McKenna, R. v

Factual and Procedural Background

This appeal arises from a conviction dated 16 June 2021 following a trial before Judge Lynch KC. The Appellant was convicted by a jury of multiple offences against a complainant, including sexual assault of a child under 13 by penetration, rape of a child under 13, sexual touching by an adult of a person under 16, offering to supply a Class A drug, and two counts of taking and removing a child without lawful authority or reasonable excuse. The offences relate to events occurring on 23 December 2019 at a children’s home, involving the Appellant, a co-accused, and two complainants aged 12 and 15 respectively.

On the date in question, the Appellant and co-accused, both adult males, attended the children’s home and became acquainted with the complainants. Despite staff warnings about the ages of the girls, the complainants left the home with the two men. The police were alerted twice due to concerns about the girls’ whereabouts and the men's conduct. The complainants were recovered but left again and were later found in the company of the men near a riverbank. The complainant subsequently made allegations of sexual assault to care home staff and police, which led to investigation and the Appellant’s arrest.

The Appellant was sentenced to nine years’ imprisonment with an extended sentence of three years. Leave to appeal was initially refused but later granted to consider a core ground related to the admission of evidence from a supplementary statement made by the complainant on 14 May 2021, which supplemented her Achieving Best Evidence (ABE) interview. The appeal focuses on whether the trial judge erred in admitting this evidence and whether the prosecution should have been stayed as an abuse of process.

Legal Issues Presented

1. Whether the trial judge erred in law by failing to exclude evidence relating to the count of sexual assault by penetration that was allegedly improperly obtained.
2. Whether the trial judge erred in refusing to stay the remainder of the prosecution as an abuse of process due to the manner in which the evidence was obtained.

Arguments of the Parties

Appellant's Arguments

• The trial judge should have excluded the evidence contained in the supplementary statement obtained on 14 May 2021, as it was improperly obtained and amounted to an unfair trial.
• The manner in which the police officer prompted the complainant to provide additional evidence regarding digital penetration constituted a breach of good practice and was not properly recorded.
• The failure to have a social worker present during the taking of the supplementary statement further compromised the reliability of the evidence.
• The entire prosecution should have been stayed as an abuse of process because the tainted evidence undermined the fairness of the trial.

Respondent's Arguments

• The trial judge correctly exercised discretion in admitting the evidence, as the jury was fully informed of the circumstances in which the supplementary statement was obtained and could assess its reliability.
• The breach of good practice did not result in unfairness sufficient to exclude the evidence or stay the prosecution.
• The complainant’s initial allegations of digital penetration were made prior to the ABE interview and were recorded on body worn video, supporting the supplemental evidence.
• The abuse of process argument was without merit given the seriousness of the offences and the public interest in prosecution.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the circumstances surrounding the admission of the supplementary statement made by the complainant on 14 May 2021. It acknowledged that the police officer, acting under instructions from the Public Prosecution Service (PPS), prompted the complainant to clarify an omission in her prior ABE interview regarding digital penetration. The court found that this process breached established good practice, particularly due to the lack of recording and the absence of a social worker during the critical moment of obtaining the statement.

Despite these procedural flaws, the court emphasized that the ultimate question was whether admitting this evidence rendered the trial unfair. The trial judge had exercised his discretion under Article 76(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989, weighing the circumstances and allowing the jury to determine the reliability of the evidence. The court found no error in this exercise of discretion, noting that the complainant’s initial allegation of digital penetration had been made promptly after the events and recorded on body worn video. Furthermore, the jury was fully informed of the circumstances surrounding the statement’s procurement and was able to assess credibility and reliability accordingly.

Regarding the abuse of process argument, the court applied the high threshold established in precedent, balancing the public interest in prosecuting serious offences against the need to maintain confidence in the criminal justice system. The court concluded that the breach of good practice did not amount to misconduct of the severity required to stay the prosecution. The seriousness of the charges and the absence of bad faith or concealment by the police weighed heavily against granting a stay.

The court also expressed concern about the administrative errors by the PPS that contributed to the rushed and flawed process but found that these did not justify excluding the evidence or halting the prosecution. The court underscored the importance of careful adherence to good practice in future cases to prevent recurrence.

Holding and Implications

The court DISMISSED THE APPEAL against conviction.

The ruling confirms that evidence obtained through flawed but inadvertent police conduct may still be admissible if the trial judge properly exercises discretion and the jury is adequately informed to assess reliability. The judgment highlights the high threshold for abuse of process applications and reinforces the balance between protecting defendants’ rights and upholding public interest in prosecuting serious crimes. No new precedent was established; the decision affirms existing principles concerning exclusion of evidence, abuse of process, and appellate review of trial discretion.