NKA, R.

Where a child’s contemporaneous Achieving Best Evidence interview provides an adequate evidential basis for a charge, later inconsistencies or confusion in the child’s live evidence do not necessarily require the case to be withdrawn from the jury. The trial judge may leave the issue to the jury, which must assess all the evidence and decide whether it is sure of guilt.

A criminal judge should sum up both law and facts after counsel’s speeches. Splitting the summing-up into separate stages is contrary to the Criminal Procedure Rules and may cause confusion.

The applicant was convicted at the Crown Court at Isleworth of two counts of causing his stepdaughter, aged under 13, to engage in sexual activity. He received concurrent sentences of three and a half years’ imprisonment. He was acquitted of three like counts concerning another child.

The convictions rested substantially on the stepdaughter’s Achieving Best Evidence interview. By trial, she had given accounts that appeared inconsistent or confused. The applicant renewed his application for leave to appeal after a single judge had refused permission. He contended that there was no case to answer, that the inconsistencies made the convictions unsafe, that the directions were inadequate, and that lift CCTV evidence had not been produced.

1. The renewed application for leave to appeal against conviction was refused. The trial judge was entitled to reject the submission of no case to answer. The Achieving Best Evidence interview contained adequate evidence upon which the counts could be left to the jury. The judge had properly considered and applied the Galbraith principles.

2. The later inconsistencies, apparent confusion, and evidence suggesting that the complainant had described a misunderstanding did not make the jury’s task impossible. Those matters were apparent to the jury and were fully explored at trial. The interview itself gave an internally consistent account, and it was for the jury to determine whether, taking the later evidence into account, they could safely rely on it and be sure of guilt.

3. There was ample evidence on which the jury could convict. The trial judge had repeatedly directed it on the inconsistencies. There was also adequate evidence that the lift CCTV recordings had been examined, showed nothing, and had later been lost.

4. The court additionally criticised the trial judge’s practice of summing up the law before counsel’s speeches and the facts afterwards. That sequence was contrary to the Criminal Procedure Rules, should not be repeated, and could cause considerable confusion. In criminal trials, judges should sum up the law and facts in the ordinary way after counsel’s speeches.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2015] EWCA Crim 614.
• Crown Court at Isleworth: on 4 June 2014, the applicant was convicted of two counts of causing a child under 13 to engage in sexual activity and sentenced to concurrent terms of three and a half years’ imprisonment.
• Single judge: refused the initial application for leave to appeal against conviction.