W and M, R. v

THE VICE PRESIDENT: The legal issue in these applications for leave to appeal is a strictly limited one. It is whether or not the evidence led by the Crown as a whole established a case upon which it was properly open to the jury to conclude that the offences charged were proved to the criminal standard of proof.

It is fundamental to the system of jury trial which we operate in this country that it is the jury and not the judge which makes up its mind which evidence it accepts and which it does not. The judge has vital duties relating to the management of the case, the admissibility of evidence and rulings upon questions of law where they arise. But when it comes to the assessment of evidence the judge's role is confined, and it should be confined, to deciding, if there is dispute about it, whether the evidence if taken at its highest is evidence upon which a jury could properly convict - see R v Galbraith [1981] 73 Cr.App.R 124. If that question arises at the trial for decision, the judge's ruling on it is a matter of law and can accordingly be challenged on appeal, if it is contended that he was wrong. If that happens, the role of this court is as confined as that of the judge. Our task is to say whether or not the judge was wrong on the grounds that the evidence, taken at its highest, was such that no jury could properly be sure that the offence had been committed. The words we have underlined are of fundamental importance. Whether the evidence ought in fact to be accepted at its highest, or whether it should be rejected altogether, or whether the correct position is somewhere in between those two poles, are all matters for the jury to decide and not the judge. On those questions neither the judge's view nor, for that matter, ours are of any significance at all. Of course trial judges, and for that matter judges who sit here, cannot avoid forming some at least tentative opinions, but it is their and our plain duty to put them firmly to one side.

The present case is unusual. It will have attracted a measure of public attention. For that reason it is important that anybody considering it, and especially anybody tempted to comment upon it, should understand the confines of the law within which courts are obliged to operate.

The jury in this case found itself enquiring at the Crown Court into the exact details of what physically had occurred when three children of primary school age were playing together outside during half term. The two defendants, both boys, were children of 10 years of age. There was no suggestion that either of them habitually misbehaved. In the case of one of them there was a glowing report from his school which demonstrated him to be a model pupil, as well as quite lacking in any aggression or sexualised behaviour.

The age of these children is significant because until a child is 10 he cannot in law be guilty of any criminal offence. If he or she misbehaves under that age what is done may lead to a variety of remedial actions of one kind or another, but it cannot result in a criminal trial. These children were 10 years and three months and 10 years and six months old respectively.

The complaint of the prosecution was that in the course of playing together and with a little girl neighbour of eight, all those three children had looked at each other's private parts, but then that the boys had gone on to put their penises into the girl's vulva and anus, or at least had tried to do so. There was no sign of any physical injury to the girl, but all that tells anyone is that if there has been any degree of penetration it has not gone beyond the hymen. The absence of physical injury tells nobody anything at all about the vital question which is whether there has been a lesser or indeed minimal element of penetration of the labia or of the anus. The law is and has been for as long as anyone can remember, and for obvious reasons, that it is impossible to distinguish between degrees of penetration and, accordingly, any degree of penetration whether of the vulva or the anus suffices, however minimal it may be.

Next, the Sexual Offences Act 2003 made a change by Parliament in the definition of sexual offences. Where the child is under 13 years of age any act of penetration of the vulva or the anus is now defined as rape - see section 5(1). This is often misunderstood because if one is considering an act with a person over 13, rape involves proof that that person did not consent to the act. However, a child under the age of 13 is unable to consent in law, whether he or she in fact agrees to what happens or not. It is easy enough to see why this is what the statute says if one contemplates the case of an adult abuser and a child under 13. But the Act of Parliament does not confine the rule to a case where the defendant is an adult and it applies equally to young defendants, even to those who are only a few months past their tenth birthday. It follows that it was technically open to the Crown Prosecution Service to charge these two 10-year-old defendants with rape because it was alleged that one of them had put his penis (however minimally) into the girl's vulva and that the other had put his penis (however minimally) into her anus. Once they had been thus charged the inescapable duty of the courts is to try them.

In this case, accordingly, the two boys were charged with joint offences of rape and they were alternatively charged with joint offences of attempted rape. Those latter alternatives were clearly added to the indictment by the prosecution in case there should be doubt about whether any degree of penetration at all had actually occurred. Given the absence of any physical evidence and the inevitable difficulty for any child of this age in knowing how far any physical contact had gone, doubt on this topic was plainly foreseeable and foreseen. In the event, the jury acquitted the boys unanimously of the offence of rape. However, after further retirement they reached majority verdicts of guilty of attempted rape in each case.

This appeal is now brought by both boys on the principal ground that whilst the case necessarily depended almost entirely on the evidence of the eight-year-old girl, she was said to have changed her account significantly at the trial. The question for us reduces itself to this: "Was the judge entitled to leave to the jury the question of whether she truly had altered her account?"

It follows from what we have said about the legal framework that the jury would convict if it was sure that there had been an attempt at penetration, however minimal, and whatever the little girl's attitude towards what was happening was.

On a Tuesday, early in the afternoon, during half term, the little girl, who we will call A, was playing outside her home. So too were the two little boys who lived nearby. Their respective mothers knew in general terms where they were. At least one of them was in touch by text messaging and there was no suggestion that any of the children was being in any way neglected. The boys, on the evidence, were playing at jumping over a thorn bush. A, on any view, joined them there. She was at the time with a younger boy who was only six, whom we will call C. Her younger sister was somewhere outside also but not in their company. That meant a group of four: the girl, C and the two boys. They moved around together. Their exact movements remain less than crystal clear, but this much is plain. They went into a block of flats where they all knew one or more children whose families lived there and in that block of flats they spent a little time in the general stairwell area and a little time in a bin shed either downstairs or outside at the back. After they left the bin shed they went outside again and into some parkland or grassy area. When A's younger sister came home their mother went to look for the girl. En route she met C (by now separated from the other three), who told her that the boys were doing something really bad to A and hurting her. Mother then met the group of three (that is to say the two boys and A) returning together. At that point A was showing no sign of distress and had not separated herself from the two boys. Mother asked what they had been doing and all of them returned an answer familiar to any parent, namely "nothing".

Having taken A home, however, mother was sufficiently concerned to notice that she appeared a little quiet. She asked her what had happened and A then told her that the boys had taken down her pants and "had sex with her". When mother asked what she meant by that, A said that they had put their willies inside her.

By the time of the trial there was no dispute that in the block of flats at the two places which we have mentioned and then again on the grassy area the two boy defendants and the little girl had all had their underwear down and all had looked at each other's private parts.

In the event neither of the boys gave evidence. Given their ages the judge inevitably directed the jury that their absence from the witness box could not begin to support the case against them. It was, as he put it, "completely neutral". The case which was advanced on behalf of both of them was that A had pulled her own underwear down and that each of the three was participating in looking at each other's private parts. On behalf of the defendant W the case advanced was that by the time they got to the park he had put his penis against A's skin at the base of her spine, thus in the general region of her backside, but not immediately by her anus and not in it. On W's behalf the case advanced was that M, for his part, had put his penis between A's thighs. On behalf of M the suggestion was advanced that he had pulled at A's skirt as he was walking behind her, but as to any contact with his penis that was simply disputed.

It follows that while there was in effect no dispute on behalf of W that there had been some physical contact by his penis, there was no admission by either boy of any attempt to penetrate.

Understandably a good deal of time was spent at the trial investigating whether whatever had happened, both before the park and in it, had or had not been against A's wishes. Whilst the investigation of that was entirely understandable, it was not in fact the critical question for the jury. For the reasons which we have endeavoured to explain, the critical question for the jury was not whether A minded, but exactly what contact there had or had not been and in particular whether there had or had not been some attempt, however childish, at penetration.

The jury was made aware of the successive accounts given by A. First, as we have said, on first speaking to her mother of anything untoward she said that the boys had had sex with her and either had or had tried to put their willies inside her. Second, to the first police officers who came when called she had said either that they took her pants down and "put their thingies in me" or that they had asked her to take her pants down. The recollection of the officers varied. Thirdly, however, to the specialist police officer who saw her by about 5 o'clock that same afternoon, she said that they had told her to pull down her pants and when she refused they had done it themselves, in, she said, each of the three locations where something had happened. Then she said they had dragged her along the ground to the park because she did not want to go there. In the park one had put his willy up her "minnie" and the other put his willy behind her bum and, she said, "they picked me up to do it properly".

The following day she was interviewed in accordance with the usual Achieving Best Evidence ("ABE") procedure and her interview was video recorded. She said that the boys had pulled her pants down on each occasion. They had been tricking her, she said, by pointing at something and then pulling her clothing down when she looked away. She said that she had not wanted to go to the park, but asked about being dragged (which is what she had said before) she said she could not remember. However, in the park she said they had put their willies into her, one in her minnie and one in her bum and, as the night before, she said they picked her up for the purpose.

Approximately five weeks later a second recorded interview took place because it was clear she had something to add. Her account in this second interview differed in one significant respect. She now told the police that she had met the boys near the bush where they had been jumping and that one of them had then thrown her scooter into the bush. She had been told, she said, that if she wanted it back she should pull her knickers down. She now said that she had done that herself, although she said that it was because of what had happened to the scooter.

Thus things stood until the trial. At the trial she gave evidence by way of video link, as one would expect. It is plain to us that a good deal of thought was given by all concerned into making the experience as non threatening as it could be. The day was broken up into 45 minute slots, separated by a break, both in the morning and in the afternoon. A's answering of questions on behalf of the defendants was in the end limited to a 45 minute slot in the morning and one 45 and one 15 minute slot in the afternoon. The judge made it clear that counsel need not feel that they must examine individual contentions item by item. It was important that the exercise should not be prolonged.

All that said, this was nevertheless, once the charges had been brought, an exercise in which the prosecution relied upon the evidence of this child to prove its case and to establish against two boys of ten findings of guilt for an offence of rape. It was an exercise in which the defendants similarly had to explore the question of how far A could safely be relied upon. That meant investigating first of all whether she was deliberately truthful or untruthful, but as importantly, whether she was accurate.

In due course submissions were made at the close of the Crown case that there was by then a state of evidence which was insufficient for the jury properly to convict. Those arguments turned chiefly upon what A had said or had agreed to in cross-examination.

A number of things had by then become clear which had not been clear before. First, A had told the jury that she had played with one of the boys, M, before. She mentioned that her younger sister kept wanting to kiss M. She told the jury that she knew and liked the other defendant's brother. That fell to be considered alongside her ABE interview in which, when asked if she knew the boys, she had said no more than that sometimes they came to her area to play with their own friends and that they kept singing songs about her and C (the six-year-old) and love. Next, it was now clear that A was agreeing that she had first met the boys that afternoon when they were jumping the thorn bush. She had joined them, plainly of her own volition at that stage. Next, it was plain that she was now saying that she had herself pulled down her own underclothes, at least on some of the occasions; there was not always a distinction between separate parts of the afternoon's activity. Next, there had been shown to the jury closed circuit television footage which showed a little girl, accepted by the Crown before us to have been A, walking in the general direction of the park, a little way after one of the boys and C had preceded her there. She was on her own and she was not being dragged there. She had followed voluntarily. She told the jury that they still had her scooter and there was some evidence that when they all returned afterwards the scooter was with the group.

From that it follows thus far, and indeed as we understand it it is expressly accepted on behalf of the Crown, that to the extent that she had previously said that prior to what was seen on the closed circuit television she had had her underwear forcibly removed by the boys and been dragged by them, that had not been true. What was seen on the closed circuit television must have followed whatever happened at the two places in the block of flats, the stairwell and the bin shed and it is plain that she was still at that stage (a) undistressed and (b) following the boys.

The principal focus, however, of the defence submissions were her answers to specific questions. First, near the end of the cross-examination on behalf of M, counsel asked this question:

In the course of the same cross-examination A was asked questions about what she had said to her mother. She had already mentioned that she had been hoping that her mother would take her to get some sweets, but that if she had been naughty there would not be any sweets. The time came when Miss Strudwick on behalf of W suggested to her that her mother had been "not very pleased" with her. The judge was anxious to replace assertions put with open questions, asked a series of questions himself and the exchange proceeded as follows:

The nub of the submission made to the judge and repeated to us today was that by assenting, as she did, to the propositions put to her that the boys had not attempted or actually penetrated her, the child had contradicted what she had previously said and effectively retracted the allegations. The submission made to the judge and which is repeated here today was and is that in those circumstances the jury could not be satisfied so that it was sure that what she had originally said about what happened in the park had indeed occurred.

The judge was very concerned that most of the answers on which those arguments relied had been the result of questions in which a proposition had been directly put to the child, usually with an invitation to agree. He was acutely alive to the real possibility that a child as young as this may wish to please or if not to please to bring the questioning to an end, especially in the very foreign atmosphere of a formal trial. He was alive to the risk that such a child might assent to propositions rather than take the more difficult course of disagreeing. He was also conscious that the child was showing some signs of getting tired.

We would echo what this court said about child witnesses in R v Barker [2010] EWCA Crim. 4. The judgment delivered by the Lord Chief Justice, Lord Judge, included this observation:

There is undoubtedly a danger of a child witness wishing simply to please. There is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree. To say that those risks plainly exist is not, as may have appeared at times during the argument in the court below, to offer any criticism whatever of the manner of cross-examination. It is particularly important in the case of a child witness to keep a question short, and even more important than it is with an adult witness where it also matters to avoid questions which are rolled up and contain, inadvertently, two or three at once. It is generally recognised that particularly with child witnesses short and untagged questions are best at eliciting the evidence. By untagged we mean questions we do not contain a statement of the answer which is sought. That said, when it comes to directly contradicting a particular statement and inviting the witness to face a directly contradictory suggestion, it may often be difficult to examine otherwise. No doubt if a way can be found of engaging the witness to tell the story and then the content differs from what had been said before, that will be a yet better indication that the original account is wrong. But that is difficult to achieve and indeed may itself have the disadvantage of prolonging the child's time giving evidence. Even then there may be no guarantee as to which account is the more reliable.

We want to make it clear that we are quite sure that neither counsel cross-examined this child inappropriately. However, the risks which we have identified plainly existed. Most of the questions which produced the answers which were chiefly relied upon, unlike many others, constituted the putting of direct suggestions with an indication of the answer: "This happened, didn't it?" Or: "This didn't happen, did it?" The consequence of that is, as the judge remarked, that it can be very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance.

We agree with the judge that in the end the question of which it is is not for the judge but for the jury, unless the stage has been reached when taken at its highest the evidence is such that no jury could safely be sure of guilt. This case troubled the judge. He worried about it and said he found it difficult. So have we. He ruled, however, that that stage had not been reached. The assessment of the total net effect of this child's evidence on the crucial question which was limited to exactly what had happened in the park was, the judge held, for the jury and not for him. He was acutely conscious that A had assented to the propositions directly put to her that she had, but he said this by way of conclusion:

We do not agree that in arriving at that conclusion the judge was in effect establishing for a child witness a rule that no submission of no case can be made. The law is just the reverse. Of course it can and it may well succeed in some cases. It is acutely fact-sensitive. Sometimes the witness's own original account may be so contradictory that it cannot be relied upon or it may fail to establish evidence which, taken at its highest, would entitle a jury to convict. On other occasions the witness may convincingly demonstrate by her evidence in cross-examination or otherwise that the original account is so modified or contradicted that it cannot be reliable. We wish to say plainly that it is not the law that once a child has given an original ABE interview or similar, it can never happen that the child's evidence at trial demonstrates that a jury could not safely convict. It may well do. The difficult question is when it has. It is quite impossible to ignore the fact that the witness is a child. Nor can you ignore the risks which the judge identified and which we have attempted to explain. To that extent the approach to the witness is specific to him or to her and it certainly involves not treating him or her as if he or she was an adult. Without doubt the best judge of whether the line has been crossed is the trial judge who hears and sees the witness. Unlike the members of this court, this trial judge had not only heard the words spoken but he had seen and heard the manner in which they were spoken. Unlike this court, which only has a transcript to rely upon, he had seen the person. He could judge the body language. He could judge far, far better than we could possibly do whether the witness might just have been giving up.

We are satisfied, having looked carefully at the evidence in this case and the judge's ruling, that the judge applied the correct test and that he was entitled to come to the conclusion which he did, which was that the assessment of the whole of the evidence of this child was for the jury. It had to consider, certainly, what she had said in her original accounts and also, certainly, what she had said at trial both in chief and in cross-examination. It was entitled to attach significance to what she had said originally and soon after the event to her mother about the boys having had sex with her and about one or other of them, or both, picking her up to do it properly. In the end whether she had assented to the propositions put to her in cross-examination because they were true and she was changing her account, or because she was giving up, was what the jury had to decide.

It follows from that that the defendants' principal contention that the judge approached the question wrongly and reached the wrong conclusion is one which we are unable to support.

A second submission was made to us that the complaint made by A to her mother ought to have had attached to it from the judge a clear warning to treat it with caution. It is said that that should have been the case because of the retractions (as they are termed) made by the child in cross-examination. The recent complaint was undoubtedly admissible under section 120(4) and (7) of the Criminal Justice Act 2003. It is almost universal experience that the first thing that a child says in a case such as this is capable of being extremely revealing, whether because it tends to show that the offence has been committed or for the opposite reason. The judge's decision to admit it was plainly right. He made it clear in summing up precisely what the rival contentions on either side were about it. He did not need to administer any further specific caution. In any event, the submission, as we understood it, is that the additional caution ought to have been given because the retractions made by the child had been genuine but that was the very issue which the jury needed to confront.

We should say that like the judge we have found this a painful case to consider and a difficult one in which to apply the rules of law which we are obliged to apply. We are however satisfied that the judge was right and entitled to come to the conclusion that he did. It follows that our order is that leave to appeal should be given, but the appeal has to be dismissed.

We add a postscript. Having spent quite a long time reading the transcripts in this case, we want to express our admiration for the manner in which the judge, counsel and solicitors all did their level best to adapt the machinery of an adult trial in a formal courtroom at the Crown Court to the needs of the three principal parties in this case, none of whom was more than 11. We are unable, however, to leave the case without recording our dismay that it became necessary for two 10-year-olds and an eight-year-old, all of impeccable upbringing, to be the key participants in a trial before the Crown Court. We are particularly concerned about the effect of a publicly staged trial in this arena was likely to have on the ability of the little girl, whatever had happened, to move on with her life with the minimum adverse impact.

We pass no comment on the decision that this particular charge needed to be brought in a case of this kind, rather than some lesser offence which if proved would more than adequately equip the court with powers to deal with the children accused. We are not privy to that decision and it is not for us. But even if this charge had to be brought, we are unable at present to see why it could not be tried in the Youth Court. We are told that the view was taken by the Crown Prosecution Service that because rape was a "grave crime", that is to say one within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the necessity for committal followed. That proposition having been put to the Justices, as we understand it, they agreed. That however is not the test. All those who are concerned with cases involving children as young as this, if they ever arise, need to have in their briefcases the report of R (on the application of) H, A and O v Southampton Youth Court [2004] EWHC 2912 (Admin). The judgment of the court delivered by Leveson J (as he then was) makes clear at paragraph 33 the following three cardinal principles:

The test, in other words, is the real likelihood of a sentence which would be beyond the powers of the Youth Court. If the Justices' minds were not in this case directed to that test, then they should have been. The Youth Court is particularly attuned to enquiries into the alleged activities of children, whether as witnesses, or as defendants, or both. It is staffed by judges who are used to dealing with them. It does not have to sit in a formal courtroom. It can adapt the court premises so as to make the necessary exercise of the trial one more suited to the very young. It has judges who may well have encountered very similar factual disputes also in the family jurisdiction where this kind of thing is not in the least uncommon. We do express the hope that if similar facts should recur again those principles will be kept in mind and every effort be made to keep the proceedings as low key as possibly can be done.

Miss Strudwick, Miss Patel, had you a representation order already made, or not?

MISS STRUDWICK: Yes, my Lord, we did.

THE VICE PRESIDENT: Then the order is simply that leave is granted, but the appeal must be dismissed and we remind everybody that the order preventing publication of anything which might identify any of these children on either side remains. That does not just mean naming them, it means reporting anything which could lead to them being identified.