MH v R. (Rev 1)

Previous complaints may be admitted as proof of their contents where they rebut an allegation that a witness’s evidence was fabricated, but the statutory gateway and its factual basis must be identified carefully. A complaint which is relevant only because it was made does not thereby prove its contents.

Where no specific hearsay gateway applies, the court may admit the evidence in the interests of justice after assessing its probative value, reliability, the available evidence, and the practical fairness of challenging it. A young child is not presumed less reliable because of age. Delay matters where it affects the child’s ability to give intelligible evidence, not merely because time has passed.

The appellant was convicted at Derby Crown Court of rape and sexual activity with his three-year-old son, together with offences concerning indecent images of children. He received 15 years’ imprisonment on the rape count and concurrent sentences on the remaining counts.

He appealed against conviction on grounds concerning the admission and use of the child’s earlier disclosures, directions on the evidence of a very young child, delay, prejudice, joinder, lies, representation, and the conduct of the ABE interview. He also appealed against sentence. The central evidential question was whether the child’s disclosures to his mother and a police officer were admissible and could safely be used as evidence of their contents.

1. Conviction appeal dismissed. The court found no ground, separately or cumulatively, to doubt the safety of the verdicts. The prior disclosures required a proper statutory basis; they should not simply have been admitted under an assumed common-law complaints rule.

2. Under section 120 of the Criminal Justice Act 2003, a prior statement admitted to rebut fabrication is evidence of its contents. The witness had not confirmed the making and truth of the earlier complaints, so the separate complaint gateway in section 120(4) and (7) was unavailable. The December 2009 and January 2010 disclosures nevertheless could rebut the alleged fabrication because their timing and circumstances were inconsistent with the alleged motive for coaching. Later disclosures did not do so through that gateway.

3. All the disclosure evidence was nonetheless admissible under section 114(1)(d) of the Criminal Justice Act 2003. Its probative value, the child’s extreme youth, the circumstances and recording of the disclosures, and the availability of the child, mother and officer for cross-examination made admission in the interests of justice. The judge’s caution about the limits on testing the statements adequately protected fairness.

4. The directions on the child’s evidence, delay, prejudice, demeanour, joinder and possible lies were sufficient. A child’s age does not itself make the evidence unreliable. Delay becomes critical where it impairs the child’s ability to give intelligible evidence about the underlying events; it did not do so here. The indecent-image counts were properly joined because they were capable of proving a relevant sexual interest, subject to the judge’s limiting directions.

5. The ABE interview was properly admitted. Given the child’s age, no truth-and-lies exercise was essential. Although a key question was leading, it did not suggest the answer and produced an immediate, clear response extending beyond the question.

6. Sentence appeal allowed. The court substituted 13 years’ imprisonment on the rape count for 15 years. Section 5, rather than section 9, of the Sexual Offences Act 2003 was the appropriate charge. The offending involved grave abuse of trust and a large age disparity, but 15 years was manifestly excessive for the offending proved. The other orders remained in force.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction on all counts. Allowed the appeal against sentence to the extent of substituting 13 years’ imprisonment on count 1 for 15 years.
• Derby Crown Court: On 28 July 2011, the jury convicted the appellant on 17 counts. On 23 September 2011, the judge imposed 15 years’ imprisonment on count 1, concurrent sentences on the other counts, and ancillary orders.