YGM, R. v

A conviction is not unsafe merely because best practice for examining a vulnerable witness was not followed in every respect. The appellate court must assess the overall fairness of the trial, including the actual limits on cross-examination, the ability to put the defence case fairly, the jury directions, and the evidence elicited in an Achieving Best Evidence interview.

Best practice is to identify limits at a ground-rules hearing, explain them generally to the jury before cross-examination, and address any material restrictions in the summing-up. Comparative duration of prosecution questioning and defence cross-examination is not determinative; the effective testing of evidence is the material consideration.

The appellant was convicted at the Crown Court at Kingston upon Hull of two counts of rape of his seven-year-old daughter. The prosecution relied on her Achieving Best Evidence interview, medical evidence of an historic penetrative injury, and her account of repeated abuse. The appellant denied the allegations and contended that the child’s mother had induced false complaints.

His cross-examination of the child was limited in style because of her vulnerability. On appeal, he challenged the fairness of the disparity between the interview and cross-examination, the adequacy and timing of the jury directions, and the restriction on closing submissions. He also renewed an application for leave to appeal against a concurrent special custodial sentence of sixteen years with a one-year extended licence period.

1. The appeal against conviction was dismissed and the renewed application for leave to appeal against sentence was refused.
2. The court gave best-practice guidance for the cross-examination of vulnerable witnesses. Limitations should be identified early, ordinarily at a ground-rules hearing, including whether they concern style alone or content. Before cross-examination, the jury should receive the usual special-measures direction and a general explanation that limitations have been imposed. If identified content cannot be explored, the judge may address that after cross-examination and should do so in the summing-up. The court noted that guidance to this effect was available in R v Wills [2011] EWCA Crim 1938.
3. Failure to adopt every aspect of that practice does not itself make a conviction unsafe. The issue is whether, viewed as a whole, the trial remained fair. Here the defence accepted that the limits on cross-examination were essentially matters of style. Relevant defence material could be, and was, put fairly without causing the child unnecessary distress or confusion.
4. The lengthy Achieving Best Evidence interview was imperfect and probably too long for a seven-year-old, but it did not create an unfair imbalance. Several questions were ones the defence would have wished to ask, and answers elicited by the police were evidence just as they would have been if elicited in cross-examination. Although the judge should preferably have explained the restrictions before cross-examination, his repeated summing-up directions, his detailed treatment of the defence case, and counsel’s submissions made clear that the child’s evidence was disputed.
5. The judge was entitled to prevent counsel from relying merely on the comparative length of the interview and cross-examination. Their effectiveness and the facts elicited were relevant; duration alone was not. The convictions were therefore safe.
6. The sixteen-year concurrent custodial terms were not excessive. Repeated rapes of a very young child by her father, in her home and accompanied by threats, justified a sentence towards the top of the applicable category range. The court accepted that double counting had to be avoided but upheld the sentencing assessment.

• Court of Appeal (Criminal Division) — by [2018] EWCA Crim 2458, dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Crown Court at Kingston upon Hull — convicted the appellant on 24 March 2017 of two counts of rape of a child under 13. On 21 April 2017, imposed concurrent special custodial sentences of sixteen years with a one-year extended licence period.