The Court of Appeal has quashed the convictions of an anonymised childminder, finding that the trial judge should have withdrawn the case from the jury after the child complainant answered “no” to questions about whether the appellant had touched him or made him move on top of him.
The appellant had been convicted in June 2022 of nine counts of sexual assault and 12 counts of inviting a child to engage in sexual activity. The appeal court allowed his appeal on 29 March 2023 and quashed the convictions.
The complainant was seven during the period he was minded by the appellant, from December 2019 to April 2020. At a specialist interview in May 2020, he described incidents involving movement on top of the appellant and the appellant or the child rubbing the child’s penis. He said the touching happened over and under clothing. The alleged offending came to light after the child demonstrated sexualised movements to his mother, which he said he had learned from the appellant.
At trial, about two years after the interview, the child was unsure about parts of the allegations and suggested that some touching might have involved help with toileting. On the second day of cross-examination, he answered “no” when asked whether the appellant had touched his penis or got him to jump or move on him “that you can remember”. The appeal court said those answers, read in context and having viewed the cross-examination recording, appeared to address whether the alleged events had happened at all.
The court considered that adding “that you can remember” to questions put to a young child may have caused confusion. It said short, simple questions should have been used. But it held that re-examination was the means to clarify the answers and that it had not sufficiently rehabilitated the witness to confirm the alleged events took place.
The court said the prosecution evidence had to be assessed as a whole. It included the child’s specialist interview and direct evidence, evidence from his parents and a neighbour, and evidence about the child’s recent complaint. Even so, the answers on the central allegations contradicted the child’s earlier account. The court found the evidence “so infirm that a direction was warranted” and held that the trial judge had erred by refusing the application to direct acquittals.
The court did not decide the appellant’s separate claim that the trial was unfair under the court’s inherent jurisdiction, because allowing the appeal on the direction issue made that unnecessary. It also rejected complaints about the specialist interview and the failure to interview the child’s younger brother, who was four at the time and had made no disclosure.
The judgment quashes the convictions. It does not record an acquittal verdict or make a finding that the alleged conduct did not occur.