Malicki, R. v

Where the prosecution depends on the evidence of a very young child, the case must be brought to trial with particular expedition. A substantial delay may make effective cross-examination impossible, especially where the child has recently watched a recorded interview and cannot reliably distinguish that recording from an independent recollection of events.

Even a strong and promptly reported allegation cannot cure the resulting unfairness. In an appropriate case, the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984, the case stopped for want of evidence, and any resulting conviction quashed.

The appellant was convicted at Truro Crown Court of sexually assaulting a girl aged four years and eight months. The allegation was promptly reported and recorded in a video interview the following day. The appellant was acquitted of a separate count concerning another child.

The trial took place about fourteen months after the alleged offence. The appellant appealed against conviction, initially challenging the complainant's competence and the delay. The principal issue was whether the delay had made the trial unfair by preventing meaningful cross-examination of a very young child whose evidence was central to the prosecution case.

1. Appeal allowed. The conviction was quashed.
2. Under section 53(3) of the Youth Justice and Criminal Evidence Act 1999, competence depends on whether the witness can understand questions and give intelligible answers, not on age alone. The trial judge was entitled to find the complainant competent. It was sensible to receive her evidence and cross-examination before revisiting that issue.
3. The delay nevertheless made the trial unfair. The court followed the concern expressed in R v Powell [2006] EWCA Crim 03: cases dependent on very young children require a prompt interview and a speedy trial. Although the interview here was prompt, a fourteen-month interval created a real risk that the child had no reliable independent memory of the event.
4. The risk was aggravated because the complainant had watched her recorded interview shortly before and during the trial. In those circumstances, she might only have recalled what she had said in the recording and could not reliably distinguish that from memory of the underlying event. Effective cross-examination about the incident and its immediate aftermath was therefore almost impossible. Those difficulties went beyond ordinary problems of recollection.
5. The initial complaint and subsequent consistency made the prosecution case strong, but did not remove the unfairness. The judge should have excluded the complainant's evidence under section 78 of the Police and Criminal Evidence Act 1984 and then stopped the case for want of evidence. The conviction was unsafe.
6. As guidance, all parties and the courts must ensure that cases involving very young complainants are fast-tracked at every stage.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction.
• Truro Crown Court: Following a jury trial before Judge Elwin, convicted the appellant on one count of sexual assault of a child under 13 and acquitted him on a separate count.