Re A, B and C [2021] EWCA Civ 451 – Case note

The Court of Appeal has found that a trial judge had misapplied Lucas in finding that a juvenile’s consciousness of guilt that he had sexually abused another child was the only reasonable explanation for his lies at trial. The Court of Appeal acknowledged the difficulty and importance of striking the right balance in assessing the evidence of juvenile intervenors in the family jurisdiction, particularly where the complainant does not give evidence, leaving the question open for further consideration.

Facts

The Local Authority brought care proceedings following allegations by A that she was sexually assaulted by D, who was 15 at the time of the allegations and 16 when he gave evidence. There were a range of criticisms to be made of police and social workers in gathering evidence from A about the allegations, but the trial judge found the allegations proven for two key reasons: first, the judge could find no reason for A to lie and she must have been describing her own experiences, and second that D had been so materially dishonest in his evidence that it cast doubt on the truth of his denials.

The trial judge found there were 5 instances of dishonesty, which are set out in the judgment at [28], and which were said to be significant. The trial judge found consciousness of guilt to be the only explanation because:

1. His demeanour showed no glimmer of anger, outrage, or indignation;
2. D declined to watch the ABE interview;
3. D likes to sleep in but was at A’s address at 8am in order to abuse her;
4. D insisted that A sit on his lap to prevent A reporting an instance of abuse to her mother.

Decision

R v Lucas [1981] QB 720 is authority for the proposition that a lie is only capable of supporting the other evidence in support of an allegation where:

1. It is a deliberate untruth;
2. That relates to a significant issue; and
3. Was not told for the reason advanced (shame, humiliation, loyalty etc).

The Court of Appeal assumed 1 and 2 to be made out with the conclusion about the explanation of the lie being the focus of the appeal. Macur LJ found the trial judge’s reliance on demeanour “highly concerning [even] if he were the most seasoned adult witness, rather than a juvenile being interviewed and giving evidence for the first time.” It was not established on the facts that D had in fact declined to watch the ABE interview and if he had it would not be indicative of consciousness of guilt. Being at A’s address early to abuse her was “nothing more than speculation”. The sitting on the lap episode was not specifically found to be a lie and did not “fix the other ‘inventions’ as indicative of guilt.”

All three judges were of the view that these findings were unjustified and ultimately could not be excised from the decision and remitted the matter for re-hearing. However, Arnold LJ found that but for the trial judge’s inclusion of the four reasons leading to a finding of consciousness of guilt, the judgment would have been unassailable. Macur LJ in obiter emphasised that “findings of fact in the Family Court are to be made on the balance of probabilities but should be subject to a similar forensic rigour as deployed in the criminal courts.”

While noting that in some instances the trial judge appeared to pay little regard to factors identified by the intermediary about D’s oral delivery and use of imprecise vocabulary or terminology, the Court of Appeal found it unnecessary to disregard the trial judge’s findings and consider in greater detail the trial judge’s assessment of D’s evidence.

Macur LJ did further observe however that firstly, child complainants in cases involving sexual abuse were too rarely called to give evidence and secondly, the continued roll out of section 28 of the Youth Justice and Criminal Evidence Act 1999 enabling the cross-examination of child witnesses to be recorded will assist family courts. “In the meantime, the tribunal must balance the evidence of a child complainant, which is not directly challenged in cross-examination, against the evidence of the alleged perpetrator whose evidence invariably is.”

Discussion

In recent years, the Court of Appeal has warned trial courts of the dangers in relying on demeanour in assessing the credibility of witnesses, with Leggatt LJ in R (SS) v Secretary of State for the Home Department [2018] EWCA Civ 1391 noting that in light of the recent empirical evidence “the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with the other evidence” at [41]. See also Williams J in A Local Authority v A Mother and Father [2020] EWHC 1233 (Fam).

Although the decision affirms that lies can only corroborate where the only, as opposed to the most likely, explanation is guilt, and calls for the forensic rigour of criminal courts, it should not be understood as importing into family cases criminal law concepts (see Re R (Children) (Care Proceedings: Fact-finding hearing) [2018 1 WLR 1821). Macur LJ suggests it is good practice to make express submissions on how Lucas applies on the facts where the court is invited to reason in this way.

The Court of Appeal has left for a future case the opportunity to give more detailed guidance on striking the right balance when it comes to assessing the evidence of juvenile and vulnerable witnesses, which it acknowledged was the trial judge’s difficult and unenviable task.

I wish to express my thanks to Shelly Glaister-Young, Katie Phillips, Caroline Landes and Francis Cassidy for their insightful and helpful comments on the first draft of this note.

Read the full Judgement here

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12th Apr 2021

Andrew Carter

Call 2018