England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		14 March 2013

LORD JUSTICE TREACY:

1. This case is to be reported as Regina v F. Although the judgment to be given does not identify any party by name, we make clear that any report should be in anonymised form.
2. This is an application by the prosecution for leave to appeal against a terminating ruling pursuant to section 58 of the Criminal Justice Act 2003. The respondent, F, is charged on an indictment containing one count of rape and one count of sexual assault. The complainant, H, is profoundly deaf and has mild to moderate learning difficulties.
3. The respondent is the partner of H's sister. The offences are alleged to have occurred during a visit by H to the respondent's flat on 29 April 2011. H, who was aged 24, alleges that on the occasion of the visit the respondent touched her breasts and had vaginal intercourse with her. She says that those acts took place without her consent. She had visited the respondent's flat in order to retrieve a pram for her sister or her cousin.
4. In interview the respondent denied the offences. He stated that he had never been alone with H.
5. The Crown asserts that its case is supported by CCTV footage showing H's movements in the vicinity of the flat in a 15 minute period on the evening in question.
6. Although a complaint was made promptly, there have been a number of unfortunate delays in the case prior to 11 January 2013. On 11 January 2013 the judge held a competency hearing in relation to H, the defence having raised the issue about a month beforehand. In 2012 there had been prepared a report from Craig Flynn, a registered intermediary, who had assessed H. His report recommended special measures, including the use of an intermediary to enable H to give her account to the court. By January 2013 Mr Flynn was unavailable and so another intermediary was instructed, Miss de la Croix. She, too, prepared a report which again recommended special measures, including an intermediary. Both Mr Flynn and Miss de la Croix proceeded on the basis that it was possible for H to give evidence. Miss de la Croix said that H had the communicative ability to give evidence.
7. In addition to those reports, the prosecution file included a transcript of an ABE interview with H which had been video-recorded.
8. On 19 February 2013 the judge delivered her ruling. She found that H was not a competent witness. Her reasons were, firstly, that there were difficulties in asking H questions about body parts, without partially suggesting the answer to her by way of leading question. Her second reason was that H had difficulty with concepts of time, and abstract concepts would also be difficult if not impossible for H to grasp, let alone answer.
9. The test of competence is set out in section 53(3) of the Youth Justice and Criminal Evidence Act 1999. It provides:

"A person is not competent to give evidence in criminal proceedings if it appears to the court that [she] is not able to --

(a) understand questions put to [her] as a witness, and

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

10. Once the issue of competence has been raised by the defence, it is for the Crown to satisfy the court on the balance of probabilities that its witness is competent. In determining the question of competency, the court is to treat the witness as having the benefit of any special measures which the court has made, or proposes to make, in relation to the witness: see section 54(4). In this case it appears that the parties proceeded on the basis that the witness would have special measures, including an intermediary and a British sign language interpreter, and that the witness would give evidence over a live link. Moreover, it was intended that H's ABE video interview would be played at trial as part of her examination in chief.
11. Section 67 of the 2003 Act provides that the Court of Appeal may not reverse a ruling on an appeal under this Part of the Act "unless it is satisfied (a) that the ruling was wrong in law; (b) that the ruling involved an error of law or principle; or (c) that the ruling was a ruling that it was not reasonable for the judge to have made".
12. The Crown argues that the competency hearing was flawed or ineffectual and that as a result the judge's ruling was premature or wrong and/or unreasonable in the circumstances. The Crown also argues that the judge applied the wrong statutory test in considering the competency of H.
13. However, before we address those grounds there is a preliminary point which is taken by the respondent. It is argued that this court has no jurisdiction to hear this appeal because the prosecution failed to comply with the terms of section 58 and rule 67.2(1)(a) and (2) of the Criminal Procedure Rules 2012. In particular it is submitted that the terminating ruling was made on 16 January 2013 and was communicated to the respondent, and that no notice was given of the prosecution's decision to appeal either to the judge or to the defence until 19 February 2013.
14. Rule 67.2(1)(a) requires an appellant to tell the Crown Court Judge of any decision to appeal "immediately" after the ruling against which the appellant wants to appeal. As was confirmed in R v T [2010] EWCA Crim 711, that strict obligation exists, notwithstanding the absence of the word "immediately" from section 58(4) of the Act.
15. The factual position is this. The hearing took place on 11 January 2013. At the end of the hearing the judge said that she would give her ruling in the following week. From the transcript, the judge's comments implicitly envisaged a ruling to be given in open court. What in fact happened was that on 16 January the judge e-mailed her ruling to counsel. That was later forwarded to the CPS. The court did not, in fact, reconvene until 19 February 2013, but in the interim the prosecution had considered the e-mail and had decided that it would appeal. On that date the court had listed the matter "for judgment".
16. When the court reconvened counsel for the prosecution referred to the e-mail as the judge's "proposed judgment in this case" and enquired whether "for present purposes that is your judgment?" The judge confirmed that it was, and said that it was not necessary to repeat what was in the e-mail. The prosecutor said that what was in the e-mail was what they had expected to be in the court's judgment and so, having considered that, the Crown wished to appeal "that ruling formally being delivered on 19 February 2013". To that observation the judge replied "Yes". The Crown then proceeded to give the necessary undertakings.
17. The point which is taken is that the Crown had been aware for some time prior to 19 February of the judge's e-mail and had not indicated to the defence any intention to appeal, (at least certainly not before 16 February 2013); nor had the Crown so notified the judge at any point prior to 19 February. Accordingly, the rules had not been complied with and this court has no jurisdiction.
18. We do not consider that this objection has substance. It is plain from a reading of the terms of section 58 and rule 67 that the ruling after which the Crown must indicate its desire to appeal is a ruling given in the court room. The judge had proceeded by rather more informal means, which did not involve making a ruling in court, or anything which would be recorded as a formal order of the court prior to the hearing of 19 February. Accordingly, we do not consider that judgment was delivered until 19 February when the judge confirmed that her e-mail represented her ruling on the matter in open court.
19. Quite apart from the inconsistency of the more informal procedure with the language of the statute, it seems to us that the informal procedure adopted is one which has the potential to be bedeviled with imprecision if it were to suffice as a step in proceedings requiring immediate action by the Crown. The e-mail was not something that the judge had proposed or indicated to the parties. The transcript implies a ruling at a further court hearing. The e-mail itself, beyond stating that the prosecution's application is not granted, makes no order of any sort relating to the consequences of the ruling or the next stage in the proceedings.

20. There was in this case an undesirable degree of informality surrounding what happened. It is easy to envisage various practical problems arising if an e-mail of this sort were to suffice. These provisions under the terminating ruling legislation are strict, and an informal procedure is wholly inconsistent with them. The e-mail which was sent to counsel contained the warning that it was intended "only for the attention of the addressee". We regard this informal procedure as a courtesy by the judge to counsel, but no more. It would be wrong to accord it the status of a formal ruling triggering the strict rules applying to appeals against terminating rulings. We reject the argument as to jurisdiction.

20. We turn to the substance of the application. This court has considered the ABE interview and accompanying transcript. It shows that H was, with the assistance of sign language interpreters, able to give a comprehensible account of her allegations relating to both offences charged. We do not say that the process was a straightforward one, but with time and patience an account emerged which revealed alleged offences and when, where and how they came to take place. By the time of the hearing the judge had not seen the DVD recording of the ABE interview. She asked to see "perhaps half a dozen questions" so as to get the flavour of it. We understand that a relatively brief extract was played in court. Then, using the proposed special measures, including an intermediary and a signing interpreter, prosecuting counsel asked H questions of a general nature, to which she responded satisfactorily. Counsel then started to embark on questions asking H to point to different parts of her body. At that point the signing interpreter intervened, indicating that any question posed would have to be leading in part because the interpreter would have to point to a body part as part of the question. There then followed a discussion involving the judge, the interpreter and prosecution counsel about the difficulties posed by this situation. The interpreter could not use finger spelling to see whether H could understand the name of the body part because he was unprepared for that. The intermediary suggested that drawings or pictures might be used, but that suggestion was not taken up. In the event the prosecutor asked no more questions.
21. We have seen a witness statement showing that the intermediary had brought anatomical drawings for use and that after the parties' questions had ceased, H saw them and indicated animatedly that she could point to places where she could recall being touched.
22. Counsel for the respondent asked some questions of a general nature, to which H was able to give intelligible answers. The judge then asked questions from which it became clear that the witness had difficulty dealing with concepts of time and abstract matters. It became apparent that those topics had not been covered by those assisting H in their assessment. After that the judge moved on to submissions.
23. The Crown argues that, having regard to the ABE interview and the responses which H had been able to make both to prosecution and defence counsel before difficulty was encountered over parts of the body, time and abstract concepts, it would have been appropriate for the judge to regard H as competent, but to keep that under review during the trial. The reports from the intermediaries had supported competence to understand and answer questions and to describe, as long as questions were put in a simple fashion and as long as appropriate assistance from an intermediary and signing interpreter was provided. In addition, the Crown argues that the decision as to competency was flawed because the difficulty over the body parts issue, which was identified by the judge as a reason for regarding H as not competent, was a reflection of the questioner's inability to find an effective and appropriate method of asking questions at the competency hearing. The problem arose over an issue of ability to communicate with H in a non-leading way, rather than an issue of H's comprehension and thus her competence. The attempts of counsel and judge to deal with the body parts issue represents a failure by them to communicate in a way which would enable the witness' competence to be properly tested. We note that the intermediary's suggestion of asking the witness to identify body parts by reference to pictures was not adopted.
24. As this court indicated at paragraph 42 in R v B [2010] EWCA Crim 4, the trial process must cater for the needs of witnesses. The competency test is not failed because the forensic techniques of the advocate or the processes of the court have to be adapted to enable the witness to give the best evidence of which he or she is capable. It is our clear conclusion that the hearing did not effectively explore H's ability to communicate.

26. We do not underestimate the difficulties of questioning vulnerable witnesses. It requires not only training, flexibility and sensitivity, but also time and patience. It seems to us that when difficulties were encountered, it became apparent that the intermediary had not had sufficient time to carry out a full assessment of H's skills which might enable communication to take place. Questions of time and more abstract concepts ran into difficulty when the judge, in an effort to obtain an answer to the witness' understanding of the seasons, posed questions about what a daffodil looked like. When the intermediary said that she did not think that the witness knew a daffodil as such, the judge said that she did not wish to ask any further questions.

25. We have come to the conclusion that in the circumstances the exercise carried out was not a fair test of the witness' competency. The shortcomings of this process seem to us to owe much to a lack of preparation and a lack of ability to respond flexibly to the difficulties which arose. There are now substantial materials available to those who have to deal with the questions of competency and the use of intermediaries. We draw attention to the publication "Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court" -- a Report of the Working Group of the Advocacy Training Council of the Bar published in 2011. In the same vein the Crown Court Bench Book has a section dealing with intermediaries. Relevant issues are also discussed by this Court in R v B (already referred to), particularly at paragraphs 33 to 43.
26. In response to the submissions made, in his helpful written submissions to the Court Mr Dixey argued that the procedure indicated in R v MacPherson [2006] 1 Cr App R 30 at paragraphs 25 and 26 was followed. That authority gives the briefest of references to the practicalities of handling competency issues. Since that judgment was given, matters have moved on considerably and much more detailed guidance is now available, not least in R v B and elsewhere.
27. The respondent also submits that the judge adopted the correct test of competency, as set out in section 53(3), the Crown having submitted to the contrary. True it is that in her ruling the judge had set out the appropriate test, but she based her conclusion that H was not a competent witness firstly on the body parts issue. In relation to that the judge proceeded on the basis that the interpreter would have to point to the body part in question and that in doing so it would shed little or not light on the witness' true understanding of the question.
28. In our judgment, the judge substituted the issue of the interpreter's difficulties in communicating for the test of whether the witness could understand questions and give intelligible answers.
29. The second limb of the judge's reasoning related to difficulty with concepts of time and other more abstract concepts. In this respect the procedure adopted was for the reasons already mentioned an unsatisfactory way of testing the witness' understanding and ability to make herself understood. It did not represent, in our judgment, a valid or thorough test, and so the judge's conclusion in this respect is thereby undermined.
30. It is further submitted by Mr Dixey that the ruling was essentially a decision of fact and an exercise of judgment based on evidence heard by an experienced judge. As we have said, we do not underestimate the difficulties confronting the judge below, but we have found that the procedure was so flawed that the conclusions reached cannot be relied on as any fair test of competency.
31. Finally it was argued that, since the burden of proof was on the Crown, their failure to ask appropriate questions should preclude them from appealing this matter. We regard the failure which took place as one which, for whatever reason, was not solely that of the Crown. Whilst it can in no sense be said to be the fault of the respondent, the reality is that what was intended to be a test of competency was seriously flawed. Moreover, there were in our judgment strong indications that H did indeed satisfy the competency test. They are: (a) the ABE interview; (b) the reports from the intermediaries; and (c) the ability by both counsel at the hearing to pose questions which were understood and which received intelligible answers. The judge herself recorded in her ruling that H could understand and answer questions posed in a simple and uncontroversial manner.
32. Those matters were not addressed in the judge's ruling. Instead, the judge based herself on what transpired when difficulties arose in the hearing, but which in our judgment represent a failure by those involved to engage in a true and fair test of competency.
33. The interests of justice are plainly broad enough to encompass the interests of the alleged victim in having the opportunity to have her competency to give evidence considered properly by the court. The exercise carried out below fell short of that. It led to a ruling by the judge which cannot be sustained. Although the respondent is in no way at fault for what occurred, that does not mean that this court should decline to grant the relief sought. Nor does the reference by the respondent to other asserted delays and failures by the Crown and the history of these proceedings provide a reason why leave should not be granted.
34. We have considered Mr Dixey's submissions about the very substantial delays which have occurred in this case and the fact that the respondent was told of the judge's ruling by defence counsel or solicitors after the e-mail had been sent to defence counsel. That was a disclosure which was not authorised by the e-mail. It serves to illustrate the problems which arise when informal procedures are adopted. Counsel, however, makes the point that the respondent had been informed through those channels of the judge's apparent ruling on the issue of competency. We view the situation as one which is very different from that which obtained in R v M [2012] EWCA Crim 792, where the defendant was told in court at the time of the judge's ruling in court that the proceedings against him were being terminated. That situation is not comparable to the present one.
35. Accordingly, we are not persuaded that this is a case for refusing leave. We grant leave.
36. We conclude that section 67 is satisfied. We find that the ruling was wrong in law and that it was not a reasonable one for the judge to have made. Accordingly, we reverse the ruling on the lack of competency and we order that the proceedings are resumed in the Crown Court pursuant to section 61(4)(a), the judge below having adjourned those proceedings.
37. It will be a matter for the parties to consider how the matter should proceed below. The respondent might seek a fresh competency hearing. Alternatively, the parties may agree to proceed without pursuit of the competency issue, at least initially. The authorities make clear that, even if competency is assumed or ruled upon in favour of the witness by the judge, the judge is under a continuing duty to keep the matter under review. Moreover, a party is not precluded from raising the issue during the course of the trial if matters develop in a way which justifies it. When there is material of the sort which was available in this case, for example the ABE interview and the reports, the court and the parties should carefully consider whether a competency hearing is, in fact, necessary at the initial stage of the case. In some circumstances such a hearing may serve to do no more than cause delay, increase expense and put unnecessary strain on the witness. Those, however, are matters for the parties and the judge to consider at the resumed hearing.
38. We conclude our judgment by expressing our deep concern about the delay which has occurred in this case. The allegations which were made were raised as long ago as 29 April 2011. Accordingly, we direct that the resident judge at the court concerned be informed of this court's judgment and of this court's great concern that the matter be listed as a matter of extreme urgency.
39. Mr Dixey, Miss Laws, is there any other matter with which the court needs to deal?

MISS LAWS: Might I have one moment, please?

THE LAW REPORTER: Might I ask about reporting? I believe there are statutory restrictions in place, unless they are specifically lifted by the court. I was not clear from your opening remarks whether you are lifting those restrictions?

LORD JUSTICE TREACY: We will deal with that in a moment. We will treat that as an application, and I will hear what counsel have to say in a moment.

THE LAW REPORTER: Thank you.

MISS LAWS: I have nothing more to add.

MR DIXEY: My Lord, the question arises as to whether in all the circumstances it is appropriate for the same judge to continue with this case?

LORD JUSTICE TREACY: That is not a matter for this court. That will be a matter, it seems to us, for the judge herself to consider and for the resident judge who has responsibilities which relate to the allocation of work to consider as well. It is not for us to express an opinion about that. Thank you for raising it though.

We have been asked about the question of reporting. You will see that the way in which the judgment has been given identifies no party concerned with the case, nor does it identify the court centre at which this matter has been listed. In those circumstances is there any objection to the reporting of the matter in an anonymised form?

MISS LAWS: No.

LORD JUSTICE TREACY: Mr Dixey?

MR DIXEY: I cannot immediately see that there could be.

LORD JUSTICE TREACY: Speaking for myself -- and I invite you to respond to this comment -- I cannot see any realistic possibility that publication of this judgment in the form in which it has been delivered is something that can prejudice the trial which will take place, subject to any further issue about competency issues.

MR DIXEY: Yes.

LORD JUSTICE TREACY: Do you have any counter-submission to that?

MR DIXEY: I do not think I can sensibly raise an objection.

LORD JUSTICE TREACY: No, thank you very much. The matter may be reported within the strict constraints which I indicated at the start of the judgment. Thank you very much.

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