Speaking with one voice – Case Management and Cross-examination of the Young and Vulnerable Witnesses

All of those who appear regularly in cases involving sexual offences in the Crown Court are now well-versed in the principles of special measures for young and vulnerable witnesses. Rare is the case where the complainant or important witness hasn’t been the subject of an ‘Achieving Best Evidence’ (‘ABE’) video interview. Screens or, more frequently, live video-links are the norm. The use of intermediaries is commonplace. The ‘toolkits’ of the Advocate’s Gateway: http://www.theadvocatesgateway.org/toolkits are essential reading for counsel and solicitors who prosecute and defend in such cases.

The Section 28 Pilot:

Court users at Leeds have been undertaking pre-recorded cross-examination as part of the Section 28 pilot scheme for some time now and have been getting to grips with a whole new way of doing things when it comes to the questioning of young and vulnerable witnesses in court.

The passage of these measures into our system hasn’t always been a smooth one. The welcome from many has been distinctly frosty, particularly those raised on a more traditional approach to cross-examination before the jury where often lengthy and robust questioning was seen as an essential element of our adversarial system.

The early Ground Rules Hearings under the Section 28 pilot scheme were, in every sense, a ‘brave new world’ for many such advocates and made for, at times, ‘entertaining’ viewing as they saw their carefully crafted questions subjected to the judicial ‘red pen’.

But for all of the disquiet expressed by some, the increasing use of these measures and the re-examination of how we do things in such cases is merely a reflection of an increasing desire on the part of the courts to ensure evidence is received from the young and the vulnerable as quickly and effectively as possible.

Which brings us to another of the tools now being employed to reach that objective.

Cross Examination by a Single Advocate:

A recent ‘multi-defendant’ child-grooming case in which I was instructed saw the court flexing its case-management muscles in another relatively new direction, namely the identification of a single advocate to cover areas of common ground or interest amongst the various defendants when cross-examining a young and vulnerable witness.

Given the nature of the case, the trial Judge had been identified at an early stage and oversaw the early preparatory hearings. Advocates were required to identify areas of questioning, both factual and as to character, in some detail at an early stage. When the results of that exercise were collated, specific individuals were charged with covering the areas of ‘common ground’. Subsequent cross-examinations on behalf of the individual defendants were policed robustly and, whilst there was undoubtedly some hesitation and the occasional lapse into deviation, no repetition was tolerated.

Despite the misgivings of some, it worked. It meant that the complainant wasn’t called upon to give evidence for longer than was absolutely necessary. But it also ensured that all the matters the various defendants needed to be put were put.

And it reflected the direction of travel of the Court of Appeal in this area.

A Recent Court of Appeal Case:

The recent case of R v Jonas [2015] EWCA Crim 562 illustrates the point well. Jonas faced allegations of, inter alia, people trafficking for the purposes of sexual exploitation and controlling prostitution. Jonas and another man would procure young woman from Hungary and traffic them to London to work as prostitutes and to be party to sham marriages.

The complainant ‘AS’ was a Hungarian national who suggested that, prior to exploitation by Jonas and others in the United Kingdom, she had been ‘sold into slavery’ in Hungary.

Counsel for Jonas’s co-accused obtained the consent of the prosecution and the trial Judge to put a document before the jury that detailed AS’s considerable involvement with social services in Hungary. On its face it contained a series of inconsistencies regarding AS’s history and, as a result, the trial Judge acknowledged that a great deal of the material was potentially relevant to her credibility.

The Judge was concerned, however, to avoid unnecessary repetition of issues during cross-examination. Counsel assured the Judge that they were conscious of their obligations and indicated that they would share the topic areas amongst themselves. As a result of those assurances and having obtained estimates as to the approximate length of time questioning would take for each advocate, the Judge didn’t feel it necessary to impose a more structured timetable. Evidence-in-chief was lengthy as it involved the playing and translation of a number of pre-recorded video interviews. Cross-examination by counsel for the first defendant took a number of hours but was spread over a number of days.

As a result, when Jonas’s counsel came to cross-examine, the Judge sought to revisit the areas of questioning and the estimate as to their length. Following discussion with counsel, the Judge was not persuaded that further investigation was necessary in respect of a number of topics. In reaching her conclusions and limiting counsel to short questions on two discreet ‘back story’ areas (to be asked over the course of just 15 minutes), the Judge recognised that the complainant was particularly vulnerable given her background and that she was a foreign witness in English adversarial trial. Cross-examination would be permitted on the specific facts of the alleged offences.

The Judge was mindful of the need to ensure that whilst she was treated fairly the defendants would have a proper opportunity to challenge her evidence.

Amongst a number of complaints put before the Court of Appeal, Jonas’s counsel ‘took exception to the suggestion that in a multi handed trial with vulnerable witnesses, defence counsel should be treated as a group amongst whom topics and time should be divided. She believed that she was entitled to conduct her own independent cross-examination of whatever length she deemed necessary on behalf of the appellant. The restrictions placed on her, she argued, had an adverse effect on the presentation of the defence case to the jury. The result was that the appellant did not have the fair trial to which he was entitled. She accused the judge of being over-zealous in the use of her case management powers thereby overriding the appellant’s rights in order to give priority to the complainant’s rights’.

The Court of Appeal stated ‘our starting point must be the fact that the witness AS was vulnerable. She was given the benefit of special measures for a reason. She was likely to suffer fear or distress in giving evidence because of her own circumstances and or those relating to the case. At the plea and case management hearing, and at trial, counsel had been reminded of the necessity to avoid repetitive questioning on areas that were common to the defendants. The trial judge was therefore duty-bound to comply with the Criminal Procedure Rules and with the Criminal Practice Directions to ensure that the questioning of the witness was controlled. The court is required to take every reasonable step to encourage and facilitate the attendance of witnesses and to facilitate their participation. This includes enabling a witness to give their best evidence’.

Citing with approval the case of R v Lumbebo & Pooley [2014] EWCA Crim 2064, they held that ‘the judge has a duty to control questioning. Over-rigorous or repetitive cross-examination of a child or a vulnerable witness must be stopped. In a multi-handed trial the judge must ensure that the witness is treated fairly over all, and not asked questions on the same topics, to the same end, by each and every advocate. Advocates must accept that the courts will no longer allow them the freedom to conduct their own cross-examination where it involves simply repeating what others have asked before, or exploring precisely the same territory. For these purposes defence advocates will now be treated as a group and, if necessary, issues divided amongst them, provided, of course, there is no unfairness in so doing’.

The Court considered whether there had been unfairness to the appellant in the restrictions imposed upon cross-examination. They were of the firm conclusion that there had not. In their judgment, the Judge had ‘protected the witness from unnecessary and oppressive questioning, but not at the expense of a fair trial for the defendants’.

Summary:

This decision should come as no surprise to those who are charged with questioning the young and the vulnerable, particularly where there are a number of defendants. The real question will be whether the numerous measures now at the court’s disposal are rolled out further and wider.

Matthew Harding is a criminal law specialist and appears regularly in serious and complex sexual offence cases. See Matthew’s Profile.