“It was a bright cold April day and the clocks were striking thirteen”
“Hale knew, before he had been in Brighton three hours, that they meant to murder him”
“All this happened, more or less”
“It was a queer, sultry summer, the summer they electrocuted the Rosenbergs and I didn’t know what I was doing in New York”
Those are great opening lines (1984, Brighton Rock, Slaughterhouse Five and The Bell Jar, respectively)
This is one of the best opening lines in a judgment I’ve ever seen.
“First of all, my decisions. I find proven the following facts, and I am taking them in chronological order, as regards the BB gun incident, I find as a fact that F deliberately shot W with the BB gun for his own amusement”
Tell me you’re not hooked.
The words were crafted by His Honour Deputy Circuit Judge Brasse (This is my first time with one of his judgments, and he has sky-rocketed to very high up on my list of Judges that are always worth reading)
Kent County Council v A,B,C and D (Children : Weight to be attached to evidence of child after flawed ABE interviews) (Rev 1)  EWFC B72 (01 March 2017)
The case involves a lot of findings about sexual abuse, which I’m not going to put into the blog. I don’t have a strong enough stomach for them. And I’m conscious that this blog comes into people’s email in boxes, often early in the morning. So I have spared you all the grim stuff. It’s very grim.
For those who don’t know, a BB gun is commonly known in England as an air rifle. It uses compressed air to fire small pellets. Those pellets can, if the range is wrong, pierce the skin or cause fractures. No normal human being would shoot one at a child.
179. A in her statement says that F was playing with an airgun at their home when he shot W with a pellet in the stomach. On 28 September a teaching assistant, noticed when she was changing for swimming that W had suffered a bruise to her hip. When asked how it happened she stated that she was clumsy and did not know. W then showed the teaching assistant another mark on her lower back. Then she stated that F had shot her there with a BB gun pellet. This was reported to H, the deputy head teacher, on 29 September 2015. She spoke to W, and W recounted that F had been in his bedroom, he had got the BB gun and shot her in the back last week. They were standing next to the bed and he had told her to put on her Mum’s jacket and then had shot her. She did not want to say that it hurt as she gets into trouble for being “mouthy”. H asked her if she had told her mother and W said that she had, and her mother told her that she should not have let F do it.
180. H liaised with 1B from the Social Services Department. At a joint visit by a social worker and DC Mitchell, both spoke to her. She said she got on well with F and did not want to get him into trouble. She said they had been playing a game. She told Detective Constable Mitchell that F had asked her to go into the bathroom and told her to put on her mother’s jacket and then had shot her. The police report made by Detective Constable Mitchell states that W became upset when she recounted this incident. She said that the injury had hurt at the time but she had not wanted to say anything as she “is always getting into trouble for being mouthy”. Later she told her mother, who became cross with her, telling her that she should not have allowed F to do this to her. W said that at the time of the incident the Mother was not present.
181. She gave a more detailed account. She said: “We were playing. I was standing in Mum’s and F’s bedroom playing the shooting game. It’s a BB gun with little white bullets. He was having fun with me. It hit the bottom left of my back and made me cry.” She said that he, F, had “belly flopped” her to try to make her feel better, but it did not work. She said that later that day, playing the same game, he had shot X, but he had protected his leg with a towel. X was hurt on the arm.
182. When the Mother was spoken to, she confirmed that there were BB guns in the house, kept in her bedroom where the children were not allowed to enter. They were not locked away and kept loaded (highly careless with young children around). She recalled an incident when she had heard W cry. She stated that she had not been aware that F had shot W. She seemed to think that Y, then only three years old, had been responsible. She denied that W had ever mentioned to her that F had shot her. She said that F suffered from schizophrenia, which is not true, and Asperger’s Syndrome, which is possibly true, but was brilliant with the children. The Mother reported that the air guns had been removed from the home to F’s parents’ address. In her recent statement A said that when she was questioned at the time she panicked as she did not want to lose the children. She lied and denied that F caused the injury and alleged instead that X had done it. She may have meant Y; that is who she is recorded to have blamed.
183. F was questioned by the police and social workers. He denied using the BB gun in the house or hurting W.
If possible, it is even more distasteful that father sought to deflect blame for this appalling behaviour onto an innocent three year old child.
274. My findings of fact are as follows. Number 3, as regards the BB gun incident, I find as a fact that F deliberately shot W with the gun for his own amusement. Although, as I find, he told her to wear her mother’s jacket to soften the impact of the bullet, it was a grossly irresponsible act which could have caused very serious harm. I find that both the Mother and F punished W for reporting it by angrily scolding her and sending her to stay with Q. It demonstrated the Mother’s inability to protect the child from harm and a willingness to prioritise the interests of her relationship with F above the safety of the child. This was in itself a traumatic experience and did lasting harm by making W very reluctant to confide in professionals assigned to safeguard and promote her welfare, and hence made her more vulnerable to further abuse.
Almost every factual issue in the case was disputed and fell to be decided by the Judge, who provides a master-class in how to deal with disputes in a wide variety of areas. Too many to be completely covered by this blog, so I’m going to pick out a few.
38. The court should take into account the inherent probability or improbability of the relevant alleged incidents. The court, in addition, must not, however, guess or speculate or draw inferences from what are still only suspicions rather than proven facts. Mr Johnson forcefully made the point that in this case there were a number of unproven allegations against his client and this was not the French Revolution where people are found guilty of suspected offences. Mr Johnson’s point is that past allegations are only relevant if proven. He is right. If established, they may well provide evidence of propensity. The Court may, however, arrive at reasonable conclusions based on proven facts.
45. The child’s statements, whilst they must be taken seriously, must not be assumed to be true. The use of the word “disclosure” should not be used in relation to them; they remain allegations until and unless they are proven.
46. There is statutory guidance in Achieving Best Evidence in Criminal Proceedings (March 2011 Edition) which should be followed when conducting the initial questioning of a child to see if there is a matter to be made the subject of recorded interview, and then on how to conduct the recorded interview itself. The guidance lays emphasis on the need for planning; the recording of all decisions to follow, or not to follow specific guidance, or any other matter which materially affects the interview; and on the manner of interviewing a child witness. In this regard the guidance requires the interviewers to explain to the child the ground rules of the interview; to establish whether the child knows the difference between truth and lies; and to allow the child to provide free flowing narrative at their own pace and in their own language, aided rather than directed by the contents and manner of the questioning. Thus, leading questions should be generally avoided; questions should be kept short, taking one fact at a time; and allow the child time to answer.
47. In general, interviews should be conducted as soon as possible after the initial allegation. There should rarely be more than one interview. The responses of the child should not be led or pressured from him. Questions should be simple, factual, and interviews should be kept as short as possible in keeping with the age and concentration span of the child.
48. Mr. Justice Macdonald in AS v TH and BC and NC and SH  EWHC 532 (Fam) stressed the importance of compliance. At paragraph 52, in reviewing the effect of the relevant authorities, he said that “where there has…been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview, but may rely on it together with other independent material to form a conclusion. However, where the court finds that no evidential weight can be attached to the interview the court may only come to a conclusion that relies on the content of the interviews where it has comprehensively reviewed all the other evidence”. This I have endeavoured to do in this case.
49. In Re E (A Child) 2016 EWCA, what emerges from judgement of Lord Justice McFarlane at paragraph 98 is that where there have been numerous and substantial deviations from good practice by police in carrying out the ABE exercise, these need to addressed and analysed to assess their effect on the reliability of the evidence obtained. I have found that guidance of particular help in this case.
50. The evidence of X regarding sexual abuse and W regarding the air gun incident is hearsay, which is admissible in children proceedings pursuant to the Children (Admissibility of Hearsay Evidence) Order 1993. But great caution is needed as the evidence cannot be tested by cross-examination. What weight can be placed upon it should be assessed by having regard to the factors set out in section 4 of the Civil Evidence Act 1995, which applies to family proceedings. Section 114 (2) of the Criminal Justice Act 2003 applies only to criminal proceedings, but is also apposite to any fact finding exercise based on hearsay evidence.
51. I remind myself of section 1 of the Civil Evidence Act 1995. The Act begins with a caution, because it made a radical inroad into the rule that hearsay was inadmissible. Section 4 then gives useful guidance to the court on how to estimate the weight to be given to hearsay evidence. Weight is a legal concept. It means the importance that a tribunal of fact places on a piece of relevant evidence. There is no need to weigh irrelevant evidence. A single piece of evidence can outweigh other evidence. Section 4 sets out that ‘the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence’. Subsection (2) sets out a list and I have each of those factors very much in mind when I weigh evidence of those witnesses who did not give evidence in court. I have directed myself that the factors within section 4 do not comprise an exclusive list, and section 114 (2) of the Criminal Justice Act 2003 lists other factors not included in section 4 of the Civil Evidence Act 1995. I have incorporated those factors when considering the evidence in this judgment too.
On the issue of allegations that the mother continued a relationship with father after learning that he was accused of horrendous sexual abuse of her children, the allegations were in part from identifications and sightings of them together and in part from social media (remember, even following the recent blog post about monitoring of social media that the evidence is admissible even where it is alleged to have been unlawfully obtained – I don’t see any allegation in this case that it was, so let us not make any assumptions either way)
91. Both Mother and F have Facebook accounts. If a person posts a message or photograph on Facebook his friends, people who have agreed to share their Facebook with him and communicate with him by Facebook, can indicate the degree of their approbation on his Facebook account page by a thumbs-up sign which means that they like it, or a heart sign if they love it. Facebook pages can be closed to prying eyes of the outside world by privacy settings, but F’s is left open so that the social worker has been able to visit his page and see who has approved his postings. F said that he “unfriended” A after his bail conditions were imposed on 12 February 2016, and she says she blocked him from her Facebook account around that time, but nonetheless she reappeared as his Facebook friend thereafter and proactively sent approbating signs to his postings.
92. What the undisputed evidence has established is that A thus remained his Facebook friend until at least December 2016 and approved his postings (which included on 16 February 2016 photographs of Y and Z taken on 2 February 2016), once in June 2016, three times in August 2016 and on 20 November 2016. As I shall later explain, from September 2016 onwards she accepted what X had alleged against F was true. On 20 October 2016 she shared with F on his Facebook page a photo of X taken on 20 October 2016, and this was the anniversary of the photo, well after she had accepted the truth of X’s allegations. Furthermore, it was done just five days before the start of this hearing and a month after the Mother had signed a statement saying that she now believed that F had sexually abused her son.
93. A gave various explanations. Before anyone became aware of the approbations in relation to the “like” sign sent by her on 20 November 2016, she said that she did not realise that she had approved F’s postings. Then, when the earlier postings were discovered by the social worker sitting in court using her own smartphone and were shown to the Mother, she agreed that she was aware that she was sending her approval postings to put up on F’s page. When asked why, after she knew what he had done to her children, she was prepared to send a thumbs up and on one occasion a heart to his Facebook page showing that she liked or loved his postings, she said: “It’s not a crime to like someone’s postings.”
94. F says that he was the passive recipient of these communications from the Mother. He did not check his account to see who sent him communications. She was proactive but he was not, and there is no evidence that he ever replied to the Mother. But in my judgment a reasonable parent who believed her child had been sexually abused by another would not approve anything the perpetrator posted on Facebook. She would not wish to communicate with him or even his Facebook page at all, for any reason. It implies either that she did not really believe he was the perpetrator or did not care. It also makes it more likely that she was in touch with F in other ways as well, as Facebook communications must often be one facet of a more rounded relationship.
On the alleged sightings of the parents together, the Judge gives an immaculate summing up of the relevant law
96. This is a disputed identification case. The court must direct itself in accordance with the Court of Appeal’s guidance in R v Turnbull  QB 224. In this case an important issue turns substantially on the correctness of one or more identifications of F being with the Mother, which they allege to be mistaken. In such a case it is imperative that the judge should warn himself of the special need for caution before making a decision on the basis of the correctness of the identifications. Additionally, the judge should remind himself as to the reason for the need for such a warning, namely that a convincing and honest witness can be a mistaken witness. Secondly, the judge should direct himself to examine closely the circumstances in which the identification by each witness was made, and some of these circumstances may include, for example: for how long was the accused under observation by the witness; at what distance was the witness from the accused; what length of time elapsed between the original observation and the subsequent identification to the police or Social Services? The judge should also remind himself of any specific weaknesses which have appeared in the identification evidence.
97. As for recognition, it is commonly accepted that recognition is more reliable than identification of a stranger. However, even when the witness appears to recognise someone who he knows, the judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made.
98. The quality of the evidence. If the quality is good and remains good at the close of the case having heard all the evidence, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger. When ,in the judgment of the trial judge ,the quality of the identification evidence is poor, the judge should not rely on the identification evidence unless there is other evidence which goes to support the correctness of the identification. The trial judge needs to identify to himself the evidence which he believes is capable of supporting the evidence of identification.
As we can see from the title of the piece, flaws in the ABE process were a particularly striking feature of the case (I’m snipping out the graphic details about the nature of the alleged – and now proven – abuse.
Admitted breach of ABE guidelines
229. On that day Detective Constable Carter and Detective Constable Farmer interviewed X, the former asking the questions. DC Farmer agreed that they had been instructed by a superior to get on with the interview, leaving them no time to plan it properly. She admitted that they had failed to observe the ABE guidelines in four important respects; she made no excuse and could offer no explanation. One possible explanation that emerges from the interview itself is that X was so willing, ready and able to give his account, in their eagerness to hear it they forgot these fundamentals.
230. Planning: although the importance of planning the interview is stressed in paragraph 2.1 of the guidance, none was done and there was no record of a plan, as required by paragraph 2.222. Intermediary: no consideration was given to the need or otherwise of one, as required by paragraph 2.94. At the outset of the interview the guidance provides for the establishing of a rapport with a child by talking about mutual topics and importantly explaining ground rules. As the guidance says at paragraph 3.12, the interview is an alien situation. What will happen will need explanation. This was done, albeit very briefly. As the interview proceeded it became apparent that X had picked up the ground rules without questioning – video recording, et cetera – which showed that he was an intelligent child.
231. The evidential effect of failure to address the difference between truth and lies
232. The officers failed altogether to establish whether X knew the difference between truth and lies. It was admitted that this failure went to the heart of the reliability of the ABE interview. The stage at which the witness is asked to distinguish truth and lies is an important safeguard and guarantee of reliability, but it is not the only one. The video recording itself gives the court a chance to examine the child’s statements in detail. The quality and pace of the questioning is a very important feature of the interview. In this case it was good. The surrounding evidence gives the court a chance to check the facts. It is clear from extraneous evidence, for instance regarding the BB gun incident and a subsequent interview on 26 February 2016, that he, X, did understand the difference between lies and truth because he admitted to telling a lie. Ultimately the court’s assessment of the substance of his account is the most important test of whether this is a made up or truthful account. It is important to have these failures in mind, however, when evaluating the weight to be given to X’s statements and I have kept them in mind as I have done so.
233. In this interview X seemed relaxed and happy to talk to the officers. It was a relatively short interview, fifteen minutes or so, and there was no sign that X ever tired or flagged. He was asked to give his name and age, he was told that the purpose of the interview was to have a little chat with him. He was reminded of two cameras on the wall and knew that they showed him and April Farmer. He was told of the microphone, it would be recorded on DVD. He seemed to understand all of this. He was told that 1A was a social worker. He agreed he knew her role was to keep him safe. He went through the members of his family and the living arrangements in the home and in the bed and breakfast. I am fully satisfied that X very quickly grasped the purpose of the interview. He plainly understood that it was being recorded. He was familiar with the technology of DVDs. He knew what he was going to be asked about, as became very quickly apparent.
234. I am fully satisfied he knew the difference between truth and lies, as was demonstrated over and over again before, during and after this interview, as I have commented in the course of this judgment. So I conclude that although the truth and lies routine, important as it is, was not gone through, its lack of itself did not substantially impair the quality of the evidence obtained in the interview.
235. The initial questions about his family and home were concordant with the ABE guidance in that they helped put him at ease. What is notable is that it was X who hastened the interview to reach its point: an investigation of his allegations
242. I comment: (1) the ground rules were established. In my view they often take too long. Detective Constable Farmer agreed with that point of view. (2) The truth and lies routine was missed out but, as I have already commented, there is abundant evidence that X knew the difference. (3) It is striking that the allegation made against F by X was volunteered after an unrelated question. (4) The interview was relatively short. (5) X was able to concentrate. The social worker’s assessment at page C84 of the evidence was that: “X was able to follow instructions, concentrate for long periods and show respect.” In my judgment that was borne out by his behaviour in the interview. The questions were generally short questions containing single subjects. (6) As regards a description of the events recounted, they were naturalistic and realistic. (7) It was not implausible that F abused the other children as reported by X, believing that they would not speak out, and X could have seen the adults engaged in sexual intercourse, including fellatio. Reference to F doing it to himself, as I mentioned earlier, must have been reference to masturbation, a part of the sexual routine. (8) As to numbers and times, he was only six years old and unschooled. (9) If he told the Mother – this is very serious – instead of reporting the behaviour of F towards X to the police, as she had promised X she would, she did the opposite and alleged to the police that X had lied. In my judgment this was the supreme betrayal.
243. After the Mother’s claim that X had lied, he was interviewed again on 26 February 2016, this time with Detective Constable Farmer. Once again Miss Farmer admits frankly she forewent the ground rules, the truth and lies routine prescribed by the guidance. During this interview X’s demeanour was altogether different to that of the first interview. He was restless, fidgety, moved around the room, often hid his face behind a folding game board and his answers were often rambling, digressive and incoherent, revealing an internal confusion and anxiety which had not been present at all during the first interview. This was a little boy who was manifestly uneasy, struggling with the shame of confessing that he had told terrible lies about F, or alternatively lying against his will or better nature that his original account had been untrue.
244. The interview began with the day of the week, his name, age and identifying the names and roles of the adults present, the location of the police station and the functionalities of the interview room and the camera. They quickly got to the point. Question: “Do you remember the last time?” Answer: “Yeah.” Question: “You spoke to Marie,” that is Detective Constable Cutter, “can you remember what you said to her? Who did you talk about to her?” Answer: “It’s not true.” I comment that it came out so quickly it was clear that he knew that that was what he was there to say, but whether or not that was true is the issue. Question: “What do you mean?” Answer: “It’s not true because I saw it on TV.” This is a striking answer; it suggested extreme pornography seen on TV in the bed and breakfast hotel. This was also a suggestion made by F in his interview about how X could have come by the knowledge of such sexual behaviour, but this suggestion has, as I have already observed, been retracted by Mother.
245. X could not remember the day he saw it but said he was in bed at the time. He slept next to the TV. Asked to describe what he saw, he said he saw some rudeness. Question: “Who was on the TV.” Answer: “It looked like my Dad but it was on the TV.” He wanted the interviewer to believe that what he had seen was only a TV show. He was then asked to describe what he saw on the TV and his account became increasingly implausible as an explanation for having said that [details omitted]. Question: “Was anyone else on the TV?” Answer: “A lady danced with him. They wore swimming costumes. The man wore a marry costume,” clothes in which you get married. He was unable to explain what he meant by his earlier assertion there was rudeness. Asked where was his mother, he said nowhere, and then in the shower, and his Dad was cooking and W was in bed. So he was describing in fact an innocent TV show about marriage or swimming when he, W, Z, Y and F were going about routine activities. He was unable to describe the rudeness at all. This sounded like a mere embellishment to give some force to his original assertion that the lie he had told about F was something he had learned from seeing a TV show. He described Dad cooking a “burger meal” for dinner. Then he said he saw Dad flipping pancakes.
246. He was brought back to the point. Question: “So you said you had seen something on TV, what you told us about. Was that true?” Answer: “That always be true.” Question: “What you said about F.” X did not respond, he seemed to be squirming. Question: “So when you said you saw something on TV, why do you say that?” Answer: “I get confused.” He was then asked when he previously spoke to Marie Cutter and told her what had happened with F, was that the truth? Answer – at this point X was hiding his face behind the board and needed to be asked to lower it for the camera. He said: “Yeah.” He was asked if anyone had spoken to him about it. He said: “My Mum didn’t – told me to, I told her.” He was asked: “What do you mean?” He said: “The truth.” He was asked who told him to tell the truth and he said no-one. He was reminded that he had just said that “your Mum didn’t tell you. What did you say? Your Mum.” Answer: “Didn’t tell me to tell the truth. I telled (sic) her.” He was asked: “What is the truth?” and he said: “It’s the truth of what we are doing right now.” He said that he had talked to his Mum about telling the truth, and she had said: “If you want to do it then everyone said back me up, they are.” He elaborated: “They’re going actually give me money.” “Who?” Answer: “Mum.” “What for?” Answer: “For telling the truth.”
248. I comment that X’s comment of why he had lied is so implausible as to be unbelievable. It had all the hallmarks of imperfect coaching, where he had remembered to insist that he had previously lied but could not explain why he had lied at all or how he had got the detail and graphic information which he had used in the earlier lie. He sounded as though he was telling the truth when he said several times, in explanation for his confusing account, that he was confused. He certainly sounded and looked confused. His account of talking to his mother and insisting that he told her he had lied sounded scripted. X, when he was determined to tell the officers that he had lied and he had confessed to lying to his mother, tried to take control of the interview, volunteering the information, but he was utterly confused when he tried to substantiate this retraction. There were moments when he provided plausible explanations for his retraction: his mother had spoken to him; she had promised him that everyone would back him up; and she had offered a bribe of money. Most significantly, when asked if he had indeed told the truth during the first interview, he said: “Yeah.”
249. This interview was an unconvincing retraction of the very clearly stated accusation made during the first interview. It being entirely unconvincing, it tends to support the truth of the account given by X in his first ABE interview, which he found far easier to relate. As in the first interview, X was not asked whether he knew the difference between lies and truth. The importance of this is to give him a chance to demonstrate this knowledge. But he had demonstrated this knowledge on other occasions: (1) the BB gun incident, he had originally claimed to have shot W, then confessed that F had done it; (2) the subject of the difference between truth and lies had been given prominence by his mother in the days after the first interview; (3) in the second interview the subject matter was about truth and lies, and he showed he knew the difference; (4) H, who knew him very well, and 1A had both found him to be a truthful child.
After a detailed and thorough analysis of the evidence and the disputes, and making a number of very serious findings against the father the Judge concluded this:-
291. I shall direct there be a transcript of this judgment and it should be sent to the Kent Constabulary. I recommend that the CPS consider the question of charging F under section 5 of the Sexual Offences Act 2003, the rape of a child under the age of thirteen, with rape of X and his siblings. The ABE interviews of X taken together were the most compelling evidence of his guilt. The second interview, the so called retraction, strengthened rather than weakened the effect of the first. The Mother’s evidence of the pressure she put on X to retract is important explanatory evidence. The contents of F’s own interview under caution further supports the reliability of X’s evidence. Under the recently introduced system of ground rules hearings, intermediaries and pre-recorded cross-examination of the child, a prosecution would be viable and in the public interest.
292. Additionally, I recommend that the Kent Constabulary consider applying for a Sexual Risk Order under section 122A-K of the Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 Schedule 5 paragraph 4, as it is necessary to protect vulnerable women and their children from physical and psychological harm from F. The prohibition runs for not less than two years and in my judgment it is likely to be required for much longer. That is the judgment of the court.