England and Wales Court of Appeal (Criminal Division) Decisions

Neutral Citation Number: [2017] EWCA 1076 (Crim)

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26/07/2017

Before :

LORD CHIEF JUSTICE OF ENGLAND AND WALES

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Criminal Practice Directions 2015

Amendment No. 5

Introduction

This is the fifth amendment to the Criminal Practice Directions 2015.[1] It is handed down by the Lord Chief Justice on 26^th July 2017 and comes into force on 2^nd October 2017.

In this amendment:

 

1. In CPD V Evidence insert new practice direction on s.28 YJCEA 1999:

CPD V Evidence 18E: USE OF S. 28 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999; PRE-RECORDING OF CROSS-EXAMINATION AND RE-EXAMINATION FOR WITNESSES CAPTURED BY S.16 YJCEA 1999.

18E.1        When Section 28 of the Youth Justice and Criminal Evidence Act 1999 (s.28 YJCEA 1999) is bought into force by Statutory Instrument for a particular Crown Court, under that S.I., a witness will be eligible for special measures under s.28 if

i.                     he or she is under the age of 18 at the time of the special measures hearing; or

ii.                   he or she suffers from a mental disorder within the meaning of the Mental Health Act 1983, or has a significant impairment of intelligence and social functioning, or has a physical disability or a physical disorder, and the quality of his or her evidence is likely to be diminished as a consequence.

 

18E.2        This process is governed by the Criminal Procedure Rules and careful attention should be paid to the court’s case management powers and the obligations on the parties. Advocates should also refer to the annex of this practice direction which contains further detailed guidance on ground rules hearings. 

18E.3        The Resident Judge may appoint a judicial lead from full time judges at the court centre who will be responsible for monitoring and supervision of the scheme. The Plea and Trial Preparation Hearing (PTPH) must be conducted by a full time judge authorised by the Resident Judge to sit on that class of case and who has been authorised to deal with s.28 YJCEA 1999 cases by the Resident Judge.

18E.4        Reference should be made to the joint protocol agreed between the police and the Crown Prosecution Service.

18E.5        Witnesses eligible for special measures under s.28 YJCEA 1999 should be identified by the police. The police and Crown Prosecution Service should discuss, with the witness or with the witness’ parent or carer, special measures available and the witness’ needs, such that the most appropriate package of special measures can be identified.  This may include use of a Registered Intermediary.  See Criminal Practice Directions of 2015 (CPD) General matters 3D: Vulnerable people in the courts and 3F: Intermediaries.

18E.6        For access to special measures under s.28 YJCEA 1999, the witness’ interview must be recorded in accordance with the Achieving Best Evidence (‘ABE’) guidance which is available on the Ministry of Justice website.

18E.7        For timetabling of the case, it is imperative that the investigators and prosecutor commence the disclosure process at the start of the investigation. The Judicial Protocol on Disclosure of Unused Material in Criminal Proceedings (November 2013) must be followed, and if applicable, the 2013 Protocol and Good Practice Model on Disclosure of information in cases of alleged child abuse and linked criminal and care directions. Local Implementation Teams (LITs) should encourage all appropriate agencies to endorse and follow both the Protocol and the Good Practice Model. LITs should monitor compliance and issues should initially be raised at the LITs.

The first hearing in the magistrates’ court

18E.8        Initial details of the prosecution case must be served in accordance with Part 8 of the Rules.

18E.9        The prosecutor must formally notify the court at the first hearing that the case is eligible for special measures under s.28 YJCEA 1999.

18E.10     At the hearing the court must follow part 9 of the Rules (Allocation) and refer to the Sentencing Council’s guideline on Allocation. This practice direction applies only where the defendant indicates a not guilty plea or does not indicate a plea, and the case is sent for trial in the Crown Court, either with or without allocation.

18E.11     If the case is to be sent to the Crown Court, the prosecutor should inform the court and the defence if not already notified that the prosecution will seek special measures including under s.28 YJCEA 1999.

18E.12     In any case that is sent to the Crown Court for trial in which the prosecution has notified the court of its intention to make an application for special measures under s.28 of the YJCEA 1999 the timetable is that as established by the Better Case Management initiative. The Court must be mindful of its duties under Parts 1 and 3 of the Rules to manage the case effectively.  Wherever the Crown Prosecution Service will seek a s.28 YJCEA 1999 special measures direction this should, where possible, be listed for PTPH within 28 days of the date of sending from the magistrates’ court. Section 10.2 of A protocol between the Association of Chief Police Officers, the Crown Prosecution Service and Her Majesty’s Courts and Tribunals Service to expedite cases involving witnesses under 10 years does not apply.

18E.13     From the point of grant of the s.28 YJCEA 1999 special measures application, timescales provided by section 8.6 of A protocol between the Association of Chief Police Officers, the Crown Prosecution Service and Her Majesty’s Courts and Tribunals Service to expedite cases involving witnesses under 10 years will cease to apply and the case should be managed in accordance with the timescales established in this practice direction. 

Before the PTPH hearing in the Crown Court

18E.14     On being notified of the sending of the case by the magistrates’ court, the case should be flagged as a s.28 case and referred to the Resident Judge or the judicial lead at that Crown Court, according to instructions issued by the Resident Judge.

18E.15  A transcript of the ABE interview and the application for special measures, including under s.28 YJCEA 1999, must be served on the Court and defence at least 7 days prior to the PTPH. The report of any Registered Intermediary must be served with the application for special measures.

18E.16   Any defence representations about the application for special measures must be served within 14 days of service of the application, and thus within 14 days of the first hearing at the magistrates’ court, in accordance with rule 18.13.

 

Plea and Trial Preparation Hearing

18E.17     The s.28 YJCEA 1999 part of the PTPH form should, on enquiry of the parties, be completed by the judge during the hearing.  Orders should be recorded on the form, and uploaded onto the Digital Case System (DCS) as the record of orders made by the court. Any unrepresented defendant should be served with a paper copy of the orders.  

18E.18     A plea should be taken and recorded and the defence required to identify the issues. The detail of a defence statement is not required at this stage, but the defence should identify the core issues in dispute.

The application

18E.19     The judge may hear submissions from the advocates and will rule on the application. If it is refused (see the assumptions to be applied by the courts in s.21 and s.22 of the YJCEA 1999), this practice direction ceases to apply.

18E.20     If the application is granted, the judge should make orders and give directions for preparation for the recorded cross-examination and re-examination hearing and advance preparation for the trial, including for disclosure of unused material.  The correct and timely application of the Criminal Procedure and Investigations Act 1996 (‘CPIA 1996’) will be vital and close attention should be paid to the 2013 Protocol and Good Practice Model on Disclosure (November 2013), above.

18E.21     The orders made are likely to include:

                                                               i.      Service of the prosecution evidence within 50 days of sending ;

                                                             ii.      Directions for service of defence witness requirements;

                                                           iii.      Service of initial disclosure; under the CPIA 1996, as soon as reasonably practical; in this context, this should be interpreted as being simultaneous with the service of the prosecution evidence, i.e. within 50 days of sending for both bail and custody cases. This will be within 3 weeks of the PTPH;

                                                           iv.      Orders on disclosure material held by a third party;

                                                             v.      Service of the defence statement; under the CPIA 1996, this must be served within 28 days of the prosecutor serving or purporting to serve initial disclosure;

                                                           vi.      Any editing  of the ABE interview;

                                                         vii.      Fixing a date for a ground rules hearing, about one week prior to the recorded cross-examination and re-examination hearing, see CPD General matters 3E: Ground rules hearings to plan questioning of a vulnerable witness or defendant;

                                                       viii.      Service of the Ground Rules Hearing Form by the defence advocate;

                                                           ix.      Making arrangements for the witness to refresh his or her memory by viewing the recorded examination-in-chief (‘ABE interview’), see CPD Evidence 18C: Visually recorded interviews: memory refreshing and watching at a different time from the jury;

                                                             x.      Making arrangements for the recorded cross-examination and re-examination hearing under s.28, including fixing a date, time and location;

                                                           xi.      Other special measures;

                                                         xii.      Directions for any further directions hearing  whether at the conclusion of the recorded cross-examination and re-examination hearing or subsequently;

                                                       xiii.      Fixing a date for trial.

 

18E.22     The timetable should ensure the prosecution evidence and initial disclosure are served swiftly. The ground rules hearing will usually be soon after the deadline for service of the defence statement, the recorded cross-examination and re-examination hearing about one week later.  However, there must be time afforded for any further disclosure of unused material following service of the defence statement and for determination of any application under s.8 of the CPIA 1996.  Subject to judicial discretion applications for extensions of time for service of disclosure by either party should generally be refused.

 18E.23    Where the defendant may be unfit to plead, a timetable for s.28 should usually still be set, taking into account extra time needed for the obtaining of medical reports, save in cases where it is indicated that it is unlikely that there would be a trial if the defendant is found fit.

18E.24    As far as possible, without diminishing the defendant’s right to a fair trial, the timing and duration of the recorded cross-examination should take into account the needs of the witness.  For a young child, the hearing should usually be in the morning and conclude before lunch time. 

18E.25     An application for a witness summons to obtain material held by a third party, should be served in advance of the PTPH and determined at that hearing, or as soon as reasonably practicable thereafter.  The timetable should accommodate any consequent hearings or applications, but it is imperative parties are prompt to obtain third party disclosure material.  The prosecution must make the court and the defence aware of any difficulty as soon as it arises.  As noted above, the 2013 Protocol and Good Practice Model on Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings should be followed, if applicable. Engagement with the Protocol is to be overseen by LITs. A single point of contact in each relevant agency can facilitate speedy disclosure. 

 18E.26    The needs of other witnesses should not be neglected.  Witness and intermediary availability dates should be available for the PTPH.

Prior to ground rules hearing and hearing under section 28

18E.27  It is imperative parties abide by orders made at the PTPH, including the completion and service of the Ground Rules Hearing Form by the defence advocate.  Delays or failures must be reported to the judge as soon as they arise; this is the responsibility of each legal representative.  If ordered, the lead lawyer for the prosecution and defence must provide a weekly update to the court Case Progression Officer, copied to the judge and parties, detailing the progress and any difficulties or delays in complying with orders.  The court may order a further case management hearing if necessary.

18E.28    Any applications under s.100 of the Criminal Justice Act 2003 (‘CJA 2003’) (non-defendant’s bad character) or under s.41 of the YJCEA 1999 (evidence or cross-examination about complainants sexual behaviour) or any other application which may affect the cross-examination must be made promptly, and responses submitted in time for the judge to rule on the application at the ground rules hearing.  Parts 21 and 22 of the Rules apply to applications under s.100 and s.41 respectively.

18E.29    The witness’ court familiarisation visit must take place, including an opportunity to practice on the live link/recording facilities, see the Code of Practice for Victims of Crime, October 2013, Chapter 3, paragraph 1.22.  The witness must have the opportunity to view his or her ABE interview to refresh his or her memory.  It may or may not be appropriate for this to take place on the day of the court visit: CPD Evidence 18C must be followed.

18E.30     When the court has deemed that the case is suitable for the witness to give evidence from a remote site then a familiarisation visit should take place at that site. At the ground rules hearing the judge and advocates should consider appropriate arrangements for them to talk to the witness before the cross examination hearing.

18E.31     Applications to vary or discharge a special measures declaration must comply with Rule 18.11.  Although the need for prompt action will make case preparation tight.

Ground rules hearing

18E.32     Advocates should master the toolkits available through The Advocate’s Gateway.  These provide guidance on questioning a vulnerable witness, see CPD General matters 3D and the annex to this practice direction.

18E.33     Any appointed Registered Intermediary must attend the ground rules hearing, see CPD General matters 3E.2.

18E.34     The defence advocate at the ground rules hearing must be she or he who will conduct the recorded cross-examination.  See listing and allocation below on continuity of counsel and release from other cases.

18E.35      Topics for discussion and agreement at the ground rules hearing will depend on the individual needs of the witness, and an intermediary may provide advance indications.  CPD General matters 3E must be followed.  Topics that will need discussion in every case will include:

                                                                     i.            the overall length of cross-examination;

                                                                   ii.            cross-examination by a single advocate in a multi-handed case;

                                                                 iii.            any restrictions on the advocate’s usual duty to ‘put the defence case’.

 18E.36   It may be helpful to discuss at this stage how any limitations on questioning will be explained to the jury.

18E.37   At the ground rules hearing, the judge should:

                                                                     i.            rule on any application under s.100 of the CJA 2003 or s.41 of the YJCEA 1999, or other applications that may affect the cross-examination; 

                                                                   ii.            decide how the witness may view exhibits or documents;  

                                                                 iii.            review progress in complying with orders made at the preliminary hearing and make any necessary orders.

 

   Recording of cross-examination and re-examination: hearing under s.28

18E.38    At the hearing, the witness will be cross-examined and re-examined, if required, via the live link from the court room to the witness suite (unless provision has been made for the use of a remote link) and the examination will be recorded.  It is the responsibility of the designated court clerk to ensure in advance that all of the equipment is working and to contact the provider’s Service Desk if support is required. Any other special measures must be in place and any intermediary or supporter should sit in the live link room with the witness. The intermediary’s role is transparent and therefore must be visible and audible to the judge and advocates at the cross-examination and in the subsequent replaying. 

18E.39   The judge, advocates and parties, including the defendant will usually assemble in the court room for the hearing. In some cases the judge and advocates may be in the witness suite with the witness, for example when questioning a very young child or where the witness has a particular communication need. The court will decide this on a case-by-case basis. The defendant should be able to communicate with his or her representatives and should be able to hear the witness via the live link and see the proceedings: s.28 (2).  Whether the witness is screened or not will depend on the other special measures ordered, for example screens may have been ordered under s.23 YJCEA 1999.

18E.40     On the admission of the public or media to the hearing, please see below.

18E.41   At the conclusion of the hearing, the judge will issue further orders, such as for the editing of the recorded cross-examination and may set a timetable for progress.

18E.42     Under s.28(4) YJCEA 1999, the judge, on application of any parties or on the court’s own motion may direct that the recorded examination is not admitted into evidence, despite any previous direction.  Such direction must be given promptly, preferably immediately after the conclusion of the examination.

18E.43     Without exception, editing of the ABE interview/examination-in-chief or recorded cross-examination is precluded without an order of the court.

18E.44     The ability to record simultaneously from a court and a witness room and to play back the recording at trial will be provided in all Crown Courts as an additional facility within the existing Justice Video Service (JVS). Courts will book recording slots with the Service Desk who will launch the recording at the scheduled time when the court is ready. Recordings will be stored in a secure data centre with backup and resiliency, for authorised access. 

 After the recording

18E.45     Following the recording the judge should review compliance with orders and progress towards preparation for trial, make any further orders necessary and confirm the date of the trial. Any further orders made by the judge should be recorded and uploaded onto the relevant section of the DCS.

18E.46     If the defendant enters a guilty plea, the judge should proceed towards sentence, making any appropriate orders, such as for a Pre-Sentence Report and setting a date for sentencing.  Any reduction for a guilty plea shall reflect the day of the recorded cross-examination as the first day of trial; the Sentencing Council guideline on guilty plea reductions should be applied.

Preparation for trial

18E.47     Parties must notify the court promptly if any difficulties arise or any orders are not complied with.  The court may order a further case management hearing (FCMH).

18E.48  In accordance with orders, either after recorded cross-examination or at the FCMH, necessary editing of the ABE interview/examination-in-chief and/or the recorded cross-examination must be done only on the order of the court. Any editing must be done promptly.

18E.49     Recorded cross-examinations and re-examinations will be stored securely by the service provider so as to be accessible to the advocates and the court.  It will not usually be necessary to obtain a transcript of the recorded cross-examination, but if it is difficult to comprehend, a transcript should be obtained and served. The ground rules hearing form outlines questions to the witness that might be completed electronically by the judge during cross-examination forming a contemporaneous note of the hearing, served on the parties as an agreed record. 

18E.50     Editing, authorised by the judge, is to be submitted by the court to the Service Desk, who produce an edited copy. The master and all edited copy versions are retained in the secure data centre from where they can be accessed. Courts book playback timeslots with the Service Desk for the trial date. The court may authorise parties to view playback at JVS endpoints, by submitting a request form to the Service Desk. Access for those so authorised is via the Quickcode (recording ID) and a security PIN (password) on the courtroom touch panel or remote control.

18E.51    No further cross-examination or re-examination of the witness may take place unless the criteria in section 28(6) are satisfied and the judge makes a further special measures direction under section 28(5).  Any such further examination must be recorded via live link as described above.

18E.52     Section 28(6) of the YJCEA 1999 provides as follows:

(6) The court may only give such a further direction if it appears to the court—

(a)         that the proposed cross-examination is sought by a party to the proceedings as a result of that party having become aware, since the time when the original recording was made in pursuance of subsection (1), of a matter which that party could not with reasonable diligence have ascertained by then, or

(b)         that for any other reason it is in the interests of justice to give the further direction.

 

18E.53     Any application under section 28(5) must be in writing and be served on the court and the prosecution at least 28 days before the date of trial.  The application must specify:

                                                                                 i.            the topics on which further cross-examination is sought;

                                                                               ii.            the material or matter of which the defence has become aware since the original recording;

                                                                             iii.            why it was not possible for the defence to have obtained the material or ascertained the matter earlier; and

                                                                             iv.            the expected impact on the issues before the court at trial.

 

18E.54   The prosecution should respond in writing within 7 days of the application.  The judge may determine the application on the papers or order a hearing.  Any further cross-examination ordered must be recorded via live link in advance of the trial and served on the court and the parties.

Trial

18E.55     In accordance with the judge’s directions, the ABE interview/examination-in-chief and the recorded cross-examination and re-examination, edited as directed, should be played to the jury at the appropriate point within the trial.

18E.56     The jury should not usually receive transcripts of the recordings, and if they do these should be removed from the jury as soon as the recording has been played, see CPD Trial 26L.2.

18E.57     If the matter was not addressed at the ground rules hearing, the judge should discuss with the advocates how any limitations on questioning should be explained to the jury before summing-up.

After conclusion of trial

18E.58     Immediately after the trial, the ABE interview/examination-in-chief and the recorded cross-examination and re-examination should be stored securely on the cloud.

Listing and allocation

18E.59     Advocates: It is the responsibility of the defence advocate, on accepting the brief, to ensure that he or she is available for both the ground rules hearing and the hearing under section 28; continuity at trial is obligatory except in exceptional circumstances. The judge and list office will make whatever reasonable arrangements are possible to achieve this, assisted by the Resident Judge where necessary.

18E.60     When the timetable for the case is being set, advocates must have their up to date availability with them (in so far as is possible). When an advocate who is part-heard in another trial at a different Crown Court centre finds themselves in difficulties in attending either the ground rules hearing, s.28 hearing itself or the trial where s.28 has been utilised, they must inform the Resident Judges of both courts as soon as practicable. The Resident Judges must resolve any conflict with the advocate’s availability. The starting point should be that the case involving s.28 hearing takes priority. However, due consideration should also be given to custody time limits, other issues which make either case particularly complex or sensitive, high profile cases and anything else that the judges should take into consideration in the interests of justice.

18E.61     Judicial:  All PTPHs must be listed before judges who have been authorised to deal with s.28 cases by the Resident Judge at the relevant court centre. The nominated lead judge (if there is one) or Resident Judge may allocate individual cases to one of the judges in the court centre identified to deal with the case if necessary. The Resident Judge, lead judge or allocated judge may make directions in the case if required.

18E.62     It is essential that the ground rules hearing and the s. 28 YJCEA 1999 hearing are before the same judge. Once the s.28 hearing has taken place, any judge, in accordance with CPD XIII Listing E, including recorders, can deal with the trial.

18E.63     LITs should be established with all relevant agencies represented by someone of sufficient seniority. Their task will be to monitor the operation of the scheme and compliance with this practice direction and other relevant protocols.

18E.64     Listing: Due to the limited availability of recording facilities, the hearing held under section 28 must take precedence over other hearings.  Section 28 hearings should be listed as the first matter in the morning and will usually conclude before lunch time.  Ground rules hearings may be held at any time, including towards the end of the court day, to accommodate the advocates and intermediary (if there is one) and to minimise disruption to other trials.

Public, including media access, and reporting restrictions

18E.65     Open justice is an essential principle of the common law.  However, certain automatic statutory restrictions may apply, and the judge may consider it appropriate in the specific circumstances of a case to make an order applying discretionary restrictions.  CPD Preliminary proceedings 16B must be followed and the templates published by the Judicial College (available on LMS) should be used.  The parties to the proceedings, and interested parties such as the media, should have the opportunity to make representations before an order is made.

18E.66     The statutory powers most likely to be available to the judge are listed below.  The judge should consider the specific statutory requirements necessary for the making of the particular order carefully, and the order made must be in writing.

a) Provisions to exclude the public from hearings:

i. Section 37 of the Children and Young Persons Act 1933, applicable to witnesses under 18;

ii. Section 25 of the YJCEA 1999, applicable to the evidence of a child or vulnerable adult in sexual offences cases.

 

b) Automatic reporting restrictions:

i. Section 1 of the Sexual Offences (Amendment) Act 1992, applicable to the complainant in any sex offence case.

c) Discretionary reporting restrictions:

i. Section 45 of the YJCEA 1999, applicable to under 18s concerned in criminal proceedings;

ii. Section 46 of the YJCEA 1999, applicable to an adult witness whose evidence would be diminished by fear or distress.

d) Postponement of fair and accurate reports under section 4(2) of the Contempt of Court Act 1981.

18E.67     Note that public access to information held by the court is now the subject of Rule 5.8 and CPD General matters 5B that must be followed.

Annex for section 28 ground rules hearings at the Crown Court when dealing with witnesses under s.16 YJCEA 1999

Introduction

1. This annex is designed to assist all advocates in their preparation for cross-examination of vulnerable witnesses.

 

2.       Adherence to the principles below will avoid interruption during the pre-recorded cross-examination and reduce any ordered editing.

 

3.       Issues concerning the vulnerable witness and the nature of the cross-examination will be addressed by the judge at the Ground Rules Hearing (GRH).

 

4.       In appropriate cases and in particular where the witness is of very young years or suffers from a disability or disorder it is expected that the advocate will have prepared his or her cross-examination in writing for consideration by the court.

 

5. It is thus incumbent on the Defence to ensure that full instructions have been taken prior to the GRH.

 

 Required preparation prior to the GRH

6. All advocates should be familiar with the relevant toolkits, available through The Advocates Gateway www.theadvocatesgateway.org/toolkits which provide guidance on questioning a vulnerable witness. A synopsis of this guidance, which advocates should have read prior to any GRH, is included in this annex.

 

Attendance at, and procedure during, the GRH

7. In preparation for trial, courts must take every reasonable step to facilitate the participation of witnesses and defendants CPR 3.8(4) (d). The court should order that the defendant attends the GRH.

 

8. The defence advocate must complete and submit the Ground Rules Hearing form by the time and date ordered at the PTPH.

 

9. The hearing facilitates the judge’s duty to control questioning if and when necessary.

 

10. The hearing enables the court to ensure its process is adapted to enable the witness to give his or her best evidence whilst ensuring the defendant’s right to a fair trial is not diminished.  Accordingly the ground rules and the nature of the questioning of the witness by the advocate (and limitations imposed if necessary in accordance with principles above) will be discussed.

 

11. Prior to the hearing it is necessary for both advocates and the judge to have viewed the ABE evidence.

 

12. The judge will state what ground rules will apply. The advocates must comply with them.

 

13. Any intermediary must attend the GRH. It is the responsibility of those instructing the intermediary to ensure this.

 

14. The defendant’s advocate attending the hearing must be the same advocate who will be conducting the recorded cross-examination (and the subsequent trial, if any).

 

15. Any intermediary for the witness should only be warned for the GRH and the section 28 hearing they are assisting with. An Intermediary should not be instructed unless available to attend the GRH and the section 28 hearings ordered by the court.

 

16. Topics for discussion and agreement at the GRH will depend on the individual needs of the witness. CPD I General Matters 3E must be followed.

 

17. Topics of discussion at the hearing will include the length of cross-examination and any restrictions on the advocate’s usual duty to “put the defence case”.   As was made plain by the Vice President of the Court of Appeal Criminal Division in Regina v Lubemba and Pooley 2014 EWCA Crim 2064, advocates cannot insist upon any supposed right “to put one's case” or previous inconsistent statements to a vulnerable witness.   If there is a right to “put one's case” it must be modified for young or vulnerable witnesses. It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidation or distressing a witness. It is expected that all advocates will be familiar with and have read this case.

 

18. At the GRH counsel need to agree with the judge how and when the matters referred to in paragraph 11 will be explained to the jury. This explanation will normally be done by the judge, but may exceptionally, and only with the permission of the judge, be explained by counsel. If there is no agreement the judge will rule on it.

 

19. A Section 28 Defence GRH form should be completed as far as possible prior to attendance at the GRH before the judge.

 

20. Rulings will be made on any application under section 100 of the CJA 2003 or section 41 of the YCEA 1999, and on any other application that may affect the conduct of the cross examination. Any ruling will be included in the trial practice note.

 

21. A review will take place of the progress made by the parties in complying with the orders made at the PTPH and the court will make any other necessary orders.

 

22. Additional information can be found in the Inns of Court College of Advocacy training document “Advocacy and the vulnerable: 20 principles of questioning” at the following link:

www.icca.ac.uk/images/download/advocacy-and-the-vulnerable/20-principles-of-questioning.pdf

This document is part of a suite of training materials available to assist advocates in dealing with questioning vulnerable victims in the criminal justice system.

 

Court of Appeal guidance

In a series of decisions the Court of Appeal has made it clear that there has to be a different and fresh approach to the cross-examination of, in particular, children of tender years, and witnesses who are vulnerable as a result of mental incapacity. The following propositions have support in decisions on appeal:  (R v B 2010 EWCA Crim 4; R v F 2013 EWCA Crim 424; Wills v R 2011 EWCA Crim 1938; R v Edwards 2011 EWCA Crim 3028; R v Watts 2010 EWCA Crim 1824; R v W and M 2010 EWCA Crim 1926)

“The reality of questioning children of tender years is that direct challenge that he or she is wrong or lying could lead to confusion and, worse, to capitulation which the child does not, in reality, accept. 

Capitulation is not a consequence of unreliability but a function of the youngster’s age. Experience has shown that young children are scared of disagreeing with a mature adult whom they do not wish to confront.

It is common, in the trial of an adult, to hear, once the nursery slopes of cross-examination have been skied, the assertion ' you were never punched or kicked, as you have suggested, were you?’

It was precisely that approach which the Court is anxious to avoid. Such an approach risks confusion in the minds of the witness whose evidence was bound to take centre stage, and it is difficult to see how it can be helpful. We struggle to understand how the defendant's right to a fair trial was in any way compromised simply because Mr X was not allowed to ask the question ' Simon did not punch you in the way you suggest?”

“The overriding objective. The Criminal Procedure Rules objective is that criminal cases be dealt with justly. Dealing with a criminal case justly includes dealing with the case efficiently and expeditiously in ways that take account of the gravity of the offence alleged and the complexity of what is in issue.

In our collective experience the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated for what they are, not what they will, in the years ahead, grow to be.

There is undoubtedly a danger of a child witness wishing simply to please.

There is undoubtedly a danger of a child witness assenting to what is put rather than disagreeing during the questioning process in an endeavour to bring that process to a speedier conclusion. 

It is particularly important in the case of a child witness to keep a question short and simple, and even more important than it is with an adult witness to avoid questions which are rolled up and contain, inadvertently two or three questions at once. It is generally recognised that, particularly with child witnesses, short and untagged questions are best at eliciting the evidence. By untagged we mean questions that do not contain a statement of the answer which is sought. That said, when it comes to directly contradicting a particular statement and inviting the witness to face a directly contradictory suggestion, it may often be difficult to examine otherwise.

No doubt if a way can be found of engaging the witness to tell the story, and the content then differs from what had been said before, that will be a yet better indication that the original account is wrong. But that is difficult to achieve and indeed may itself have the disadvantage of prolonging the child's time giving evidence. Even then there may be no guarantee as to which account is the more reliable.

Most of the questions which produced the answers which were chiefly relied upon, unlike many others, constituted the putting of direct suggestions with an indication of the answer ' this happened didn't it '? Or “this didn't happen, did it?” The consequence of that is that it can be very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance.

At the same time the right of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken, when claiming that the defendant behaved indecently towards him or her, it should not be over problematic for the advocate to formulate short, simple questions, which put the essential elements of the defendant’s case to the witness, and fully ventilate before the jury the areas of evidence which bear on the child's credibility.

Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be revealed to the jury. However it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child, and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury, in any event, from different sources.

Notwithstanding some of the difficulties; when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes very young, and it should not take very lengthy cross examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or reciting a well-rehearsed untruthful script, learned by rote; or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension; and are therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence.

Clear limitations have to be imposed on the cross-examination of vulnerable young complainants.”

 

2. In CPD VI Trial, add new paragraph 26G.5:

26G.5    Following the judge’s direction to the jury, each member of the jury must be provided with a copy of the notice “Your Legal Responsibilities as a Juror”. This notice outlines what is required of the juror during and after their time on the jury. It is not a substitute for the judge’s direction, but is designed to reinforce what the judge has outlined in the direction. The court clerk should ensure a record is made of service of the notice. Jurors are advised to keep their copy of the notice with their summons and at the end of the trial, they are allowed to retain it for future information.

 

3. In CPD VI Trial, replace current 26Q.7 as below:

26Q.7    Where there are several counts (or alternative verdicts) left to the jury the above practice will, of course, need to be adapted to the circumstances.  The procedure will have to be repeated in respect of each count (or alternative verdict), the verdict being accepted in those cases where the jury are unanimous and the further direction being given in cases in which they are not unanimous. The judge may exercise discretion in deciding when to record the unanimous verdict; the circumstances of the case may dictate that it is more desirable to give the majority direction before the recording of any unanimous verdicts. If so, then instead of being asked about each count in turn, the jury should be asked “Have you reached verdicts upon which you are all agreed in respect of all defendants and/or all counts?”

 

4. In CPD XI Appeal, add new paragraph 39A.7:

39A.7    Where there is a renewed application for leave to appeal against a sentence imposed for an offence involving a fatality, the Crown Prosecution Service has indicated that it wishes to be represented at all sentence appeals in order to ensure that they are in a position, if appropriate, to make representations as to the impact of the offence upon the victim and their family. In those circumstances, if the court is minded to grant the application for leave to appeal the court should consider adjourning the hearing of the appeal to allow prosecution counsel to attend and for the victim’s family to be notified and attend if they so wish.     

 

5. In CPD X1 Other proceedings, replace existing paragraph 50D.3 as below:

50D.3    Where under CrimPR 46.2(1)(c) a legal representative withdraws from the case then that representative should satisfy him or herself that the defendant is aware of the time and date of the appeal hearing and of the need to attend, by live link if the court has so directed. If the legal representative has any reason to doubt that the defendant is so aware then he or she should promptly notify the Administrative Court Office.