Sed v R

On 28^th January 2003, before His Hon. Judge Lyons in the Crown Court at Wood Green, the appellant was convicted of attempted rape of an 81 year old woman suffering from Alzheimer’s Disease. On 7^th March 2003 the Judge imposed on him an extended sentence of 14 years’ imprisonment, pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, consisting of a custodial term of 10 years and an extended period of licence of 4 years.

The appellant appeals against conviction on five of eight grounds with the leave of the single judge, and seeks to renew the remaining three grounds that were refused by the single judge. He also renews his application for leave to appeal against sentence following refusal by the single judge.

The prosecution case was that the appellant had had sexual intercourse with the complainant when he knew, because of her obvious mental weakness, that she was incapable of consenting to sexual intercourse. The defence case at trial was that the appellant had had some consensual sexual engagement with the complainant, but that he had not had sexual intercourse with her or even touched her. The main issue arising in this appeal is whether the Judge rightly allowed the prosecution to put in evidence under sections 23 and 26 of the Criminal Justice Act 1988 a video-tape of a police interview of this mentally ill complainant.

The complainant, at the material time, lived in a care home in Tottenham. The appellant was a mini cab driver who lived in Chingford. For reasons that will become apparent, we should mention that he is an Asian and of Asian appearance. The start of the story is on 16^th April 2001, at about 9 a.m., in the front garden of a house in Chingford, where the owner of the house, Miss Jackson, saw the complainant behaving strangely. As the police were later to discover, the appellant lived only about 30 yards away. Miss Jackson called the police. The complainant told the police officer who responded to the call that she was a cleaner from Tottenham. She made some rude remarks to him, such as “How is your willy?” She continued in that vein when he took her to the police station, saying, for example “Up the front and up the back”, pointing to her groin. The officer took her to her care home, where the staff indicated that she customarily made such remarks. Throughout, the complainant spoke to the officer in disjointed sentences and did not make much sense.

Shortly after her return to the care home, the complainant told her niece of an incident in a park in which a man and a boy had approached her from behind. She said that one of them had opened her legs and had “put his willy in two or three times”. She also mentioned that there had been a girl present. The niece informed the police of this conversation, and they arranged for the complainant to be medically examined by Dr Gray, a police surgeon. Dr Gray. She found a tear on her vagina, which was bleeding. She also noted that the complainant alleged that she had been raped by two men

On 17^th April 2001, the police interviewed the complainant in the presence of another niece, recording it on video tape. By any standards, the complainant’s responses to the officers’ questions were often confused, but a strong theme following the first of a number of undoubtedly leading questions by one of the officers was that a man had “put his willy into her”.

We have seen the video-tape and have read the transcript of the interview. The officers opened it with some pleasantries to which the complainant responded in a light hearted, inconsequential and vague manner. Within a short time one of the officers brought her to the point with the question “Do you remember what’s happened to you in the last couple of days?”, to which she gave a very confused and incomplete account of going for a walk, but making no relevant allegation. The officer then tried to bring her back to the point, again with a leading question, referring to her medical examination the previous day, “Do you remember yesterday you went with the police lady to see a doctor?”. That produced a series of muddled and incomplete answers to questions that never got beyond the visit to the doctor. The officer tried again, this time with the question “Do you remember yesterday morning when the police found you in Chingford?”, an incident of which, at first, she appeared to have little or no memory. The officer, in an attempt to prompt it, asked her “Do you remember telling your other niece that a man had put his willy in you?”. The complainant replied in a series of somewhat disjointed answers that a white or jewish looking man, rather than a black man, had grabbed her and stuck his willy in her and that he had caught her by surprise. She then drifted off into what sounded like another incident altogether in which a man, possibly one who worked in a care home, had stolen her handbag with money in it.

The officer brought her back to the subject of the interview with the following question: “You said earlier that the man grabbed you, how did he grab you, can you show me?” which produced some muddled answers from her about being tired. Yet again the officer tried to bring her to point, this time by asking “Where was he when he was attacking he [sic], when he put his willy in you, where was he standing?”. The complainant replied that they had been in bed at the time. and that he “stuck it” in her four or five times, that it hurt and that she had not wanted him to do it. A few questions later, she said much the same thing again, namely that he had stuck his willy or winkie in her. There then followed a very muddled series of exchanges in which she referred to the possibility that she might have aids and of the man not wanting to take her somewhere else, and some expressions of worry about what had happened. In the course of these exchanges she referred to the man having put something, presumably his “willy”, into her “three or four times”, and said “I think he’s a bleeding animal”.

The complainant also spoke towards the end of the interview about a firm that looked after a home, and of a van that came from the firm, again about somebody stealing money from her handbag and about a gang of men having been involved in some way. The officers tried to establish from her whether she was saying that the man who had sexually assaulted her was the man who had stolen from her handbag, to which she eventually said yes, identifying him as a “thick big bloke”. Following some further inconsequential exchanges, the interview ended.

At trial, the medical experts on both sides agreed that the injury to the complainant’s vagina had been caused by a rubbing, drawing or pulling across the surface of the skin, typical of an injury caused by vaginal rape. The prosecution expert was of the view that it could not have been caused by the complainant herself, for example, by scratching herself. But the defence expert could not rule that out.

DNA swabs taken from the complainant revealed on examination the appellant’s DNA on her knickers, near the crotch at the back and also on an anal swab.

That discovery led, on 13^th June 2001, to the police arresting and interviewing the appellant in the presence of a solicitor. On the advice of his solicitor, he replied simply “no comment” to their questions. The officers did not disclose to the appellant in those questions their discovery of the DNA match, because they had not completed their investigations.

On 24^th July 2001, the police attempted to take a witness statement from the complainant, but all she said was: “A while ago, a naughty man was naughty to me. He was tuti fruity and wanted a bit of the other”.

On 25th July 2001 the police decided to re-interview the appellant, again in the presence of a solicitor to give him an opportunity to comment on the discovery of the DNA match with him. Immediately before the interview, DS Walker, the officer in charge of the case, disclosed the DNA match to the appellant and his solicitor. At the outset of the interview conducted by DS Walker and another officer, the appellant said that he did not trust the officers, and his solicitor then read a prepared statement to them. In that statement, the appellant: 1) recalled an incident in which he had met an un-named woman with whom he had had what he described as “consensual sex”; 2) complained that the police had refused to disclose the details of the incident they were investigating or the complainant’s allegations; 3) claimed that DS Walker had informed him that he was likely to be charged with attempted rape, a claim DS Walker denied; 4) maintained that, therefore, having regard to the provisions of the Police and Criminal Evidence Act 1984 and the relevant code of practice, he did not consider that the police should interview him; and 5) he had, therefore, been advised to exercise his right of silence.

The police nevertheless continued to question him with a view to giving him an opportunity to explain the DNA match, and also having regard to his mention in the prepared statement of the incident in which he had had “consensual sex” with a woman. In their questions they also referred to the fact that he lived only about 30 yards away from where the complainant had been found in the front garden and that it was obvious that she was not mentally sound enough to consent so sexual intercourse. To all those questions, the appellant, true to his prepared statement, remained silent.

On 3^rd and 4^th July 2002, some six months before the trial, the Judge heard and decided in the prosecution’s favour its application to allow it to put the complainant’s evidence before the jury through the medium of the video tape of the interview of her on 17^th April 2001, pursuant to section 23 of the 1988 Act. At the hearing two psychiatrists gave evidence as to the complainant’s condition, Dr Garner for the prosecution and Professor Hodgkinson for the appellant. As to her mental state, their evidence was at one. At the material time she was suffering from moderate to severe Alzheimer’s disease, which, as is well known, is a dementia that affects the functioning of the brain, including the memory. Sufferers tend to have a better recall of recent events, particularly if they have some emotional or physical significance. Both experts expressed the view that, at the time when she gave the video-taped interview and thereafter, she was not fit to give evidence in court owing to her dementia. They acknowledged that, in the interview, the video-tape of which they had both viewed, she was clearly speaking of a sexual incident that appeared to have been unpleasant and unwelcome to her. But they agreed that she was unreliable on the details and seemingly did not appreciate that she was being interviewed by the police as distinct from having a social conversation. They were both of the view that, given her condition she was likely to have been suggestible to at least some of the leading questions put to her and that there was a risk of her filling in gaps in her patchy memory (“confabulation”).

Dr Garner also gave evidence that the complainant had denied to her that she had been attacked, then had given an account of an attack long before during the war when she had been attacked by three men. The doctor concluded that, due to her mental state she was unable to give a coherent and detailed recollection of the assault in question, though she seemed to have an upsetting and emotional memory of it. The doctor did not consider her a rational witness or likely to be useful as a witness in court.

Professor Hodgkinson, in addition to agreeing with Dr Garner that the complainant was unfit to attend court as a witness, expressed the view that she would have been incompetent as a witness at the time she gave the interview.

The Judge ruled that the evidence should be admitted. He proceeded on the basis that it met the requirements of section 23 of the 1988 Act, and held: 1) it satisfied the test of competence in section 53 of the Youth Justice and Criminal Evidence Act 1999 as applied by this Court in R v. D [2002] 2 Cr App R, 36; 2) it, therefore, passed “the interests of justice” test in section 26 of the 1988 Act; 3) it did not require exclusion on the ground of unfairness under section 78 of the Police and Criminal Evidence Act 1984; and 4) its admission did not violate Article 6 ECHR.

At the trial in January 2003 the appellant gave evidence to the following effect. He was a minicab driver. When he met the complainant he was in an emotional turmoil and had been taking sleeping tablets and anti-depressants. At about 5 a.m. on the day in question, when he was in his minicab and stationary at traffic lights, she knocked on the window of his minicab and asked for a lift. He agreed and she got into the front passenger seat. As he drove, she made sexual comments and seemed excited. He thought she wanted sexual intercourse, and she suggested that they should go to his home. He took her there and she indicated that she wanted sexual intercourse. She took her trousers and pants down. He dropped his trousers and took out his penis. He ejaculated about three inches away from her, his sperm going into her groin area and her knickers.

The appellant described the complainant as having been smartly dressed and looking 20 years younger than she was. At some stage of their time together they talked about his family problems and she gave him sensible advice.

There are eight grounds, or proposed grounds, of appeal. Six of them of them are largely overlapping challenges to the Judge’s decision to admit the video-tape of the complainant’s interview into evidence under section 23 of the 1988 Act. They may be divided into two main questions:

Sections 23 and 26 of the 1988 Act provide for the admissibility as evidence of certain documents as exceptions to the hearsay rule, and specify criteria for a judge when considering whether to admit any particular document into evidence. Section 23 is concerned with the threshold question of admissibility, and section 26 is concerned with whether, as a matter of justice in the individual case, a document should be admitted into evidence. By virtue of Schedule 2, paragraph 5, to the 1988 Act, a “document” for this purpose includes a video-taped interview.

Section 23 provides, so far as material, that “a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible” if that person is “by reason of his bodily or mental condition unfit to attend as a witness”. It should be noted that the section says nothing about the competence of the maker of the statement when he made it, and refers only indirectly to his competence, in a broad sense of that word, at the time of trial having regard to his unfitness to attend it because of his physical or mental condition. Section 26 provides, so far as material, that a section 23 statement, if made for the purpose of a pending or contemplated criminal proceeding, requires the leave of the court for admission of it into evidence, and that such leave shall not be given unless the court: “is of the opinion that the statement ought to be admitted in the interests of justice”. Section 26 further provides that, in considering that question a court should have regard:

“(i)

to the contents of the statement;

“(ii)

to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused …; and

(iii)

to any other circumstances that appear to the court to be relevant.”

Mr George Carter-Stephenson QC, on behalf of the appellant, submitted that section 23 contains a threshold condition as to competence of the witness whose statement it is sought to admit as hearsay, and he complained that the Judge wrongly declined to consider competence as part of the section 23 test. He said that, as section 23 only applied to evidence of “any fact of which direct oral evidence by him would be admissible”, unless the complainant was competent when interviewed on video-tape, section 23 could not apply to that evidence. He submitted, therefore, that competence was a pre-condition of admissibility under section 23 and that the Judge should not have followed the observations of this Court in R v. D that it was simply a relevant consideration to the exercise of his discretionary jurisdiction under section 26 because they were obiter and wrong.

Mr Peter Rook, QC, for the respondent, submitted that section 23 does not itself require, as a condition of admissibility, that the maker of a statement in a document should be competent at the time of making it or at the time of trial. Rather, it was a highly material matter for the court’s consideration under section 26 whether it was in the interests of justice to consent to the admission of the statement. He maintained that the competence test applied to the giving of oral evidence by witnesses at trial, not as to whether hearsay evidence in lieu of it in the form of a document was admissible under section 23. He pointed out, for example, that a judge considering the admissibility of such hearsay evidence, say in written form, does not have to satisfy himself that the maker of the statement understood the nature of the oath or appreciated the nature of the proceedings, as formerly required for live evidence: see e.g. R v. Hill (1851) 2 Den 254; R v. Dunning [1965] Crim LR 372 and R v. Bellamy [1986] 82 Cr App R 222. And he prayed in aid the reasoning of this Court in R v. D,

The Judge appears to have been content to proceed on the basis that section 23 had nothing to do with competence of a witness, that the proper approach was that indicated in R v. D, namely via section 26 of the 1988 Act and/or section 78 of the 1984 Act and/or Article 6, and that the proper statutory peg for consideration of that issue was to be found in section 53 of the 1999 Act (which had come into force on 24^th July 2000, but did not govern proceedings like this, instituted before that date). He acknowledged that, on the evidence, the complainant would have been unfit to give evidence in court at the time of the video-taped interview and that she was still unfit to do so at the time of trial. But he said that it did not follow from that unfitness that she was an incompetent witness when considering whether her evidence in that form could be put before a jury.

In R v. D, as we have said, the primary issues on which the Court appears to have decided the matter were as to the propriety of the trial judge’s reliance on the section 26/section 78/Article 6 interests of justice and fairness test. Waller LJ, giving the judgment of the Court said, at paragraph 35:

. “We are doubtful whether, on the proper construction of section 23 a question of competence arises under that section. We suspect that … [counsel for the appellant] places too much weight on the words ‘as evidence of any fact of which direct oral evidence by him would be admissible’. Furthermore, since any statement which is made for the purpose of pending or contemplated criminal proceedings … will, unless it is taken in accordance with certain statutory provisions, be the subject of section 26 and thus admissible only with the consent of the court, it seems unlikely that any question of competence was intended to rise under section 23. There is however no necessity to reach any final conclusion on that point because clearly section 26 applies in the instant case and because even if section 26 did not apply and some issue of competence or reliability did arise, then section 78 would almost certainly be applicable.”

In our view, section 23 has nothing to do with competence, either in its terms or in its purpose. It was designed, and its function remains, to render admissible at trial in certain circumstances and as an exception to the hearsay rule, a statement of a person in a document, when that person is “by reason of his bodily or mental condition unfit to attend [the trial] as a witness”. As such it is the first of a two stage exercise provided by the Act, because, even though “admissible” under section 23, whether in any case a court will, as a matter of justice, admit the evidence in that form falls to be determined on a number of quite different criteria.

In 1988 when section 23 first took effect competence was a quite separate matter governed by the common law. It was a condition for determination as a matter of a matter of fact by the judge after examination of the witness and/or after hearing medical evidence about him in the presence of the jury. As Mr Rook rightly observed, the test was whether the witness understood the nature of the proceedings and appreciated that the taking of the oath involved something more than a duty to tell the truth in ordinary day-to-day life, not whether his evidence might be unreliable, which was a matter for the jury. That is, it was an exercise conducted at trial, often with the potential witness giving evidence, with a view to determining whether, by reason of his mental condition, he was fit to be a witness at all, not as to whether his evidence might be given by some other means.

Section 23 from its inception has had a wholly different concern from that of competence, namely the potential preservation of a person’s evidence notwithstanding that he was or might be unable to attend trial to give it. The provision could not, in any event, have provided a means of assessing the competence of a witness at the time of making of a written statement or of giving a video-taped interview, still less of doing so as then required by the common law, before a judge and jury, the very thing section 23 was designed to avoid in the circumstances for which it provided. Put in another way, the court, in its application of the section, assumes that the maker of the statement was “competent” in that broad sense at the time he made it. Its concern is only with whether his mental (or physical) condition at the time when it becomes necessary to consider its admission renders him unfit to attend trial as a witness.

Even if, by reason of the 1995 amendment permitting evidence to be given in the form a video-taped interview, there were now scope for a judge and jury to embark upon the old common law examination as to competence, it would be a needlessly complicating addition to the section 23 exercise, which is concerned only with the admissibility of documentary hearsay, not with whether such evidence should in the circumstances of the case be admitted. As Waller LJ observed in R v. D, the 1988 Act, in section 26, provides a court with a second stage and separate means of considering matters, both as to competence in a broad sense and as to reliability when considering whether, in justice, to admit the hearsay evidence; but so also does section 78 of PACE and, if all else fails, Article 6 of the European Convention of Human Rights..

Accordingly, we reject the first ground of appeal.

It follows from our view that competence in its common law, or any, form was not a matter that engaged the application of the test of admissibility undersection 23, but that notions close to it were and are capable of being relevant considerations as to admission of section 23 hearsay under section 26, section 78 of PACE and Article 6. The question is, what test of competence was appropriate to evidence in the form of a documentary statement admissible under section 23 made - as in this case - before the coming into force on 24^th July 2002 of section 53 of the 1999 Act? Section 53 changes the common law in three main ways. First, it applies the test throughout the criminal process, not just at the stage of trial. Second, it presumes that everybody is competent to give evidence, though as we have indicated, so does section 23 as far as it goes. Third, in identifying factors that may rebut that presumption, it requires a different level of competence from that of the common law, namely an ability on the part of the potential witness to understand questions and to give answers to them that are understable – in short, intelligibility. Thus, it provides, that “[a]t every stage in criminal proceedings all persons are (whatever their age) competent to give evidence” unless in the case of any such person “it appears to the court that he is not … able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood”.

In R v. D the Court faced a similar problem to that here, an 81 year old woman complainant who suffered from Alzheimer’s disease, who gave an account in a video-taped interview of an indecent assault on her by the appellant. There too the prosecution sought to rely on sections 23 and 26 of the 1988 Act to put her evidence in that form before the court at the trial. There too the defence raised the issue of her competence, maintaining that because of her mental condition she was incompetent when she gave her account on video-tape, so that section 23 could not render her evidence admissible in any form. In the alternative, the defence relied on section 26 of the 1988 Act and/or section 78 of PACE and/or Article 6. The trial judge anticipated the coming into force of section 53 of the 1999 Act by applying its criteria, both to the issue of admissibility under section 23 and to its admission under section 26. On that approach, and having seen the video and having heard medical evidence as to complainant’s mental state, he held the evidence admissible under section 23 and ruled that it should be admitted in the exercise of his discretion under section 26.

On appeal to the Court of Appeal, the Court, as we have indicated, were doubtful whether the issue of competence, in whatever form, engaged section 23. However, the Court took the view, that it did not need to decide that matter since the issue arose in any event at the section 26 stage and, if necessary also by recourse to section 78 of PACE and/or Article 6. On that approach, it too applied the then still to be introduced section 53 test of competence and held that the Judge had rightly admitted the evidence in the exercise of his discretion under section 26. In doing so, it acknowledged that the notion of competence is a highly material circumstance when considering the interests of justice under section 26, but drew back from attempting to define it for the purpose, other than to express the view that the Judge’s recourse to the future section 53 criteria was an acceptable way in which to exercise its section 26 discretion. Waller LJ said:

“37.

As regards the appropriate test of ‘competence’ or ‘reliability’ the test applicable to a live witness cannot, as it seem to us, be the appropriate test. In relation to any statement, or as in this case a video, the judge is not going to be in a position to examine the witness to see whether the witness understood or understands an oath and indeed the witness will not have actually been on oath in making the statement or at the time when the video is recorded. Furthermore we have put ‘competence’ and ‘reliability’ in quotation marks because it seems to us that there is in reality no reason to lay down criteria as to competence. Indeed, it would be inappropriate to seek to lay down criteria as to competence which might be thought to have to apply across the board when a court is considering any statement or any video which might fall within section 23 but which falls also to be considered under section 26. In our view there is no reason to go beyond the language and the direction under section 26. The question for the court is whether a statement ought to be admitted in the interests of justice, and in considering that question the duty on the court is to have regard (i) to the contents of the statement; (ii) to the risk having regard in particular as to whether it is likely to be possible to controvert the statement of the person making it if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused ….; and (iii) any other circumstances that appear to the court to be relevant.

38.

Obviously one circumstance to which a court will have regard when considering the admissibility of a video, as in this case, is the ‘competence’ or ‘reliability’ of the witness being videoed. That by no means requires the judge to apply the test which he would apply to a live witness. The test applied by the judge in this case by reference to section 53 ….is a sound test. Does ‘B’ seem to have been able to understand the questions being put to her and was ‘B’ giving answers which could be understood.”

The Judge in this case, as we have said, followed that approach, holding that the criteria of admissibility under section 23 were satisfied, in particular that the complainant was unfit to give evidence through mental disability. He said:

“…It is agreed she is unfit to give evidence at court now. Given the slow process of this deteriorating disease, what was her position in April [i.e. at the time of her video-taped interview]

It would appear that both experts believe that she was in much the same condition then, unfit to come to a court and deliver that particular evidence and, I would add, be subject to cross-examination, whether it be by TV link or otherwise.

Does that, therefore, mean this lady is not a competent witness to be given to the jury? The answer is no. The case of R v. D has … [indicated] that the test in section 53 of the Youth Justice and Criminal Evidence Act 1999 is an appropriate one to use.

…

That is the test by which I must judge whether this lady is competent and therefore, that I could admit the evidence which is otherwise relevant. It is clear from the interview itself, and also from the evidence of both doctors, that the lady clearly does not always give what might be considered logical or appropriate answers to questions.

However, it is perfectly clear at the simple level – what is your name, how old are you – she has an understanding and replies properly. It is also clear that she has a reasoning ability beyond that. …

…

It is clear to me that in parts this lady is entirely competent as to that test, and sufficiently so for a jury to evaluate her evidence. ….”

Mr Carter-Stephenson submitted that neither this Court in R v. D, nor the Judge below, should have applied the section 53 test in advance of it taking effect. His concern was more than temporal. He maintained that the section 53 test prescribed a lower level of competence than had the common law, the test that must have been contemplated by Parliament as a necessary safeguard when enacting section 23 of the 1988 Act. The new test, he submitted, was devoted only to understanding, not to capability or reliability of a witness, whereas the old common law test called for an awareness of the truth and the importance of telling it. Moreover, it was only one of a number of circumstances for consideration under section 26.

Mr Rook submitted that the Court in R v. D was entitled to take the view that a judge, as part of the exercise of his discretion under section 26, could have regard to, as distinct from being bound by, the test of competence in section 53 on the question whether it would be in the interests of justice to admit such a video-taped interview into evidence. One relevant matter in cases such as this was whether courts should make it easier than it had been in the past for vulnerable witnesses to give evidence, provided that its admission and the manner of its admission should not unfairly prejudice a defendant’s trial.

There are two points to make about these competing submissions. First, as we have said, and as the Court discussed in R v. D, there was no test of competence at common law that could engage section 23. That was because they provided for two entirely different regimes, the former for assessing the competence of a person on his appearance as a witness at trial, the latter for determining the admissibility of a documentary statement because, by reason of his mental condition he is unfit to attend and give evidence at trial. The second point is that, even before section 53 took effect, its formulation of a new notion of competence was a reasonable, though not obligatory, approach for a judge to adopt when considering, as part of its section 26 exercise of discretion whether to admit the hearsay evidence, the degree of mental unfitness, whether at the time of making the witness statement or at trial. And that is how the Court in R v. D and the Judge in this case dealt with it – an appropriate, but not obligatory circumstance to take into account in the exercise of its section 26 discretion. In our respectful view, the Court was correct in its approach in this respect in R v. D and the Judge was, in the circumstances, entitled also to adopt the section 53 formulation in exercising his discretion under section 26. Accordingly, we also reject this ground of appeal.

The Judge held, following his viewing of the video-taped interview of the claimant and hearing the largely common evidence of Dr. Garner and Professor Hodgkinson that the complainant was a competent witness, applying the section 53 test. In so holding, he did not find that she understood all the questions put to her or that all her answers were understandable, but that she understood, and was understood in part, sufficiently for a jury to evaluate her evidence.

Mr Carter Stephenson made a number of broad submissions which, on the Court’s own viewing of the complainant’s video-taped account, are not - in their breadth - borne out. He submitted, for example, that she “was not aware of the nature and/or the purpose of the questions asked”; was not able to understand the questions asked of her”; “was not able to give answers which could be understood in their context or which could be relied on”. In our view, which was also that of the Judge, the video-film of her interview shows that she did have some appreciation of why she was being questioned, namely about a man who had recently done something to her, namely sticking his penis into her in an unpleasant way, a matter to which she referred a number of times during the interview. Whilst she did not always answer the question put to her and sometimes rambled off into other occurrences and places involving other people, her reference to such sexual assault by a man was a strong theme in her discourse with the officers. Sometimes her answers were hard to understand or bore little relation to the question asked, but at the end of the interview, the abiding picture was of a woman whose account and responses to questions were somewhat patchy, but who was nevertheless complaining repeatedly of a particular recent sexual assault by a man in which he had stuck, or had tried to, stick his penis into her more than once and that she had not liked it.

Mr Carter-Stephenson nevertheless, submitted that the complainant’s account could not be competent in the section 53 sense for a number of reasons.

First, he submitted that the complainant was not fully aware of the nature and purpose of the questions. But that, insofar as it relates to the purpose of the questions, is in part, the old common law test of competence, which, for the reasons we have given, does not engage section 23 and does not feature in section 53 of the new Act.

Mr Carter-Stephenson’s second point was that, unless the complainant understood all the material questions put to her and all her material answers were understandable, she could not qualify as competent within the terms of section 53. It should be noted that section 53 does not, in terms, provide for 100% mutual comprehension of material exchanges giving rise to potential evidence. And, in our view, depending on the length and the nature of the questioning and the complexity of the matter the subject of it, it may not always require 100%, or near 100%, mutual understanding between questioner and questioned as a pre-condition of competence. The Judge should also make allowance for the fact that the witness’s performance and command of the detail may vary according to the importance to him or her of the subject matter of the question, how recent it was (in this case the interview took place within two days after the alleged attempted rape) and any strong feelings that it may have engendered.

It is thus for the judge to determine the question of competence almost as a matter of feel, taking into account the effect of the potential witness’s performance as a whole, whether there is a common and comprehensible thread in his or her responses to the questions, however patchy – bearing always in mind that, if, on critical matters, the witness can be seen and heard to be intelligible, it is for the jury and no-one else to determine matters of reliability and general cogency.

Mr Carter-Stephenson’s third point was that the Judge could not, on the evidence, have properly concluded that the complainant had demonstrated an ability to give logical answers to the questions put to her. The Judge, in his ruling, noted and gave an example of the complainant’s demonstration of a logical sequence in her thought-processes in response to the officers’ questions. However, Mr Carter-Stephenson submitted that the Judge was not equipped to reach such a conclusion because he lacked the “signposts” that might have been provided by effective cross-examination of the complainant during the course of her video-interview both as to her competence and her account, and of evidence from experts who had examined her at the time of the interview who had been provided with all relevant background material. In our view, Mr Carter-Stephenson, in seeking to deny the Judge an ability in a section 23 exercise to determine the issue of competence – of intelligibility – for want of the trappings of a trial, was wrongly to credit him in that exercise with the task of the jury, whose function, it would be to consider the reliability and other cogency of her evidence.

In our view, the Judge’s approach to the issue of competence in the sense that he took it from R v. D was entirely justified for the reasons given by the Court in that case. And on the facts of this case, we are also of the view that the Judge was entitled, for the reasons he gave, to form the view he did as to the complainant’s competence, as distinguished from her reliability. Indeed, for the reasons we have just given in response to Mr Carter-Stephenson’s submissions on this issue, and from our own viewing of the video-tape and reading of the transcript, we agree with the way in which he applied the section 53 test and with the conclusion that he reached.

49. But this is a section 23 case, and “competence”, however defined, is not the final question. The final question is whether the Judge failed properly to apply the section 26 “interests of justice” test in deciding to admit her video-taped interview into evidence without the defence having had an opportunity to test her account at the time when she gave it or later at trial in the normal way.

50. The new section 53 test of “competence” is, as we have said, concerned at its highest with the degree of mutual comprehension of those questioning and of the person being questioned, whether the exchange is recorded in writing or on video-tape or takes place in court. Such matters and, indeed, those of the sort referred to by Mr Carter-Stephenson under the third ground of appeal, which go to reliability and cogency of a potential witness’s account, must be of particular concern at the section 26 stage when the court has to consider whether it is in the interests of justice to admit a written statement or a video-taped interview satisfying the section 23 admissibility test where, by reason of his physical or mental condition, the court is satisfied that he is unfit to attend trial to give evidence.

51. A witness’s mental state may prevent him or her from attending trial for that purpose, for example, because of a high degree of vulnerability to the strain of giving evidence and of being cross-examined or of psychiatric damage in having to “re-live” horrific events by giving evidence of them. But it is still for consideration whether and to what extent his or her mental state at the time of making the statement, in whatever form, may have been so unreliable as to render its admission at trial on that account unjust to a defendant. That does not, as we have said, turn on a nice analysis by the Judge as to his or her “competence” in any technical sense, but on an assessment along with the other circumstances that Mr Carter Stephenson has mentioned that may go to support or undermine the reliability or cogency of the evidence at the time when the statement was made. The Judge must then consider alongside that assessment, the other specified factors in section 26 and any other circumstances that appear to him to be relevant, in exercising his discretion whether or not to admit it.

52. The Judge, in approaching his task, dealt first with the complainant’s mental condition as revealed by her performance on the video-film and the evidence of Dr Garner and Professor Hodgkinson. He said that it was in the nature of someone suffering from Alzheimer’s disease that her thought processes were not always logical, her recollection patchy and supplemented by or interwoven with a mix of possibly imaginary or unrelated incidents. He said, with particular reliance on the agreed medical evidence, that her memory as to detail and context might have been unreliable, but was likely to have been more reliable in relation to important events that had affected her.

53. As to the content of the video-tape, the Judge acknowledged that the defence would be at some disadvantage by its admission, possibly containing misleading assertions and details because of the complainant’s condition, without any opportunity for the defence to test her evidence in cross-examination. However, he considered that such disadvantage was balanced by a number of matters, including: 1) that the jury would have the advantage of seeing the complainant’s evidence on video for themselves, as contrasted with simply having a written statement to read or to have read to them; and 2) the evidence of the medical experts as to her condition, physically shortly after the alleged offence and mentally after the video-taped interview.

54. The Judge added that, to the extent that her evidence was unreliable, it could be tested by a jury against other evidence, including: 1) her early complaints to one of her nieces, Dr Gray and the police: 2) the medical evidence of the injury to her vaginal tissue; and 3) again, the DNA evidence as to the appellant’s semen on her knickers.

55. As to the risk of unfairness for want of an opportunity to controvert the complainant’s statements in the video-film, the Judge referred to: 1) the evidence of the appellant’s response, or lack of it, to the questions of the police in their two interviews of him; 2) his opportunity through cross-examination on his behalf to challenge or explore all the other material evidence in the trial, in particular that of the psychiatrists, to controvert her allegations; and 3) the appellant’s own evidence; and 4) the arguments of his counsel, including, we would expressly identify, obvious points as to the need for caution in relying on the complainant’s account, given her mental condition and prompted as it was on occasion by leading questions from the interviewing police officers, and having regard to the lack of any opportunity to test it by cross-examination of her.

56. Mr Carter-Stephenson emphasised that, given the DNA evidence and the appellant’s acknowledgement before trial of “consensual sex”, the issue at the time the Judge gave his ruling was not whether there had been some sexual contact between the complainant and the appellant, but whether it was consensual. He submitted that it had not, therefore, been necessary for the prosecution to rely on the evidence of the complainant to prove that aspect of the case, and that her video-taped evidence, when considered with Dr Garner’s and Professsor Hodgkinson’s view of her unreliability and the inability to test it as would be the case if she were a live witness at trial, was of little or no probative value on the issue of consent, adding very little to the prosecution’s other evidence on that issue.

57. Mr Rook maintained that the Judge properly applied the section 26 “interests of justice” test. He pointed to the various issues for determination by the jury in the case, including, under the umbrella of consent, whether the complainant had the capacity to consent, if she had that capacity, whether she did consent and as to the appellant’s belief that she did so. On all those and the other issues as to whether the appellant’s conduct amounted to attempted rape or to an indecent assault, he submitted that the performance of the complainant in the video-taped interview was of potentially strong probative value. He also pointed to the safeguard for the defence in their opportunity to challenge the prosecution case by reference to the medical experts’ views as the complainant’s unreliability, and to rely on the ability and duty of the Judge to warn the jury appropriately in his summing-up as to the care they should take when considering the complainant’s video-taped evidence. Bearing all such considerations in mind, he submitted that the Judge was entitled to conclude that it was in the interests of justice to admit this evidence.

58. Before we express our conclusion on this ground, we should mention briefly essentially the same issues arising under the banners of “fairness” in section 78 of PACE and of the right to a fair trial under Article 6 of the European Convention of Human Rights.

59. Both counsel acknowledged in their oral submissions that there was little if anything to be added by these provisions to the section 26 “interests of justice” test. Mr Carter-Stephenson repeated his point that the complainant’s video-taped evidence was of little probative weight because it added little or nothing to the common ground that there had been some sexual engagement between the complainant and the appellant. He added that, because of her suggestibility to leading questions of the officers at critical stages of the interview, her unreliability was such that even the most emphatic warning from the Judge in his summing-up could not obviate the risk of the jury relying on what she said. He stressed again, under both these provisions, the importance and difficulty of the appellant being able to controvert directly what the complainant said in interview and the limited value for that purpose of reliance on medical evidence as to her unreliability. He summarised his various complaints under these three grounds by saying that the interview evidence was a prejudicial distraction for the jury, particularly in the complainant’s references to her attacker’s rough handling of her, references which, he said, were not borne out by the medical evidence.

60. Mr Rook also largely relied on his arguments under section 26. He added that the playing to the jury of the video-taped record of the complainant’s interview was fairer than the reading of a written witness statement would have been. It gave them an opportunity to judge for themselves what manner of witness she was and to put her performance and account alongside the medical evidence before them as to her condition. As to Article 6, he referred to well established principles of Strasbourg jurisprudence of the need to balance the interests of defendants against those of victims called upon to testify, and submitted that a fair trial does not demand the attendance of a witness for cross-examination if the trial process over-all is fair.

61. We have had to consider whether the Judge was entitled to conclude that it was just in the circumstances of this very grave allegation to allow the evidence of a seriously mentally ill woman to be put before the jury in secondary form, in this case by way of a video-taped interview, with the result that her account could not be tested in cross-examination. As we know, in a similar circumstance in R v. D the Court upheld the trial judge’s ruling under section 26 to admit the complainant’s video-taped evidence. Waller LJ gave the Court’s reasons for doing so at paragraph 39 of the judgment:

“We viewed the video as well as examining the transcript. … not only do we think there is no basis for interfering with judge’ view that it was in the interests of justice that this video should be admitted, but we entirely support his view. It seems to us that first, ‘B’ was understanding the questions which were being put to her and was able to give answers to those questions which can be understood. Secondly, ‘B’ prima facie has a right to have her complaint placed before a jury and a right to have a jury assess whether they are sure that the complaint is established and the putting of the video before the jury is the only way in which that right can be upheld. Thirdly, the appellant also has his rights but they are in this instance protected. He will be able to call medical evidence to challenge the capacity of ‘B’ to remember, understand and say what happened. In reality, as it seems to us, he will be in a stronger position before a jury than he would have been if ‘B’ had been called to give evidence and were to be cross-examined; we say that because the appellant through his lawyers and experts will be able to argue about the reliability of ‘B’ and will further be able to make the point that they have been unable to cross-examine her. If ’B’ had been questioned by advisers on behalf of the appellant at the time when the video was made, for example, her reaction might well have been much more positive about what had occurred to controvert what ‘B’ said. In those circumstances it seems to us that it will be possible for the appellant to controvert the statement of ‘B’ that this video should be admitted. It will and should be for a jury and a jury alone to decide with the aid of expert evidence the truthfulness or accuracy of what ‘B’ was saying.”

62. Much, if not all, of what Waller LJ said in that passage is equally applicable to the facts of this case. In our view, the Judge was entitled to conclude that it would not be unfair to the appellant to admit into evidence the video-taped interview of the complainant. He clearly identified the correct approach to the issue in the light of the guidance given in R v. D, namely, in the first instance, to apply a broad test of competence in line with that set out in section 53 of the 1999 Act. That is essentially - and sensibly - a test of intelligibility, which, before or after the application to any proceeding of section 53, was and is part of the Judge’s task when making his “interests of justice” decision under section 26. If, in the proper view of the Judge in such a case, the witness at the time he gave the hearsay account on which the prosecution seek to rely is competent and that, on a proper balance of all the relevant circumstances, the jury will have an adequate opportunity, and without unfairness to the defendant, to form a view of the reliability of his account, the judge is entitled in the exercise of his judicial judgment under sections 26 and 78, to admit such hearsay evidence. It is trite law that this Court should be cautious, notwithstanding the gloss of Article 6, before interfering with such a decision. We can see no error of law or principle or criticism of the balance drawn by the Judge of the relevant factors for and against the admission of this evidence that would entitle the Court to interfere with his decision. Indeed, on the facts, we would have reached the same conclusion ourselves.

63. We add that, given that “the interests of justice” or – the same thing – fairness is the determinative factor for a court in deciding whether to admit hearsay evidence admissible under section 23, Mr Carter-Stephenson’s suggestion that the Judge should have excluded it here because the prosecution did not need it given its other evidence on the issue of consent, cannot in the circumstances of this case be a relevant factor. It might be an easy way out for a judge in a case where the circumstances for and against admission of the evidence are finely balanced, but it would not normally be a relevant one. As Waller LJ clearly had in mind in the passage from the Court’s judgment in R v D that we have just set out, one of the interests of justice or aspects of fairness is that, as part of the process of a criminal trial to determine whether an alleged victim is truly a victim, his or her voice should be heard. See A v. United Kingdom (1998) 27 EHRR 611. That is especially so where, for one reason or another, the alleged victim is vulnerable and may, on that account be unable to attend court as a witness, and perhaps more especially where, as here, the alleged “insult” to him or her, in the nature and circumstances of the offence charged, is particularly grave. That is, in part, just why section 23 is there and provides as it does. Having said that, we should record what Mr Carter Stephenson tacitly acknowledged, namely that there was evidence without that of the complainant on which the jury could have found the appellant guilty. The prosecution case on other evidence was far stronger than that in R v. D.

64. Accordingly, we reject grounds of appeal 4 and 5 and refuse permission to appeal on proposed ground 7.

65. The appellant has sought to renew his application for leave to appeal based on a complaint that the Judge failed to direct the jury properly as to the probative nature of the video-taped interview of the complainant. The jury saw the video-taped interview of the complainant twice, and they also had a transcript of it. The Judge warned them about the danger of giving it greater weight than other evidence in the case because they had a record of it in permanent form. He also warned them of its shortcomings as evidence because there had been no opportunity to cross-examine the complainant:

“All the process of examination of a witness before a jury has not taken place. Take very great care.”

And then he invited them to consider it alongside the evidence of the psychiatrists:

“… the psychiatrists both agree on one thing.

Whatever her powers of recall about the big picture or the main event are, she’s not reliable on detail. So please remember that as well. Now, in this case there’s been a lot of expert evidence, two psychiatrists, two doctors, one scientist. ….

….

… let’s now look at the evidence of the two experts who dealt with … [the complainant’s] video and her general condition. … They both agree she had moderate, or one of them thought, moderate or severe degree of Alzheimer’s, …. Alzheimer’s is a dementia which affects the functioning of the brain, and for our purposes the important function is it affects is memory.

They both say that she was not fit to give evidence in court. Both agree that sufferers from Alzheimer’s have a better recall of an event, if it’s a recent event and it was an event which had an emotional or physical importance to the person suffering from Alzheimer’s.

…

There is no doubt, both those doctors agree, that on the video, she was speaking of a sexual incident, which appeared unpleasant or unwelcome to her. They both agree she’s unreliable on the details, and Professor Hodgkinson agreed … that … to say she was recalling an incident that was unpleasant or unwelcome, you had to be sure that the incident she is recalling was the one that is complained of here today and not something else in her past.

…. So she is not reliable on details, … That does not mean you can believe nothing of what she says.

It means you’ve got to be very careful before you can rely on something of what she says and, before you rely on anything, remember the warnings I gave about her evidence and look for supporting evidence elsewhere.

Later in the summing-up the Judge, after referring to the complainant’s language to the police officer who had found her in the garden in Chingford and to her account to one of her nieces, continued:

“The prosecution say that is valuable for two reasons. Firstly, it is unprompted and it’s her first account and, secondly, it gives you consistency with the video, the next day, for all those reasons the prosecution say you can be sure … that he attempted to penetrate her with his penis.

Well, what do the defence say? … they say … you cannot simply rely on that video. It is full of discrepancies. The experts say you can’t rely on the detail. To take the simplest thing, was her attacker black or white?

If she’s wrong on that, she’s going to be wrong on just about everything else. Look at her variation. …. At one point she says two or three times, later it’s three or four, later it’s four or five.

Even during the video, the story is changing. … her memory is composed of fragments from years ago, things she’s read, things that have happened to her and she just pulls them out without any logical connection, that she is suggestible and unreliable and you should disregard her video.”

And finally, when dealing with the issue for the jury of the appellant’s belief in the complainant’s consent, the Judge said:

“… you have looked at that video. You know what … she was like 24 hours later, when she’s secure back in the home. You know that both psychiatrists said she had no real concept of … what was going on … [in] that … interview or the seriousness of it.

I have read out to you her behaviour and the reaction of the ordinary lay people, the policemen and Miss Jackson, who saw her closer to it. The prosecution say that Mr Sed’s account of this woman talking rationally and making sexual advances to him, some three or perhaps four hours before she was found in that garden is patent nonsense.”

68. Mr Carter-Stephenson’s main complaint about these directions was that the Judge did not direct the jury “in unequivocal terms” that none of the complainant’s allegations in the interview could be relied on. He submitted that the Judge should have directed the jury that, at the most, when considered with the medical evidence, the only safe inference to be drawn from the video-film was that the complainant had been involved in a sexual encounter while she had been away from her care home. He also complained that the Judge had wrongly suggested to the jury that various of her answers in interview could be supportive of other evidence of the prosecution’s case.

69. Mr Rook submitted that the Judge gave sufficient directions and warnings to the jury about the complainant’s evidence in interview that it was a matter for them to evaluate the evidence and whether and to what extent to heed his warnings. He challenged the notion that the Judge should have directed the jury that the only safe inference from the video-taped evidence was that that the complainant had been involved in a sexual encounter whilst away from her care home.

70. In our view, the Judge did all that could have been required of him in the directions that we have set out to direct them as to the use they could properly make of the video-taped evidence of the complainant, its limitations and its dangers. We specifically reject the suggestion that the Judge should have directed the jury that none of the complainant’s allegations in interview could be relied on or that the only safe inference they could draw was that she had been involved in some sexual encounter while away from the care home. To have so directed the jury would have been to usurp their function. Subject to the warnings that he amply gave, the reliability of her evidence was essentially a matter for them.

Accordingly, we refuse permission to appeal under this ground.

We have referred, in paragraphs 14 and 15 of this judgment, to the attempt of the police to re-interview the appellant in the presence of his solicitor after disclosure to him of the DNA match, to the prepared statement presented by his solicitor at the start of the interview acknowledging an incident in which he had had “consensual sex” with an un-named woman, and to his “no comment” answers to all his questions.

73. At the trial Mr Carter-Stephenson applied to the Judge to exclude the evidence of that interview on the ground that it involved substantial breaches of Code 11-4 of the Codes of Practice of PACE, which provided:

“As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he shall ask the person if he has anything further to say. If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence.”

The Judge ruled against that application, holding that the officers were entitled to re-interview the appellant to give him an opportunity to comment on the DNA match, an opportunity of which he might wish to avail himself given his assertion in the prepared statement of “consensual sex” with an un-named woman. The Judge was also of the view that it was proper in the circumstances for them to continue to question the appellant in the way they did after his solicitor had read the prepared statement. He said that if he was wrong about that, it was in the circumstances “a technical breach” and one that was “insubstantial, slight and not affecting the fairness of admitting” the evidence.

Mr Carter-Stephenson submitted that the Judge wrongly concluded that there was no breach of the Code and wrongly held that, if there were, it would not be unfair in the terms of section 78 of PACE to admit the evidence. As to the former, he said that it was plain that the officers, in the light of the DNA evidence, believed, before the interview, that the appellant should be prosecuted and that there was sufficient evidence for a prosecution to succeed. He submitted that, therefore, in accordance with Code 11-4, they should have limited the interview to asking him whether he had anything further to say and then charged him. As to the latter, he maintained that such a contravention of the Code should not, in the circumstances, have been dismissed by the Judge as insubstantial as a justification for not excluding it as unfair under section 78.

Mr Rook had two main submissions The first was that the police officers, notwithstanding the evidence of the DNA match, were entitled to re-interview the appellant to consider whether he had any explanation for that evidence, relying on R v. Ioannou [1999] Crim LR 586, CA. Second, he submitted that the solicitor’s introduction of the exculpatory prepared statement at the start of the interview, asserting “consensual sex” with an un-named woman was a new factor that might explain the DNA match, and the officers were, therefore, entitled to explore it to see whether any belief they might have had that the appellant should be prosecuted was well based.

On the issue of breach of the Code provision, Mr Rook’s submissions make good sense as well as according with the law. Where there is some new evidence, not previously put to an accused in interview, on which an explanation from him might throw light and influence on whether the matter is to proceed to prosecution, it is plainly not in breach of the Code to ask him whether he has anything to say on that new matter. Where, as here, the accused volunteers immediately before the interview some explanation which, when considered with the new evidence disclosed to him, might allow of an exculpatory explanation for it, further questioning to explore that possibility would not, in our view, breach the Code. It is a matter of judgment how far such questioning should go, particularly where, as in this case, the accused has made plain on his solicitor’s advice, that he should not answer any questions, even by way of elaboration of his prepared statement to explain away the new evidence. As the Court said in Prouse v. DPP [1999] Archbold New 2, CA, such a decision is a qualitative one for the officer and, it follows, also for the Judge in determining the threshold question whether there has been a breach of the Code. In our view, the Judge was entitled to find on the facts of this case to conclude that the officers were entitled, not only to start the interview, but to continue with it in the way they did after the appellant’s half revelation in his prepared statement.

But the ultimate question for the Judge was whether - breach of the Code or no - there was any unfairness in admitting the evidence of this interview. None, for the reasons we have given, can be ascribed to the start of it, including the volunteered prepared statement of the appellant. And, because all the appellant’s subsequent contributions to the exchanges were “no comment” answers, it is difficult to see what prejudice, unfair or otherwise, he could have suffered from its introduction. The only possible prejudice that Mr Carter-Stephenson was able to identify was the ability of the jury, on a proper direction from the judge, to draw an adverse inference from the appellant’s silence. The Judge gave a model direction in that respect, drawing particular attention to the appellant’s solicitor’s advice to him to remain silent. There is no complaint about that direction. If the jury, faithfully taking account of the Judge’s direction, did draw an adverse inference against him for his failure to mention his case as he was to put it later at trial, then prejudice to him there may have been, but prejudice for which the law provides, not unfair prejudice. Like the Single Judge, we are of the view that the Judge was entitled to admit the evidence for the reasons that he gave, and we refuse leave under this proposed ground of appeal.

The appeal against conviction is, therefore, dismissed.