Saxon, R v

Where a witness is unfit because of a mental condition, a video-recorded statement may be admitted under the Criminal Justice Act 2003 if the statutory condition is met and the trial remains fair when assessed as a whole. The inability to conduct live cross-examination is a serious disadvantage, but it is not necessarily decisive.

Its effect may be materially reduced where the jury can watch the interview, see matters bearing on reliability, and use a transcript of meaningful cross-examination at an earlier trial. A direction is adequate if it requires particular caution and identifies the practical limitations of the evidence. It need not catalogue every possible source of unreliability.

The appellant was convicted at a second trial in the Crown Court at Luton of seven offences of sexual assault of a child contrary to section 7 of the Sexual Offences Act 2003. The jury at the first trial had been unable to agree.

Before the second trial, the complainant was admitted to an adolescent psychiatric hospital. The Crown successfully applied to admit her video-recorded police interview under section 116 of the Criminal Justice Act 2003 because she was unfit to give evidence. The second jury also received a transcript of her cross-examination at the first trial.

The appeal challenged both the admission of the interview and the adequacy of the judge’s cautionary directions concerning that evidence.

1. Appeal dismissed. Leave to advance the additional ground concerning the summing-up was refused. The convictions were not unsafe.
2. The judge was entitled to find that the complainant was unfit to be a witness because of her mental condition within section 116 of the Criminal Justice Act 2003. The psychiatrist’s statement sufficiently established that condition. The judge was not required to inspect the underlying medical records before ruling, although he directed their later disclosure.
3. The evidence was properly admitted. The central question was whether the absence of live cross-examination made the trial unfair. The recording enabled the jury to see the complainant give her account, including her demeanour and the mother’s presence during the interview. The transcript of the earlier cross-examination materially reduced the disadvantage caused by the absence of live questioning. It exposed the principal challenges to the complainant’s reliability and the suggested motive to fabricate. The mother’s evidence, including her account of alleged admissions by the appellant, was also open to full challenge and was important to the Crown’s case.
4. The trial judge had considered the importance of the evidence, the possible risks of unreliability, and the means by which its reliability could be tested and assessed. His conclusion that the evidence could be admitted consistently with a fair trial was proper.
5. The summing-up adequately directed the jury to exercise particular caution before accepting the video-recorded evidence. The judge identified the limits of using a transcript instead of observing cross-examination and reminded the jury that the mother’s presence at the interview breached the relevant guidance. Although further detail could have been given, no further catalogue of potential weaknesses was required.

• Court of Appeal (Criminal Division) — Dismissed the appeal against conviction and refused leave to add a further ground: [2016] EWCA Crim 598.
• Crown Court at Luton — At the second trial before Judge Kay QC, the appellant was convicted of seven offences under section 7 of the Sexual Offences Act 2003 and sentenced to four years’ imprisonment concurrently. An earlier trial in 2014 ended when the jury could not reach a verdict.