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All England Reporter/2006/February/*R v MacPherson - [2006] All ER (D) 104 (Feb)

[2006] All ER (D) 104 (Feb)

*R v MacPherson
[2005] EWCA Crim 3605
Court of Appeal, Criminal Division
Rose LJ, Forbes and Calvert-Smith JJ
27 July 2005
Criminal law - Trial - Witnesses - Indecent assault - Competence of young witness - Whether judge erring in
finding witness competent to give evidence - Guidance - Youth Justice and Criminal Evidence Act 1999, s
53(3).
Section 53(3) of the Youth Justice and Criminal Evidence Act 1999 provides, so far as is material: 'A person
is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person
who is able to (a) understand questions put to him as a witness, and (b) give answers to them which can be
understood'.
The defendant was charged with indecently assaulting the complainant, aged six-and-a-half at appeal. Very
shortly after the alleged offence, the complainant stated that the defendant had licked her genitals. She
repeated that allegation a number of times. A number of hours later, she was interviewed by the police in a
video recorded interview. She again repeated the allegation. There was also forensic and circumstantial
evidence against the defendant. At his trial, the defendant contended that the complainant was not a
competent witness within the meaning of s 53 of the Youth Justice and Criminal Evidence Act 1999. The
judge ruled that the complainant was a competent witness. He stated that, 'having regard to her responses
in interview, she is capable of giving answers that can be understood'. He stated that 'it was clear that she
was capable of understanding questions put to her and that she was capable of offering answers to those
questions in an intelligible way. The whole essence of the statutory provisions is to seek to prevent the
courts from receiving unintelligible evidence. Capability and capacity lie at the very heart'. The defendant
was convicted of indecent assault. He appealed against conviction.
The appeal would be dismissed.
The judge had set himself the correct test and had reached the correct decision on the evidence. In the
circumstances of the instant case, the complainant was a perfectly competent witness.
(i) Once the issue was raised as to the competence of a prospective witness, it was for the party calling the
witness to satisfy the court that, on a balance of probabilities, the witness was competent. The issue of
competence should be determined in the ordinary way, namely, before the witness was sworn, usually as a
preliminary issue at the start of the trial. In cases such as the instant case, the judge should watch the
videotaped interview of the child witness and/or ask the child appropriate questions.
(ii) The test of competence was clearly set out in the 1999 Act, and was (a) whether the witness could
understand questions put to him or her as a witness; and (b) whether he or she could give answers which

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could be understood. The issue raised by s 53(1) of the 1999 Act was understanding, namely, whether the
witness could understand what was being asked and whether the jury could understand the witness's
answers. That was precisely the test which the judge had himself in the instant case. The words 'put to him
as a witness' within s 53 meant the equivalent of being 'asked of him in court'. Accordingly, it would be the
case that an infant who could only communicate in baby language with its mother would not ordinarily be
competent. However, a young child such as the complainant in the instant case, who could speak and
understand basic English with strangers, would be competent.
(iii) There was no requirement in the 1999 Act that the witness in question should be aware of his or her
status as a witness. Questions of credibility and reliability were not relevant to competence. Rather, those
matters went to the weight of the evidence, and might be considered, if appropriate, at the end of the
prosecution case by way of a submission of no case to answer.
(iv) A child should not be found incompetent on the basis of age alone. The question of competence should
be kept under review. However, in the instant case, no questions were actually raised during the course of
the trial as to the complainant's competence after the matter had been dealt with in the judge's ruling.
(v) In all the circumstances, the evidence against the defendant was strong. The complainant's allegation
had been consistent, and supported by the presence of saliva and the defendant's DNA inside her
underwear.
The conviction was not unsafe.
Adam Kane (assigned by the Registrar of Criminal Appeals) for the defendant.
Charles Ward-Jackson (instructed by the Crown Prosecution Service) for the Crown.

Vanessa Higgins Barrister.