DPP v R
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES,MR JUSTICE TREACY |
| Judgment Date | 12 July 2007 |
| Neutral Citation | [2007] EWHC 1842 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7333/2006 |
| Date | 12 July 2007 |
[2007] EWHC 1842 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Hughes
Mr Justice Treacy
CO/7333/2006
Mrs A Rippon (instructed by CPS Durham) appeared on behalf of the Claimant
Mr C Dorman-O'Gowan (instructed by Hewitts, Durham DL14 7EL) appeared on behalf of the Defendant
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.
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.
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."
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.
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.
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.
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."
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.
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.
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? "
I would approach those four questions in this way:
Question 1
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."
Section 54 contains supplemental provisions for determining the issue.
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.
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