Malicki, R. v

LORD JUSTICE RICHARDS:

1. On 23 July 2008, following a trial at Truro Crown Court before His Honour Judge Elwin and a jury, the appellant was convicted on one count of sexual assault of a child under the age of 13. He was acquitted on a second count relating to a different child. He now appeals against his conviction by leave of the single judge.

2. The relevant complainant was a girl "L" who was 4 years 8 months of age at the time of the alleged offence. L lived with her mother on the same estate as the appellant, whom L referred to as "John".

3. On 24 May 2007, while her mother was filling the paddling pool, L went over the road with her mother's permission to see the appellant. She was wearing her bikini. When she returned she had an uneaten chocolate biscuit in her hand and she looked upset. When asked what was wrong she told her mother that she did not like John, he was nasty. She then told her mother that the appellant had pulled aside her pants and put his head in her "body", which the mother said was L's word for her vagina, and had "nipped" her. "Nipped" seems to have been the word used, or understood to have been used, at the time, though subsequently, as we shall explain, L's account was that the appellant had licked her. L demonstrated to her mother what had happened by pulling her bikini bottom over to expose her vagina. Her mother immediately telephoned a neighbour, to whom L gave the same account.

4. The police were contacted. A video-interview of L was conducted the following day, 25 May. In that interview L repeated essentially the same account to the police. She stated that the appellant had pulled aside her pants and put his head in her "body" while she was sitting in his rocking chair. She described it as "tickling", not hurting. When she was asked what she had told her mother on returning home after seeing the appellant, the questions and answers were as follows:

"Q. .... And did you tell mummy that John had nipped you somewhere?

A. He didn't nick me.

Q. Lick, did you say, did he lick? What did you say to mummy, lick or nip?

A. Lick.

Q. Lick. Did he lick you?

A. (Nods head)

Q. Where did he lick you?

A. (makes sound) (indicates)

Q. Where you're pointing. ...."

Importance is attached by counsel for the appellant to the fact that the first reference to licking was in response to the leading question that is in that passage.

5. The police interview was conducted with commendable speed. The appellant's trial, on the other hand, was the subject of serious delay. It did not take place until the second half of July 2008 -- fourteen months after the alleged incident. The delay is explained in part, but is not justified, by the fact that the appellant's computer was found to contain a large number of indecent images, which took time to analyse and which in the end became the subject of a separate trial. We are told that that trial has recently come to a conclusion and has resulted in the appellant's conviction.

6. At the trial of the counts of sexual assault, L's evidence was given in the form of the video of her interview, with short cross-examination. We do not have a transcript of the cross-examination because, regrettably, the tape cannot be found. In his summing-up the judge summarised the effect of the cross-examination in this way:

"In cross-examination, L did agree that when she got into the defendant's house and had been given a biscuit she sat on his rocking chair. He did not like that and pulled her off and told her to go home. She was firm, however, when pressed, that what had upset her was not that, i.e. being pulled out of the chair, but the defendant's moving her pants and licking her."

We shall deal in a moment with what counsel tells us about the cross-examination.

7. In addition to the evidence of L, there was evidence at trial from her mother and from the neighbour.

8. The count on which the appellant was acquitted related to an alleged assault on a girl "S". The allegation was that he had touched her in the area of her vagina over her trousers on a separate and earlier occasion. At the trial there was video evidence from S and cross-examination of S about that incident.

9. In the course of the trial the judge rejected submissions, to which we will return in a moment, that neither complainant was a competent witness or that their evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 and that the case should be stopped because of the delay in bringing the matter on for trial. At the end of the prosecution case he also rejected a submission of no case to answer, which was founded on much the same concerns in particular about the effect of delay.

10. Following the refusal of that submission, the appellant did not give or call any evidence.

11. The grounds of appeal, as originally settled, focus on L's competence as a witness and the effect of the delay between the incident and the trial. Mr Melville-Shreeve, who appears before us today on the appellant's behalf, has accepted the difficulties that he faces in relation to the issue of competence and has concentrated on the question of delay. Because of the linkage between the two issues in the submissions made at the time, we will deal briefly with competence as well as with the point specifically pursued by counsel.

12. The test of competence, as set out in section 53(3) of the Youth Justice and Criminal Evidence Act 1999, is that a person is not competent to give evidence in criminal proceedings if it appears to the court that he or she is not a person who is able to (a) understand questions put to him as a witness, or (b) give answers to them which can be understood. The test is not the age of the witness, but whether those criteria are met. There is no reason of principle why a child as young as L may not be a competent witness.

13. In this case the view was taken at the outset that the video-interview of L suggested that she was competent and that accordingly she should be allowed to give her evidence and be cross-examined and that the question of competence should then be re-visited. That was a perfectly sensible approach in line with what was said in R v McPherson[2005] EWCA Crim 3606 (at paragraph 31) and R v Powell[2006] EWCA Crim 03 (at paragraph 33). The same approach was adopted in relation to the other complainant, S.

14. As already mentioned, after the girls had completed their evidence, it was submitted to the judge that the case should be stopped because they were not competent or because their evidence should be excluded by reason of the lapse of time. Before us the contention on behalf of the appellant is that the judge was wrong to reject the submissions in respect of L, at least insofar as they related to the effect of the lapse of time.

15. The position in relation to S no longer gives rise to a live issue because of the appellant's acquittal on the count relating to her, although reference must still be made to the cross-examination of S because of the bearing it has on L's case. S accepted in cross-examination that she could not remember the event of touching itself and that what she was remembering was what she had seen on her video. It is suggested that this admission by her may have contributed to the acquittal on the count relating to her. We are told that L did claim in cross-examination to remember the incident of which she had complained, but that it was impossible to discern whether she was actually remembering the incident itself or was simply recalling her video, which she had just seen twice: once on the Friday before the Monday of the trial, and once in the trial before she was cross-examined. The point is made that children are very receptive to what they see on television or on a video and that a 5 year old could not usefully be questioned about her recollection of events when she had just twice watched herself talk about them on the video. The problem of questioning her is said to be highlighted by the fact that when cross-examined, she immediately asserted that she had been licked. This was something, as we have already mentioned, that was first introduced through a leading question in interview. L had originally used the word "nipped". Counsel asks rhetorically: how do you ask a 5 year old whether her being licked was a recollection of a question put to her by the police officer on the video rather than a direct recollection of the event itself?

16. Insofar as those matters were relied on in support of the contention that the judge should not have found L to be a competent witness, it seems to us that they did not take the appellant very far and that Mr Melville-Shreeve was right not to pursue that aspect of the appeal. We are satisfied that the judge was entitled to reach the conclusion he did that L was a competent witness.

17. However, those matters are also relevant to the submission that the evidence ought to have been excluded under section 78 and that the case ought to have been stopped because of the lapse of time. In Powell (cited above) the complainant was three-and-a-half years old at the time of the alleged assault and just over 4 years old at the time of the trial. The Court of Appeal took the view that the trial judge should have reconsidered the question of her competence at the conclusion of her evidence at trial and, had that been done, the judge would or should have concluded that she was not competent and would have withdrawn the case from the jury. That was sufficient to quash the conviction, but the Court went on to deal with a number of other points, including, pertinently for present purposes, delay. There were two main aspects to the delay in Powell. The complainant was not interviewed until nine weeks after the incident, and the trial did not take place for a further seven months. In giving the judgment of the Court, Scott Baker LJ said this:

"41. Explanations can be found for each element of the delay in this case. However the plain fact is that where a case depends on the evidence of a very young child it is absolutely essential (a) that the ABE interview takes place very soon after the event and (b) that the trial (at which the child has to be cross-examined) takes place very soon thereafter. As the expert evidence in this case showed, very young children simply do not have the ability to lay down memory in a manner comparable to adults. Looking at this case with hindsight, it was completely unacceptable that the appellant should have been tried for an offence proof of which relied on the evidence of a three-and-a-half year old when the trial did not take place until over nine months had passed from the date of the alleged offence. Special efforts must be made to fast-track cases of this kind and it is simply not an option to wait weeks for example for forensic evidence to become available."

18. We share the concerns expressed in that passage. The complainant in the present case was a year and a half or so older than the complainant in Powell, but she was still very young. The video interview in the present case was prompt, but the overall delay until trial was much greater. The problem in such a case as it seems to us is twofold: first, the risk that a child so young does not have any accurate recollection of events fourteen months previously (that is almost a quarter of her life ago); secondly, the even greater risk that if she is shown the video of her interview just before the trial and during the trial, as she must be, all she is actually recollecting is what was said on the video, and that she is incapable of distinguishing between what was said on the video and the underlying events themselves. It seems to us to be a near impossible task to undertake an effective cross-examination in those circumstances when the cross-examination must depend for its effectiveness on probing what actually happened in the course of the incident itself and immediately after it, not just going over what the complainant said in her interview. These problems go beyond the normal difficulties of recollection with an adult witness or an older child.

19. It is plain that this case did not receive the expedition it could and should have had. For the purposes of the appeal it does not matter where the fault lay. The result was to create the same unfairness for the appellant as was referred to in such strong terms in Powell.

20. We have borne in mind that the case against the appellant was a strong one. L was in distress straight after the incident. She made an immediate complaint to her mother, she repeated her account promptly and consistently to a neighbour and then the following day in her police interview. She was consistent throughout in saying that the appellant had pulled aside her bikini bottom, exposing her vagina -- something she demonstrated to her mother -- and that he had put his head there. What she said in interview about it feeling like a tickle is clear enough. The fact that she used the word "nipped" when she initially described the incident, and referred to "licking" only after that word had been suggested quite innocently by the police officer in the course of the interview does not go, it may be said, to the essential nature of the assault described.

21. We have considered in all those circumstances whether the conviction can be regarded as safe, despite the unfairness caused to the appellant by the delay. The reluctant conclusion to which we have come is that it cannot be. For the reasons given, we are satisfied that the judge ought in the particular circumstances of this case to have excluded the complainant's evidence and then to have stopped the trial for lack of any case to answer, and that the conviction cannot therefore stand. It follows that the appeal must succeed and the conviction be quashed.

22. What has happened in this case underlines the importance of what was said in Powell and the crucial need for all concerned to pay full attention to it. We have concentrated on the effect that the delay had on the ability of the appellant to defend himself. But it is of equal concern that the young complainant had to wait so long before the matter came to trial, then had to come to court and be cross-examined, only for the conviction to be quashed because of the delay. As was said in Powell, cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned -- prosecution and defence -- to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure), and it is the responsibility of the court to ensure that such expedition is provided.

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