Watts, R v (Rev 3)

A witness’s competence to give evidence is distinct from the reliability of that evidence. Under the Youth Justice and Criminal Evidence Act 1999, a competent vulnerable witness should be assisted by special measures that improve evidential quality. Evidence obtained through those measures may be admitted even where direct cross-examination is unavailable, if the court so decides.

Questions of reliability ordinarily remain for the jury. A trial judge should not withdraw a count merely because the evidence is difficult or vulnerable to criticism, unless it is so demonstrably unreliable that it would be unsafe and wrong to leave it to the jury. Special measures do not diminish the jury’s primary role in assessing competent witnesses.

The appellant, a care worker at a residential home, was convicted at Exeter Crown Court of sexual offences against profoundly disabled residents. The convictions concerned non-penetrative sexual touching. The jury acquitted him of the more serious allegations of penetrative sexual activity and rape.

Three complainants gave evidence through recorded ABE interviews, two with assistance from intermediaries and communication aids. A fourth complainant’s recorded interview was admitted after she became unable to communicate. The defence challenged the interview methods, the complainants’ suggestibility, confabulation and the reliability of their evidence. It also submitted that the case should have been withdrawn from the jury and that the summing up was unfair.

The appellant further appealed a total sentence of 12½ years’ imprisonment. The central issues were whether the convictions were unsafe and whether the sentence properly reflected the non-penetrative verdicts.

1. Conviction appeal dismissed. The complainants were competent witnesses if they could understand questions and give answers capable of being understood under section 53 of the Youth Justice and Criminal Evidence Act 1999. Competence was distinct from reliability. The statutory special-measures regime was intended to assist competent vulnerable witnesses to give the best evidence they could. Intermediaries formed an integral part of that regime. The court also held that section 27(4) left the admission of recorded evidence to the court’s judgment even if direct cross-examination was unavailable.

2. The trial judge correctly left the relevant counts to the jury. Where reliability is central, the jury should ordinarily assess the witness and the evidence. The evidence had been thoroughly tested through the interviewing officer, those involved in the interviews, expert evidence and defence submissions. The judge’s directions adequately identified the risks of suggestibility, compliance, fatigue and confabulation.

3. The verdicts were not logically inconsistent and were not unsafe. The jury could use the direct evidence supporting count 1 as evidence of a tendency towards manual, non-penetrative touching, while observing the warning that propensity did not itself prove the other counts. Its acquittals on penetrative counts reflected a careful count-by-count assessment, including the practical difficulties and lack of opportunity associated with those allegations. Special measures did not alter the primacy of the jury in deciding reliability.

4. Sentence appeal allowed. The original total of 12½ years was quashed. The convictions concerned non-penetrative touching, for which the applicable sentencing range and starting point were materially lower. Vulnerability and breach of trust were inherent features of offences under section 38(1) of the Sexual Offences Act 2003, rather than separate unambiguous aggravating features. Consecutive sentences remained appropriate for offences against four vulnerable victims, subject to totality. The court substituted a total sentence of four years’ imprisonment.

• Court of Appeal (Criminal Division) — in [2010] EWCA Crim 1824, dismissed the appeal against conviction but allowed the appeal against sentence and substituted four years’ imprisonment.
• Crown Court at Exeter — before His Honour Judge Cottle and a jury, convicted the appellant of sexual offences involving non-penetrative touching and imposed a total sentence of 12½ years’ imprisonment.