ONE OF THE areas fraught with difficulty when dealing with the issue of fitness to give evidence is that of when a child is competent to give evidence in court. Earlier this year the decision of the Appeal Court in the case of R. v. Barker [2010] EWCA Crim 4, brought the issue to the fore.
In May 2009 Stephen Barker was convicted of anal rape of a girl – ‘X’ – who was less than three years old at the time of the offence. She was four-and-a-half years-old when she gave evidence.
According to a report in the journal Criminal Law and Justice Weekly: “X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and 10 months she was taken into care following the unnatural death of Baby Peter. X made disclosures to her foster carer of sexual abuse by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings. Six months after the first allegation she was interviewed on video under Achieving Best Evidence in Criminal Proceedings. The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence in chief. She was cross-examined by leading counsel for her mother and for Barker.”
Because of the issues involved in the giving of evidence of so young a child Barker was given leave to appeal against the conviction and the life sentence it brought with it. In January this year both appeals were rejected.
Significantly, the appeal against conviction was heavily predicated on disputing the competency of X’s evidence, as without X’s evidence there could be no conviction.
The Appeal Court judges held that X had been shown to be competent to give evidence and that she had been intelligible under cross examination. They reiterated the position that competency to give evidence is not based on age – in stark contrast to Lord Goddard’s assertion in 1958 that: “The court deprecates the calling of a child of this age as a witness...the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could...”
On the issue of the appeal against sentence, the appeal court judgement said: “The sentence of life imprisonment was merited, and further, given the gravity of the two offences, for which consecutive determinate sentences could with every justification have been passed, the minimum term was neither excessive nor wrong in principle.”