Lecture by Tracy Ayling QC at the Inner Temple/ATC Vulnerable Witness Training Day

On 9th November 2014, Lady Justice Hallett in Lubemba and JP [2014] EWCA Crim 2064 at paragraph 38 re emphasised the case of R v Barker [2010] EWCA Crim 4 and quoted Lord Judge CJ at paragraph 42. The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries.

In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. 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 in 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 to 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, but 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 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.

This in a sense is nothing new. Lumbeba quotes the case of R v Barker [2010] EWCA Crim 4 well known as the baby P case and the case of. R v Wills [2011] EWCA Crim 1938. (They are in fact rather lost in Archbold). Lady Justice Hallett made the same remarks here at the Inner Temple in November 2013 at the speech she made to this course.

The Bar too has been aware of the need for specialist skills in the questioning of vulnerable witnesses for some time. In sections 1.3, 1.4, Advocacy Training Council Raising the Bar 2011) It states that the handling and questioning of vulnerable witnesses, victims and defendants is a specialist skill, and should be recognised as such by practitioners, judges, training providers and regulators… Advocates must have sufficient knowledge and training to identify where a commonly experienced vulnerability exists, and do more preparation with regard to vulnerable witnesses pre-trial’.

Despite all this, I have been feeling just recently as if I have been beating my head against a brick wall. I do ask myself what it takes before the world will listen. And in that, I include, Judges, Prosecution and defence counsel, the CPS and defence solicitors.

Dealing with vulnerable witnesses is different from the run of the mill and there are procedures in place to deal with them. You just have to know about them. I say this because of two recent events. I will anonomyse them.

• When dealing with 5 year old complainants who were 3 when they made the allegation, the Crown required defence counsel to put the defence case to the witnesses in cross examination. When it was pointed out that this was unnecessary, crown counsel argued the matter before the Judge. Luckily the Judge had done his training, had watched the DVD and understood that the case could be put to the mothers of the children.
• When dealing with a case involving vulnerable witnesses and a defendant who was not fit to plead, two things happened. First, the Judge wanted to crack on” despite not having the correct reports from 2 psychiatrists for the defendant, because the girls were present. When on the day of trial a mini ground rules hearing was held, defence counsel wrote out the cross examination of the girl complainants, and the crown suggested that these were matters that need not be put, Defence counsel took what can only be described as umbridge, that they had been ambushed” by the crown. Certainly in this case, although 3 different, senior prosecutors had attended on PCMH and pre trial hearings, there had never been any Ground Rules hearing.

And we feel, those of us involved in the training of Advocates that now it is time for the profession to take the lead in recognising the need for a change in approach and therefore the need to train our own. Judges too have training but it is the advocates who must raise the issues and set in train the processes necessary for the young and vulnerable.

For over 20 years in the UK, we have been training our pupils, new practitioners and junior barristers in essential advocacy skills such as witness handling, submission advocacy, expert witnesses and the like. This training has reinforced the essential principles of cross-examination – closed questions / assertion questions / tag questions and the like.

Vulnerable witness training has been available for young practitioners at Keble since 2011. Last year we started this course and in doing so we have built on the tried and tested methods of advocacy training. Training, as you will see involves not only some of us talking but practical advocacy training sessions in break out groups where practitioners get to have a go at putting these new skills into practice.

We introduced the idea of using actors to play the witnesses – because we realised that there needed to be that element of the unexpected” and that practitioners needed to have as genuine an experience as possible in order to work out for themselves what works and what doesn’t.

And there are essential skills we try to teach. I will come to those and Sarah Clarke will explain later how we are going to assess the advocacy.

So please can I start by talking about pre trial preparation and the Ground rules hearing.

Preparation. As HHJ Lynch said last year, Preparation, preparation, preparation. And yes I know what you are going to say. Get real. The brief comes in at 6pm the night before, the clerks have no idea where its come from, who had it first, it might have been in-house, and nothing has been done. I know its tough. But cases like this are normally with the advocate in advance and even if it is a return, the original holder of the brief should have prepared it.

Prosecutors should make early decisions on whether a witness is vulnerable. If they are, what steps follow? Intermediaries? Medical evidence? Special measures. All these require advance notification of the court and the defence. There is no substitute for watching the ABE. Reading transcripts is never the same. Judges are now required to watch the DVD pre Ground Rules hearing so you must do too. Please remember also that vulnerability attaches to the witness and not to the offence. There must be some proper basis for putting a witness forward as vulnerable.

You now have Lubemba. Paragraph 42 amongst others.

The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process. To that end, judges are taught, in accordance with the Criminal Practice Directions, that it is best practice to hold hearings in advance of the trial to ensure the smooth running of the trial, to give any special measures directions and to set the ground rules for the treatment of a vulnerable witness. We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances. If there are any doubts on how to proceed, guidance should be sought from those who have the responsibility for looking after the witness and or an expert.”

My own view is that cross-examination should be written out. With a DVD ABE, the topics you wish to cross examine on are obvious. You should discard topics which can be dealt with with someone else. For example. No child or vulnerable witness has a hope of answering the question Mummy told you to say that didn’t she” its arguable it doesn’t need to be asked at all. Such matters can be put to Mummy. There has been much debate recently as to where the concept of putting the case has come from, It has been said to be out of politeness to the witness. It gives them the opportunity to refute any suggestions. (Read the Practice Direction incorporated in Lubemba (the link in the Judgment is incorrect)) However, in cases such as the one we are dealing with today, it is unnecessary. So preparation includes being ready with your xx questions for the PCMH and Ground Rules hearing.

It is not rocket science. Witnesses who are vulnerable by reason of age or disability automatically trigger a Ground Rules hearing. Lady Justice Hallett says save in exceptional circumstances. It is on the Advocacy gateway. And the toolkits are there to assist you. Toolkit 1 © has it all mapped out for you. You all should have watched the advocacy gateway video. It’s a noddy’s guide. It even has a demonstration to show you how one works. I am not sure why the Ground Rules hearing has not made its way to the PCMH form but it should be part of your contemplations when dealing with a case where a witness is vulnerable.

Be prepared to bring up the topic of a ground rules hearing when prosecuting. Do you need an intermediary? What are the timetables for the witnesses court visits. How soon can the case be heard?

When defending ask yourself if cross examination is really necessary. If it is, as I say, be prepared with your cross-examination questions. Understand the language being used. When an intermediary says no tag questions” be prepared to write out your cross examination accordingly. Be prepared with your Defence, preferably the Defence statement.

The Defence speech to the Jury in the Advocacy Gateway DVD. This is a very useful tool. When making your speech to the Jury, if you are allowed one by the Judge, after your cross- examination of the complainant, it is useful to be able to base it on your defence case. Saw it done in the DVD. Very important that you get a defence speech in. For example: As your honour knows, we have changed the way in which we cross examine witnesses these days. I have not put my case to the witness. The defendant’s case is that…”

Know your terms of reference. What has the intermediary said in the report that you don’t understand? Have you fully understood what it says? For example: What is a tag question?

Most barristers cross-examine by saying for example You like John, don’t you?” It is the addition of don’t you?” which makes it a tag question. More confusing: you went upstairs, didn’t you?” Again, it is the words didn’t you?” which makes the question confusing for the vulnerable. Why is it confusing? Because the witness, who has difficulty understanding, thinks didn’t you?” means I didn’t”. It is too linguistically complex and too powerfully suggestive for the young and vulnerable to understand.

No tag questions: Not in every case. We thought it was the right way to go on this training day so that you have the restriction imposed on you.

Lets hear it for the defendant.

Those of you defending are going to have some trouble with the defendant. It not easy but it’s a matter of handling and you are going to have to take him with you. You may get instructions like, she’s not as stupid, vulnerable or simple as she seems. She’s a tart, I want you to rip her to bits. You know the sort of thing. My practice is to explain to the defendant that these rules actually assist. There is nothing worse than cross examining in a robust manner which is not understood by the complainant. Somehow the defendant takes on the persona of his counsel and if I appear like the Wicked witch of the West, it will do my client no good at all. Confusing a child witness does no good as it frustrates the Jury. Save the pyrotechnics for the adults and for comment later. I promise you it does work.

On the day and cross examination.

Rapport Building: There needs to be some, but don’t overdo it, there is no point trying to ingratiate yourself with a witness, it will look false to the witness and the jury / tribunal of fact. I hope our demonstration will show you how its done. “Hello Jennifer, do you want me to call you Jennifer or Jenny?” I’m going to ask you some questions about your step dad. “What name do you call him – Jim? Shall we call him Jim?”

And please, no gooey voices. You would be surprised how many people do. Ask the shortest simplest questions possible, in the shortest possible time and in the simplest possible order.

Signposting: A perfectly acceptable way of cross examining. eg I am going to ask you some questions about your family now – is critically important to ensure that the witness and the court is clear about what you are asking.

Short simple questions using the simplest language possible and the shortest number of words you can. Eg: rather than: If the lights were off and it was dark, you could not have seen that it was Jim in your bedroom could you?” Try: You said it was night time? “Were the lights off?” Was it dark in your bedroom?” Could you see anyone in the dark?”

One point per question (one idea at a time) ONLY eg: instead of, If you were on the top bunk and it was dark, you could not have seen what was happening on the bottom bunk could you?” try:Have you got a bunk bed in your bedroom?Do you sleep on the top bunk?And your sister sleeps on the bottom bunk? When you went to bed on Christmas Eve did your mum close the curtains? Did your mum turn off the light? Was it dark in your bedroom? Did you stay in your bed – on the top bunk? Did your sister stay on the bottom bunk? Could you see your sister in her bottom bunk?

Chronological structure – start at the beginning of the story and move through to the end. Child witnesses and witnesses with many other types of vulnerability are confused by time. Dating of events and timelines may therefore be difficult not just for children but also vulnerable witnesses. (I’ve just done a case where the child said about any event in the past that it happened last Tuesday whether that was yesterday, last week or a month ago) So instead of, I want to ask you about what happened when you were six”, use landmarks that the witness uses themselves eg: the time when we lived in the big house” or the time when I shared a room with Jenny”.