H, R. v

Conflicting accounts by prosecution witnesses ordinarily raise questions of credibility for the jury. A judge should withdraw the case only in the exceptional case where inconsistencies compel the conclusion that the evidence is untruthful.

A young defendant’s trial must be adapted to secure effective participation under article 6. Departures from the applicable safeguards do not alone render a conviction unsafe; the court must assess whether the defendant could participate effectively and suffered a concrete disadvantage. A jury need not be directed on an ingredient that raises no issue on the evidence, provided the summing up correctly states all ingredients of the offence.

The respondent, aged 14 at conviction, was convicted at Cardiff Crown Court of four counts of rape by oral penetration, contrary to section 1 of the Sexual Offences Act 2003. He received 18 months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and an order disqualifying him from working with children.

He appealed against conviction on grounds concerning the sufficiency of inconsistent witness evidence, the fairness of his trial as a young defendant, a judicial intervention, the direction on rape, and the refusal of a witness summons. He also appealed against sentence. The central questions were whether the verdicts were unsafe and whether the sentence or disqualification order should be disturbed.

1. The appeal against conviction and the appeal against sentence were dismissed. The inconsistencies between the accounts of the child witnesses were substantial, but they concerned credibility and reliability. The trial judge was entitled to leave those matters to the jury. There was evidence capable of proving each essential allegation, and no basis on which the witnesses could have been mistaken rather than deliberately fabricating their accounts.
2. The court stressed that the Practice Direction concerning young defendants must be observed by the court and prosecution as well as by the defence. It gives effect to article 6 of the European Convention and requires trial procedures to be adapted to enable effective participation. The formal courtroom and unrestricted attendance were legitimate concerns, but the appellant had counsel, a solicitor and his mother beside him, regular breaks, and no demonstrated inability to communicate or participate. The trial was therefore fair.
3. The judge’s intervention during cross-examination of a child witness was unfortunate and could have appeared to express a view of the evidence. In the context of a six-day trial, however, it did not realistically affect the verdicts or make them unsafe.
4. The summing up correctly identified the three ingredients of rape under section 1 of the Sexual Offences Act 2003. It was permissible to focus the jury on penetration because the defence was that no incident occurred and neither consent nor reasonable belief in consent arose on the evidence. Read as a whole, the summing up did not withdraw those elements from the jury.
5. The refusal of a witness summons was correct. Under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, the proposed witness had to be likely to give material evidence. The judge was entitled to conclude that this condition was not met.
6. The 18-month detention sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 was not excessive for repeated serious sexual assaults on a young child. The disqualification order was upheld, but the court clarified that it was indefinite rather than an order made for life.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction and sentence.
• Cardiff Crown Court: Convicted the appellant on 5 December 2005 of four counts of rape by oral penetration, sentenced him to 18 months’ detention, and made a disqualification order concerning work with children.