DPP v M
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PHILLIPS,MR JUSTICE HOOPER |
| Judgment Date | 25 May 2004 |
| Judgment citation (vLex) | [1996] EWCA Civ J1212-3 |
| Docket Number | CO/1662/96 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2004 |
[1996] EWCA Civ J1212-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Phillips
and
Mr Justice Hooper
CO/1662/96
MR W BACH (instructed by the Crown Prosecution Service, Derby) appeared on behalf of the Applicant.
THE RESPONDENT did not appear and was not represented.
Thursday 12th December 1996
This is the first of two appeals by way of Case Stated that we heard together, for they each raise questions as to the correct approach of the Court when an issue is raised as to the competence of a child witness.
With effect from February 3rd 1995 the following subsection was introduced into section 33A of the Criminal Justice Act 1988:
"(2A) A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony."
This appeal raises the question of whether the Court can properly conclude that a child is incapable of giving intelligible evidence on the basis of the age of the child alone.
The case is stated by the Crown Court at Derby at the request of the prosecution, for whom Mr Bach has appeared. He has made it plain that the prosecution merely seek to resolve the question of law that is raised and have no intention, should the appeal succeed, of reinstituting proceedings against the Defendant. In setting out the facts and the opinion of the Court, as stated in the case, I shall revise it slightly to exclude immaterial matters:
"On the 4th day of January 1995 an information was preferred by the Appellant (the Crown) against a minor (hereinafter referred to as 'M') that on the 19th day of September 1994 he indecently assaulted a young girl (the complainant) contrary to section 14(1) of the Sexual Offences Act 1956.
On the 13th day of September 1995 the Justices sitting at the Derby Youth Court heard the said information and 'M' was convicted. 'M' was made the subject of a 2 year supervision order and was ordered to pay £100 compensation.
An appeal against the decision of the Justices was made by 'M' at the Crown Court at Derby, which was heard on 20th December 1995.
We were asked by Counsel for 'M' at the outset to give a ruling upon the admissibility of the evidence of the child complainant in this case. We were given the following facts by Counsel for 'M' which we accepted:
(a) At the date of the incident, the 19th day of September 1994, the complainant was aged 4 1/4 years and 'M' was aged 12 years. At the date of the Appeal to the Crown Court at Derby, the complainant was aged 5 1/2 years.
(b) The complainant complained to her mother the same day and was medically examined both on that day and again on the 20th day of September 1994.
(c) On 20th September 1994 the complainant was spoken to about the incident by her two Aunts.
(d) On 21st December 1994 the complainant was formally interviewed, which interview was recorded on video tape. In that interview the complainant only said that the complainant only said that 'M' had done something 'naughty'.
(e) Nine days later, on 30th day of September 1994 the complainant was again interviewed on video tape. In the course of that interview she alleged that 'M' had inserted penis inside her vagina.
(f) The complaint made in the second video tape-recorded interview was not consistent with what the complainant said to her mother on 19th September 1994.
It was contended by Counsel for 'M' that the child complainant by reason of her age alone was incapbable of giving intelligible testimony.
It was contended by the Prosecution that we should assess whether the complainant was capable of giving intelligible testimony either by watching the video-recorded interviews or otherwise. It was argued that the only test was whether the child was capable of giving intelligible evidence.
We were concerned about the girl's evidence on two grounds. One was her age.
We bore in mind section 33A(2)A of the Criminal Justice Act 1988 and that the only ground for impugning the competence of a child witness is that a child is incapable of giving intelligible testimony. But we also bore in mind the case of
R. v. Wallbrook 42 Cr App R 153 , 160, where is was said to be most undesirable that a child as young as five should be called as a witness. Also R. v. Wright and Ormerod 90 Cr App R 91, where it was said that there must be quite exceptional circumstances to justify the reception of the evidence of a child in extremely tender years, a six year-old girl in that case. We also considered the strictures of Lord Lane CJ R. v. Z [1990] 2 QB 355 as to the care that must be taken in receiving the evidence of very young children, although there is no minimum age.
Our second ground of concern was that there was an obvious danger that the girl's evidence had been contaminated, when considering the number of people spoken to her before the final video tape. We felt this had probably taken place and was the explanation for her change of story.
We did not view the video tape, as we were satisfied on the information we had been given that by reason of her age and of the inconsistencies in her story, she was not a witness on whom we should rely, and that any conviction resulting from her evidence would be unsafe."
The question posed by the court is as follows:
"Given the provision of section 33A (2A) of the Criminal Justice Act 1988 whether a Court should refuse to admit the evidence of a child complainant by reason of age alone; or, where there is a video recording of his/her complaint a court should assess, either by watching the video recording, or by the verbal questioning of the child by the court whether the Complainant is capable of giving intelligible testimony."
It is to be noted that this question does not reflect the statement of the Court about concern at the danger of contamination. That concern was not apparent to Counsel at the time and I consider that it is proper to address the question, as asked, without consideration of the complication that would be raised if we also had to consider contamination.
The Test
The cases referred to by the Court all predate the new subsection. As such it is necessary to approach them with caution. The only one which seems to me to have significance in the present context is R. v. Z [1990] 2 QB 355. In that case the issue was...
To continue reading
Request your trial