R v B

Under Youth Justice and Criminal Evidence Act 1999, a witness of any age is competent if able to understand questions and give answers that can be understood. Competence is a judgment on the individual witness, not a discretionary assessment of truthfulness, reliability or age. Those latter issues are for the jury.

A court may reconsider competence after the witness has testified where effective cross-examination proves impossible. Delay in a case involving a young child must be kept to a minimum, but delay alone neither creates a separate defence nor automatically requires exclusion of the evidence. A properly directed jury may safely convict on the evidence of one competent witness, whatever that witness’s age or disability.

The appellant was convicted at the Central Criminal Court of anal rape of a child under 13 and sentenced to life imprisonment with a minimum term of 10 years. The complainant was four and a half at trial. Her evidence comprised an Achieving Best Evidence interview and live cross-examination by video link.

The appeal challenged her statutory competence, the fairness of the opportunity to cross-examine her, the effect of delay, and an inadvertent reference during the summing-up to the surname of a co-accused associated with the death of another child. The appellant also challenged the life sentence and minimum term as excessive.

The central issue was whether a conviction substantially dependent on the evidence of a very young child was safe where the child had developmental and communication difficulties.

1. Appeals dismissed. The trial judge was entitled to find the complainant competent before she gave evidence and to confirm that conclusion after cross-examination. The Court of Appeal independently reviewed the interview and transcript and found no basis to interfere.

2. Section 53 of the Youth Justice and Criminal Evidence Act 1999 makes every person, whatever their age, competent unless unable to understand questions or to give understandable answers. The test is individual and trial-specific. It does not require a child to understand the special importance of truth in court, to understand every question, or to answer every question perfectly. The judge makes a judgment, rather than exercises a discretion, and may not add criteria derived from earlier assumptions about young children.

3. Competence is distinct from credibility. Once the statutory test is met, the jury assesses truthfulness, reliability and weight, making proper allowance for the witness’s age and characteristics. Adapted questioning and child-focused trial arrangements do not themselves show incompetence. The defendant’s right to a fair trial remains protected by short, simple questions that put the essential defence case and expose any fabrication, suggestion or inconsistency.

4. The court may revisit competence after the child has given evidence. That safeguard is engaged where the child cannot provide intelligible answers in cross-examination or meaningful cross-examination has proved impossible. In that event, exclusion under section 78 of the Police and Criminal Evidence Act 1984 may be appropriate. It does not permit the judge to determine credibility.

5. Delay should be reduced to an irreducible minimum in cases involving young children. It does not, without more, create a limitation period, a special defence, or an automatic basis to exclude evidence. Its effect remains case-specific. Here, the child remained competent and the defence had been able to put its case to her.

6. The jury had received meticulous and fair directions. It could safely convict on the evidence of a single competent child witness. The inadvertent reference to the co-accused’s surname did not require discharge of the jury and caused no demonstrated prejudice. The life sentence and 10-year minimum term properly reflected the totality and gravity of the appellant’s associated offences against exceptionally vulnerable children.

1. Court of Appeal (Criminal Division) Leave to appeal against conviction and sentence was granted. Both appeals were dismissed.

2. Central Criminal Court Before His Honour Judge Kramer QC, the appellant was convicted of anal rape of a child under 13 and sentenced to life imprisonment with a specified minimum term of 10 years.