A fascinating case has been making its way through the legal system unnoticed by all bar a few legal practitioners. The media are uninterested – they cannot name or photograph the parties and there are absolutely no celebrities, no footballers, involved.

Nonetheless, the case has had far reaching consequences, in that, in the opinion of at least one of the three senior judges, the appellant was thus denied a fair trial. The judgment was only released a few days ago, so does not appear to have made its way onto BAILII. In the meantime, I have put it on a separate backdated post for those who are interested.

The facts are mundane enough, an ‘everyday’ allegation of sexual abuse made by a young female of 15. She alleged that her brother had abused her sexually from the age of 6. Then she changed her mind and said that she had got ‘justice’ since the abuse had now stopped. Then she retracted the allegation altogether.

3 different versions of the same facts.

Not surprisingly social services were involved, both on account of her tender years, and more pertinently for the ensuing court case, the fact that the brother had two young children of his own living with him.

The girl was never required to give formal evidence to a judge; the Police had judged her evidence to be so equivocal that they declined to bring charges against the brother – yet another Judge has found her allegation to be ‘proved‘ and ordered that the younger children were to live with their Mother and never again should he be allowed unsupervised contact with his own children.

A reasonable outcome had he been a dangerous paedophile and a risk to his own children – but was he? There were those three different versions of the girl’s allegations – (1) ‘he had’, (2) ‘it’s OK he’s stopped now’, (3) ‘he hadn’t’; plus several attempts to persuade the authorities to stop the proceedings. Further, according to the brother, the girl initiated contact with him at his place of work and said she wanted to put things right. She subsequently wrote to him on Facebook to say that the situation was not fair on him or anyone involved and that she wanted to help him get back home with his children. The brother, who has denied throughout that he has done anything wrong, responded as might have been expected, pointing out the consequences that her allegations had had. K said she would go to court herself and asked when the hearing was. After initial resistance, he gave her the date in June and other details. She said she would be there, but did not in fact attend.

The only evidence that the judge could make her decision on, which was done at case conference stage, was the statements provided by the Guardian now appointed to the girl, and the social worker.

The guardian reported that the girl had repeatedly asked for the proceedings to be dropped – but then at times had expressed the desire to give evidence against her brother. The Social Worker felt that if the girl was not allowed her day in court she would suffer emotional damage at some point in the future.

However, both were agreed that asking her to give oral evidence in the case was unwise, she was likely to suffer psychological damage. She had originally told them of two friends that she had told of the abuse to corroborate her story. Now it emerged that both friends were ‘suffering psychological harm and distress’ at the prospect of being called as witnesses.

The Judge decided that the dangers to these three vulnerable girls outweighed the value of what could turn out to be conflicting evidence.

Overall, I have taken the view that K should not be required to give oral evidence for the reasons that I have outlined. Most particularly, I am not sure that it will assist the court very greatly, whether she maintains the allegations or denies them, but I am sure from the evidence that has been given that it will cause emotional harm to K, who is vulnerable in any event. In those circumstances, I do not take the view it is appropriate to take the exceptional course of requiring an unwilling young person to give oral evidence before the court.

Which is more important – the safety of four young children who may be in the hands of a paedophile? The welfare of a vulnerable young girl who may be irretrievably damaged by being required to give oral evidence against her brother? Or the brother’s Article 6 rights to a fair trial and in particular being given the chance to rebut the allegations made against him and possibly maintain normal contact with his own children?

It will not surprise you that the brother appealed against the judgment finding him guilty of abuse under these circumstances.

He lost.

I won’t fry your brains with the particular summaries except for the dissenting judgment of Gloster LJ.

‘This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K’s evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing’.

Further, Gloster LJ felt that in the absence of any opportunity to rebut the allegations that HHJ Moir who had originally pronounced the allegations proved, had not been entitled to do so.

Those of you interested in learning how the three judges arrived at their decision will find the full transcript here.

Every case will turn on its facts – but this case sets a worrying precedent that will have serious repercussions.

How comfortable do you feel with this decision?

Happy to leave two very young children at risk in the name of the right to fair trial? Prefer to force a young girl into court in the face of evidence that it will damage her, to decide which of the three versions is the truth? Or label a man a paedophile, deny him a normal relationship with his children as the lesser of all evils?

It’s a tough one.