J (A Child)

A judge assessing disputed allegations must evaluate the evidence as a whole and give express, proportionate weight to material weaknesses affecting its reliability. A witness’s emotional presentation may be important, but it requires a reality check against the factual content and the remaining evidence.

Where special measures or a truncated forensic process restrict the testing of a vulnerable witness’s account, the judge must assess how those restrictions affect the weight that can safely be placed upon it. The absence of an Achieving Best Evidence interview does not make other evidence inadmissible, but its effect on reliability must be considered.

A father appealed against findings by Pauffley J, reported at [2013] EWHC 2124 (Fam), that he had sexually abused his daughter’s cousin over about ten years. The complainant was exceptionally vulnerable. She had supplied neither an Achieving Best Evidence interview nor a narrative statement, and her oral evidence by video link was severely curtailed.

The appeal concerned whether the judge’s evaluation adequately addressed the deficiencies in the evidence and forensic process. A further issue was whether the arrangements had denied the father a fair opportunity to participate and present his case.

1. Appeal allowed unanimously. The findings of sexual abuse were set aside. The evidence, considered as a whole, did not permit the finding, and there was to be no retrial. The private law proceedings were to continue on the basis that the father had not behaved sexually inappropriately towards the complainant.

2. Per McFarlane LJ, appellate courts exercise great restraint before overturning findings of fact, particularly where an experienced trial judge has observed the witnesses. Intervention was nevertheless required because serious deficiencies affected the fact-finding analysis.

3. The unsupported evidence of a single complainant can prove an allegation. Where factors may diminish its reliability, however, the judge must consider those factors expressly and give them due weight. The complainant’s emotional presentation was relevant, but it received disproportionate weight without a corresponding assessment of the content of her account and the evidence pointing against a finding.

4. The judge failed adequately to address a central inconsistency concerning the alleged event said to have triggered the abuse. She also treated the complainant’s poorly understood psychological “prohibitions” as a complete explanation for the absence of detail, although no expert evidence supported that conclusion. Proper caution was additionally required because the psychological origin of the complainant’s physical symptoms remained uncertain.

5. The absence of an Achieving Best Evidence interview did not exclude the evidence. It was nevertheless a significant matter bearing on reliability, as was the absence of a narrative statement. The judgment should also have assessed how the severely limited cross-examination and other compromises in the forensic process affected the weight that could safely be placed upon the account.

6. Gloster LJ held that the procedure was also unfair to the father. The lack of equality of arms, representation arranged at extremely short notice, truncated cross-examination and his exclusion from the courtroom denied him a proper opportunity to participate and present his case. Briggs LJ agreed with both judgments. The court did not need to decide whether procedural unfairness alone would have required the appeal to be allowed.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 875, unanimously allowed the father’s appeal, set aside the findings and directed that there be no retrial.
2. High Court, Family Division: Pauffley J, in [2013] EWHC 2124 (Fam), found the complainant’s allegations of prolonged sexual abuse fundamentally true.