MacPherson, R. v

Under Youth Justice and Criminal Evidence Act 1999, competence is confined to whether a witness can understand questions and give answers that can be understood. It does not require the witness to understand the difference between truth and falsehood, appreciate a forensic status as a witness, or demonstrate credibility and reliability. Those latter matters concern the weight of the evidence.

When competence is challenged, the party calling the witness bears the burden of proving it on the balance of probabilities. A young child is not incompetent merely because of age. The question may remain under review during the trial.

The appellant was convicted at Snaresbrook Crown Court of indecent assault on a young child and received an extended sentence. The prosecution relied on the child’s accounts of the assault, a video-recorded interview, and DNA evidence consistent with saliva from the appellant on the child’s clothing.

Before the child gave evidence, the trial judge ruled that she was competent. The appellant appealed against conviction, contending that the judge had relied improperly on the video interview, had not assessed competence in the forensic setting, and had not established that the child could participate meaningfully in cross-examination.

The central issue was the proper statutory test for a child witness’s competence under the Youth Justice and Criminal Evidence Act 1999.

1. Appeal dismissed. The trial judge applied the correct test and was entitled to find the child competent to give evidence.

2. The statutory inquiry under Youth Justice and Criminal Evidence Act 1999 is limited to whether the proposed witness can understand questions and give intelligible answers. It is an inquiry into the witness’s understanding and ability to communicate, including whether a jury can understand the answers.

3. The court rejected the contention that competence additionally required proof that the child understood the distinction between truth and falsehood, appreciated an obligation to answer truthfully, or understood a formal status as a witness. Credibility and reliability concern the weight of the evidence, not its admissibility through competence. They may, where appropriate, be addressed at the close of the prosecution case.

4. Once competence is in issue, the party calling the witness must establish it on the balance of probabilities. Ordinarily the question should be resolved before the witness is sworn. The judge may assess a child through the video-recorded interview and/or appropriate questions. A child is not to be found incompetent merely because of age, and competence can remain under review.

5. Here, the judge had not relied solely on the video interview. He had also spoken with the child. The recording showed that she understood the questions, gave clear answers, and could demonstrate her account. There was no later reason to revisit competence. The court also observed that the evidence supporting the conviction was strong.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction and upheld the ruling that the child was competent under the Youth Justice and Criminal Evidence Act 1999.
• Snaresbrook Crown Court Convicted the appellant of indecent assault on 14 November 2003 and imposed an extended sentence on 26 January 2004.