P v R.

Witness competence depends on functional ability, not age. A witness must be able to understand questions and give answers that can be understood.

Where a preliminary ruling finds a very young child competent, the court must keep that ruling under review. Competence concerns the witness’s evidence as a whole, including cross-examination. If the evidence shows that the child cannot give intelligible answers enabling the defence to put its case, the prosecution has not discharged the burden of proving competence and the case should be withdrawn from the jury.

The discretion to exclude a recorded interview under Youth Justice and Criminal Evidence Act 1999 is broad. Interview deficiencies will ordinarily affect weight unless they render the process fundamentally unfair.

The appellant was convicted at Harrow Crown Court of indecent assault on a child aged three and a half. The prosecution relied on the child’s account to her mother, a video-recorded interview made nine weeks after the alleged offence, and other evidence.

The judge ruled before trial that the child was competent and admitted the video recording. At trial, the child gave little supplementary evidence and her answers in cross-examination were largely non-responsive or unintelligible in the context of the defence case.

The appellant appealed against conviction, challenging the finding of competence, the admission of the recording, and the refusal to stop the case. The central issue was whether the child had remained a competent witness when her evidence as a whole was considered.

1. Appeal allowed. The conviction was unsafe because the prosecution failed to establish that the complainant was competent to give evidence at trial.

2. Under Youth Justice and Criminal Evidence Act 1999, age does not itself determine competence. The question is whether the witness can understand questions and give answers that can be understood. The judge was entitled, on the pre-trial material, to find that the complainant initially met that threshold. She correctly recognised that the issue might require reconsideration after the child had given evidence.

3. That reconsideration should have occurred. The video interview might just have supported competence, but the subsequent attempt at cross-examination showed that the child’s answers were not intelligible in the context of the case. The defence could not effectively put its account to her. Competence relates to the whole of a witness’s evidence, not merely the pre-recorded part. The Crown bore the burden of proof and had not discharged it. The judge should therefore have withdrawn the case from the jury when the child’s evidence ended.

4. The judge’s decision to admit the video recording under section 27(2) was not erroneous. The interview had serious shortcomings, including delay and distractions, but they did not make the process fundamentally unfair. They were matters for the jury when assessing weight. Section 78 of the Police and Criminal Evidence Act 1984 added nothing on these facts.

5. The court also stressed that cases dependent on a very young child’s evidence should be fast-tracked. The ABE interview should occur very soon after the event and the trial should follow soon enough for meaningful cross-examination. It was unacceptable for this trial to take place more than nine months after the alleged offence.

• Court of Appeal (Criminal Division): allowed the appeal against conviction in [2006] EWCA Crim 3 because the complainant was not shown to be competent when her evidence as a whole was considered.
• Crown Court at Harrow: the appellant was convicted of indecent assault before Her Honour Judge Tapping and a jury on 25 November 2004.