England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 November 2008

1. LORD JUSTICE RICHARDS: The prosecution appeals with leave granted by this court under section 58 of the Criminal Justice Act 2003 against a terminating ruling by His Honour Judge Darwall-Smith sitting at Bristol Crown Court. The defendant faced trial on an indictment containing four counts alleging unlawful sexual behaviour with child complainants. The two relevant counts for present purposes are count 3, engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003, and count 4, causing or inciting a child under 13 to engage in sexual activity contrary to section 8(1) and (3) of the Sexual Offences Act 2003. The complainant in those counts is a nine year old boy, KW, who has learning difficulties. At the beginning of the trial, before the jury were sworn, the judge ruled that KW was not a competent witness. That is the ruling against which the prosecution appeals.
2. The charges relate to an evening in November 2007 when KW's father and stepmother held an evening reception to which the defendant was invited to celebrate their marriage. The defendant is an openly gay man, who lived close to KW's home, had been befriended by KW's stepmother and often visited the home.
3. On the evening of the reception he was seen to buy KW soft drinks regularly. The next morning KW told his father that during the reception the defendant had asked him to show him his "willy". KW repeated the allegation to his stepmother and step-brother and the police were contacted.
4. An ABE interview of KW was conducted by the police without the presence of an intermediary. His learning difficulties are apparent in the interview but the essence of the account he gave was that he went to the toilet three times during the evening. During one of those visits the defendant showed him his penis and told KW to show the defendant his own penis. When KW did so the defendant told him it was gorgeous. During another visit the defendant tried to pull down KW's trousers but was pushed away by KW who then ran out of the toilets.
5. When the defendant was interviewed by the police he denied the allegations. He said he had followed KW into the toilets and had watched him urinate. KW had shown him his penis and had played with it. The defendant believed that KW had been making sexual advances towards him. He denied having purchased drinks for KW in order to make him go frequently to the toilet. He gave answers indicating that he fancied KW but denying any impropriety.
6. KW is subject to a statement of special educational needs in which he was described as presenting with a severe receptive language delay and a severe delay to his attention development. He had a very limited understanding of oral language and interpreting simple instructions. He had difficulties with classroom relationship skills and communication. According to the statement, he was unable to sustain concentration for longer than two to three minutes on any classroom task.
7. With a view to assisting the Crown Court a report on him was prepared by Miss Cheryl Berriman, a registered intermediary and speech and language therapist. In a summary of her conclusions she said in the report that KW was a young man with moderate learning difficulties, including delayed and disordered language comprehension and expression. He was under investigation for the possibility of having Torette's Syndrome and/or Attention Deficit Hyper-activity Disorder. He had a fluctuating hearing loss. In her view he could give evidence at court but she recommended that an intermediary, namely herself, be used during the trial to enable effective communication and to improve the quality of the evidence given.
8. The report referred to the statement of special educational needs and to KW's medical condition. It said that the results of a test of abstract language comprehension indicated that he had language understanding at around a five year level. He had difficulty understanding and answering why questions and how questions, in understanding some words fully, in predicting, in inference and reasoning, in problem solving, in sequencing and in memory, but he was able to understand and remember when the information was requested in context. The report also stated that he had difficulties in constructing sentences. It said too that during the assessment he maintained concentration for more than an hour, though this was a one-to-one situation and in a different situation he could find concentration a problem. He did not always answer a question directly, but gave information relating to the topic. He tended to jump in with an answer before taking time to work out what was actually being asked or before the questioner had finished speaking. He watched people's faces to guess the answer they wanted and would say what he thought they wanted to hear. He always attempted an answer rather than say he did not know or did not understand. He very much wanted to please and was easily led by questions that implied the questioner wanted a certain answer.
9. All this led to the conclusion that he could give evidence in a trial but subject to a number of recommendations. In addition to recommendations about the use of an intermediary, allowing him to refresh his memory by watching his video the day before and so forth there were specific recommendations that questions were simple, asking one piece of information, that he was questioned in chronological order of events, that how and why questions be avoided, that leading questions be avoided and that the questioner should be prepared to ask the question again if it was possible, if he had jumped in too soon with an answer, should check he knew the answer and was not just guessing, should refocus him on the question if he was going away from the issue and should be prepared to ask questions again as an odd answer might indicate he had not heard correctly or not had processed exactly what was wanted.
10. In an appendix to the report, after watching the ABE interview, Miss Berriman said that it was evident that KW did not understand the words truth and lies but was guessing. He did, however, understand right and wrong. He had the concepts not the vocabulary. The interview also confirmed to her that he had difficulty with sequencing events. He understood first, second and third, but had difficulty processing the information to put into those categories when going over events with no visual support. He would have difficulty clarifying any ambiguity around the significance of events. Questions involving sequencing of events should be avoided.
11. The judge had that report before him and also heard oral evidence from Miss Berriman. He said he had read the transcript of KW's evidence but had not seen the DVD. We ourselves are in the same position. He also asked some questions of KW himself over the live link with a few interventions from Miss Berriman. That took some ten minutes in total. After this the judge ruled as follows:

"I am aware, and both parties agree, that competence is really the witness understanding what is being asked and whether the jury would understand the answers that would be given in answer to those questions.

I have to say that the questioning in relation to the police interview was faultless; there is no blame whatsoever attached the to questioner in this case. She did not have the benefit of the report by what would have been, and what is, the intermediary in this case but without it the officer did extremely well and brought out what was brought out in that case.

However, there are substantial difficulties in that interview and there are substantial difficulties, it seems to me, in the trial of a case in which KW would be a witness. I have to have in mind that there must be a situation where the defendant must be able to put his case. He has to put it in a way which is not just simply repeating the expressions that are given by the witness. There must be a real ability to challenge in a case such as this, and I am afraid I have come to the conclusion that the understanding and language difficulties of KW are not such that he could be a competent witness in a court of law, and, although indeed the special measures are designed to assist those in his unfortunate position, I am afraid he is in a situation where even that help is not going to deal with the difficulties that I foresee during the course of a trial with a jury who have to unravel, really, the difficulty that he has, this witness, of getting over the points and of dealing with the questions that are put to him.

Regrettably, I have come to the conclusion that he is not a competent witness."

12. After further discussion the judge made a separate ruling that the DVD of KW's police interview should be excluded from evidence even if he were to be treated as a competent witness. The judge did not feel it safe for the interview to be placed before the jury. It was, however, somewhat artificial to ask the judge to rule on this as a separate issue because it is clear that his concerns about the interview were closely bound up with his views on the issue of competence.
13. The correct approach to competence in a case of this kind is set out in MacPherson [2005] EWCA Crim 3605 which upheld a trial judge's ruling that a six and a half year girl complainant was competent to give evidence in relation to an allegation of indecent assault. In its judgment the court referred to the relevant provisions of the Youth Justice and Criminal Evidence Act 1999. In particular section 53(3) provides that 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 (a) to understand questions put to him as a witness And (b) give answers to them which can be understood. Section 54(2) provides that it is for the party calling the witness to satisfy the court that on a balance of probabilities the witness is competent to give evidence.
14. Paragraphs 25 to 27 of the judgment in MacPherson are in these terms:

"In the ordinary way that issue [of competence] should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial. In cases such as this, the judge should watch the videotaped interview of the child witness and/or ask the child appropriate questions. The test of competence is clearly set out in the Act and it is as follows:

'(a) Can the witness understand questions put to him or her as a witness?

And (b) give answers which can be understood?'

Those are the plain words of section 53(1)(a) and (b) of the 1999 Act.

We agree with the submission put forward on behalf of the Crown by Mr Ward-Jackson in paragraph 7 of his written skeleton that the issue raised by paragraphs (a) and (b) of section 53(1) is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness's answers? That is precisely the test which the judge set himself i this case, and to which we have referred in the passage quoted from his ruling.

We also agree with Mr Ward-Jackson's submission that the words 'put to him as a witness' mean the equivalent of being 'asked of him in court.' So, it would be the case that an infant who can only communicate in baby language with its mother would not ordinarily be competent. But a young child like the witness in this case, who can speak and understand basic English with strangers would be competent."

15. Paragraph 29 states that questions of credibility and reliability go to the weight of the evidence and are not relevant to competence. Paragraph 31 states that the question of competence can be kept under review, and the judge in that case had made it clear that he was going to keep it under review during the course of the complainant's evidence.
16. Before the judge in the present case it is accepted by both sides that the relevant law is as set out in MacPherson and the judge was referred to that case. It is evident from the terms of his ruling that he had the principles in MacPherson well in mind.
17. We should also mention Powell [2006] EWCA Crim 3, another case on the competence of a young victim in relation to a charge of indecent assault. The court in Powell cited MacPherson and considered the application of the relevant principles in a different factual context but we do not think that it adds materially to MacPherson for present purposes.
18. The prosecution case before us is not that the judge's ruling was wrong in law, or involved an error of law or of principle, but that it was a ruling that it was not reasonable for the judge to have made on the particular facts. Thus the case is put under section 67(c) of the Criminal Justice Act 2003 rather than under paragraphs (a) or (b) of that section.
19. The submission made by Mrs Matthews on behalf of the prosecution is that KW should have been given the opportunity to give evidence and to cope with questioning and to try to sequence events. Miss Berriman had provided evidence he might be able to sequence events with a visual aid. She had in mind three pieces of paper on which were written first, second and third. This, it is submitted, might have been an effective way of dealing with KW's difficulty in that respect. As to the judge's concerns about the defence being unable to put their case, it is submitted that defence counsel can challenge a witness even if leading questions are to be avoided, just as prosecuting counsel have to challenge in the course of evidence in reply concessions made by child witnesses in cross-examination. The competence of a witness is to be considered in the light of all the special measures available. The use of an intermediary was not opposed in this case. It is further said that whilst credibility and reliability are separate from competence it cannot be irrelevant that the witness is able to make an understandable unprompted complaint as to an unusual type of behaviour by a defendant, who, as it turns out, happens to want to engage in that type of behaviour with the witness. It is submitted that the special measures regime is designed to help vulnerable witness improve the quality of their evidence and that the ruling in this case effectively denied a vulnerable child complainant access to justice.
20. In summary the grounds contend that the ruling was unreasonable and wrong, that it was premature and that insufficient consideration was given to the aid to communication available from the intermediary.
21. There is a separate contention that the judge's ruling that the interview was inadmissible was itself unreasonable and wrong.
22. As we have already made clear, it seems to us that the judge directed himself correctly in this case by reference to the principles set out in MacPherson. We are concerned here not with an issue of law or principle, but with the application of settled law to a particular factual situation. The question we have to decide is simply whether the judge's ruling was one that it was reasonably open for him to have made.
23. We should stress that on the basis of the material we have seen the members of this court think it very likely that if they have been dealing with the matter at first instance they would have allowed KW to give evidence so as to see how things worked out in the course of cross-examination before making a final ruling on the issue of competence. It does not follow, however, that the judge acted unreasonably in taking a different approach. Our task in an appeal of this nature is to review the judge's decision by reference to the criterion of reasonableness, not to substitute our own view of how we would ourselves have proceeded.
24. We have to bear in mind that the judge had the benefit of not only reading the transcript of KW's interview and the report of Miss Berriman, but also of hearing oral evidence from Miss Berriman and of speaking directly to KW over the video link. It is plain, as it seems to us, that he examined the matter with care. He was in a very good position to form the necessary judgment on KW's competence. This court will be slow to interfere with an assessment made by a judge in such circumstances. The interview did certainly give rise to some concerns about KW's ability to understand and answer what he was being asked, but, in our view, it would not have been enough in itself to justify a finding that he was not competent.
25. However the judge also had to take account of the various reservations expressed in Miss Berriman's report and explored in the course of her oral evidence. She took the view that KW would be able to give evidence at the trial but subject to a substantial number of provisos embodied in the various recommendations to which we have referred. The judge plainly and understandably had concerns about those provisos. He was concerned, in particular, that if KW gave evidence it would not be possible to give effect to all the provisos if the rights of the defence were to be respected and if the defence were to have a fair opportunity to challenge the evidence. It was his considered view that the difficulties KW would have in getting over the points and dealing with the questions put to him would be simply too great. In reaching this view he had, of course, the additional benefit of having talked to KW himself.
26. Even though we ourselves might have reached a different conclusion, it seems to us impossible to say that the conclusion reached by the judge was one not reasonably open to him on the evidence before him. He reached it, moreover, with proper regard to the special measures that would be available if KW were to give evidence, and having reached that conclusion he was entitled, as it seems to us, to make a ruling immediately rather than adopt the wait and see approach adopted by the prosecution. If a judge concludes that a witness is or may be competent then certainly the right course is to allow the witness to give evidence whilst the question of competence is kept under review as indicated in MacPherson, but if, as in this case, the judge concludes that a witness is not competent it is not unreasonable for him to rule accordingly at the outset rather than to allow the witness to give evidence, which, on this hypothesis, the judge will have already decided the witness not to be competent to give. If, as we have held, the judge was entitled to conclude that KW was not a competent witness the challenge to his further ruling that the DVD of KW's interview should be excluded falls away. In any event, his ruling would be entirely sustainable.
27. For those reasons we dismiss the prosecution's appeal against the terminating ruling. It follows, subject to anything that counsel may wish to say to us, that pursuant to section 61(3) of the Criminal Justice Act 2003 we must order that the defendant be acquitted of the offences which are the subject of the appeal, namely counts 3 and 4 on the indictment.
28. MRS MATTHEWS: Yes, my Lord, I give that understanding.
29. LORD JUSTICE RICHARDS: As to the trial on counts 1 and 2 that is a matter for the Crown and the Crown Court to deal with.
30. MRS MATTHEWS: We will review the situation.
31. LORD JUSTICE RICHARDS: There is nothing that we need say on any of that?
32. MRS MATTHEWS: No, thank you, my Lord.