Competence – Learning difficulties – Sexual activity with children - Witness

R v M: CA (Crim Div) (Lord Justice Richards, Mr Justice Foskett, Mr Justice Jacob): 4 November 2008

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a terminating ruling finding the victim (V) not competent to give evidence against an offender (M) who had been charged with four counts relating to unlawful sexual behaviour with children.

V was aged nine and had learning difficulties. V’s parents had invited M to a party at their house and M had brought V several soft drinks during the party. The following day V told his parents that M had asked him to show him his penis. V was interviewed by the police and his learning difficulties were apparent. After that interview, a report was prepared by a registered intermediary speech therapist who assessed V’s learning difficulties as medium. She stated that V could give evidence but suggested that an intermediary be present, as well as several other special measures and provisos. The judge then ruled that there would be substantial difficulties in the trial if V were to give evidence because V had to be able to put his case and be challenged on that evidence, and even the special measures suggested would not deal with the possible difficulties at trial. The judge further ruled that, even if V were a competent witness, the DVD of his police interview would be excluded at trial. The Crown submitted that V should have been given the opportunity to give evidence and try to sequence events, and that the terminating ruling denied a vulnerable witness access to justice, which was wrong and unreasonable. The Crown further submitted that it was wrong and unreasonable to exclude the DVD of the police interview of V.

Held: (1) The judge had the relevant principles in mind, R v MacPherson (Ian) [2005] EWCA Crim 3605, [2006] 1 Cr App R 30 applied. Although a different judge may have allowed V to give evidence before making a ruling, it did not follow that the judge had acted unreasonably. The judge had the benefit of reading the transcript of V’s interview and seeing the oral evidence as well as speaking with V. It was plain that the judge had assessed the situation with care. The judge had the concern that even with all of the provisos there would not be a fair opportunity for M to challenge V’s evidence. Although the judge could have allowed V to give evidence and then reviewed the situation, the outcome could have still been the same and, therefore, it was not unreasonable to make that ruling at the outset.

(2) As V was not competent to give evidence at trial the challenge regarding the police interview fell away.

Appeal dismissed.

C Row for the appellant; L Matthews for the Crown.