A matter of time

The vast majority of criminal appeal decisions are significant only for the principles of law that they establish for the future, but there is a small number of cases that attract such notoriety that both the legal profession and the wider public are already familiar with them before the Court of Appeal makes its judgment.

Steven Barker is infamous for being the stepfather of Peter Connelly (Baby P). On 1 May 2009 he was further convicted at the Old Bailey of the anal rape of another child, two-year-old C (who had also been in the appellant's care). Shortly before her third birthday, she complained to her foster carer that the appellant had sexually abused her. Then, in January 2008, she gave an unprompted account of sexual abuse and anal rape to a child psychiatrist and a family therapist. This account was repeated four days later in the Achieving Best Evidence (ABE) interview that would later be relied upon at trial.

Although the allegations arose in 2007 when C was two, and the ABE interview had been recorded in January 2008, the trial relating to C was delayed until after that relating to Baby P. As a result, 15 months passed before her evidence came to be ruled upon by HHJ Kramer QC and challenged on behalf of the appellant. Whatever else may be said about the case, it is regrettable that so much time passed before such a young child came to be cross-examined on her account.

Having considered the ABE interview, the learned judge held that C was a competent witness as defined by section 53 of the Youth Justice and Criminal Evidence Act 1999; i.e. she could understand questions put to her as a witness and give answers to them which could be understood. Following cross-examination, it was submitted that C had not given a coherent account and her competency as a witness was again challenged. The judge acknowledged that her intelligibility and ability to be understood were difficult at times but nonetheless found her to be competent '“ albeit at the edge of competency. It was later also argued on appeal that because defence counsel was restricted to such simple questions in cross-examination, he was unable to effectively challenge C's evidence.

When the matter came before the Court of Appeal in R v Barker (unreported, 21 January 2010) Lord Judge CJ characterised the appeal in broad terms as being about whether a conviction could safely rest on the evidence of a four-and-a-half-year-old child, relating events that happened before they were three. It was held that while age was a factor, it was not determinative and a trial judge's decision must relate to the individual child's competence in that particular trial. Furthermore, the special measures that attach to a child's evidence should not cause their evidence to be seen as in some way less reliable.

Competent and compelling

It was right that a judge should reconsider competency following a witness' evidence if appropriate to do so (R v Powell [2006] EWCA Crim 3), but the judge will not be addressing credibility at that stage any more than when the test was initially applied. It did not matter if some of the child's answers could not be readily understood, nor whether they grasped the special importance that truth be told in court. A judge's decision on competency is not a discretion but a judgment to be made on clearly defined principles.

Furthermore, the forensic techniques of the advocate were not part of the consideration. These had to be adapted to enable the child to give the best evidence of which they were capable. If the issue was that the child was lying or mistaken, the essential elements of the defendant's case could be simply put. In doing so, an advocate may have to forsake detailed cross-examination of the type that amounted to comment on other evidence which might undermine credibility; this could be addressed after the child had given evidence. In this particular case, the court found that C had given clear answers and the defence had been able to put their case to her. The court later described her as compelling as well as competent.

On the issue of the delay of the trial, the court (with reference to Powell) emphasised that where delay did not amount to abuse of process under normal principles there was no special defence or unspecified limitation period due to a child's age.

It is perhaps the last point which is slightly troubling about this case, and while it is not suggested that the trial judge or the Court of Appeal were wrong in their findings on this matter (it may well be that C was indeed a competent and compelling witness notwithstanding the delay) it is of real concern that so much time elapsed before her evidence came to be challenged. The ability of a child of four to accurately relate events that occurred when they were two cannot be equated to the ability of a much older child, much less an adult, to recall events from an earlier stage in their life. The Court of Appeal was surely right to emphasise that a child's evidence should not be seen as inferior to an adult's, but for the benefit of the child as much as anyone (given the inevitable trauma of participation in criminal proceedings) our delay-ridden system must find a way to ensure that the process is completed as quickly as possible.