W and M, R. v

On a submission of no case, the judge must decide only whether the evidence, taken at its highest, could properly allow a jury to be sure of guilt. The judge must not determine credibility, accuracy or the weight of disputed evidence.

This applies equally to evidence from a child. A child’s apparent agreement with leading or directly contradictory questions may, depending on the circumstances, reflect a wish to please or to end questioning. It does not automatically amount to a reliable retraction. The issue remains for the jury unless no jury could safely convict.

A recent complaint admissible under the Criminal Justice Act 2003 did not require an additional caution where the summing-up fairly identified the competing contentions about it.

Two boys, each aged ten, were tried in the Crown Court with an eight-year-old girl. They were unanimously acquitted of rape but convicted by majority verdicts of attempted rape.

The prosecution case depended substantially on the girl’s accounts of the events. In cross-examination she agreed with propositions that appeared inconsistent with earlier allegations of attempted penetration. The defendants submitted that this amounted to a retraction and that there was no case to answer. They also challenged the absence of a specific warning about the girl’s complaint to her mother.

The common issue was whether the judge had been entitled to leave the evidence to the jury.

1. Leave to appeal was granted, but both appeals were dismissed. The judge had applied the correct no-case test. Under R v Galbraith [1981] 73 Cr.App.R 124, the issue is whether the evidence, taken at its highest, could properly permit a jury to be sure of guilt. Assessment of credibility, accuracy and the proper weight of disputed evidence is for the jury.

2. The girl’s original accounts, her trial evidence and the answers obtained in cross-examination had to be assessed as a whole. Her agreement with directly put propositions did not necessarily establish that she had genuinely changed her account. A child may assent in order to please the questioner or to bring unfamiliar and tiring questioning to an end. Those risks did not prevent a no-case submission, but made the inquiry intensely fact-sensitive.

3. The trial judge, who had seen and heard the child, was entitled to conclude that a jury could regard her answers in cross-examination as not being meaningful agreement with the propositions put. The evidence was therefore capable of supporting a finding that there had been an attempt at penetration. It was for the jury to decide whether the answers were true retractions or an attempt to end the questioning.

4. The complaint to the girl’s mother was admissible under sections 120(4) and 120(7) of the Criminal Justice Act 2003. The summing-up fairly identified the parties’ competing contentions. No additional specific caution was required, because the suggested retractions were themselves the issue for the jury.

5. In a postscript, the court stressed that classification of an offence as a grave crime under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 does not automatically require Crown Court trial. Applying the guidance in R (on the application of) H, A and O v Southampton Youth Court [2004] EWHC 2912 (Admin), the relevant question is whether a sentence beyond the Youth Court’s powers is realistically likely. Proceedings involving very young children should, where possible, remain in the Youth Court.

• Court of Appeal (Criminal Division): Leave to appeal was granted, but the appeals against conviction were dismissed.
• Crown Court: The defendants were unanimously acquitted of rape and convicted by majority verdicts of attempted rape.