Scottish Court of Session Decisions

This is an appeal by Stated Case in terms of section 51(11) of the Children (Scotland) Act 1995, in respect of a decision by the sheriff at Aberdeen to the effect that a ground of referral stated by a Reporter in terms of section 52(2)(d) of the 1995 Act was established.

That ground of referral was that J.G.R., a female child born on 9 September 1992, was a child in respect of whom an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 had been committed. The proposition that such an offence had been committed rested upon three statements of fact presented by the Reporter. These were set out in paragraphs Nos. 3, 4 and 6. After evidence, the Reporter deleted paragraph 6. The sheriff found paragraph 4 not to be established by the evidence. He found the remaining paragraph, paragraph 3, to be established, but it is to be noted that he did so on a balance of probabilities (saying that the evidence

would not have been sufficient to meet the criminal standard of proof) and that he found it established as having occurred on only one occasion.

The offence in question was lewd and libidinous conduct by A.R., the father of J.G.R., by causing J.G.R. to masturbate him while he was in his bath. The sheriff's Finding in Fact in relation to paragraph 3 is to the effect that on the occasion of one of the access visits by J.G.R. to A.R., he took a bath, and "While naked in his bath, with J.G.R. standing outside the bath, he caused J.G.R. to masturbate him to the emission of semen. She had to rub his penis for a substantial period (which she described in a favourite phrase as 'seventy hundred times') and the ejaculation was spilt onto a towel or facecloth".

In making that finding, the sheriff had held that J.G.R. was admissible as a witness; that her evidence in court provided no basis for finding the ground of referral to be established; but that evidence of what she might have said on a previous occasion was not to be excluded as inadmissible hearsay. In the circumstances, he says that the crucial evidence of the commission of a Schedule 1 offence against her therefore depended to a very large extent on statements which she had made to others. Evidence of such statements was given by others, and in particular J.G.R's mother gave evidence over three days. A.R., the child's father, also gave evidence. The sheriff formed the view that his evidence was neither credible nor reliable.

A.R. is the appellant in this appeal, and the Reporter was represented as Respondent. Four questions are stated. Of these, questions 3 and 4 are questions relating to evidence: we shall turn to these later. But the major issue raised by this appeal turns upon questions 1 and 2 which arise out of the sheriff's finding that J.G.R. was an admissible witness. That finding is expressed in a Finding in Fact, that "J.G.R. is of an age to be competent to give evidence, was examined by me and was admonished to tell the truth. She understood the difference between truth and lies and was capable of communicating"; and a Finding in Law that "J.G.R. was a competent witness and accordingly hearsay evidence of what she had said on previous occasions was not to be excluded as hearsay". Questions 1 and 2 in the Stated Case are as follows:-

Counsel for the appellant submitted that both of these questions should be answered in the negative. In relation to question 2, it was not suggested that if the sheriff was entitled to conclude that J.G.R. was a competent witness, evidence of what she had said on a previous occasion was nonetheless to be excluded as hearsay: the treatment of her hearsay evidence was a matter arising under the subsequent questions. In these circumstances, questions 1 and 2 effectively run together, the point of question 2 being that if the sheriff was not entitled to conclude that J.G.R. was a competent witness, evidence of what she had said on a previous occasion would be excluded.

It is convenient to set out in full the description which the sheriff gives in his Note of what happened at the initial stage of examination and admonition, preliminary to J.G.R. giving evidence:-

While the content of her actual evidence thereafter is not directly in point on the issue of her preliminary examination and admonition, we think it appropriate to set out at this stage what happened when she was asked about her visits to her father:-

The child was not cross-examined.

It is evident that the child's actual direct evidence in court not merely provided no basis for finding the grounds of referral to be established but furthermore provided no basis (even if in principle it could be referred to for this purpose) for finding the witness to be a competent witness, if the sheriff's preliminary examination, before she started her evidence, constituted an insufficient basis for that finding.

In presenting his submissions, counsel for the appellant emphasised the need for a clear distinction between the preliminary, pre-evidence stage of proceedings, and the subsequent stage when evidence was heard. Moreover, even at the preliminary stage, he submitted that it was important to distinguish between the "examination" and the "admonition". Admonition was a separate step from the examination, and would be necessary and appropriate only if and when the sheriff was satisfied, as a result of his examination, that the child was a competent witness. Counsel referred to G.S. v. Kennedy 1996 S.L.T. 1087, and in particular to passages in the Opinion of the Lord Justice Clerk which are not contained within that report. In that case, as in this, the sheriff relied upon evidence as to what the child had said to her mother and to others; in that case, as in this, it was essential to determine whether the hearsay evidence was admissible, and it would only be admissible if the child was an admissible witness. The child would only be an admissible witness if the sheriff was satisfied that the child "knew the difference between what is true and what is false". The proper approach, as stated in F. v. Kennedy (No. 1) 1993 S.L.T. 1277 at 1280F and adopted by the Lord Justice Clerk in G.S. v. Kennedy at page 18 of his Opinion, was that before a young child could be admitted to give evidence, the sheriff must carry out a "preliminary examination" of the child to see whether the child knows the difference between what is true and what is false, and "must then admonish the child to tell the truth". While any eventual evidence would have to be weighed in the ordinary manner, for its credibility and reliability, and while during that evidence particular issues might well arise as to whether the child's evidence was admissible upon specific points, the overall admissibility of the child as a witness must be determined at the initial stage of "examination", and not during admonition, or on the basis of eventual evidence. Looking to what the sheriff had done in the present case, it was apparent that his "examination" consisted simply of his having asked her whether she knew the difference between telling the truth and telling a lie, and the child responding by nodding. It was submitted that that was quite insufficient to justify a conclusion by the sheriff that the child did understand the difference between truth and lies.

If that were all that had been done, we would have no real difficulty in accepting that submission. It does not appear to us that counsel was well-founded in suggesting that nodding could not be taken as a sufficient affirmative reply: in our opinion, that would be a matter for assessment by the sheriff. Furthermore, we are satisfied that an examination for this purpose might be very brief: we would respectfully concur with the observation made by the Lord Justice Clerk in G.S. v. Kennedy at page 22 of his Opinion, where he says:

Nonetheless, it does not appear to us that this single question, met with only a simple affirmative, can constitute a sufficient examination for this purpose. The question of whether the child knows the difference between truth and falsehood is a question for the court, and not simply a question to be put to the child. A child who on fuller examination is held to understand the crucial difference between truth and falsehood may initially, if faced with a bald question on the matter, give a negative answer - as occurred in G.S. v. Kennedy. Equally, it seems to us that a child who does not know the difference between what is true and what is false might well give an affirmative answer. While much may turn on impression and demeanour, we do not think that such a simple affirmative by the child can provide a sufficient basis for an affirmative answer by the court.

The distinction between the examination and the admonition is clear enough, as a matter of logic and of function, and we would accept the submission made by counsel for the appellant to that effect. But provided the distinction is kept in mind, we are not persuaded that there must always be a strict temporal line between the two. What is said by a judge or sheriff must be looked at in each case; but it seems to us that there may well be situations in which what passes between the court and the child before the child is actually admitted as a witness may on occasion be dual-purpose, contributing to the examination, but also opening up the admonitory stage. There is perhaps some element of this in the present case since the sheriff, having already said that he was satisfied that the child did know the difference between truth and lies and that she was a competent witness at the date of the proof, moves on to what is the stage of admonition: "I said to her that it was very (emphasising the 'very') important that she should tell us only what she knew to be true, and not what any other person might have told her, and she nodded agreement". But he follows this by reverting to the examination issue, saying again that he was satisfied that she was able to give evidence "in the knowledge of the difference between truth and falsehood". However, it does not appear that the sheriff in this case was leaving open the primary issue of the admissibility of the child until after he had embarked on admonition; and we do not think it appropriate to take the response to admonition into account, in judging whether there was a sufficient examination on the issue of the child's admissibility as a witness.

In addition to what actually passes between the court and the child, before the child is admitted as a witness, it was accepted by counsel for the appellant that the court may have recourse to other evidence and material, in judging whether the child knows the difference between truth and falsehood. Reference was made to K.P. v. H.M. Advocate 1991 S.C.C.R. 933, where it was held that it was for the trial judge himself to decide, in all the circumstances, whether or not it was necessary to have evidence from another source before determining the issue. We were referred also to L. v. L. 1996 S.L.T. 767, at page 772, where Lord Hamilton says:

Counsel for the appellant acknowledged that the evidence of others envisaged in these cases might not merely be expert or opinion evidence from persons "who have directly addressed themselves to the question of the child's capacity to give evidence", but might be evidence of past conversations with the child which from their content might be of considerable assistance to the judge or sheriff, as demonstrating that the child did or did not understand the difference between truth and falsehood. And while such past conversations might be on wholly extraneous subjects, nothing to do with the case in hand, it was accepted that in principle one might have regard, for this initial and preliminary purpose, to evidence of what the child had said on a prior occasion in relation to precisely those issues which would be in point if and when the child came to give evidence, or indeed if others gave admissible hearsay evidence of what the child had said during those same prior conversations. That appears to us to be correct in principle; and while it may at first sight seem paradoxical to use for this preliminary purpose the very material which will be relied upon as evidence if the preliminary hurdle is surmounted, we are satisfied that there is no inherent problem - although it will of course be important to bear in mind the fundamental distinction between looking at the material at this stage, to judge the child's capacity to give evidence, and looking at it subsequently as evidence, to be evaluated in terms of credibility and reliability.

In the present case, the sheriff did not merely ask the child whether she knew the difference between telling the truth and telling a lie, eliciting a response by nodding. He goes on to say that "existing reports by the Safeguarder, by Mrs. McTaggart and by Mrs. Nancy Thomson, which I had seen..." gave certain indications about the child, and his conclusion that he was satisfied that she did know the difference between truth and lies, and that she was a competent witness at the date of the proof, follows in the same sentence upon reference to these reports. In principle, therefore, this might be a case in which the conclusion that the child was an admissible witness found a sufficient foundation not upon the sole basis of the sheriff's examination of the child personally, but upon that taken along with other material. It may be doubtful whether this material was strictly available to the sheriff for this purpose and at this stage, since he was evidently simply referring to written reports, which were later to be proved in evidence. The submission of counsel for the appellant was not however founded upon this possible procedural inadmissibility. It was to the effect that the sheriff had not only conducted an insufficient examination of the child herself, providing nothing which the reports could supplement. What he in fact drew from the reports was merely that the child "could be articulate and outgoing" which provided a possible basis for his finding that she was "capable of communicating", but was of no weight or value in helping to establish that she knew the difference between truth and lies.

We feel some unease with this analysis. It seems possible, knowing as we do that the sheriff when actually assessing the hearsay evidence of what the child had said on prior occasions found much of that evidence credible and reliable, that even when reading the reports for the purposes of his preliminary decision, he may have formed a substantial impression that the child was indeed aware of the difference between truth and lies. But it would be mere speculation to infer from his handling of the evidence of the child and other witnesses that he had indeed reached any such view at the earlier preliminary stage. He states no basis or reason for his conclusion that the child knew the difference between truth and lies other than her response to his single question, and the indication in the reports that she could be articulate and outgoing. These do not appear to us to provide a sufficient basis for his conclusion, and with no other suggested basis for that conclusion contained in the case, we answer the first two questions in the negative.

That being so, the evidence upon which the sheriff relied was hearsay evidence of statements by a child who was not properly found to be an admissible witness. The hearsay evidence was thus itself inadmissible, and questions 3 and 4 are effectively superseded. Counsel for the appellant advanced a number of criticisms of the way in which the sheriff dealt with the evidence. There was the fundamental problem that one only had non-examinable hearsay, in the absence of any direct evidence from the child. In addition, the hearsay material showed that the child was both unreliable and inaccurate in various ways. Various points were confusing. There was a real risk that the child might have been influenced, deliberately or otherwise, by her mother. Even if technically admissible, there was no sufficient explanation of why she should be accepted and relied upon on the crucial issue raised by paragraph 3, and dealt with in Finding in Fact 4. Counsel for the Reporter did not dispute that these were indeed problems. But he submitted that if the evidence was admissible, this court should not interfere with the sheriff's conclusions.

Question 1 and question 2 having been answered in the negative, questions 3 and 4 are effectively hypothetical. We have come to the view that it is better, that being so, not to answer these questions. With no sufficient basis for saying that this child knew the difference between truth and falsehood, we do not think it appropriate to enter upon issues relating to the assessment of evidence which was ex hypothesi inadmissible. In adopting that approach, however, we would not wish to be taken as criticising the sheriff: it is clear that the hearsay account of the events in question was highly circumstantial, and while there are of course major problems in cases of this kind, the sheriff was apparently well aware of those problems and of the dangers, both general and specific, inherent in relying on hearsay evidence from a young child such as this.

We have considered whether it might be right to remit the matter back to the sheriff, on the view that a fuller Note might reveal a sound basis for what was done. However, the existing Note has no evident lacuna when covering the initial examination of the child. Moreover, we are informed that there are other proceedings, in which the same matters may have to be covered. Furthermore, we are informed that pending these proceedings, the appellant is not seeking access to the child. In the whole circumstances, we are satisfied that no more is required than the negative answers which we have given to questions 1 and 2.

We would wish to add certain general comments. While the question at issue in the preliminary examination of a child is conveniently stated in terms of "knowing the difference between telling the truth and telling lies" or the like, these apparently simple words (even leaving aside all the issues which are essentially a matter of assessing the quality of evidence) appear to us to have built into them quite a complex range of questions as to intelligence, understanding, maturity, moral sense, and much else. Macdonald on the Criminal Law of Scotland (5th edition) at pages 285-286 speaks in terms of children being examined if they have sufficient intelligence to understand "the obligation" to speak the truth; and in M. v. Kennedy 1993 S.C.L.R. 69, the Lord President at page 76 says that "The test of admissibility is essentially this, whether the child is likely to give trustworthy evidence". In P. v. H.M. Advocate 1991 S.C.C.R. 933, which was referred to by the Lord President, the trial judge said in relation to a five year old "I am not satisfied that his understanding of the truth is so limited that he could not properly be tendered as a witness" and this appears to have been seen as putting the matter "wrongly". It is, however, perhaps consistent with the approach adopted in M. v. Kennedy (and in Macdonald) in concentrating on the potential truthfulness of the child as a witness, rather than upon a simple but abstract distinction between truth and falsehood. It has not been necessary, in this case, to focus upon any specific aspect of truth and falsehood, far less to attempt any analysis of the multiplicity of concepts which may be involved. That being so, we would not wish to say anything which might be taken as laying down what should or should not be covered by the preliminary examination. Depending on the case, it may be important, either at the stage of examination, or at the stage of admonition, to test or warn the child not merely in relation to the difference between truth and deliberate falsehood, but in relation to matters which might be dealt with at the stage of actual evidence, but which may go deeper, affecting the child's fundamental "trustworthiness" or understanding. If a child naturally accepts what it is told by a parent, it may well in good faith produce that as "truth", although it is in fact simply hearsay, or (perhaps more dangerously) an account which the child has come to believe is its own recollection, when it is in fact the fruit of suggestibility, fantasy or deliberate coaching. It appears to us that the time has perhaps come for a study, with contributions from skills outside the law, of this whole area. In the absence of some such study, it is not clear to us that sufficient guidance can be given to judges and sheriffs either as to what it is that they are trying to discover about the child, or as to how to discover it, either from talking to the child or from other, perhaps expert witnesses.