F, R. v

For an appeal against a terminating ruling, a judge’s informal email to counsel does not constitute the formal ruling which triggers the requirement for the prosecution to give immediate notice of appeal. The ruling must be given in court.

Witness competence depends on the statutory ability to understand questions and give intelligible answers, assessed with proposed special measures. A witness is not rendered incompetent because advocates, interpreters or the court must adapt their methods. A competency hearing must fairly and effectively test communication before an adverse finding can be made.

The prosecution applied for leave to appeal under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling that H, the complainant in a rape and sexual-assault prosecution, was not competent to give evidence.

H was profoundly deaf and had learning difficulties. Intermediary reports, an ABE interview and proposed special measures indicated that she could communicate, but the judge held that difficulties concerning body parts, time and abstract concepts established incompetence. The prosecution also faced a jurisdiction objection because it had not given notice of appeal immediately after receiving the judge’s emailed ruling. The central issues were whether that email triggered the appeal procedure and whether the competency hearing applied the correct statutory test.

Disposition

1. The court granted leave and allowed the prosecution’s appeal. It reversed the ruling that H was incompetent and ordered the Crown Court proceedings to resume under section 61(4)(a) of the Criminal Justice Act 2003.

2. The emailed ruling did not trigger the strict notice requirements for a terminating-ruling appeal. The statutory scheme and the Criminal Procedure Rules required a ruling given in court. The email was an informal courtesy to counsel. It neither made a formal order nor clearly identified the procedural consequences. The formal ruling was delivered when the judge confirmed it in open court on 19 February 2013.

3. The judge below had stated the test in section 53(3) of the Youth Justice and Criminal Evidence Act 1999, but had not applied it correctly. The question was whether H could understand questions and give answers that could be understood, while receiving the planned special measures. The difficulty in identifying a non-leading method of asking about body parts concerned the way in which the adults communicated with H. It did not establish that H lacked the required ability.

4. The competency exercise was not a fair or thorough test. The court had not viewed the full ABE interview, did not use available anatomical drawings, and did not respond flexibly when difficulties arose. The interview, intermediary reports and H’s intelligible answers to simple questions were strong indications of competence. The flawed process meant that the ruling was wrong in law and one which it was not reasonable for the judge to make within section 67 of the Criminal Justice Act 2003.

5. The court did not finally determine H’s competence. A fresh hearing could be sought, or the parties could initially proceed without one. Competence must remain under review during trial, and a party may raise it if developments justify doing so. The resumed proceedings were to be listed as a matter of extreme urgency.

• Court of Appeal (Criminal Division) — the prosecution’s appeal under section 58 of the Criminal Justice Act 2003 was allowed. The court reversed the terminating ruling and ordered the proceedings resumed.
• Crown Court — the judge ruled that the complainant was not competent to give evidence. No citation for that ruling is stated in the judgment.