Section 56(5) YJCEA 1999: Unsworn Evidence Given in Error Does Not, Without More, Render a Conviction Unsafe

1. Introduction

R. v Giscombe ([2026] EWCA Crim 82) concerned an application for leave to appeal against convictions for two rapes, where a procedural irregularity occurred during the trial: one complainant (“C2”) was cross-examined before being sworn or affirming, because the played ABE recording had been edited so as not to include the oath/affirmation and no-one noticed until later.

The central issues before the Court of Appeal (Criminal Division) were:

  • whether C2’s unsworn evidence was admissible and, if not, how that affected the safety of the convictions;
  • the proper construction and reach of sections 55–56 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”), in particular section 56(5);
  • whether recalling C2, swearing her, and inviting confirmation of her earlier evidence created unfairness or rendered the convictions unsafe.

The applicant was convicted in the Crown Court at Nottingham of two counts of rape and received an extended determinate sentence. The complainants were two 15-year-old friends. The prosecution relied on complainant testimony (via ABE and live cross-examination), immediate complaint/distress evidence, and significant forensic DNA findings.

2. Summary of the Judgment

The Court of Appeal granted leave but dismissed the appeal, holding the convictions were safe.

Key holdings included:

  • C2’s initial cross-examination was unsworn and did not become sworn merely because she was later sworn and recalled.
  • Section 56(5) applies in the Court of Appeal and means that a conviction is not unsafe “by reason only” that a witness gave evidence unsworn when it should have been sworn.
  • Section 56(5) is not limited to cases where a trial court has formally acted under section 55(2); it can cover situations where the failure to swear occurred by mistake.
  • Viewed “in the round”, there was ample other evidence to support conviction even if C2’s unsworn evidence were put aside, and the recall procedure did not generate material unfairness.

3. Analysis

3.1 Precedents Cited

Sharman [1998] 1 Cr App R 406

The Recorder relied on Sharman [1998] 1 Cr App R 406 as authority that (pre-1999 Act) a failure to administer the oath where it should have been administered could render a conviction unsafe, but that this approach had been superseded by section 56(5).

The Court of Appeal agreed with the broader point that the statutory scheme changed the pre-existing position: under the 1999 Act the appellate court must not allow an appeal solely because the evidence was unsworn when it should have been sworn; the inquiry becomes one of overall safety.

R v Sharman [1998] Cr App R 403

The Court also discussed R v Sharman [1998] Cr App R 403 as the pre-1999 Act exemplar: an ABE interview was played and the complainant cross-examined without being sworn; the Court of Appeal then treated the evidence as inadmissible and the conviction as unsafe.

R. v Giscombe treats that earlier approach as materially altered by section 56(5), which directs attention away from technical invalidity alone and toward the ultimate question of safety.

R v Simmonds (unreported April 3, 1996)

R v Simmonds (unreported April 3, 1996) was analysed via quotations in Sharman. There, after the oversight was discovered, the trial judge administered the oath “retrospectively” and sought confirmation that prior video interviews and cross-examination answers had been truthful. The appellate court held:

“The evidence ostensibly given was not evidence at all.”

In R. v Giscombe, the Court acknowledged similarities (including the concern that “retrospective” swearing does not transform the earlier evidence), but distinguished the modern position because the appeal must now be assessed under the lens of section 56(5), i.e., whether the convictions are unsafe “in the round”.

Blackstone's Criminal Practice 2026 at paragraph F4-31

The Court noted that Blackstone's Criminal Practice 2026 at paragraph F4-31 did not suggest section 56(5) is confined to cases where a formal direction under section 55(2) was made, supporting a broader construction consistent with the statutory text.

3.2 Legal Reasoning

(a) The statutory framework: sections 55 and 56

The Court carefully separated two different situations:

  • Proper unsworn evidence under the scheme: under section 55(2), a witness may not be sworn unless (a) aged 14+ and (b) sufficiently appreciates the solemnity/responsibility of oath-taking; if not permitted to be sworn, section 56(1)–(4) provides for reception of unsworn evidence.
  • Unsworn evidence given by mistake: here C2 was over 14, competent, and should have been sworn/affirmed; the omission was accidental, and therefore section 56(1)–(4) did not render the initial unsworn evidence admissible on its own terms.

(b) Construction of section 56(5)

The Court accepted that the relationship between sections 55 and 56 makes the interpretive question “not particularly straightforward”, but concluded that section 56(5) is not restricted to cases where the trial court has made a decision pursuant to section 55(2). The decisive points were:

  • Textual: section 56(5) does not say it applies only where section 55 has been invoked; it focuses on whether “the witness was a person falling within section 55(2)”.
  • Contextual drafting contrast: sections 56(1)–(4) are expressly tied to section 55(2), whereas section 56(5) is not framed in that conditional way.
  • Purpose/effect: it reflects a statutory change from the pre-1999 Act position exemplified by Sharman/Simmonds, moving away from automatic unsafety due to oath irregularity alone.

(c) “In the round” assessment of safety

Applying section 56(5), the Court asked whether the convictions were unsafe when all the evidence and trial features were considered, not merely the oath error. It emphasised:

  • C2 was recalled and, when thereafter answering questions in the further cross-examination, she was giving sworn evidence (although the earlier answers remained unsworn).
  • The prosecution case did not stand or fall with C2: the Court identified substantial supporting evidence, especially from C1 and forensics.
  • The judge’s management of the issue (recall; opportunity for further cross-examination) was not shown to create unfairness.

(d) The fairness critique of recall and “ratification”

The defence argued recall forced an unfavourable forensic posture—suggesting to jurors that cross-examination points were being “neutralised” and that C2 appeared more resolute on recall. The Court rejected this as a basis for unsafety, reasoning that:

  • jurors would understand the recall occurred due to an administrative “slip-up” not attributable to the defence;
  • greater certainty on recall would not necessarily assist the prosecution and could prompt jurors to treat the later presentation with caution;
  • there was no direction inviting jurors to disregard or discount the earlier answers because they were unsworn;
  • the Recorder’s observation of C2 supported the view that the absence of oath likely did not affect her truthfulness;
  • the defence itself relied in closing on inconsistencies from C2’s accounts, including the initial (unsworn) cross-examination, indicating the jury could and would evaluate that material.

3.3 Impact

(a) Appellate approach to oath/affirmation failures

The judgment strengthens a practical appellate principle: where a competent witness who should have been sworn gives evidence unsworn by mistake, the conviction will not be unsafe “by reason only” of that failure. Courts must assess overall safety, including the extent of other evidence and the manner in which the trial judge managed the irregularity.

(b) Scope of section 56(5)

The Court’s construction indicates section 56(5) can apply even absent a formal section 55(2) decision. This is important for modern trials where evidence is frequently introduced via edited ABE recordings and procedural slips can occur: the statutory safeguard operates as an appellate filter against purely technical challenges, while preserving the ability to allow appeals where unfairness or unreliability is shown on broader grounds.

(c) Trial management signals

Although the Court noted section 56(5) is directed to the Court of Appeal (and thus “not strictly speaking” for the Recorder), the judgment implicitly approves a structured response to discovery of an oath omission mid-trial: identify the irregularity, recall the witness, administer oath/affirmation, allow additional cross-examination, and ensure the jury understands the procedural reason for recall.

4. Complex Concepts Simplified

  • ABE interview: “Achieving Best Evidence” recorded interviews commonly used for vulnerable/child witnesses; played as evidence-in-chief, with live cross-examination later.
  • Sworn vs unsworn evidence: sworn evidence is given on oath/affirmation; unsworn evidence is ordinarily permitted only in limited statutory circumstances (e.g., where a competent witness is not permitted to be sworn).
  • Competence: a witness’s basic ability to give intelligible evidence; distinct from whether they may be sworn.
  • “Unsafe” conviction: the appellate test under the Criminal Appeal Act 1968; a conviction may be quashed if the court considers it unsafe, considering the trial as a whole.
  • Section 56(5) “by reason only”: the appeal cannot succeed solely because evidence was unsworn when it should have been sworn; there must be something more (e.g., demonstrated unfairness, unreliability affecting the verdict, or absence of other supporting evidence).

5. Conclusion

R. v Giscombe confirms that, under the 1999 Act, an inadvertent failure to swear a competent witness does not automatically invalidate the verdict. The Court of Appeal construed section 56(5) broadly, rejecting any limitation to cases where a trial judge has formally acted under section 55(2), and reaffirmed that the decisive question is whether the convictions are safe when viewed in the round.

The judgment’s significance lies in modernising the treatment of oath irregularities in trials involving ABE recordings: it narrows purely technical routes to overturn conviction while preserving the appellate court’s capacity to intervene where the irregularity has caused substantive unfairness or undermined the reliability of the verdict.