RK, R. v

A conviction is not unsafe merely because the trial judge should have directed the jury to focus on the date on which the prosecution had presented the alleged offending. The decisive question is whether the direction caused prejudice and undermined the safety of the conviction.

Where a child witness is competent, the usual course should be to call and cross-examine the child by simple, short and direct questions, supported by appropriate special measures. An agreement not to cross-examine is permitted, but prosecutors and judges should scrutinise it carefully. A tactical decision not to cross-examine does not establish advocate incompetence or render a conviction unsafe unless it caused prejudice.

The appellant was convicted at Swindon Crown Court of two counts of sexual assault of a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003, and received concurrent sentences of five years and six months’ imprisonment.

The complainant, then aged three, made prompt disclosures that the appellant had touched her vagina. Her recorded interview was played at trial, but she was not cross-examined pursuant to an agreement between the parties. The defence case was that any contact occurred accidentally while the appellant cleaned her after using the lavatory.

On appeal, the appellant challenged the judge’s answer to a jury question concerning whether one count had to have occurred on 11 March 2015. He also alleged that trial counsel had been incompetent in deciding not to cross-examine the child. The central issue was whether either matter rendered the convictions unsafe.

1. Appeal dismissed. Although the alleged date was not a material averment, both parties had presented the case firmly on the basis that the offending occurred on 11 March 2015. The forensic evidence also related to that date. The judge should therefore more simply and fairly have directed the jury to focus upon it.

2. That imperfection did not make the convictions unsafe. The trial was short, all parties knew that the evidential focus was 11 March, and the direction did not prejudice the appellant. The prosecution evidence was strong: the child made an unprompted allegation soon after the event, repeated it in age-appropriate language, and her account was consistent with the DNA evidence.

3. The court expressed concern about an increasing practice of defence advocates deciding not to cross-examine vulnerable, especially child, witnesses. Where a child is assessed as competent, the normal expectation is that the child will be called and cross-examined using available special measures. The defence case should be put fully and fairly where possible, by simple, short and direct questions.

4. Section 27(5)(a)(ii) of the Youth Justice and Criminal Evidence Act 1999 permits agreement that a witness whose evidence in chief is recorded need not attend for cross-examination. Nevertheless, a prosecutor should think carefully before agreeing, and a judge before approving, that course. If it is adopted, jury directions must not imply that a competent child is unreliable or incapable of giving evidence.

5. Trial counsel’s decision was a tactical decision taken after consultation with the appellant. Although counsel should have been more conscious of the applicable guidance, the proposed further questions would not have materially advanced the defence. There was no incompetence causing prejudice, and neither ground undermined the safety of the convictions.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and held that the convictions were safe.
• Swindon Crown Court: on 25 May 2016, convicted the appellant of two counts of sexual assault of a child under 13; on 22 June 2016, imposed concurrent sentences of five years and six months’ imprisonment.