The Attorney General v Dennis Humble

JurisdictionJersey
CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date09 March 2018
Neutral Citation[2018] JRC 56B
Date09 March 2018

[2018] JRC 056B

ROYAL COURT

(Samedi)

Before:

T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone.

The Attorney General
and
Dennis Humble

S. C. Thomas, Esq; Crown Advocate for the Attorney General.

Advocate H Sharp Esq, for the Defendant.

Authorities

Criminal Justice (Evidence of Children) (Jersey) Law 2002.

R v Popescu [2011] Crim LR 227 .

Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures.

Hearing (Criminal) — application by defendant that the ABE interview of complainant A is excluded.

Deputy Bailiff

THE

1

This is an application by the defendant to exclude an Achieving Best Evidence (ABE) interview conducted with one of the complainants in the prosecution against him.

2

The defendant is charged with three counts of rape against two separate complainants. Counts 1 and 2 concern complainant A and Count 3 complainant B. All three offences are alleged to have taken place in a period between December 1976 and June 1977.

3

Without going into the detail of the allegations, both of the complainants are vulnerable adults and were in residential accommodation where their needs were catered for. The defendant was in a position of authority within that institution.

4

The application concerns an ABE interview conducted in 2013 with complainant A. It is the only ABE interview conducted with this complainant and if it is excluded, and the trial proceeds with regard to her allegations, she will give evidence through a video link.

5

Arrangements for the deployment of an ABE interview are dealt with under the Criminal Justice (Evidence of Children) (Jersey) Law 2002 which in the long title indicates that it is “concerned with the giving of evidence of children and certain other persons by means of television links and video recording…”.

6

Article 3 of that Law provides:

  • “(1) in any proceedings in connection with an offence referred to in Article 2(1) the Court may give leave to allow video recording to be given in evidence of an interview which –

    • (a) is conducted between an adult and a witness described in Article 2(2)(a) or (b); and

    • (b) relates to any matter in issuing the proceedings .

  • (2) Subject to the exercise of any of its powers to exclude evidence which is otherwise admissible, the court shall give leave under paragraph (1) unless –

    • (a) it appears that the witness will not be available for cross-examination;

    • (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or

    • (c) it considers that, having regard to all the circumstances of the case, in the interests of justice the recording ought not to be admitted.”

7

The problem with the ABE interview can be simply stated. One of the two cameras that should have been running during the interview had not in fact been switched on as a result of which the only view of the complainant during the course of the interview is of the top of her head. There is no view of her face and accordingly there is no ability for the jury, in viewing the ABE interview, to take into account her facial appearance in assessing the credibility or otherwise of her evidence.

8

No attempt has been made by the investigating officers or the Crown to re-interview the complainant and accordingly there is no other ABE interview available for deployment by the Crown in the trial.

9

In 2011 the English Ministry of Justice published “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures”. At paragraph 2.184 the guidance states that:–

“The presence of an interview monitor is desirable because they can help ensure that the interview is conducted in a professional manner, can assist in identifying any gaps in the witnesses account as it emerges, and can ensure the witnesses needs are kept paramount.”

10

At paragraph 2.186 of the Guidance it is stated:–

“The equipment should always have an operator for the duration of the interview. This will allow the view recorded by the camera to be adjusted if the witness moves. It should also provide an opportunity for the interviewer to be alerted at the earliest possible moment in the event of an equipment failure, rather than such a failure only being discovered at the end of the interview.”

11

From the second of these quotations it is apparent that the camera should be focussed on the witness (and I take it as obvious that such a focus should be on a relevant part of the witness, namely the witness's face) and that any equipment failure should ideally be identified at the earliest possible moment rather than discovered at the end of the interview.

12

It is difficult to be certain when the failure in the recording was first detected but clearly it does not appear that either an interview monitor was present or that the equipment had been checked or had an operator who was monitoring it.

13

It is perhaps axiomatic in criminal cases that the jury should have the best possible opportunity of assessing the demeanour of the witness and how he or she makes her allegations against the defendant as well as how he or she responds to cross-examination.

14

The importance of demeanour is emphasised in R v Popescu [2011] Crim LR 227 in which at paragraph 35 et seq the English Court of Appeal made these observations:–

  • “35. We venture to suggest some general comments before coming to the particular facts of this case. First, the general rule must be that great care must be taken before a jury is given transcripts of an ABE interview at all, even whilst the video is being shown. It should only be given to the jury after there has been discussion of the issues between the judge and counsel in the absence of the jury, and it...

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1 cases
  • The Attorney General v Dennis Humble
    • Jersey
    • Royal Court
    • 14 May 2018
    ...General and Dennis Humble S. C. Thomas, Esq., Crown Advocate. Advocate H. Sharp, Esq., for the Defendant. Authorities AG -v- Humble [2018] JRC 056B . Criminal Justice (Evidence and Procedure) (Jersey) Law 1998. Police Procedures and Criminal Evidence (Jersey) Law 2003. Regina v D [2003] QB......

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