England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
Mr Recorder Curran
20157297

		Royal Courts of Justice Strand, London, WC2A 2LL
		18.5.2017

Reporting Restrictions apply to this case

Lord Justice Simon:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case.

Introduction

2. This appeal concerns a trial judge's assessment during the course of giving evidence that a witness should be treated as vulnerable, and the directions that he then made as to how cross-examination should continue.
3. On 4 August 2016, the appellant (now aged 17) was convicted at Crown Court at Chester (before Mr Recorder Curran and a jury) of 3 counts of Assault by Penetration contrary to s.2 of the Sexual Offences Act 2003.
4. On 3 October, he was sentenced to concurrent terms of Youth Detention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000. A Sexual Harm Prevention Order was also made which does not give rise to any issue on this appeal.
5. He appealed against conviction with the leave of the Single Judge, who referred an application for leave to appeal against sentence to the Full Court. At the conclusion of the argument we announced that the appeal against conviction would be dismissed; and these are our reasons. We also granted leave to appeal against the sentence and allowed the appeal in a judgment given at the time.
6. Mr Huw Edwards appeared for the appellant. Mr Owen Edwards appeared for the prosecution, as they did at trial.

The background

7. The complainant, NC (born on 24 March 1998) was aged 15½ years at the date of the first allegation. She was 18 years old at the time of trial. She lived at home with her parents and a number of siblings, including the appellant who was her younger brother by approximately 15 months. The family lived in a six-bedroom house and she had her own double bedroom. On 9 June 2015, she gave an ABE interview in which she alleged that the appellant had assaulted her on three separate occasions by penetrating her vagina with his fingers. The circumstances in which she came to make the allegation, although investigated at trial, are not material to the present appeal.
8. The Prosecution case was that NC's account was true and reliable. The Defence case was that the allegations were false and the appellant had not sexually assaulted NC in any way. The appellant also suggested that NC's allegations were motivated by jealousy of him. The issue for the jury was whether they were sure that NC had given a truthful and reliable account.
9. In her ABE interview, NC referred to the three incidents that were charged as counts 1-3 on the indictment. She said that up until Christmas 2013 she had a good relationship with the appellant.
10. The first incident (count 1) occurred quite late on 24 December 2013. She was in bed with her youngest sister when the appellant came into the room and, at his mother's request, took her sister to her own bedroom, before returning and getting into bed with her. He started to grab her. She tried to avoid this and, since she was quite scared, pretended to be asleep. He tried to undress her, first unzipping and removing her 'onesie' and then undoing her bra strap. He rubbed his hands up and down her body whilst saying to her, 'Ssh, it's okay'. He sucked, kissed, and squeezed her breasts. He then placed his hands inside her knickers and inserted his finger or fingers into her vagina which hurt her. Their father called him, and he re-dressed her and went downstairs. During the incident, she froze and found herself unable to call out or do anything else to prevent the assault, other than moving away and holding onto her knickers. The incident lasted for about one minute in total.
11. She did not tell anyone of the incident. Nothing of that nature had ever happened before and it was completely out of the blue. There had been one previous incident on the couch when she thought that he had squeezed her bottom but she had put that down to her own overactive thoughts. He had never made any sexual comments towards her.
12. The second incident (count 2) occurred in May or June of 2014. During the day, she was feeling unwell and was in bed. The appellant came into her room saying that he was tired. He placed his hands down her pants whilst she was on the bed. He attempted to pull her pants down and, although she tried to hold onto them to prevent him, he eventually succeeded and then inserted his fingers inside her vagina.
13. She tried calling out to her mother but no sound came out. He undid her bra and sucked and rubbed her breasts. She turned herself over in bed. She was shaking. He kept telling her to stop shaking but she could not help it. He took out his penis and rubbed it up and down her back. She did not know whether it was erect or flaccid but it felt a bit wet. She asked him if it felt good to be picking on her. He said he was sorry and left the room. The incident lasted about 3 to 4 minutes. Once again, she did not tell anyone at the time about the incident.
14. The final incident (count 3) occurred on 26 December 2014. At about 5.00 pm she was lying in bed as she was tired. The appellant was due to leave for work with his father but instead came up to her room and got into bed with her. He started to undress her. She grabbed her clothes and refused to let go. He grabbed her breasts and starting grabbing at her vagina over her clothing. She told him to leave her alone and go. He pulled down her pants, squeezed her breasts and kissed her. She remembered her father shouting for him and also another brother shouting something as he ran past the closed bedroom door. Despite her attempts to prevent him the appellant again inserted his fingers into her vagina. Again, she wanted to shout out but found herself unable to. The whole incident lasted about four minutes.
15. She finally disclosed what had happened to her mother at the end of 2014 or beginning of 2015. Her mother had said that she seemed to be acting funny and as if she hated the appellant. She told her mother that he had been undressing her and touching her, and how it had been affecting her. Her mother seemed to be understanding and told her father. The appellant was confronted by them but denied the allegations; and the family tried to deal with the matter by reducing the contact between NC and the appellant.

Cross-examination

16. During the afternoon of Monday 1 August 2016, Mr Huw Edwards cross-examined NC about this account. She denied feeling left out of the family. She said she had told her mother about the first incident but not the later incidents. She did not want to make any allegation to the police at that time because of her own mental health. He then asked her specific questions about the first incident.
17. She said she could not remember how she was lying when the appellant unclipped her bra but did not accept that she would have to have been facing away from him. She accepted that an easy way to stop it happening would have been to roll onto her back but she could not remember whether this was something she did. When the appellant took off her 'onesie' he had pulled it down from the shoulder and then pulled out her arm. When asked if she tried to stop him she said that she had felt numb and so could not really do anything. She just froze. She moved a few times and tried to hold onto her clothes but generally she froze.
18. At this point she became visibly distressed and asked for a break.
19. The recorder agreed to this and told the jury that when the witness was feeling better the cross-examination would continue. In the absence of the jury he told the witness that, if she wanted 'a proper break, even overnight' that would be fine. NC then left court.

The discussion in the absence of the jury and the witness

20. The recorder then raised his concerns with counsel. He noted that there had not been a ground rules hearing in the case and that in these circumstances it was appropriate for him to make an assessment as the case unfolded.

I appreciate the witness is 17 (sic) years of age and on the face of it a mature and articulate young woman, and so far I can see has no difficulty with the questions about what happened when the police arrived, entirely proper, but I am concerned about the questioning in relation to the detail of what is alleged to have happened since the defence in this case is that nothing happened at all … or 'I wasn't there at all'.

21. The recorder's concern was that the witness was being taken through the sort of detail that was making her re-live what she said had occurred and making her upset.
22. At this point the focus of the discussion was the cross-examination about how NC said the appellant had taken her bra off during the first incident. Mr Huw Edwards responded:

… the defendant … by saying it is false, says that this is a fabrication and so the mechanics of how these things would happen are very pertinent.

23. The recorder expressed the view that the 'mechanics' were not really the issue.
24. The defence then asked for time to consider the recorder's suggestion that the cross-examination should be confined and that the defence should set out the sort of questions that would be asked.
25. Mr Owen Edwards (for the Prosecution) set out his understanding that the defence was going into more detail in relation to the first incident and that in relation to the second and third incident the points would not need to be repeated.
26. The recorder said that he would like to see the form of questions in advance rather than have to rule on them in front of the jury. He observed that a witness might become vulnerable while giving evidence. He could see that NC was having trouble answering the questions not because she could not say something, but because she was deeply upset by them. He wanted to guard against her being asked questions of detail that were 'just speculation' rather than relevant questions about the incident; and that 'speculation' might be making her re-live the finer details of what had happened. He also noted that the Defence Statement had not raised the point that what she had described as happening was physically impossible.
27. Mr Huw Edwards repeated that NC's account was being tested with a view to suggesting that it was fictitious. He submitted that it was not normal for questions to be prepared for the court's consideration before they were asked. There was no intermediary report commenting on the need for that and the witness had not been regarded as vulnerable before the cross-examination began, although he accepted that the position of a witness could change.
28. In answer to his request, the recorder made clear that he would direct the jury in respect of truncated questioning. The recorder then adjourned the case overnight for counsel to formulate his questions.
29. By the following morning (Tuesday 2 August) Mr Huw Edwards had prepared a list of questions. These were the sort of questions which might be expected where the defence was that none of the incidents described by NC had in fact occurred:

What did you do to stop him? Did you shout out to anyone in the house?

30. There is no transcript of this part of the evidence, but we were told by both counsel that NC had regained her composure and answered the questions that were put to her without further signs of distress.

The rest of the evidence

31. In respect of the first incident NC accepted that she did not shout out and did not recall asking the appellant to get out of her room. She did not think of trying to fight him. She tried to roll around but he was a big young man and she was numb. She did not try to get out of the room. In relation to the second incident, she agreed that she did not hit the appellant or shout at him, adding that she did not think of saying anything to anyone about the incident, not least because the appellant could be quite violent. Again, she agreed that during the third incident, she did not shout out, hit the appellant, try to push him away or try to leave the room.
32. NC's friend S gave evidence that in February 2015, NC had told her in the school library, during a period when she appeared quite stressed, that the appellant had abused her by putting his hands down her pants on the Boxing Day just gone. She had asked her whether he had done anything else and she said, 'no', and did not go into any further detail.
33. The appellant gave evidence in his own defence. He said that people would be running all over the house during the day, and that there was not much privacy or opportunity to engage in secret sexual activity. Someone could have come along at any time. It was common for the children in the family to be in their rooms and there was a rule that they had to knock on a bedroom door before entering. During the day, he would be at school and during the evening everyone would be in the house. He said he had a good relationship with NC until he was about 9 or 10 and she was 10 or 11. After that time she hardly spoke to him, would have a 'go' at him all the time and would try to get him into trouble by making up allegations which caused him to have to explain himself to his parents. This all happened before the date of the first alleged incident. She would also fall out with others, and pick on another of her siblings. She was an attention-seeker seeing problems where there were none and telling lies about others. There were different problems and arguments every week. When he was 14½ he was at school but also very busy after school, working for food outlets. He worked with his father doing deliveries on Thursday to Saturday.
34. So far as count 1 was concerned, he was at work on Christmas Eve of 2013. He accepted that there was an occasion on which he went into NC's room to move his younger sister from NC's bed into her own bed before his father shouted at him from downstairs.
35. He often worked between 5 and 11pm five to six days a week. He would be at home for about 2 hours between school and going out to work. There was no occasion on which, between 5 and 6pm during April to June 2014, he got into bed with NC and sexually abused her (count 2).
36. On Boxing Day 2014 between 5 and 5.30pm he would have been getting ready for work. He recalled that he was running late and his father told him to hurry up. He had a shower and went and sat in the living room. Before leaving he went into his own room to pick up his shoes and socks. He did not go into NC's bedroom. He did not return to the house until 11pm to midnight when he went to bed. He did not spend 4 minutes in NC's room abusing her (count 3).
37. He denied that he had ever gone into NC's bedroom, undressed her, and sexually assaulted her in the manner alleged. He had no sexual interest in her.

The summing-up

38. When it came to the summing up the recorder specifically addressed the issue of the break in NC's evidence.

In this case, as you know, the defendant says it did not happen, nothing happened and Mr. Edwards in his cross-examination was on Monday afternoon examining with some detail what was alleged to have happened in the room even though the defendant says that he was not there. He was perfectly entitled to test the evidence as he did and I shall remind you when I summarise the evidence of the defendant what it was that Mr. Edwards was seeking to establish when he was cross-examining on that Monday afternoon, but let me make it quite clear, in coming to any assessment as to the impact of any questions on a witness I am not saying in any way whatsoever that the witness was giving truthful evidence to you. My assessment is simply this, that if the witness had been abused in the way that she claimed then there would have been a risk that she would have been suffering further trauma and in those circumstances a judge is perfectly entitled to review how cross-examination takes place and, as I shall remind you later, Mr. Edwards the next day, in a perfectly proper way, continued his cross-examination making the points perfectly properly.

39. Later in the summing-up the recorder returned to the cross-examination.

Her evidence continued on the Tuesday and when she clearly felt more able to give evidenc, Mr. Edwards on behalf of [the appellant] approached his cross-examination in a much more sensitive way taking account of the witness's obvious upset on the Monday afternoon. His approach was entirely proper, it is not regarded as appropriate to confront or upset witnesses particularly those who may be vulnerable. That approach is not sanctioned easily. Mr. Edwards's questions on Tuesday were perfectly proper and acceptable and he made it quite clear in his questions that he was challenging every aspect of her case and you will appreciate that a witness … being upset in the witness box does not mean to say they're telling the truth; and the position is of course, so far as Mr. Edwards is concerned, that he was right in putting his case to her.

40. It might have been better not to have said that the cross-examination was approached 'in a very much more sensitive way', since it suggested that the previous cross-examination had been insensitive. In our view there is no justifiable criticism to be made of Mr Huw Edwards at any point of his conduct of the defence; and the recorder made clear that the change of approach to questioning was the result of the witness's 'obvious upset' and not impropriety in the questioning.

The grounds of appeal and the argument

41. In the grounds of appeal two points are made in support of a submission that the convictions are unsafe. First, Mr Huw Edwards argued that NC was not vulnerable and it was therefore wrong to require the defence to prepare a list of questions for cross-examination. Secondly, he submitted that recorder was also wrong to prevent the defence from asking questions of NC about the detail and physical possibility (or impossibility) of her account.
42. For the prosecution, Mr Owen Edwards submitted that the Judge was both entitled and correct to assess NC as a vulnerable witness given her age (just over 18 when giving evidence), the nature and circumstances of the offending, and her visible distress. Such distress was likely to diminish the quality of her evidence and thus she was entitled to assistance under s.17 Youth Justice and Criminal Evidence Act 1999. Furthermore and in any event, no significant restriction was placed upon cross-examination. Although it had not been inappropriate, the recorder was entitled to confine the questioning about the 'mechanics' of what she said had happened. No objection was taken to any of the questions in the list subsequently prepared by defence counsel, and the defence was able to make its points about the 'mechanics' of the offence in their closing speech.

Discussion

43. We start with a few preliminary and general points:
44. First, in our view the recorder was wrong to characterise the questions being asked in cross-examination as being objectionable because they were 'speculative' or because they had not been foreshadowed in the Defence Statement. The defence case may be a denial that an event (or in this case, the offences) described by a witness took place. The defence is entitled to test the truth and accuracy of prosecution evidence by questions which test their likelihood. Cross-examination of what the recorder described as the 'mechanics' of the how something happened may lead a jury to conclude that it did not happen, or may not have happened, in the way described by the witness. In our judgment such a challenge does not have to be specifically pre-figured in a Defence Statement provided the Defence Statement otherwise complies with s.6A of the Criminal Procedure and Investigation Act 1996.
45. Secondly, there are now a number of statutory provisions, Criminal Procedure Rules and Practice Directions directed to identifying vulnerable witnesses and enabling them to give the best evidence they can. It is unnecessary to set these out in detail in this judgment since they are conveniently summarised in Blackstone 2017 at 19-48 and Archbold 2017 at 8-217, see also Wills (Practice Note) [2012] 1 Cr App R 16.
46. CPD1 3D identifies people in court who may be 'vulnerable'. These include those under the age of 18 and those with specified disabilities, but may also include others 'who are likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case'. CPD1 3E refers to 'Ground Rules Hearings to plan the questioning of a Vulnerable Witness or Defendant.'
47. CPD1 3E.1 provides:

The judiciary is responsible for controlling questioning. Over-rigorous or repetitive cross-examination of a child or vulnerable witness should be stopped. Intervention by the judge … is minimised if questioning, taking account of the individual's communication needs, is discussed in advance and ground rules are agreed and adhered to.

48. CPD1 3E.2-6 includes detailed provisions in relation to 'ground rules' for (among other things) cross-examination. CPD1 3E.4 sets out:

All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination. The form and extent of appropriate cross-examination will vary from case to case. For adult non-vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and impose restrictions on the advocate 'putting his case' where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them. If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance.

See also Lumemba [2015] 1 WLR 1579 [38]-[45] where the court made clear at [44]:

The trial judge is responsible for controlling, questioning and ensuring that vulnerable witnesses and defendants are enabled to give the best evidence they can.

49. Thirdly, in addition to the provisions dealing with vulnerable witnesses, the court has the more general overriding objective of dealing with cases justly and in accordance with the principles set out in CPR Rule 1.1(2). CPR Rule 3.2 sets out how the court may achieve this by active case management; and CPR Rule 3.11(d), which deals with the conduct of a trial, includes the power to limit examination, cross-examination or re-examination of a witness.
50. Fourthly, the exercise of the court's powers and the proper consideration of the advocate's duties in relation to vulnerable witnesses generally presupposes that these are addressed at an early stage, sometimes with professional assistance. Thus, CPR Rule 3.2(3) requires the court to give directions which are appropriate to the needs of the case as early as possible; and Rule 3.5 sets out the court's case management powers, which include giving directions on its own initiative or an application by a party.
51. Fifthly the court has the power to restrain lengthy and immaterial cross-examination which has the effect of unnecessarily prolonging proceedings, see for example Simmonds and others (1967) 51 Cr App R 316, 320 and Kalia (1974) 60 Cr App R 200, 209-210, and the reference to Mechanical & General Invention Co Ltd v. Austin and Austin Motor Co [1935] AC 346, 349. In addition, advocates are under a professional duty to consider not only whether a proposed question is legally permissible but whether it is ethically justified, and should not make statements or ask questions merely to insult, humiliate or annoy a witness (see for example, The Bar Standard Board Handbook r.C7)
52. Having set out those general points we turn to the facts of this case.
53. Since NC was a complainant in respect of a sexual offence she was 'eligible for assistance' (see s.17(4) of the Youth Justice and Criminal Evidence Act 1999) and special measures were in place for cross-examination to take place behind screens. However, NC was not regarded as a vulnerable witness up to point at which cross-examination began, Furthermore, as the recorder observed, there had been no 'Ground Rules Hearing' to address the extent of cross-examination. NC had appeared to be a mature and articulate witness.
54. The recorder concluded that NC had become vulnerable during the course of giving evidence. While we accept that a witness's vulnerability may only become apparent when giving evidence, the difficulty in making such an assessment at this stage is that a judge will be acting without the advantages of time to reflect and any prior agreement as to Ground Rules (see CPD1 3E.1 above).
55. It is clear that, at the point NC asked for a break, the recorder had become concerned about her ability to answer the questions that she was being asked. In those circumstances, he could not simply ignore the position of the witness.
56. In the light of his concerns we are clear that the better course would have been to adjourn the case until the following day in order to consider whether she might return to give evidence in a more composed state of mind. This was in fact what he had told the witness he was going to do before she left court on the Monday afternoon. Very often a break will enable a witness to return to court refreshed and better able to give evidence.
57. He could also have directed the defence to prepare a provisional list of questions to be asked in case he concluded that this was the appropriate course.
58. In deciding on the right course of action when a witness becomes distressed while giving evidence, it is important for the court to hold a balance. On the one hand the court must bear in mind the importance of a witness being able to give the best evidence they can (see CPD1 3E.4) without being harassed by the form or nature of the questioning. On the other hand, it must also weigh in the balance the potentially conflicting interest of a defendant in being able properly to challenge a witness's account. There may be a number of reasons for signs of distress. Witnesses may find giving evidence in court (and reliving their experiences through their evidence) to be highly stressful. On the other hand, there may be a reason which might be said to favour the defence: a witness may have been caught out in a lie or may be apprehensive about being challenged in relation to an untruthful account given in evidence. Importantly in the present context, a witness exhibiting signs of distress is not necessarily to be treated as a vulnerable witness.
59. In our judgment the recorder elided the issues that arose. He concluded summarily that NC's distress meant that she was vulnerable and that consequently the cross-examination from that point should be confined.
60. While we accept that in a case where the issue arises suddenly and unexpectedly, the trial judge is in a better position than this court to assess the cause of distress and whether it means that a witness has become vulnerable, we were told by both counsel that NC 'was better' the next day. After a break in the court proceedings she no longer appeared distressed and was ready to continue with her evidence.
61. Furthermore, as already noted, it does not follow from a conclusion that a witness is vulnerable that the only course is to direct the form of the cross-examination. Advocates will be aware of the dangers of alienating a jury by the inappropriate tone or content of the questioning, and have a professional duty to treat witnesses with proper consideration; and judges should be willing to intervene to prevent over-rigorous or repetitive questioning.
62. Rulings that the defence must set out in writing the questions to be asked will be the norm in those cases that are, and will become, subject to the 'section 28' procedure under the Youth Justice and Criminal Evidence Act 1999. However, in the generality of cases the court should bear in mind the disadvantages to the defence in prescribing the form of questioning, not least because it may inhibit the development of cross-examination in response to a particular answer. This is particularly so if the ruling is made during the course of cross-examination.
63. This was not a case of a witness who had difficulty in understanding the questions; and we consider that requiring an advocate to prepare a list of questions for the court's approval during the course of cross-examination in such a case should be regarded as an exceptional course. The present instance (where there was no impropriety nor any likely confusion as to the form of the questioning) was not such a case.
64. We would add that Mr Owen Edwards's suggestion during the course of argument before us, that the defence difficulties might be overcome in an appropriate case by the advocate seeking leave to depart from a prescribed form of questions, is not an adequate answer and is likely to create as many problems for proper trial management as it might solve.
65. Having said all this, the fact remains that this court is at a disadvantage compared with the trial judge in forming a view as to whether NC had become vulnerable. We have seen only part of the transcript of the cross-examination and this is no substitute for seeing and hearing the witness at the time.

Conclusion

66. Despite our misgivings as to the course adopted, we are not persuaded that it resulted in unfairness to the appellant. The defence had cross-examined on the details or 'mechanics' of the first incident, and was able to ask similar questions from the list of questions in relation to the other two incidents. The points in relation to the details or 'mechanics' of the second and third incidents were, in any event, largely matters for comment in the defence closing speech. As noted above, the recorder made clear that the defence was entitled to, and did in fact, challenge every aspect of NC's account.
67. We therefore concluded that the course adopted by the recorder did not result in unfairness and that the convictions are safe. Accordingly, the appeal was dismissed.