Moses, R. v

Irregularities in a child’s Achieving Best Evidence interview do not require exclusion under section 78 of the Police and Criminal Evidence Act 1984 unless their admission would adversely affect trial fairness. Where the shortcomings can be addressed by questioning, submissions and clear directions, they ordinarily concern evidential weight for the jury.

A child is competent under section 53 of the Youth Justice and Criminal Evidence Act 1999 where able to understand questions and give intelligible answers. The fact that a judge asks defence counsel’s written questions does not itself make the trial unfair when a vulnerable child cannot answer counsel directly.

The applicant was convicted in the Crown Court at Newcastle-upon-Tyne of rape of, sexual assault of, and causing or inciting sexual activity by, a boy under 13. He received concurrent sentences, the longest being 15 years’ imprisonment.

He renewed an application for an extension of time to appeal his convictions after a single judge had refused permission. His grounds challenged the admissibility of the child’s ABE interview, the child’s competence and cross-examination arrangements, and the sufficiency of the evidence on one count. He also sought to adduce a statement from the child’s mother as fresh evidence. He separately sought leave to appeal his sentence as manifestly excessive.

Decision

1. The applications were refused. The court refused an extension of time to challenge the convictions. It found no arguable ground that any conviction was unsafe. It also found no arguable basis for saying that the sentences were manifestly excessive.
2. The child was competent to give evidence. Under section 53 of the Youth Justice and Criminal Evidence Act 1999, the relevant question was whether he could understand questions and give answers capable of being understood. There was no evidence that he could not do so, and the intermediary’s report positively confirmed his capacity. As competence had not been raised in time and no evidential basis existed for challenge, no determination under section 54 was required.
3. The Recorder had correctly declined to exclude the ABE interview under section 78 of the Police and Criminal Evidence Act 1984. The court accepted that aspects of the interview were imperfect, including prompting and the absence of an intermediary. Those matters did not inherently make the process unfair. They could properly be tested before the jury and addressed in the summing-up. The approach was supported by K [2006] 2 Cr App R 10.
4. The arrangements when the child declined to answer defence counsel directly were sensible and pragmatic. The judge put questions drafted by defence counsel, and the important matter was the child’s answers rather than the identity of the questioner. That course accorded with Cameron [2001] EWCA Crim 562.
5. There was evidence capable of supporting count 2. Although the interviewing officer had assumed that the child was asleep, the child had not said so. His account was capable of showing that he was awake with his eyes closed and could feel what occurred. That factual issue was for the jury.
6. The proposed fresh evidence from the child’s mother was not capable of belief and no reasonable explanation existed for failing to adduce it at trial. In any event, the court was not persuaded that the convictions were unsafe. The sentence properly reflected the child’s extreme youth, abuse of trust, grooming and the applicant’s overall criminality.

• Court of Appeal (Criminal Division) — following a single judge’s refusal, the applicant renewed his application for an extension of time to appeal conviction and sentence. The court refused the extension and found no arguable sentencing ground: [2014] EWCA Crim 1730.
• Crown Court at Newcastle-upon-Tyne — on 18 January 2013 the applicant was convicted of rape of, sexual assault of, and causing or inciting sexual activity by a child under 13. On 28 February 2013 he received concurrent sentences of 15 years, two years and six months’ imprisonment.