MacPherson, R. v [2005] EWCA Crim 3605

Case No 200400017/B4[2005] EWCA Crim 3605
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 27th July 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE FORBES
MR JUSTICE CALVERT-SMITH
Between
R E G I N ACrown-v-
Between
IAN MACPHERSON
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A KANE appeared for APPELLANTMR C WARD-JACKSON appeared for CROWN
J U D G M E N T
[1]MR JUSTICE FORBES: On 14th November 2003 in the Snaresbrook Crown Court, this appellant was convicted of indecent assault. On 26th January 2004 the trial judge imposed an extended sentence of 8 years made up of a custodial term of 4 years' imprisonment and an extended licence period of 4 years. He now appeals against that conviction by leave of the Full Court.[2]The facts were as follows. The appellant is a 50 year old Glaswegian, who has been living in London since 1977. Until May 2003 he lived with his partner and their son at [Address], North London. They then sold that property to a John L who bought it as a home for his ex-wife, MJ, and their daughters, S, who is now aged six-and-a-half and is the complainant in this matter, and her younger sister, Y.[3]The property in question is a four-storey house in multiple occupation with a flat on each storey. [Address] is a two bedroomed basement flat.[4]The allegation giving rise to the charge in this case was to the effect that the appellant committed an opportunistic act of oral sex on S during a visit to his former flat. The defence was a complete denial that any such incident had occurred.[5]MJ, the mother of S, is Danish. She gave evidence that on Monday 2nd June 2003, at about 3.30 in the afternoon, she was in the communal garden at the rear of her house, in the company of a neighbour, Mr CM, and her ex husband. There were also two builders in the house at the time, ripping out the kitchen furniture, preparatory to carrying out work there.[6]At about 4 o'clock that afternoon the appellant arrived to speak to his former neighbour and also to collect various garden items that he had left behind. Normal pleasantries were exchanged before the appellant walked into the house with Mr CM ostensibly to pass on his new address to Mr CM. Ten minutes later Mr L asked Miss J to check on their daughter, S, who had also gone into the house. Walking past the builders in the kitchen, Miss J found S and the appellant both kneeling on the floor of S's bedroom. They were playing with building bricks. Miss J asked the appellant whether he missed his old home and he said that he did. He then followed her out of the bedroom into the hallway. S walked out following them as well. She gave her mother a "sheepish look" which her mother had never seen before. Then S said to her mother in Danish:
"this man licked my pussy"
. The appellant asked what S had just said and S repeated it again in Danish. Miss J took S into the garden and told Mr L what S had told her. He became very angry. He seized the appellant and telephoned the police on his mobile telephone. Miss J took S into the house and asked her again what had occurred. In her bedroom, S lay on her back on the bed, resting on her elbows, and pulled up her skirt. She then pulled her knickers to one side, stuck out her tongue and moved it in a licking motion and said in Danish: "That's what he did to me mum".[7]On arrival, the police found the appellant and Mr L in an angry agitated state. The appellant was arrested and cautioned. He replied: "Okay". One of the officers asked for an account of the events from the parents, which they gave in the presence of S. S agreed with what her parents were saying. She lifted up her skirt, pointed to her knickers and said, this time in English: "He licked me there".[8]At 8.06 pm on the same day, S was interviewed and the interview was video recorded. During the course of the interview S was asked what had happened. She replied:
"Do you know what the naughty man did to me? He did something here. I just lied down on my bed, on my sister's bed then he did do this. He did it with his tongue in here."
As she spoke, S laid back on the sofa and pointed at her genitals. At a later stage in the interview, she knelt down on the floor facing the sofa and used a licking motion to demonstrate what she claimed the appellant had done to her. She was asked what the appellant had done with his hands. She replied "nothing."[9]At trial, S was cross-examined. In the course of the cross-examination, she said that she could not remember whether the appellant had put her on his shoulders. When it was suggested to her that the appellant had not licked her and that she had made up the allegation because she had wet her pants, she replied "yeah".[10]However, in re-examination, she said:
"I told her he licked me. I know he was a really naughty man."
[11]Detective Sergeant O'Sullivan was the interviewing officer in the video interview and she was referred to the Home Office procedures for obtaining best evidence in such situations. She accepted that there had been no real rapport stage in the course of the interview. Her explanation for that was that S was fidgety and anxious to leave and had immediately gone into an explanation of what had happened herself.[12]The appellant was interviewed at 11.12 that night. He told the officers how he had entered the house to look at the changes taking place. He had seen S in her bedroom, playing with the building blocks, and he had joined in. He said that he only stayed for a few minutes, then both of them had left the room.[13]S's knickers were subjected to DNA analysis. In the crotch area the expert witness, Dr Christopher Mackenzie, discovered staining which indicated the possible presence of saliva and vaginal material which gave a mixed profile on testing. The profile of the male DNA corresponded with that of the appellant. In Dr MacKenzie's opinion it was likely to have been saliva and provided extremely strong scientific evidence to support the view that the appellant had licked S's vagina. It was extremely unlikely, according to Dr Mackenzie, to have come from sweat from the back of the appellant's neck. Secondary transfer was unlikely to have given rise to the quantity of the appellant's DNA which was profiled within the knickers. However, in cross-examination Dr Mackenzie, very fairly, accepted that S's behaviour of putting her hand in her mouth and then onto her knickers could explain the secondary transfer of cellular material.[14]The appellant gave evidence on his own behalf. He said that he had called round to his former address that afternoon in order to collect various garden material. On arrival he had chatted with his former neighbours. He said that he had played with S and he had put her on his shoulders. He was curious about the work that was going on in the house, so he had walked through to have a look. He said that he had seen S sitting on her bedroom floor and that he had then knelt down to help her play with some building bricks. They had chatted for a few minutes, then both of them left the room. He said that he heard her saying something to her mother and was "gob smacked" when S's mother had made the accusation. He emphasised that he had done no such thing. He agreed that he had made no mention in interview of placing S on his shoulders but there was an admission to the effect that whilst the appellant was in the custody suite, he used the word "shoulders" and "wee girl" to his partner during a telephone conversation that took place in the interview suite.[15]Character evidence was called from various witnesses to support the appellant's good character.[16]At trial, counsel for the appellant submitted that S was not a competent witness, applying the criteria set out in case law, largely referable to the common law position prior to the 1999 Act, and also by reference to the provisions of the Youth Justice and Criminal Evidence Act 1999. Counsel maintained that the judge should satisfy himself as to the child's ability to understand the questions put to her and as to her ability to respond with intelligible answers. Counsel also emphasised the importance of the judge satisfying himself that the prospective witness appreciated the difference between truth and falsehood.[17]The relevant statutory framework is as follows. Section 53 of the Youth

Justice and Criminal Evidence Act 1999 ("the 1999 Act") provides, so far as material as follows:

"(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2) Subsection (1) has effect subject to subsections (3) and (4). (3) 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 provides, so far as material:

"(1). Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised- (a) by a party to the proceedings, or (b) by the court of its own motion, 19. shall be determined by the court in accordance with this section. (2). It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings. (3). In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give in relation to the witness. (4). Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one). (5). Expert evidence may be received on the questions. (6). Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties." 25. "
'...witness' in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence in the proceedings."[18]Having heard detailed submissions from counsel, the judge ruled that S was a competent witness. At the heart of his detailed and careful ruling is the following passage (we quote from page 42 of the transcript):
"It seems to me, having regard to [S's] responses in interview, that she is capable of giving answers that can be understood. I cite this passage by way of illustration: 'Will you tell me what happened today before we go?' Answer: 'The man do something to me.' Question: 'Well, I wasn't there. Can you tell me everything that happened?' Answer 'Do you know what the naughty man did to me? He did do something here. He is a naughty man.' Question: 'He is naughty, you tell us exactly what went on, right from the start, you can go right back to the start?' Answer: 'No, I just lie down on my bed, on my sister's bed and then he did do this. He did it with his tongue in here.' I have seen the video disclosure interview and at this point the little girl lay back on the sofa in the interview room, she pulled up her skirt, so as to reveal her knickers, pointed at her genital area and demonstrated with her tongue that she was being licked in that area. It seems to me that taking that as an illustration of the interview, that it was clear that she was capable of understanding questions put to her and that she was capable of offering answers to those questions in an intelligible way. The whole essence of the statutory provisions is to seek to prevent the courts from receiving unintelligible evidence, capability, capacity lies at the very heart. Questions of truthfulness and questions of reliability, I accept, as submitted to me Mr Ward- Jackson, essentially, go to weight to be attached to evidence, rather than to its intelligibility. Mr Ward-Jackson submits with some force that the words 'as a witness' mean giving answers to the Court, but I accept that there should be no special consciousness, as I have already said, of the status of the individual as a witness, in the forensic process, provided that the individual understands the questions that are put to him or her and is capable of giving intelligible are responses, it seems to me that that satisfies the test of competence. Of course, the law has changed very substantially in the last decade or two. There was a time when I readily accept and even within my own experience, that it was unheard of for a child of five or under to be called as a witness in criminal proceedings, but the law has moved on significantly since ten years ago and now there are available facilities, such as television link equipment, which are designed to put at ease very young witnesses or especially vulnerable witnesses, who some years ago, because that equipment was not available, could not realistically have been expected to give evidence in the intimidating surroundings of the Crown Court and so it seems to me the matter has to be reviewed in the context of legislation and technology and so, in all the circumstances, I do not feel it is necessary for me, personally, to interrogate the witness, having seen the disclosure interview, before ruling upon this submission and in the circumstances, for the reasons that I have adumbrated, it seems to me that my ruling must be that [S] is a competent witness."
[19]On behalf of the appellant, Mr Cane puts forward three grounds of appeal. First, that the judge erred in determining the competence of S on the basis of her memorandum video alone. Second, that the judge had had no or insufficient regard to the requirement that he should assess S's ability to understand and answer questions within the forensic forum as a witness as required by section 53 of the 1999 Act. Third, in reaching the his decision the judge had no or insufficient regard to S's ability to participate meaningfully in cross-examination.[20]It has to be said immediately that, so far as concerns the first ground of appeal, the judge plainly did not make his decision relating to the competence of S solely on the basis of the memorandum video. He also went to see S himself, accompanied by counsel for both the appellant and the prosecution and conducted a general conversation with her in the form of questions and answers of a most general nature. As we understand it, the conversation was designed to elicit S's ability both to understand what he was saying and to respond suitably.[21]At the heart of Mr Kane's submission and these grounds of appeal, is his contention that it was necessary for the judge to go through some suitable form of enquiry, when satisfying himself as to the competence of S, so as to ensure that he was satisfied that S did appreciate the difference between truth and falsehood. Mr Kane submitted that such an enquiry was a necessity, all the more so because the memorandum of interview had not gone through such an exercise as would normally be the case with a young witness. The reasons for that were dealt with by the interviewing officer in the course of her evidence. As we have already pointed out, the officer had to deal with a child who was fidgety and anxious to get on with the matter, so it was that the normal preliminary questions relating to an ability to understand the difference between truth and falsehood were not carried out in this case.[22]In the course of his submissions, Mr Kane said that the test that the judge had set himself, as expressed in his ruling in the passage to which we have referred, simply did not go far enough. He submitted that the judge had failed to satisfy himself that the prospective witness was capable of answering questions that were put to her "as a witness". He stressed that it was important to establish that the prospective witness in such circumstances was able to understand the difference between truth and falsehood and also appreciate the need to give a truthful answer to the questions put.[23]Furthermore, Mr Kane submitted that the judge's generalised enquiries in the course of his personal interview had singularly failed to provide material which would enable the judge to be satisfied that S was capable of engaging meaningfully in cross-examination.[24]We do not find any of these submissions, reflecting as they do the three grounds of appeal to which we have referred, as persuasive in any way. We accept that once the issue is raised as to the competence of a prospective witness, it is for the party calling the witness to satisfy the court that, on the balance of probabilities, the witness is competent.[25]In the ordinary way that issue should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial. In cases such as this, the judge should watch the videotaped interview of the child witness and/or ask the child appropriate questions. The test of competence is clearly set out in the Act and it is as follows:
"(a) Can the witness understand questions put to him or her as a witness? And (b) give answers which can be understood?"
Those are the plain words of section 53(1)(a) and (b) of the 1999 Act.[26]We agree with the submission put forward on behalf of the Crown by Mr Ward-Jackson in paragraph 7 of his written skeleton that the issue raised by paragraphs (a) and (b) of section 53(1) is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness's answers? That is precisely the test which the judge set himself in this case, and to which we have referred in the passage quoted from his ruling.[27]We also agree with Mr Ward-Jackson's submission that the words "put to him as a witness" mean the equivalent of being "asked of him in court." So, it would be the case that an infant who can only communicate in baby language with its mother would not ordinarily be competent. But a young child like the witness in this case, who can speak and understand basic English with strangers would be competent.[28]We have viewed the video recording of the memorandum interview in this case. It is perfectly clear why the judge reached the conclusion that he did. The little girl plainly understood the questions that were put to her and she gave clear and intelligible answers. Not only that, but she accompanied those answers with careful and graphic demonstrations of what had happened. It was very clear from her account as to what she said had occurred. She had no difficulty in understanding the various question that were put to her. True it is that she did not always answer them, but she plainly understood what was going on.[29]We also accept the submission that there is no requirement in the Act (which is commendably clear in its language) that the witness in question should be aware of his status as a witness. Questions of credibility and reliability are not relevant to competence. Those matters go to the weight of the evidence and might be considered, if appropriate, at the end of the prosecution case, by way of a submission of no case to answer.[30]In our judgment, the judge, in the course of his careful and detailed ruling, set himself the right test and clearly came to the right answer and one with which we entirely agree. It is clear from the video recording of the memorandum of interview that this little girl was a perfectly competent witness.[31]As the Crown submitted, a child should not be found incompetent on the basis of age alone and the question of competence can be kept under review. In this case the judge made it quite clear that he was going to keep the matter under review. However, no questions were actually raised during the course of the trial as to the S's competence, after the matter had been dealt with in the way that we have described.[32]Finally, we would simply observe that, in any event, the evidence was strong for the following reasons. S's allegation was consistent through two recent complaints and a lengthy interview. It was supported by the presence of saliva and the appellant's DNA inside her knickers. The appellant was apparently nervous when S made her first allegation in Danish when, if he had nothing to fear, there was no reason for him to be nervous. Finally, the appellant advanced by way of explanation for the DNA, that is to say the fact that he had carried S on his shoulders at some stage, an explanation that was inherently implausible, not witnessed by anybody and not mentioned in interview. It was also plainly an explanation which the jury, by their verdict, rejected.[33]For all those reasons, we have come to the conclusion that there is nothing in any of the three grounds of appeal that are advanced on behalf of this appellant in this matter. For those reasons this appeal against conviction is dismissed.

Cited in 1 later judgment