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Giscombe, R. v
Factual and Procedural Background
The Appellant was convicted on 1 July 2024 at the Crown Court at The City of two counts of rape. On 18 October 2024 the Appellant received an extended determinate sentence of 16 years (12 years custody and 4 years extended licence), together with a sexual harm prevention order (indefinite) and a restraining order. The complainants, referred to here as Complainant A and Complainant B, were two 15‑year‑old friends who, after drinking on the night of 5 August 2021, went to the Appellant's home. Events that night resulted in police attendance, medical examinations, and DNA swabs; forensic testing linked the Appellant's DNA to samples taken from the complainants. At trial the Appellant largely exercised silence and denied the rapes; the prosecution relied on the complainants' ABE interviews, witness accounts (including a taxi driver and other witnesses), and forensic and medical evidence. This application seeks leave to appeal against conviction and was referred to the full court by the single judge.
Legal Issues Presented
- Whether the failure to administer the oath or affirmation to Complainant B before she gave evidence (her ABE interview being played without an oath) rendered the Appellant's convictions unsafe.
- Whether section 56(5) of the Youth Justice and Criminal Evidence Act 1999 applies only where a trial court has, under section 55(2), permitted a witness to give unsworn evidence, or whether it also applies where a witness gave unsworn evidence by mistake and should have been sworn.
- If an error occurred in failing to swear a witness, whether recalling the witness, administering the oath retrospectively, and allowing further cross‑examination cured any unfairness.
Arguments of the Parties
Appellant's Arguments (Attorney Shelley)
- Complainant B was over 14 and competent and therefore should have been sworn; she was not entitled to give unsworn evidence.
- Section 56(5) does not apply because it concerns only cases where the court has ordered under section 55(2) that a witness may give evidence unsworn; here the unsworn evidence arose from a mistake.
- Allowing the witness to be sworn retrospectively and re‑examining her forced the defence into an unfair position, risking juror misconceptions that earlier cross‑examination inconsistencies were being neutralised, thereby rendering the conviction unsafe.
Respondent's Arguments (Attorney Dee)
- Section 56(5) is engaged on appeal and requires the Court to consider the case in the round rather than allow an appeal to succeed only because a witness initially gave unsworn evidence when they should have been sworn.
- Complainant B was a weak witness for various reasons (heavy intoxication, asleep during incident, no knowledge of what happened to Complainant A), and there was substantial other evidence (forensic, injuries to Complainant A, immediate distress, no account from the Appellant) sufficient to support conviction even if Complainant B's unsworn evidence were disregarded.
- Recalling and swearing Complainant B, with opportunity for further cross‑examination, cured any potential unfairness and did not render the convictions unsafe.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sharman [1998] 1 Cr App R 406 | Held that failure to administer the oath where it should have been administered rendered a conviction unsafe. | The court acknowledged Sharman but held that the decision pre‑dates the 1999 Act and has been superseded by section 56(5), which requires consideration of the case in the round on appeal. |
| R v Sharman [1998] Cr App R 403 | Illustrated that playing an ABE interview and cross‑examining without oath could render convictions unsafe. | Referenced as part of the historical approach now qualified by the 1999 Act; the court treated Sharman as altered in effect by section 56(5). |
| R v Simmonds (unreported April 3, 1996) | Held that retrospective administration of the oath did not cure the irregularity and the conviction was unsafe. | Noted by the court as an earlier authority with similar facts; distinguished on the basis that Simmonds predates section 56(5) and that the 1999 Act changes the appellate approach. |
Court's Reasoning and Analysis
The court began by identifying the statutory framework in sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999. Section 55 sets criteria for whether a witness may be sworn (age 14+ and sufficient appreciation of solemnity), while section 56 addresses reception of unsworn evidence and contains subsection (5) governing appellate treatment where a witness falling within section 55(2) gave unsworn evidence.
The court considered the Recorder's ruling and reasoning: the Recorder had rejected the defence submission that section 56(5) only applies where a trial court has ordered under section 55(2) that a witness may give unsworn evidence, construing the language of section 56(5) (and explanatory notes) as applying to a witness who meets the section 55(2) criteria and "should accordingly have given his evidence on oath".
The appellate court analysed whether section 56(5) is confined to cases in which the trial court made a section 55(2) order. Having examined the statutory text and context (including that subsections (1)–(4) are expressly linked to section 55(2) whereas subsection (5) does not state it is limited to cases where section 55 was invoked), the court agreed with the Recorder's broader construction: section 56(5) is not restricted to circumstances where the trial court had permitted unsworn evidence under section 55(2).
The court then applied section 56(5) to the facts. It accepted that Complainant B's initial evidence on the second day was unsworn and that the retrospective swearing did not convert that earlier evidence into sworn evidence. Nevertheless, because Complainant B later gave sworn evidence when recalled and re‑cross‑examined, and because there was substantial other evidence (forensic links to the Appellant, Complainant A's corroborating evidence and injuries, immediate complaints and distress, absence of an account from the Appellant), the court concluded that there was ample evidence on which the jury could convict even if Complainant B's unsworn evidence were put to one side.
On the fairness point raised by the Appellant (that recalling and swearing Complainant B forced the defence into an unfavourable position and risked juror misapprehension), the court rejected that submission for multiple reasons: it considered it unlikely the jury would infer defence weakness from re‑examination in context; noted that any increased firmness in Complainant B's responses on recall could equally be treated with circumspection by the jury; observed no indication that the jury were told to disregard unsworn answers or to give them less weight; and accepted the Recorder's assessment that there were no reasonable grounds to think the oath would have materially altered Complainant B's evidence.
Holding and Implications
APPEAL DISMISSED
Holding: The court granted leave to appeal but dismissed the appeal, concluding the Appellant's convictions are safe. The court held that section 56(5) of the Youth Justice and Criminal Evidence Act 1999 is not confined to cases where a trial court has ordered (under section 55(2)) that a witness may give unsworn evidence; it applies where a witness who meets the section 55(2) criteria gave unsworn evidence and the matter is before the Court of Appeal.
Implications: The direct effect is that the Appellant's convictions and sentence stand. The court interpreted the scope of section 56(5) broadly (as described above) and applied the statutory directive to evaluate the case in the round rather than allowing an appeal to succeed solely because a witness initially gave unsworn evidence. The opinion does not purport to set aside any other established principles beyond this statutory construction and its application to the facts.
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