Director of Public Prosecutions v R

Witness competence must be assessed both when a video-recorded interview is admitted and throughout the trial. Loss of memory does not itself make a witness incompetent: competence concerns the ability to understand questions and give intelligible answers. An interview already admitted under the special-measures provisions cannot later be retrospectively unadmitted, although its reliability and evidential weight remain for the trial court. A statement may also be admissible under the hearsay provisions where the statutory conditions are met. Interview evidence from a severely disabled and highly suggestible defendant may be excluded under Police and Criminal Evidence Act 1984 section 78 because it has no real value or its admission would adversely affect trial fairness.

The Director of Public Prosecutions appealed by way of case stated after magistrates acquitted a 13-year-old defendant of indecently touching a 13-year-old complainant. Both children were severely mentally handicapped. The complainant’s video-recorded police interview had been admitted, but she had no independent recollection by the time of trial. The defendant’s interview contained answers obtained from a highly suggestible child who did not understand the caution or most questions. The magistrates treated the complainant as incompetent, admitted her interview as hearsay in the interests of justice, excluded the defendant’s interview under section 78 of the Police and Criminal Evidence Act 1984, and acquitted. The Divisional Court considered four questions concerning competence, loss of memory, unfitness under section 116(2)(b) of the Criminal Justice Act 2003, and exclusion of interview evidence.

1. Competence. Under section 53(3) of the Youth Justice and Criminal Evidence Act 1999, competence concerns whether the witness can understand questions and give intelligible answers. It must be considered when the court decides whether to admit a video-recorded interview and again during the trial, particularly when cross-examination is attempted. If the witness is incompetent at trial, the court may refuse to receive an interview under section 27(4) because the witness will not be available for cross-examination.
2. An interview already admitted cannot retrospectively be unadmitted. Its weight depends on the evidence as a whole and on the circumstances of the original interview. Where competence fails only later, the court may conclude that no reasonable tribunal could safely rely on the interview, as illustrated by R v Powell [2006] EWCA Crim 3.
3. Loss of recollection is distinct from incompetence. A witness who understands questions and gives intelligible answers, including an answer that the witness cannot remember, remains competent. The complainant was therefore competent, although the absence of cross-examination might make her interview unsafe to rely upon.
4. Question 3 did not arise on the facts. Ordinarily, however, a witness incompetent under section 53 is also likely to be unfit to be a witness because of mental condition under section 116(2)(b) of the Criminal Justice Act 2003. Section 116(2)(b) is concerned with fitness to give evidence, not merely physical attendance at court. Section 114(1)(d) involves a separate discretionary interests-of-justice test.
5. The complainant’s interview had been properly admitted under the special-measures provisions and did not require admission as hearsay under section 114. In cases of supervening loss of memory, sections 139 and 120 of the Criminal Justice Act 2003 may also apply, although the court left the position concerning supervening incompetence open.
6. The magistrates were entitled to exclude the defendant’s interview under section 78 of the Police and Criminal Evidence Act 1984. The basis was not improper questioning or breach of a Code, but the defendant’s severe disability and suggestibility, which made the answers valueless and justified exclusion or rejection of the evidence.
7. The appeal was dismissed. The magistrates had correctly considered the complainant’s interview, rejected the defendant’s interview as valueless or unfair, and concluded that they could not be sure of guilt.

• Magistrates’ court: The defendant was acquitted after the magistrates admitted the complainant’s video interview, excluded the defendant’s interview under section 78 of the Police and Criminal Evidence Act 1984, and concluded that they could not be sure of guilt.
• High Court (Administrative Court): The Divisional Court answered the case-stated questions substantially in favour of the magistrates’ approach and dismissed the appeal.