Edwards, R. v

A trial judge may adapt the manner of cross-examination for a very young child where suggestive traditional challenges would risk confusion and produce unreliable answers. The adaptation must nevertheless preserve the defendant’s absolute right to a fair trial. A trial remains fair where the defence case and alternative explanations are fully apparent to the jury, relevant evidence is properly tested, and the jury receives balanced directions about any difficulty faced by the defence.

Witness competence is individual to the witness. A child is competent if able to understand questions and give understandable answers. Competence does not require an understanding of the special importance of telling the truth, nor understanding of every question or answer.

The appellant was convicted at Wolverhampton Crown Court of cruelty to C, a child under 16, and was sentenced to three years’ imprisonment. The Crown alleged that he punched C in the stomach, causing significant non-accidental injury, failed to obtain prompt help, and falsely attributed the injury to a fall from bed.

At trial, the judge controlled defence questioning of C, then aged six, by requiring questions to seek answers rather than put traditional suggestive challenges about events long past. The appellant contended that this restriction prevented him from putting his case and made the trial unfair. He also contended that C’s competence should have been challenged and that her evidence should have been excluded.

The central issues were whether the trial management created a material irregularity and whether C was competent to give evidence.

1. The appeal against conviction was dismissed. The court rejected the material-irregularity ground. It refused leave on the competence ground and dismissed the renewed application.

2. The judge’s control of cross-examination did not subordinate the appellant’s right to a fair trial to C’s interests. The court endorsed the principle stated in R v T [2010] EWCA Crim 630: there is nothing to balance against the defendant’s fair-trial right. The restriction was directed to avoiding confusing or suggestive questioning of a very young child about historic events, not to preventing necessary questions.

3. The jury knew that the appellant denied assaulting C. It also heard the defence case that other events might have caused the injuries. Those alternatives were tested with the medical experts, and the summing-up fairly identified the issues and directed the jury to make fair allowance for the defence’s difficulty in questioning C. The jury was therefore not presented with a one-sided trial. The appellant was not prejudiced merely because counsel could not put a conventional direct denial to C.

4. The competence ground had no foundation. No challenge to competence or application under section 78 of the Police and Criminal Evidence Act 1984 was made at trial. Under section 53 of the Youth Justice and Criminal Evidence Act 1999, competence depends on whether the witness can understand questions and give understandable answers. It is witness-specific and is not determined solely by age or the passage of time. C’s recorded interview and her evidence over the live link entitled the judge to conclude that she met that standard.

5. The trial was conducted fairly and gave no cause to doubt the safety of the conviction.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction on the material-irregularity ground. It refused leave and dismissed the renewed application on the competence ground.

• Crown Court at Wolverhampton On 14 January 2011, convicted the appellant of cruelty to a person under 16. On 1 March 2011, sentenced him to three years’ imprisonment with consequential directions.