Q, R v

A trial judge may respond firmly, but fairly, when a witness refuses to answer proper questions. The witness should be reminded of the legal obligation to answer and of the court’s power to punish a refusal. A conviction is not unsafe where cross-examination remained effective, the defence case was fully put, and the jury received a careful warning about the reliability of the witness’s evidence.

Evidence that prosecution witnesses have no relevant convictions may be admissible where the defence centrally alleges that they committed the offence or comparable criminal acts. In sentencing for a sustained assault on a very young child by a person acting in loco parentis, vulnerability, abuse of power and the seriousness and extent of the injuries may justify a sentence at the upper end of the scale.

The appellant was convicted at Isleworth Crown Court of assault occasioning actual bodily harm to a four-year-old child and sentenced to three years and nine months’ imprisonment.

He appealed against conviction on the basis that the trial judge had dealt improperly with the evidence of the child’s aunt after she initially refused to continue answering questions. He also challenged the admission and summing-up of evidence concerning the criminal records, or absence of records, of two women whom the defence alleged were responsible for the child’s injuries.

He further appealed against sentence as manifestly excessive. The central questions were whether the trial had been rendered unfair or the verdict unsafe, and whether the sentence was excessive in light of the seriousness of the assault.

1. Both appeals were dismissed. The court held that there was no material irregularity in the judge’s handling of the aunt’s temporary refusal to answer questions. A witness is under an obligation to answer proper questions, and the judge was entitled to reinforce that obligation by referring to his power to punish a refusal. He assessed the witness’s position, allowed her time to reflect, and dealt with the matter sensitively and fairly.

2. The witness remained available for effective cross-examination. The defence put its case robustly and obtained answers supporting the contention that the witness had been pressured to make her original account. Any questionable aspect of the prosecution’s re-examination caused no real prejudice when the evidence was viewed as a whole. The defence itself had introduced the withdrawal statement and called evidence about its circumstances. There was therefore no basis to exclude the evidence under Police and Criminal Evidence Act 1984 section 28, discharge the jury, or find the verdict unsafe.

3. The judge’s warning to the jury about the need for particular care in assessing the aunt’s evidence was fair and comprehensive. It directed the jury to reject her evidence if they considered her original account unreliable or unsafe, while permitting reliance only if they were sure it was truthful and accurate.

4. Applying R v Mazhar Ali [2006] EWCA Crim 1976, the court held that the evidence concerning the absence of convictions of the two women was relevant and admissible. The defence had alleged that they caused the injuries and had committed criminal acts against children. Their criminal records therefore bore on a central issue. The judge’s directions on the appellant’s convictions and the women’s records were adequate and, if anything, favourable to the appellant.

5. The sentence, though severe, was not manifestly excessive. The appellant had acted in loco parentis, abused a position of power over a particularly vulnerable young child, and inflicted a sustained and serious beating. The number and extent of the bruises and abrasions placed the offence at the very upper end of the scale.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 1824, dismissed the appeals against conviction and sentence.
• Crown Court at Isleworth: On 14 October 2010, convicted the appellant of assault occasioning actual bodily harm and imposed three years and nine months’ imprisonment.