DL, R. v

Delay in the prosecution of allegations by a young child does not, without more, require exclusion of the child’s evidence under Police and Criminal Evidence Act 1984, section 78. The question is fact-specific and turns on the fairness of the proceedings. Competence is distinct from credibility and reliability, which ordinarily remain matters for the jury.

Where competence is not challenged, a judge may properly assess whether cross-examination is meaningful before deciding whether the evidence should be excluded. A recorded interview remains capable of evidential use even if the child has limited independent recollection at trial. Prompt interviewing and trial remain important safeguards.

The appellant was convicted at the Crown Court of three counts of rape of a child under 13 and two counts of sexual assault of a child under 13. The complainant was four when the alleged offending occurred and nearly five when she made disclosures. Her Achieving Best Evidence interview was conducted promptly, but the appellant was not charged until September 2017 and the trial began in June 2018.

Before the jury was sworn, the defence applied under section 78 of the Police and Criminal Evidence Act 1984 to exclude the complainant’s evidence. It relied on the delay, her extreme youth and an asserted inability to cross-examine her fairly. The trial judge refused the application, subject to reconsideration if cross-examination showed a competence problem. The issue on appeal was whether admitting the evidence made the conviction unsafe.

1. Appeal dismissed. The trial judge was entitled to refuse the application to exclude the complainant’s evidence under section 78 of the Police and Criminal Evidence Act 1984.

2. Delay in a case involving a very young child does not of itself make a trial unfair or require the child’s evidence to be excluded. The approach in R v Barker [2010] EWCA Crim 4 was applicable: the issue is fact-specific, and an automatic rule would add an unjustified qualification to the statutory scheme. Delay may nevertheless justify exclusion where it results in a failure of competence or makes a fair trial impossible.

3. Competence is not the same as credibility or reliability. There had been no challenge to the fairness or competence of the recorded interview, nor to the complainant’s competence at trial under section 53 of the Youth Justice and Criminal Evidence Act 1999. It was therefore proper for the judge to await cross-examination and reconsider the position if she could not provide intelligible answers or meaningful cross-examination proved impossible.

4. Cross-examination was meaningful. The complainant gave comprehensible answers and departed in some respects from her recorded interview. The defence was able to obtain answers favourable to it. Its complaint about a possible leading question following the initial disclosure could also be assessed by the jury from the evidence of the adult who recorded the disclosure.

5. R v Malicki [2009] EWCA Crim 360 was a decision on its particular facts and should be treated with considerable caution if invoked as establishing a general rule. The court endorsed the observations in R v R [2010] EWCA Crim 2469 that an absence of independent recollection does not necessarily render a witness’s earlier recorded account inadmissible.

6. The delay was lamentable and inexcusable. The court nevertheless reiterated that, where child evidence is involved, the recorded interview should follow the complaint as soon as possible and the trial should take place at the earliest practicable time.

• Court of Appeal (Criminal Division): Dismissed the conviction appeal: [2019] EWCA Crim 1249.
• Crown Court: Refused the section 78 application and convicted the appellant of three counts of rape of a child under 13 and two counts of sexual assault of a child under 13.