M, R. v

Witness competence depends on the statutory communication test: whether the witness can understand questions asked in court and give answers that can be understood. Credibility and reliability concern the weight of the evidence, not competence.

On a prosecution appeal challenging a terminating ruling as unreasonable, the appellate court asks whether the ruling was reasonably open to the trial judge. It does not substitute its own preferred course. Special measures and intermediary assistance must be considered, but a judge may find that communication difficulties prevent a fair opportunity to challenge the evidence. If the judge concludes that the witness is not competent, an immediate ruling is permissible.

The prosecution appealed, under Criminal Justice Act 2003, against a terminating ruling at Bristol Crown Court. The defendant faced charges concerning alleged sexual conduct involving a nine-year-old complainant with learning and communication difficulties.

Before the jury was sworn, the trial judge held that the complainant was not a competent witness and excluded the DVD recording of his police interview. An intermediary had reported that he could give evidence if extensive communication safeguards were used, but also identified serious difficulties with language, sequencing, concentration and susceptibility to leading questions.

The prosecution accepted that the judge had directed himself correctly on competence. Its appeal contended that the ruling was unreasonable, premature, and insufficiently attentive to special measures and intermediary assistance.

1. The prosecution’s appeal was dismissed. The trial judge’s conclusion that the child was not competent to give evidence was reasonably open to him. Under section 61(3) of the Criminal Justice Act 2003, the court therefore ordered the defendant’s acquittal on counts 3 and 4.

2. The governing competence inquiry was that stated in MacPherson [2005] EWCA Crim 3605 and section 53(3) of the Youth Justice and Criminal Evidence Act 1999. It concerns whether the witness can understand questions put as a witness and give answers which can be understood. Questions of credibility and reliability go to evidential weight, not competence.

3. The prosecution did not allege legal error. It relied on section 67(c) of the Criminal Justice Act 2003, so the appellate question was whether the decision was reasonably open to the judge, rather than whether this court might have adopted a different course. The members of the court considered it likely that they might themselves have allowed the complainant to give evidence while keeping competence under review. That did not justify appellate intervention.

4. The judge had carefully considered the interview transcript, the intermediary’s written and oral evidence, the available special measures, and his own questions to the complainant by video link. He was entitled to conclude that the extensive safeguards proposed could not all be reconciled with a fair opportunity for the defence to challenge the evidence.

5. Where a judge concludes that a witness is, or may be, competent, the evidence should be allowed and competence kept under review. But where the judge concludes at the outset that the witness is not competent, it is not unreasonable to rule immediately. Once the competence ruling stood, the challenge to exclusion of the DVD interview failed; in any event, its exclusion was sustainable.

• Court of Appeal (Criminal Division): Dismissed the prosecution’s appeal against the terminating ruling and ordered acquittal on counts 3 and 4.
• Bristol Crown Court: Before the jury was sworn, held that the complainant was not a competent witness and excluded the DVD police interview.