England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 July 2007

1. LORD JUSTICE HUGHES: This case comes before us as an appeal by way of case stated in a case in which the magistrates acquitted the defendant. It was a case in which the Justices had to cope with a series of quite difficult legal questions. All those questions arose from the fact that the only two significant people in the case, that is to say the young male defendant and the young female complainant, were only 13 at the time of the events alleged and moreover were both severely mentally handicapped. They were, at the time of the offences alleged, both pupils at the same special school. The conduct alleged was indecent touching of the girl by the boy. There were two counts: one was for touching her breast and one was for touching her groin.
2. Shortly after the initial complaint had been made the girl was interviewed by the police on camera, as is the usual practice. At that stage her limitations and disabilities were detectable, but she gave an intelligible account of having been touched on a number of occasions. Her account was that what had happened had not been welcome and that, at any rate, on one occasion her breast (or she may have meant her nipple) had been twisted.
3. Soon after that the boy was interviewed under caution. His solicitor was present and so was a member of the Youth Engagement Service acting as an appropriate adult. In answer to questions the boy appeared to accept that he had touched the girl where he should not have, and that what he had done included twisting her breast. By the time of the trial there were two further developments. First the girl, when cross-examination was attempted, said frankly that she had simply no recollection of events and could only rely on what she had said in the interview which had been video recorded. She gave some answers in cross-examination, but it was perfectly plain that she was doing no more than repeating what had, no doubt, just been shown on the video recording. In due course the magistrates found as follows:

"We were of the opinion that -

At the time of the video recorded interview, [the girl] understood the questions being put to her and was capable of giving intelligible answers;

At the time of trial, [she] was able to fully understand the questions being put to her;

At the time of trial, [she] genuinely had no recollection of the incident in question and relied solely on her viewing of the video recorded interview to answer questions; and

At the time of trial, [she] was incapable of giving any meaningful answers to questions, within the context of the proceedings."

4. The second development was the boy had been examined by a consultant clinical psychologist experienced in forensic work. He found the boy to be severely handicapped. On the well-known full-scale Wechsler test he was in the bottom 0.1 per cent of the population. That means that 999 out of every thousand people are more capable than he is. He was by now at a different school. He was unable to remember why he was being brought to court. He did remember the girl by name. He had a memory for things which had recently been said to him in discussion, which was, by his standards at least, comparatively good, and that perhaps made him appear less handicapped than he truly is.
5. Most significantly he was highly suggestible. The psychologist had found that by varying the intonation of his voice he could, without difficulty, receive directly contradictory answers to the same question. The psychologist's very clear opinion was that the boy, if put into the witness box, could give no meaningful evidence because he would answer any question that he was asked according to what he thought the questioner wanted to hear. That meant that the same had applied at the time of the police interview.
6. Many, all though not all, of the questions that had been asked in that interview had been framed as leading questions. It was not, it needs to be said, ever suggested that there was any hint of impropriety by those who were conducting the interview. It was simply that no one had any idea how dangerous the information-gathering process was when dealing with a boy of this level of handicap and this level of suggestibility.
7. As to the boy's answers the Justices, in due course, found as follows:

"…[the boy] because of his own particular learning difficulties, did not understand the caution, although it probably did appear to the interviewing officer and those in attendance, that he did. [He] was highly suggestible and incapable of understanding the terms of the interview and probably incapable of understanding most of the questions put in interview. The interview was, on the face of it, probative, as it appeared to support the allegations being made by the Appellant. However, we were of the opinion that no reasonable tribunal could safely rely on any responses given in the interview as being correct."

8. On those factual findings numerous submissions of law were made to the Justices and after argument they held as follows:

The girl they held, because she had no recollection of events and could, for that reason, at court give no useful evidence, was incompetent within the meaning of section 53 of the Youth Justice and Criminal Evidence Act 1999.

Nevertheless her video interview was not admissible as hearsay under section 116(2)(b) of the Criminal Justice Act 2003 on the basis that she was unfit to be a witness by reason of her mental or bodily condition. The Justices held that incompetence to give evidence, which they had found to be present, was not the same as unfitness for the purposes of section 116(2)(b).

It was nevertheless, they held, in the interests of justice to admit the video recording evidence as hearsay under section 114(1)(d) of the Criminal Justice Act 2003.

The boy's answers in interview, they held, should be excluded under section 78 of the Police and Criminal Evidence Act 1984 because, given the findings which we have set out, their prejudicial effect on the fairness of the trial outweighed any probative value which they had.

9. In the end, assessing the evidence in the state which I have described, and giving themselves the four directions, which I have just set out, the Justices concluded that they could not be sure of guilt and they acquitted the boy.
10. In their case the Justices ask four questions of this court:

"[1] In a case where evidence-in-chief is given via a video recording of interview under the provisions of s.19 of the Youth Justice and Criminal Evidence Act 1999 in determining whether a witness is competent, is it correct to consider competence at the time of the interview and at the time when the witness is called upon to give evidence at court? If so,

[2] Does the fact that the witness now has no independent recollection of the facts, such that he/she is unable to give intelligible answers mean that he/she is no longer competent?

[3] Does the fact that witness has been declared as not competent to give evidence because of a lack of mental capacity, necessarily mean that the witness is then 'unfit to be a witness because of his… mental condition' within the context of section 116(2)(b) of the Criminal Justice Act, 2003?

[4] Where the court finds that because of mental incapacity, a defendant did not understand the caution, the terms of the interview or the questions put in interview - to the extent that no tribunal could safely rely upon the answers as being correct, whilst accepting that this was not apparent to the interviewing officers or other persons at the interview - is it open to the court to exclude the evidence under the provisions of section 78 of the Police and Criminal Evidence Act 1984 or should it instead adopt the approach set out in section 77 of that same Act?"

11. I would approach those four questions in this way:

Question 1

12. The test of competence is set out in section 53 of the Youth Justice and Criminal Evidence Act 1999. Subsection (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, and

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

13. Section 54 contains supplemental provisions for determining the issue.
14. I am clear that competence must, indeed, be addressed both at the time when consideration is given to the admission of a video recorded interview and throughout the trial; in particular when the stage for cross-examination comes. Video recorded interviews, such as this one, are one of a number of possible special measures provided for elsewhere in the Youth Justice and Criminal Evidence Act 1999 in a series of provisions beginning with section 16. It will quite often be the case that a special-measures direction will fall to be given in relation to a witness who has some kind of mental handicap. Indeed, such a person is specifically made eligible for special measures by section 16 of the Act.
15. If at the time that a court is considering whether to give a special-measures direction enabling video recorded evidence-in-chief to be received, and is addressing the questions posed on that issue by section 27 of the Act, it then appears that the witness was at the time of the interview unable to understand questions, or to give answers to them which can be understood, then that, of course, would be a reason for not making a special-measures direction under section 27. That is not this case. Competence must also be addressed, it is clear, at the time of trial. If by the time of the commencement of the trial it is clear that the witness is mentally incompetent, according to the test in section 53, then it is open to the court to refuse to receive the video interview under section 27(4) on the grounds that the witness will not be available for cross-examination. Ordinarily one would expect that consequence to follow.
16. If, as here, by the time the question of competence is raised before the court the video interview has already been admitted, then it is evidence in the case. Section 27(4) does not extend to permitting the court, retrospectively to direct that it be "unadmitted". What is likely to happen, in such a situation, is that the court may well place little or no weight on the video recorded interview, precisely because it cannot be tested in cross-examination. That will not necessarily be so. It will depend upon the assessment of the evidence as a whole, and of the state of the original interview.
17. R v Powell [2006] EWCA Crim 3, which involved a child witness who was only three years of age, was a case of this kind. As the Court of Appeal (Criminal Division) ruled, she had just about passed the threshold of competence at the time that the video interview was conducted and that had justified the admission of the interview. Once cross-examination was attempted it was clear that she did not understand the questions. She did not comprehend the importance of telling the truth, and she was not able to give answers that could be understood. She could be demonstrated at that stage to fail the test under section 53, which is, in substance, a test of intelligibility. The Court of Appeal (Criminal Division) held in that case that the question of competence should have been reviewed and the case should have been withdrawn from the jury. The reason why it should have been withdrawn from the jury was that in that state of the evidence no reasonable jury properly directed could convict.
18. Contrary to the impression which appears to have been given by all who made submissions in the Magistrates' Court, that case of R v Powell is not inconsistent with another decision of the Court of Appeal (Criminal Division) in R v Ali Sed [2004] EWCA Crim 1294. Indeed, whilst it may not have been apparent at the time of argument before the Justices, Sed is referred to in the case of Powell.
19. Sed was a case decided before the Youth Justice and Criminal Evidence Act test of competence was substituted for the pre-existing and stricter common-law test. The decision in Sed was that the judge was entitled, when considering the admission of a statement under (then) sections 23 and 26 of the Criminal Justice Act 1988, to apply the anticipated new and less strict test. On finding that the witness passed it and was intelligible, he was entitled to admit the statement which she had made nearer to the time of the complaint. It is absolutely clear from the report in Sed that the test applied throughout was one of intelligibility.
20. It follows from that that the answer to question is "yes". That, I should record, has been common ground in this court, although not, as I understand it, below.

Question 2

21. This was not a case, on the Justices' findings, of incompetence. The girl may have had her learning difficulties. Her evidence may have needed treating with some care in consequence, but the problem at trial was not capacity to understand or to give intelligible answers, it was loss of memory. Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co-exist with absence of competence, but they do not necessarily run together. Persons who have no recollection for an event may be perfectly competent. A simple example is the witness who is knocked out in the course of whatever happened which founds the charges, and has absolutely no recollection of what occurred, but is otherwise fully functioning.
22. This girl was not like the child in R v Powell. She could understand the questions and she could give intelligible answers. The problem was that her perfectly intelligible answer was, "I cannot remember". She was not incompetent. It may be that she could not, for lack of memory, give useful evidence by the time of trial, but that is a different question. The ruling that she was incompetent was erroneous. That does not, of course, mean that such evidence as she had given to the court by way of the video interview was necessarily reliable. The inability to test it by cross-examination either might or might not mean that it was unsafe to rely upon it. That, as I previously said, is an assessment which the trial court has to make individually in every case. An account originally given might, in some cases, be so obviously accurate that it would be wrong to discount it. In a good many more cases, no doubt, the inability to test it will mean that one simply cannot know whether what was said in the original account was accurate or not.
23. For those reasons the answer to question 2 is "no".

Question 3

24. On the answer thus given to question 2, question 3 does not arise, because the witness was not incompetent. However, in deference to the argument we have heard I think we should say something about it. Section 116(2)(b) provides when taken with subsection (1), that a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if:

"The relevant person is unfit to be a witness because of his bodily or mental condition."

25. Section 114 of the same Act separately provides for the admission of a hearsay statement, that is to say a statement not made in oral evidence in the proceedings, if (amongst other circumstances) according to section 1(d) the court is satisfied that it is in the interests of justice for it to be admissible. The difference between those two sections needs to be noted. If section 116(2)(b) applies then the evidence is automatically admissible, subject only to a possible submission under section 78 of the Police and Criminal Evidence Act. If section 114 alone is available as a possible route to admissibility, the court has a judgment to make and it must apply itself carefully to all the circumstances in the case, including the specific ones set out in section 114(2). Essentially the overall question is whether it is in the interests of justice for the hearsay statement to be admitted. Where it is the sole evidence, it will often, though not necessarily, not be safe to admit it.
26. The submission made on behalf of the defendant to this appeal is that section 116(2)(b) is concerned only with the ability of the prospective witness physically to get to court. Mr Dorman-O'Gowan says this girl was there at court and present to be asked questions. That means, he says, that she could not be within section 116(2)(b). I am quite satisfied that that is not what the section says. The section addresses fitness to be a witness. Ali Sed was in fact such a case. The witness was a woman of 81 in the grip of Alzheimer's disease. The disease had significantly worsened between the making of a statement near to the time of the alleged offence and the time of the trial. She had been competent at the time of the former, but she was unable to give evidence by the time of the trial.
27. It seems to me that in almost every case in which a witness is, at the time of the trial, incompetent within the meaning of section 3, he or she will also for that reason, never mind any other, be a witness within section 116(2)(b) who is unable, because of his mental condition, to be a witness. Counsel, who have appeared before us, have been unable to think of an example in which that would not be so. I think we should be careful not to exclude the possibility that circumstances may exist, which it has not been necessary to foresee here, but by and large a witness who is incompetent is likely to be within section 116(2)(b).
28. However, for the reasons explained, that is not this case because the girl was not incompetent, nor was she unfit to be a witness at the time of the trial. She simply could not remember.
29. I ought to add, I think, that it was not necessary for the Justices to consider section 114 of the Criminal Justice Act, even upon their erroneous finding that the girl was incompetent. First of all, by then the video interview was already in evidence. It cannot be retrospectively unadmitted. Secondly, it had been admitted pursuant to a perfectly proper special-measures direction under section 27 of the 1999 Act. It did not need consideration as hearsay evidence. A video interview such as that is admissible independently of any question of hearsay under the quite separate statutory provisions for special measures.
30. We should perhaps record that at least in the case of supervening loss of memory, as distinct from supervening loss of competence, sections 139 and 120 of the Criminal Justice Act 2003 also apply, and the video interview would be admissible as evidence of its contents as a means of refreshing the memory of the witness who had forgotten. We leave for another day the question of whether sections 139 and 120 have any application in the event of supervening incompetence.
31. To say, of course, that the video recorded interview was, for all those various reasons, admissible and admissible independently of section 114, is not to say it had to be accepted at face value. Quite the contrary, the assessment of it was for the trial court.

Question 4

32. This is now also common ground. The court, I am quite satisfied, is plainly entitled to apply section 78 of the Police and Criminal Evidence Act in a case of this kind. It is important to say that it would not, in this kind of case, be invoked, as it sometimes is, on the grounds of some breach of proper methods of questioning, or of any of the Codes of Conduct which have been made under the 1984 Act. The evidence of the boy's interview will be excluded simply because it has no value given his severe disability and high level of suggestibility. Whether section 78 is applied or not, the Justices are plainly entitled simply to say that it is of no value.
33. The answer accordingly to question 4, as is now common ground, is "yes".
34. In summary, the answer to question 1 is "yes"; the answer to question 2 is "no"; the answer to question 3 is that it does not arise, but ordinarily the answer would be "yes"; and the answer to question 4 is "yes".
35. Standing back for a moment from the detail of those questions, what the Justices actually did in this case was firstly to admit and assess the video interview of the girl, secondly, to reject the evidence of the boy's interview as valueless and/or unfair, and thirdly, to ask themselves, on that state of the evidence, whether they were sure of guilt.
36. For the reasons, which I have endeavoured to explain, I consider that each of those three steps was perfectly correct, albeit they arrived at some of them by the wrong route. The video interview was to be considered. The boy's interview with the police was rightly not relied upon and there is no doubt whatever, that the Justices were entitled to reach the conclusion that they could not be satisfied, in that state of the evidence, that the boy had done what was alleged. In those circumstances the formal order is that the appeal is dismissed.
37. It may be of some general interest to record that the boy is now in care and that the Crown Prosecution Service would not, in any event, have sought his retrial. That, and both the facts and rather tortuous legal process of this trial, perhaps underline the proposition that where very young, or very handicapped, children are concerned there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter-disciplinary action and co-operation between those who are experienced in dealing with children of this age and handicap
38. MR JUSTICE TREACY: I agree.
39. MISS RIPPON: Thank you.
40. MR DORMAN: I am subject to a legal aid order with regard to this.
41. LORD JUSTICE HUGHES: You need an order for detailed assessment and legal aid funding. Thank you very much indeed.