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Home > Judgments > 2011 archive

TW v A City Council [2011] EWCA Civ 17

Application for permission to appeal to the Court of Appeal, with appeal to follow, against findings of fact by an intervener in care proceedings, TW. Permission granted and appeal allowed.

One of the questions for the judge at first instance was whether or not the subject child in the care proceedings was at risk of sexual abuse by TW.  This in turn depended upon whether or not TW had sexually abused another child, LR, in 2008.  TW had intervened in the care proceedings for the issue to be tried, and it is against the judge's finding that he had sexually abused LR that he appealed.

TW's application for permission to appeal came before Black LJ on paper and it was directed that it should be listed before the full court with the appeal to follow if permission was granted.  Notably, in listing the matter, the judge commented, inter alia, that LR's Achieving Best Evidence (ABE) interview with the police was "significantly flawed".

At the criminal trial of TW, the jury were directed to acquit TW because there had been a gap of 12 months between the allegation and the hearing, inconsistencies in some of the evidence, the difficulty faced by the defence in dealing with the case, the content of the ABE interview, and the absence of any clear account from the child of having been tickled whilst unclothed.

Granting permission and allowing the appeal, the Court of Appeal held that the ABE interview had no evidential value because it was so unsatisfactory that it had had to be edited considerably before being put before the jury in the criminal trial remained unsatisfactory.  The inadequacies of the ABE interview were manifest: the departures from the Guidance were self-evident and glaring with an inadequate establishment of rapport, no free narrative recall by the child, an abundance of leading questions and no closure.  Everything in the interview was led by the officer and nothing was introduced into the interview by the child.

The judge's assessment of the child as forthright and capable of standing up to and overcoming incompetent interviewing, did not, the Court of Appeal held, stand up to analysis.  The judge should have heard oral evidence to resolve the circumstances surrounding a factual matter as the judge had a quasi-investigatory and interventionist role and should have insisted on the necessary oral evidence.

The Court of Appeal stated that the judge's reliance on her own experience as a grandmother in respect of evidence was contrary to authority and diverted her from analysis of the evidence at the criminal trial.

Summary by Richard Tambling, Barrister, 1 Garden Court

______________________________________

Neutral Citation Number: [2011] EWCA Civ 17
Case No: B4/2010/1136
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
Her Honour Judge Norrie
HB10C00025
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/01/2011

Before:
SIR NICHOLAS WALL THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE WILSON
and
LORD JUSTICE AIKENS
- - - - - - - - - - - - - - - - - - - - -
Between :

TW Appellant

 - and - 

 A City Council
1st Respondent

TT
2nd Respondent

MW
3rd Respondent

SW (by a Children's Guardian) 
4th Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Charles Geekie QC and Rachael Morton (instructed by Griffith Smith Farrington Webb LLP) for the Appellant

Mary Lazarus (instructed by The City Council Legal Services) for the First Respondent

Hearing date: 16 November 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
 
Sir Nicholas Wall P
1. This is the judgment of the court.

Introduction
2. TW, as we shall call him, is now 24. He is a single man. He seeks permission to appeal against a finding of fact made against him by Her Honour Judge Norrie, sitting in the Brighton County Court on 30 April 2010. The judge was hearing care proceedings under Part IV of the Children Act 1989 ("the Act") instituted by a City Council (the local authority) relating to a girl then rising 3, SW. SW is the daughter of TT (her mother) and MW (her father). TW is MW's brother.

3. One of the questions for the judge was whether or not SW was at risk of sexual abuse by TW. This in turn depended upon whether or not TW had sexually abused another small female child, LR (then a little over four and a half years old), on 19 April 2008.  TW had intervened in the care proceedings for that issue to be tried, and it is against the judge's finding that he had sexually abused LR  that  TW now seeks permission to appeal.

4. TW's application for permission to appeal came before Black LJ on paper on 30  July 2010. She directed that it should be listed before the full court with the appeal to follow if permission was granted. In so listing the matter, she commented, inter alia, that LR's Achieving Best Evidence (ABE) interview with the police was "significantly flawed". That is a comment with which we agree, and is, to an extent, common ground. A principal question for this court, accordingly, is whether, as Black LJ put it, "the extent and implication of its unreliability" were properly taken into account by the judge.

5. Given the deficiencies in the ABE interview, and the manner in which the judge dealt with them, we are in no doubt that permission to appeal should be granted. Furthermore, as we heard the application in November 2010 and it became increasing unlikely that our judgment would be handed down prior to the final hearing of the care proceedings fixed for 6 December 2010, we discussed that matter further amongst ourselves and decided that we should notify the parties in writing of our decision. Accordingly, when the judgment is handed down, we will direct (1) that the appeal  be allowed and  (2) that the finding against TW that he sexually touched  LR  be set aside. We also agreed, however, that this would be the extent of our order and  that  the allegation against TW should not be remitted for re-hearing. This judgment will, accordingly, set out our reasons for taking this course.   

Authorities.
6. The case also raises a discrete and quite separate point relating to authorities. We were provided with a bundle of authorities, only one of which was copied from a law report, the remainder being taken from the Bailii website. None of the relevant passages had been sidelined or otherwise highlighted. 

7. As it happened, Mr. Charles Geekie QC, for TW, did not refer us to authority in opening, although (1) there were references to cases in his skeleton argument and (2) he accepted responsibility for the bundle. At our invitation, Mr. Geekie undertook to contact the Family Law Bar Association in order to ensure that the family bar was reminded of Practice Direction  52PD.66  – Appeals, which supplements CPR Part 52. We also draw attention to the note at 52.12.3 of the White Book 2010,  which refers to section 8 of the Practice Statement (Supreme Court: Judgments) [1998] 1 WLR 825.  For the avoidance of any doubt, however, we take this opportunity to remind the profession of the Practice Direction, and in particular of the following: -

(a) that the bundle of authorities should be agreed;
(b) that it should be filed at least seven days before the hearing;
(c) that it should not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation;
(d) that the relevant authorities should be copied from the official law reports, and only if not should reports from the All England Law Reports (All ER) or a specialist law report series be included. In addition, if a case is reported in volume 1 of the Weekly Law Reports that report should be used in preference to the report  in the All ER.    Bailii reports (with neutral citation numbers) should only be used if no other recognised reports are available and the case really needs to be  cited; and
(e) that the passages in the authorities which are relevant and on which counsel will seek to rely must be marked.

The facts  
8. The allegation against TW was that he had "tickled" LR's "mini" (her word for her vulva) . The incident was said to have occurred on 19 April 2008, when TW was 19 and, as we have already stated,  LR was a little over four and a half  (she was born in October 2003). As we shall relate in greater detail in due course,  the allegation against TW was the subject of a criminal proceedings in which TW was charged on indictment with one count of sexually touching LR contrary to section 7(1) of the Sexual Offices Act 2003. The trial took place in the Kingston Crown Court before His Honour Judge Welchman and a jury between 18 and 22 May 2009 when, at the close of the prosecution case, TW was acquitted  on the judge's direction  after the defence had submitted that there was no case to answer.

9. The allegation arose in the following way. On 19 April 2008 TW was living at the address of his mother KW. On that day TR, who is LR's mother, took LR to visit TR's mother (LR's maternal grandmother), who lives next door to KW.  TR explains in her police statement that it was not unusual for her and LR to call at KW's address, not least because LR was in the habit of playing with one of KW's grandchildren, who, as it happens, was also in KW's house on this occasion, although she was asleep at the material time and plays no part in events.

10. Although the timings are unclear, it is not in dispute that TW and LR spent a substantial amount of time together in TW's room. His case is that he and LR were watching a film or videos together on television, and that nothing untoward occurred.

11. In her police statement (which is undated) TR stated that, when she was in LR's bedroom later on 19 April 2008  "sorting out her pyjamas" prior to putting  LR to bed,  LR  told her that she did not have any knickers on. TR asked why this was, and according to TR's statement LR replied  that TW had taken them off. The statement goes on: -

"I asked her why (TW) had taken them off telling her that she wasn't in any kind of trouble, she just said she didn't know. I was very suspicious at this point, if she had said about  him helping her to go to the toilet or something like that I might have accepted it but by her saying  she didn't know I was extremely concerned."

12. TR  says that she firstly asked her partner (GL) to telephone her father, who  lives next door to KW. TR then spoke to her father herself and asked him to go next door to speak to KW. TR also spoke to KW, to whom she says she reported what LR had said to her about TW. Her statement then contains this  passage:

"……KW told me there were several pairs of knickers in the bathroom but she didn't know which belonged to (her granddaughter) or (LR). I told her to look inside as (LR's) ones  would be 5-6 years old. (KW) then said she must have wet herself  as they were wet. I said that was ok and told my dad  to get them for me. I then went back to (LR) and asked her if she wet herself, she looked very sheepish, looked away and said yeah. This was very unusual for her as she never wets herself. My dad then rang again and I told him that it was all okay because she had wet herself. My dad told me she couldn't have as they [the knickers] were bone dry. I then went back to (LR) and asked her again what had happened with her knickers. Without prompting she said that (TW) had tried to pull her trousers down and she had to cover her Minnie. I was absolutely devastated by what she was saying, she refers to her vagina as her Minnie. "

13. TR then telephoned the police, who removed items of LR'S clothing for forensic testing.  On the following day, 20 April 2008 (a Sunday), LR was ABE  interviewed by a woman police officer. We have a transcript of the interview with which we will deal in detail in due course.

14. In his police statement TR's father says: -

"Later that evening I got a call from (TR) saying that (LR) had come home with no knickers on and asked if I could go round to (KW) to get them. When I got there (KW) opened the door, as I stood in the doorway I could see (TW) sitting at the top of the stairs. I asked (KW) for the knickers. (KW) asked (TW) where they were. He went off and moments later appeared with a pair of girl's knickers and came down and handed them to (KW) saying something about (LR) wetting herself. (KW) and I felt the knickers and they were bone dry. I put them in my pocket and walked back to my house and handed them to my wife. They were then put into a little plastic bag."

15. At the criminal trial, in cross-examination before the jury, TR confirmed that her father only told her later that the knickers were dry, although it seems that he was present when the knickers were produced. He told the jury that both he and KW  felt the knickers when they were produced  and that they were dry.  Indeed he said he told his daughter as much "when he took them off  (KW)".

16. At the same time, it is clear that TR was told on the telephone that LR must have wet herself because the knickers were wet. That information, which plainly must have emerged in the conversation at which TR's father was present, is inconsistent with the latter's evidence that he felt the knickers at the time and that they were "bone dry".

17. Finally, when in the criminal trial the judge asked him whether there was a discussion at KW's house about whether the knickers were wet or dry, TR's father replied: "I think there was but I can't remember exactly".

18. In our judgment, whether or not the knickers were wet or dry (the former supplying an innocent explanation for LR returning home not wearing her knickers) is an important issue  which the evidence in the criminal trial leaves in a state of some confusion, and which a judge hearing care proceedings had a duty to address. 

The criminal trial
19. We have a transcript of the entire proceedings. At the outset the judge rejected a defence submission, based on the criminal cases of R v Powell [2006] EWCA Crim 3, and R v Malike [2009] EWCA Crim 365, that the trial was an abuse of process due to the unwarranted delay between the incident and the trial. The jury then heard – by way of video link - the oral evidence of LR herself (she having been permitted to watch her ABE interview before giving oral evidence), TR, two forensic scientists and TR's father. The evidence of two of the police officers was read, and the evidence of the officer in the case was taken orally, although she was not cross-examined on the ABE interview. That completed the prosecution case.

20. Due to the fortuitous indisposition of a juror on 21 May 2009, (the fourth day of the trial) the judge heard a detailed submission from counsel that there was no case to answer, with the result that on 22 May 2009, when the jury returned, the judge directed an acquittal. In his address to the jury, the judge emphasised the difficulty of conducting a fair trial where there had been a gap of 12 months between the allegation and the hearing. However, in his ruling, which was given in the absence of the jury on the previous day, the judge also pointed to "inconsistencies in some of the evidence", the difficulty faced by the defence in dealing with the case, the content of the ABE interview, and the absence of any clear account from LR of having been tickled whilst unclothed.

The Guidance
21. Before we examine the ABE interview and the manner in which the judge in the care proceedings dealt with the case, we think it important to look at Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures (the Guidance), which  was published in a revised form in 2007. This is a long and important document and is self-evidently required reading for all practitioners in the field, be they interviewers, prosecutors, advocates or judges. 

22. Nobody, not least the members of this court, underestimates the difficulties in interviewing children. For present purposes there are, we think, three pivotal documents, of which the Guidance is one. The other two are the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cm 412) (Cleveland) chaired by Dame Elizabeth Butler-Sloss (as she then was)  - and in particular Chapter 12 of Cleveland entitled Listening to the child; - and The Report of the Advisory Group on Video Evidence (the Pigot Report) published as long ago as 1989.

23. The Guidance  devotes a whole chapter (Chapter 2, running to 239 paragraphs) to the subject of interviewing children. . The Chapter is entitled: Planning and conducting interviews with children. Much of the original Cleveland learning is retained and re-iterated. Thus, to take two early examples; the need for "thorough planning" is set out at the very beginning of the chapter, alongside an emphasis on the requirement for the interviewer to keep an open mind as to what may or may not have happened to the child, and not to seek only  to elicit  "details that will prove a hypothesis  about the child's experience(s) constructed on the bases of the initial information": see paragraph 2.3.  

24. For present purposes,  the meat of the chapter is in Part 2B. Under a series of bullet points, the document sets of the aims of the interview. Four distinct phases are identified, and detailed guidance is provided  on (inter alia)  "the important ground rules of truth and lies"; "how to elicit and support a free narrative account"; "the strengths and weaknesses of different types of question"; "misleading statements"; and on both closing and evaluating the interview. The authors are at pains to emphasise that  the phased approach is not to be taken to imply that  all other interviewing techniques are necessarily unacceptable,  or that the Guidance should be seen as a "checklist" to which there has to be rigid adherence. "Flexibility" they say

… is the key to skilful interviewing. A good interviewer is someone who can adapt their interviewing style in accordance with the interviewee sitting in front of them. However, the sound legal framework  should not readily be departed from by the interviewer unless they have fully discussed and agreed the reasons with their senior manager or interview adviser … It may be necessary to explain such deviations in  court …

25. The four phases identified in paragraph 2.130 of the document are as follows:

1. establishing rapport;
2. asking for free narrative recall;
3. asking questions; and
4. closure.

26. There are, however, certain very important points which the Guidance emphasises. As our citations from the document will, necessarily, be selective, we propose at this point simply to extract, without comment, the points we perceive  as directly material to the instant case: -

"Truth and Lies
There is no legal requirement to administer the oath …… but since the video may be used as evidence in court, it is helpful to the court to know that the child was made aware of the importance of telling the truth … It is inadvisable to ask children to provide general definitions of what is the truth (a task that would tax an adult): but, they should be asked to judge from examples. The interviewer should use examples suitable to the child's age, experience and understanding …. It is important that the examples chosen really are lies, not merely incorrect statements. (paragraph 2.143: emphasis in the original)

Establishing the purpose of the interview
The interviewer should provide an explanation of the outline of the interview appropriate to the child's age and abilities. Typically the outline will take the form of the interviewer asking the child to give a free narrative account of what they remember and follow this with a few questions in order to clarify what has been said. … (paragraph 2.144).

…. It is also important to stress that what the interviewer wants to discuss with the child is their memory of the incident(s) which give rise to the complaint, not the complaint itself (i.e. what the child remembers about the incident, not what they remember telling someone else) .. (paragraph 2.145: emphasis supplied)

The child should be given every opportunity to raise the issue spontaneously with the minimum of prompting…..Again, on no account must the explicit allegation be raised directly with the child because this might jeopardise any legal proceedings and could lead to a false allegation (paragraph 2.146).

Phase two: initiating and supporting a free narrative account
….. the child should be asked to provide in their own words an account of the recent event. The free  narrative phase is  the core of the interview and the most reliable source of accurate information. During this phase, the interviewer's role is that of a facilitator , not an interrogator. Every effort should be made to obtain information from the child that is spontaneous and free from the interviewer's influence. (paragraph 2.147).

… The child should not at this stage be interrupted to ask for additional details or to clarify ambiguities: This can be done in the questioning phase … Interviewers should be careful to ensure that affirmative responses are provided throughout the interview and do not relate solely to those sections of the interview dealing with allegations … Such prompts should relate only to the child's account and should not include relevant information not so far provided by the child … (paragraph 2.148).

It is quite in order for the interviewer to refer to a child by their first or preferred name, but the use of terms of endearment ('dear'. 'sweetheart'), verbal reinforcement  (telling the child they are 'doing really well') and physical contact….. are inappropriate (paragraph 2.149: emphasis supplied).

….. Prompting is quite in order provided it is neutral ('and then what happened?') and does not imply positive evaluation ('right', 'good') (paragraph 2.150)".

27.   The Guidance then turns to Phase three: the questioning phase. It goes into a detailed discussion of the different types of questions which should  or should not be posed. It differentiates (paragraph 2.155) between what it describes as (1) "open-ended" questions; (2) "specific-closed" questions; (3) "forced-choice" questions and (4) "leading questions". It emphasises that questions should be kept as short and simple in construction as possible. Each question should contain only one point (paragraph 2.156). It also makes the point that  when posing questions the interviewer should try to make use of information that the child has already provided as well as words /  concepts that the child is familiar with. (Paragraph 2.159).

28. In paragraph 2.160 the Guidance defines an "open-ended" question as one "that is worded in such a way as to enable the child to provide more information about an event in a way that is not leading, suggestive or putting them under pressure. The same paragraph emphasises: -

"It is important, therefore, that the questioning phase should begin with open ended questions and that this type of question should be widely employed throughout the interview".

29. The Guidance is, however, realistic. It recognises that  it is "rarely possible to use only open-ended questions with children": (paragraph 2.163). It recognises accordingly that "further specific closed questions may be necessary" (ibid). These it defines as questions which close down an interviewee's response, and thus allow only a relatively narrow range of responses to be obtained. Such questions can be appropriate or inappropriate depending on  the quality of the information likely to be obtained from the child.

30. Finally The Guidance turns to leading questions. We propose to cite the whole of  this section: -

Leading Questions
"2.171 Put simply, a leading question is one which implies the answer or assumes the facts that are likely to be in dispute. Whether a question is construed as leading will depend not only on the nature of the question, but also on what the witness has already said in interview. When a leading question is put improperly to a witness giving evidence at court, opposing counsel can make objection before the witness replies. This, of course, is not possible during recorded interviews but it is likely that should the interview be submitted as evidence in court proceedings, portions might be edited out or, in the worst case, the whole recording may be ruled inadmissible…..

2.172 In addition to legal objections, research indicates that interviewees' responses to leading questions tend to be determined more by the manner of questioning than by valid remembering. Leading questions can serve not merely to influence that child's answer, but may also significantly distort the child's memory in the direction implied by the leading question. For these reasons, leading questions should only be used as a last resort, where all other questioning strategies have failed to elicit any kind of response. On occasions, a leading question can produce relevant information that has not been led by the question. If this does occur, the interviewer should take care not to follow up this question with further leading questions. Rather, they should revert to open-ended questions in the first instance or specific-closed questions. (Emphasis in the original)

2.173 A leading question which prompts a child into spontaneously providing information going beyond that implied by the question will normally be accepted by the courts. However, unless there is absolutely no alternative, the interviewer should never be the first to suggest to the witness that a particular offence has been committed, or that a particular person was responsible. Once such a step has been taken it will be extremely difficult to counter the argument that the interviewer 'put the idea into the witness's head' and that the account is therefore tainted.

2.174 Of course, there may be circumstances in the interview where the use of leading questions is unlikely to result in any legal challenge; for instance, during the rapport phase when a witness is being taken through their name and address or is being asked for agreed factual information, such as members of the family and their names. However, good interviewing practice should discourage leading questions with all but the youngest and most reticent witnesses. The use of leading questions in the rapport phase may inhibit the child from responding in their own words later in the interview and it is not always possible at the time to anticipate what facts might subsequently be in dispute. Moreover, the use of inappropriate leading questions may produce nonsensical or inconsistent replies, which may damage the child's credibility as a witness."

The ABE interview in this case
31. The interview with LR was conducted by a woman police officer on 20 April 2008. We know nothing about the planning for the interview, or why it was deemed necessary to hold it on a Sunday, the day following the alleged incident. It would seem, therefore, that there was little time for the planning on which the Guidance lays such emphasis. However,  since anything we say on this subject would be speculation, we do not propose to comment further  on the subject of the planning for, or the timing of, the interview. 

32. We learn from the front of the transcript that the interview took 21 minutes, although it is apparent that LR and the officer had been in the room for some time before the transcript begins. In any event, no criticism has been made to us that the interview was too long.

33. The woman police officer who conducted the interview (who was also the officer in the case)  had clearly been given some training,  The first phase (establishing rapport) ends with the officer testing whether or not LR knows the difference between truth and lies. The officer tears up a piece of paper and tells LR that she is going to say to a fellow officer (who is not in the room) that LR had torn the paper. LR has no difficulty in saying that this would be "lies". It is, however, unfortunate that, when LR answers the next question from the officer: "Why do you think I said it was you?" by saying "cos you wanted to pretend it was me", the officer plainly neither likes nor is satisfied with that answer and says: "Okay, is it, is cos I didn't wanna get into trouble?" LR follows her lead and repeats what the officer has said.

34. Although the officer attempts to get LR to tell her about the events of the previous day in free narrative recall, she  gives up after only two or three minutes and asks: "Did anything happen then yesterday that made you sad?". This is plainly a leading question: the concept of LR being "sad" had not arisen before and is thus introduced by the officer, not the child. LR answers in the affirmative and then, in response to the officer's perfectly proper prompt, says: "It rained". LR denies that anything happened in the house to make her "sad" (again the officer's prompt) and the officer then says:

Officer: Okay, LR, you know that you told your mummy something last night that happened.
LR:       Yeah

Officer: Tell, tell, tell Jo (the officer's name) about that. Don't be shy. It's very important isn't it that you tell somebody what happened. Yeah? What happened?

35. For the reasons we set out in paragraph 52 below, this is an inappropriate prompt, and contradicts the principles set out in both Cleveland and the Guidance and summarised in paragraphs 27-30 above. LR's immediate response, however, to this question  is: "Don't tell, don't tell him". It is not at all clear who the "he" referred to is, and the point is not clarified by the officer. However, when the latter says she will not tell "him", LR says: "TW tickled my mini". It is, we think, particularly unfortunate that the allegation of abuse was introduced in this way

36. After what must be said are some confusing questions about where she was and where her grandfather was, LR says that she was "cross" when TR did "that", which we take to mean "tickling her mini" although the reference to that had been made a whole minute before in the questioning. The officer then asks two questons together, "Okay. So where, where were your trousers? What happened to your trousers? Hmm?" There had been no previous mention of trousers or that something might have happened to them. LR answers, logically enough: "weared them back to my Nan's and mum's".  She then says in answer to a direct question that she had taken her trousers off and, when the officer questions this, the following exchange occurs: -

Officer: Did you? But when you were at (TW's) house, who took them off?
LR:      TW, I mean

Officer: TW, TW took them off
LR:      (nods head)

Officer: And what did you do?
LR:       I tried to tell him not to.

Officer: OK, and what about your knickers?
LR:      He lost them.

Officer: You've lost them. Who, who took your knickers off?
LR:      TW.

Officer: Did he?
LR:      (Nods head)

Officer: And what did you say?
LR:      "Don't lose the knickers" – and he still losed them.

37. As with everything else, there had been no mention of "knickers" until the officer introduced them. It is, we think,  again unfortunate that, when LR has indicated where her "mini" is and what it is for ("going toilet"), the officer praises her saying: "That's right, you're a good girl. OK."  There is further praise from the officer less than a minute later when LR says that she does not know what TW tickled her 'mini' with and when the officer responds "… you're not in trouble at all. You're a good girl for saying aren't you?"

38. There is then a further exchange when the officer  says : -

Officer: …just a couple more things cos its very important, yeah you're doing very well, what happened when he touched your mini?
LR:       I went home.

Officer: OK, did you have any knickers on when he touched your mini?
LR:       (nods head)

Officer: Did you have your knickers on or were they off?
LR:       They were on, then he took them off.

Officer: Then he took them off. So then what happened when he took them off?
LR:       I told you already.

Officer: OK.  Did he touch you when your knickers were off?
LR:       (nods head)

Officer: Mmm-hmm
LR:       Not anywhere else.

Officer: No, just, but just on your mini.
LR:      (nods head)

39. The suggestion that TW touched LR's "mini" when her knickers were off is thus introduced by the officer. There are further exchanges in which, at different points,  LR says that TW both put her trousers back on and told her to put them on. She denies urinating in her trousers or knickers. TW had been fully clothed; she had not seen what he touched her with; TW had said "sorry"; she had told the mother, her mother's partner, and her grandmother and grandfather. Towards the end of the interview, LR is distracted, and the officer has to tell her where to sit.  She answers affirmatively to a question "did it hurt?"  The interview ends with the following exchange:

Officer: LR, when TW touched you, ok, did he touch you with his hands?
LR:       (Nods head)

Officer: Did he touch you with his, with his fingers? And you know when you've got your mini, did, did he touch you on the outside of your mini or did he go right in your mini?
LR:       Outside.

Officer: Just outside your mini. OK.
LR:       (nods head)

Officer: Erm, that's alright my darling, that's fine.
LR:       Can I go back downstairs?

Officer: You certainly can, you've been a good girl.

The approach of the judge
40. The judge dealt with the allegations against TW as part of a fact-finding hearing relating to the threshold conditions, and by reference to a substantial threshold document prepared by the local authority. She appears to have given two judgments, both of which were reserved. The first, delivered on 30 April 2010, is prefaced by an apology based on the fact that the judge had had to juggle a large number of papers and had had parts of the draft of the judgment on two computers.  Parts that appear only in the second version appear to have been discovered after junior counsel for TW had written to the judge on 12 May asking her to address counsel's suggestion that  she had not dealt with TW's evidence in her judgment or even referred to the fact that he had given evidence.  Counsel also pointed to the absence of any assessments of the adult witnesses.

41. In response,  the judge stated that, when reading out the judgment on 30 April, she had "completely missed" the parts of the judgment  which dealt with the matters  raised by counsel and which were already in existence, albeit on a different computer.

42. In these circumstances we propose to work exclusively from the second, approved, judgment, and do not determine this appeal on the basis on the basis of the judge's  technological difficulties.  We think, however, that Mr. Geekie has a point when he notes that in her first judgment the judge says in terms (at paragraph 55 of that judgment) that she was not going into the detail of what was said by TR's father "and by the finding of the knickers, the not finding of the knickers, etc" whereas in the second, approved judgment, not having heard any oral evidence from TR or her father, she  nonetheless "preferred the evidence" that the knickers were dry.

43. We think it fair to say, however, that the principal basis upon which the judge reached her decision of fact on whether LR was abused by TW was LR's ABE interview. In paragraph 77 of the second version of the judgment she says she has weighed all the evidence very carefully and noted the deficiencies in the interview,   "But", she adds:

"I remain impressed by what (LR) said and the way she presented. She was not a "yes" girl agreeing to everything that was put to her and she clearly followed and thought about the questions asked of her."

44.  The judge was not troubled by the timing of the ABE interview, but was troubled by the criminal court process: -

"The alleged incident had taken place when the child was 4 and a half. I trust I can take judicial notice  of the capacity of a child of that age to recall the events and indeed it is important to disclose that I have a granddaughter who I see weekly  and who is almost the same age as LR."

45. These considerations - and the fact that LR's evidence must have been tainted by the fact that she had been allowed to watch the ABE interview – led the judge to disregard the oral evidence given by LR at the criminal trial. She also gave no weight to the fact that the judge had stopped the trial at the conclusion of the prosecution case.

46. When she comes to her analysis of the ABE interview, the judge cites a number of passages, and acknowledges that "there are lots of areas for criticism in the ABE interview".  However, she concludes that LT is a very forthright girl who knew what she was talking about.  

47. In addition to watching the video of the ABE interview, the judge heard oral evidence from TW and had a statement from him  which she summarised. She did not hear any other oral evidence, nor was the officer who conducted the interview called or cross-examined.

The grounds of appeal
48. Mr. Geekie has refined his criticisms of the judge into two main headings. The first ground identifies six points under which he says the judge failed either to evaluate the evidence or to explain why  she had taken the view that she had. In his second ground Mr. Geekie criticises the judge for failing to consider his client's oral evidence or to analyse the evidence in relation to the condition of the knickers retrieved  from the house of KW.

Discussion
49. In our judgment Mr. Geekie is entitled to succeed on both limbs. We deal first with the ABE interview We have cited substantial extracts from the Guidance because, in our view, the ABE interview has no evidential value; and, although the standard of proof was different, Judge Welchman was plainly right to withdraw the case from the jury,  one of the grounds being that the ABE interview was unsatisfactory and had had to be edited considerably before being put before the jury and, even then,  was unsatisfactory.

50. In our view the inadequacies of the ABE interview are manifest. Even allowing for a broad margin of latitude to anyone conducting such an interview, the departures from the Guidance are self-evident and glaring. There is, on the face of the interview (1) an inadequate establishment of rapport; (2) absolutely no free narrative recall by the child; (3) an abundance of leading questions, and (4) no closure. Everything is led by the officer, and nothing is introduced into the interview by the child.

51. We are prepared to leave the first item in the preceding paragraph on one side, as there may have been more rapport before the transcript begins. There may equally have been some planning; although – given the dates and the rapid sequence of events - we think it unlikely. However most importantly, and  as is apparent from the extracts we have cited, every proposition either resulted from a suggestion made by the officer (LR feeling "sad", the removal of trousers, the removal of knickers, the use of  hands) or from a leading question. In particular, the first reference to TW tickling the child's "mini" began with the officer asking the sort of question which should never be asked: "you know you told your mummy something last night that happened….. tell Jo……about that".

52. As we have already pointed out, the Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else.  We regret to say that we were left with the clear impression from the interview that the officer was  using it purely for what she perceived to be an evidence - gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That, emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.

53. Against this background, the judge's assessment that LR was a forthright child capable of standing up to and overcoming incompetent interviewing does not, in our judgment,  stand up to analysis. Of course it is open to a circuit judge to reach a different conclusion on the balance of probabilities from a jury applying the criminal standard of proof. But if this is to happen, it seems to us that it is not sufficient for a judge to rely primarily on the fact that the child is able, when being interviewed in a thoroughly unsatisfactory manner and contrary to the Guidance, to make a number of inculpatory statements. A clear analysis of all the evidence is required, and the child's interview must be assessed in that context. The judge needs to explain how and why the criminal trial came to the opposite conclusion, and to look carefully at the evidence available in each set of proceedings.

54. On the facts of this case, in our judgment, the judge needed to resolve on oral evidence the circumstances surrounding the finding of the knickers. We are told that TR and her father were unwilling to give evidence. With respect, that is no answer. The judge has a quasi-investigatory, interventionist role. She could and should have insisted on KW, TR and her father giving evidence. She acknowledged in paragraph 73 of her judgment that she was unable to make an assessment of the manner in which TR and her father gave evidence in the criminal trial: yet in paragraph 76 said she preferred the evidence that the knickers were dry. On what basis and why did she prefer that evidence?

55. In our judgment, if a judge makes a finding of fact, it is good practice for that judge to say why she preferred the evidence of A to that of B. Where, however, the judge is making a finding of this importance on disputed evidence: (a) it is plainly preferable for her to do so on oral evidence; and (b) where part of  the critical and disputed evidence is in writing only, she has in our view a clear duty to explain why and on what basis she has reached a particular conclusion.  It is, we think, insufficient for the reader to be left to infer that the judge must have rejected TW's evidence, and, if she did so because she took the view that – as an abuser – he was not telling the truth about the knickers, she is plainly  putting the cart before the horse.

56. There is no reference in the judgment under appeal to the substance of Judge Welchman's rulings in the criminal trial. We regard this as unsatisfactory. The judge needed to look at Judge Welchman's rulings to see if they had an application to the facts of the case as they were presented to her. She did not do so.

57. We also think that the judge was ill-advised to dismiss the evidence  given by LR at the criminal trial on the basis of her own experience as a grandmother.  In the recent criminal case of  R v B [2010] EWCA Crim 4, a man was convicted of the  anal rape of a child who, at the time of the trial was aged 4 and a half, and who had been under 3 when the event in the indictment occurred. The defendant was convicted on the child's evidence. The Lord Chief Justice, giving the judgment of  the Criminal Division of this court concluded:

51. There remains the broad question whether the conviction which is effectively dependent upon the truthfulness and accuracy of this young child is safe. In reality what we are being asked to consider is an underlying submission that no such conviction can ever be safe. The short answer is that it is open to a properly directed jury, unequivocally directed about the dangers and difficulties of doing so, to reach a safe conclusion on the basis of the evidence of a single competent witness, whatever his or her age, and whatever his or her disability. The ultimate verdict is the responsibility of the jury.

52. We have examined the evidence and asked ourselves whether there is any basis for interfering with the jury's verdict. Despite justified concerns about some aspects of the way in which it was conducted, the ABE interview shows an utterly guileless child, too naive and innocent for any deficiencies in her evidence to remain undiscovered, speaking in matter of fact terms. She was indeed a compelling as well as a competent witness. On all the evidence, this jury was entitled to conclude that the allegation was proved. Unless we simply resuscitate the tired and outdated misconceptions about the evidence of children, there is no justifiable basis for interfering with the verdict.

58. In our judgment,  the judge's reliance on her own experience was thus contrary to authority and diverted her from a proper analysis of the evidence at the criminal trial. 

59. An additional factor is, we think, the judge's failure to investigate and analyse the atmosphere in TR's house on the evening of 19 April 2008. We know that TR, naturally enough, was very upset:  "devastated" is the word she used in her police statement, as well as "suspicious" and "extremely concerned". We also know that her partner was extremely angry, and was intercepted by TR's father on his way to the home of  KW. There can be no doubt that TR was utterly convinced that her daughter had been sexually abused by TW. It is, in our judgment, inconceivable that LR was unaware of this, a fact made explicit by her mother's evidence to the jury that LR's alleged "sheepishness" had been a façade and caused by her mother's insistence that LR had wet herself and had left her wet kickers behind.

60. In our view these considerations have an important corollary, not addressed by the judge. They must  cast some doubt on the objectivity of TR's evidence in relation to what LR said to her and she to LR. These were matters which required investigation, not least because, as we have already commented, TR was convinced that LR's "sheepishness" at the suggestion she had wet herself was a façade, designed to please TR herself, who, at the point at which it was first uttered, wanted to believe it.  

61. These matters, in our judgment, combined with the judge's  acceptance of the validity of LR's interview, are sufficient to vitiate her conclusion that TW tickled LR's mini, and we accordingly set her finding aside.

Do we remit?
62. In our judgment, TW's alleged abuse of LR is peripheral to the care proceedings  relating to SW. As we understand the case, the local authority plans to proceed irrespective of our decision. We can, therefore see no purpose in further time and public money being spent on TW's alleged abuse of LR. If necessary, any perceived risk can be dealt with by injunction or undertakings.