probabilities."

18. Section 53 makes clear that the age of a witness does not determine whether he or she is competent to give evidence. It cannot therefore be said that below a particular age a witness is too young to give evidence. Rather, the test is as set out in section 53(3) whether the witness is able (a) to understand the questions put to him or her and (b) give answers that can be understood. It is for the court to make a judgment on this.
19. The judge conducted a voir dire. She heard from two expert witnesses on the question of competency and also the interviewing officer PC Tyldesley. She had also, of course, the video interview.
20. The Crown called Mr David Glasgow, a consultant forensic clinical psychologist; the appellant called Dr Markantonakis, a consultant child psychiatrist. The judge pointed out that neither had met the child in person but both had studied the video. She said Mr Glasgow was critical of the interview. It went on too long; the room was small with adult sized furniture; there were too many distracting and noisy toys with the result that at times the sound was poor. However, the complainant was lively and intelligent with good understanding. She had the normal range of function for her age and a good rapport with the interviewer. The key evidence, such little as there was, did not arise out of leading or inappropriate questions; it came from the child and appeared to be based on recollection. There were no signs of coaching and nothing to suggest she was not competent. The experts were in broad agreement. After two months, the complainant would have lost substantial chunks of information. Dr Markantonakis' concerns were that she would not be able to understand what was being asked of her in court and whether it would be possible to follow what she was trying to explain. As she was frequently distracted and had poor concentration, it would have to be checked frequently that she understood. The judge recorded his concern that she would not be able to deal with the defence proposed line of cross-examination. (Both experts had been provided with a copy of the transcript of the appellant's police interviews). The judge also recorded that both experts agreed the officer interviewing the complainant was unsuccessful in showing the complainant understood the difference between truth and lies. Neither expert could say how the child had developed since April 2004; nor could her memory or reactions to questioning be accurately gauged ahead of time.
21. The judge referred to R v AS [2004] EWCA Crim 1294 and R v D [2002] 2 Cr App R 601 noting that the key word was intelligibility. Ability was required on the part of the witness to understand questions and give answers to them that were understandable, in short intelligibility. She concluded the complainant was a competent witness. She said she was quite capable of understanding questions and giving intelligible answers within the constraints of age appropriate language. But, she added:

"Ahead of questioning, it is not possible to judge what she remembers of these events now. Both experts agreed time will have eroded her memory but she is likely to have some.

This goes more to her reliability and therefore to the weight to be attached to her evidence. This will be a matter for the jury.

The court, of course, will need to keep the matter under review and the matter may need to be revisited after the child's evidence is complete."

22. In our judgment the judge was justified in ruling, on the material that she had heard and seen prior to the evidence being given, that the complainant was a competent witness. She was right to say that the question might need to be revisited when the child's evidence was complete. By that stage the judge would have a much more complete picture. As the judge pointed out, there were matters the defence needed to ask the complainant about if they were to put their case and obtain her reaction to it. We shall return to the question of competency shortly.

Was the judge right to admit the video evidence?

23. The next issue the judge had to consider was whether the video recording of the complainant's evidence should be admitted in evidence. The power to admit this evidence is to be found in section 27(1) of the 1999 Act. The judge had to consider section 27(2) which provides for the video to be excluded:

"….if the court is of the opinion, having regard to all the circumstances of the case, that it is in the interests of justice the recording….should not be admitted."

24. Mr Bentley's submission is that the deficiencies in the interviewing procedure were such that it was not in the interests of justice for it to be admitted in evidence. The deficiencies can be summarised as follows:

• It was poorly planned and conducted, resulting in improvised and incomplete evidence;

• It was undertaken in an environment ill-suited for the purpose,

• There was substantial delay between the incident and the interview with conversation in between relating to the allegations, which meant that what the complainant said had to be treated with caution.

25. It is also pointed out that in his Pro Forma assessment of the interview under the heading "overall utility", Mr Glasgow recorded "little". Mr Bentley complains that not only was there no record of the planning of the interview, there was no record of the conversation between the interviewer and the complainant prior to the interview, although such a conversation plainly took place. Also, there was an inordinate delay before the interview took place and no notes were kept of the complainant leaving the room to see her parents during the interview. Finally, she was eating, playing on a tricycle and playing with toys throughout the interview.
26. All these are valid points but, as Miss Halsall for the Crown points out, the criticisms of the video are not such as to undermine the judge's competence finding. Nor were they such as to make the whole interview process fundamentally unfair. They were all matters which could be brought out at the trial and given such weight as each of them justified. The discretion under section 27(2) is a wide one; it requires the judge to look at the whole of the circumstances of the case and apply an interests of justice test. The interests of justice do not include the interests of the defendant alone. In our view the judge's exercise of discretion under section 27(2) cannot be faulted.
27. The appellant also referred to section 78 of the Police and Criminal Evidence Act 1984, but we do not think on the facts of the present case that adds anything to section 27(2).

Revisiting the competence decision.

28. It is necessary to look with some care at what happened when the complainant gave evidence. We do not have a transcript, but the evidence is well covered in the summing up. After the video was played to the jury Miss Halsall for the prosecution asked a few supplementary questions but there was nothing significant to add. She found it difficult to get any words out of the complainant. Her responses were mostly nods (positive) or shakes (negative) of the head.
29. When she was cross-examined, initially she could not remember a clown jar with sweets in it but eventually she did. Nor could she remember anything about "the naughty man".
30. The questioning ran thus:

Q. "Do you remember talking about the naughty man on the film?"

A. She shook her head.

Q. "Do you remember playing with the man"?

A. She shook her head.

Q. "Do you remember touching his beard and finding it sticky?"

A. She shook her head.

Q. "Do you remember the man telling you off? He said you were naughty."

A. She nodded her head.

Q. "Was this because you had wiped your hand on your knickers?"

A. There was an uncertain response to this question.

Q. "Why do you remember that he said you were naughty?"

A. "He did".

Q. "Were you cross with the man, when he said you were naughty?"

A. She nodded her head.

Q. "Did you tell you Mummy a story about the man and he said you were naughty?"

A. She nodded her head.

Q. "Did you think he would tell Mummy you had been naughty?"

A. She shook her head.

Q. "Were you worried he might say you had been naughty?"

A. She nodded her head.

Q. "Do you remember saying in the film that the man licked your nunny?"

A. She shook her head.

Q. "No man licked your nunny, did he?"

A. She shook her head.

The judge then asked the following questions:

Q. "Do you remember telling Mummy a story about the man?"

A. She nodded her head.

Q. "What was the story you told Mummy?"

A. "He hurted me."

Q. "How did he hurt you?"

A. "He punched me."

Q. "Where that happen?"

A. "In the back of the garden."

31. Mr Bentley submits that the complainant had in effect accepted the appellant's case that she had made up the allegation because she was cross that he had told her off and that she thought he might tell her mother. That depends on whether she understood the questions that were being put to her. At face value the evidence might be open to that interpretation, a point that the judge appears to have appreciated at 9E of the summing up.
32. Mr Markantonakis had said in his statement that the complainant was unlikely to have a firm enough understanding of the consequences of telling the truth, the importance of telling the truth or whether indeed she understands what telling the truth is. She would be unlikely to understand the questions put to her as a witness and would be unlikely to give answers to them which could be understood. He was, of course, looking forward to how he envisaged the complainant would respond when asked questions at the trial. In our view his concerns are amply borne out by the questions and answers, to which we have referred, that were recited by the judge in her summing up.
33. It is unfortunate that the judge was not requested to revisit her decision on competence at the end of the complainant's evidence. The judge had correctly said that question might need to be reconsidered when the child's evidence was complete. We have no doubt that in this case that would have been the correct course. It is a course that was envisaged by this court in R v MacPherson 27 July 2005, unreported, where Forbes J said it was quite clear the judge was going to keep the matter under review. Had the question of competence been re-examined at this point, it seems to us that while evidence in chief through the pre-recorded video indicated the child just about passed the competence threshold, the position was different when one looked at the whole of her evidence including the largely abortive attempt at cross-examination. What is relevant is the complainant's competence to give evidence at the time of the appellant's trial. It may be it was due to the lapse of time and lack of memory that the complainant was unable to understand the questions or give answers to them which could be understood. One simply does not know. The problem is that her answers simply were not intelligible in the context of the case. She was not, in our view, a sufficiently competent witness for the defence to be able to put its case. The onus of proof was on the Crown to establish competence and they failed to discharge it.
34. In our judgment the judge should have reconsidered the question whether the complainant was a competent witness at the conclusion of the complainant's evidence. Had she done so she would, or should, have concluded that she was not and then withdrawn the case from the jury.
35. There is a further matter that causes us some concern. It is very possibly a consequence of the fact the complainant was not interviewed until nine weeks after the event. The account she gave to her mother on the night of the incident (which was admitted by way of evidence of recent complaint) was in certain respects more detailed than the complainant's account in evidence. The complainant described to her mother two incidents, one in the kitchen and one in the bedroom. The judge gave this direction to the jury.

"Well the whole investigation was triggered by what Georgia said to her mother late that night at home, overheard by Julie Payne.

How do you treat what the child said that night? The evidence comes from Dawn Rogers, the child's mother. It would appear to be relatively shortly after any alleged activity happened and Georgia spoke to her mother about it.

Now this is not evidence as to what actually happened between Georgia and Mr Powell, because Dawn Rogers was not present and did not see what happened between.

It is evidence that you are entitled to consider, because it may help you to decide whether or not Georgia has told you the truth.

The prosecution say that her complaint that night is consistent with what she later said in her video interview and therefore she is more likely to be truthful."

36. This is a classic direction on recent complaint. But Mr Bentley submits that in the particular circumstances of this case the judge should have gone further and told the jury that insofar as the complainant was said to have said things to her mother that were not described by the complainant in her evidence, they did not prove anything. We think there is some force in this submission in the somewhat unusual circumstances of this case. However, the point does not strictly arise, because in our view the judge should have withdrawn the case from the jury at the conclusion of the complainant's evidence.

No case.

37. It is unnecessary in the circumstances to deal in any detail with Mr Bentley's remaining submissions, in particular that the judge should have allowed his submission of no case to answer. The thrust of this point was that the Crown could not have it both ways. If the complainant was competent then her evidence was so contradictory as to indicate that she was inherently unreliable. In any event it could not be properly tested.
38. The judge in rejecting the submission of no case pointed to the final answer in cross-examination as being the highpoint of the defence submission. That was when the complainant shook her head in answer to the question, "No man licked your nunny did he?"
39. The judge said that all of what the child had said should be assessed. Her evidence must be assessed for truthfulness and reliability like any other witness. But appropriate allowances had to be made for her age and command of language. The jury could see what she was capable of from the interview in April when she was obviously more relaxed. It would be wrong to take one question and a shake of the head in isolation. That of course was on the basis that the complainant was a competent witness which in our judgment she was not.

Delay.

40. We return finally to the question of delay. The complainant was not interviewed until nine weeks after the incident. Such delay is strongly discouraged by the achieving best evidence ("ABE") guidance. Mr Glasgow said there were two reasons why delay was particularly ill advised with a very young child. First, cognitive development, including memory, is poorly predicted by chronological age. So there is a wide variation between different children of a similar age. Some will cope better than others from the view point of accuracy and completeness of recollection. Second, young children are particularly vulnerable to their recollections being contaminated by information from others. We were told the reason for the delay was that it was initially felt that the complainant was too young to give evidence but that this view was later changed when some thought had been given to section 53(3) of the 1999 Act. Although the videotaped interview took place on 21 April 2004 the appellant's trial did not take place for another seven months, the trial concluding on 25 November 2004. The trial was transferred to the Crown court on the 16 June 2004 and a preliminary directions hearing took place on the 27 July 2004.
41. Explanations can be found for each element of the delay in this case. However the plain fact is that where a case depends on the evidence of a very young child it is absolutely essential (a) that the ABE interview takes place very soon after the event and (b) that the trial (at which the child has to be cross-examined) takes place very soon thereafter. As the expert evidence in this case showed, very young children simply do not have the ability to lay down memory in a manner comparable to adults. 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 nine months had passed from the date of the alleged offence. Special efforts must be made to fast-track cases of this kind and it is simply not an option to wait weeks for example for forensic evidence to become available.

Conclusion.

42. In our judgment this conviction is not safe. The child was very young, just 3½. That was not in itself necessarily an insurmountable obstacle for the prosecution. Had she been interviewed appropriately and promptly and had the trial taken place very soon after the event it is possible that when she was cross-examined by the defence she would have given intelligible answers that indicated she was a competent witness. Unfortunately the answers that she gave indicated that she was not. Competency to give evidence relates to the whole of a witness's evidence and not just to part of it. The judge should have stopped the case at the conclusion of the complainant's evidence.