It is the judge’s responsibility to make sure that the treatment and questioning of witnesses is fair. More than that, the criminal court is now “required to take ‘every reasonable step’ to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant” (CPD 3D.2 and CPR 3.8(4)(a) and (b)).
A line of recent Court of Appeal authorities, beginning with R v B  EWCA Crim 4, leave us in no doubt that cross-examination of vulnerable witnesses is a specialist skill requiring careful planning. The Criminal Practice Directions 2013 prescribe a ground rules hearing as part of that planning process (CPD 3E). The Criminal Procedure Rule Committee recently amended rules 3.9 and 3.13 so that at a Ground Rules Hearing the court may give directions for the appropriate treatment and questioning of, in particular, a vulnerable witness or vulnerable defendant.
The court must include the parties and the intermediary (if there is one) in the ground rules discussion. There may be directions about relieving a party of putting their case, the manner of questioning, the duration of questioning, the topics that may or may not be covered, allocations of questions amongst co-defendants and the use of communications aids. (CPR 3.9 (7))
The Court of Appeal endorsed the ground rules approach in October 2014:
“We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances...The ground rules hearing should cover, amongst other matters, the general care of the witness, if, when and where the witness is to be shown their video interview, when, where and how the parties (and the judge if identified) intend to introduce themselves to the witness, the length of questioning and frequency of breaks and the nature of the questions to be asked. So as to avoid any unfortunate misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance.” R v Lubemba  EWCA Crim 2064, para 43
In his Review of Efficiency in Criminal Proceedings Sir Brian Leveson recommended that “Ground Rules arrangements ought to be extended to all categories of ‘vulnerable’ witnesses” (para 267).
Curiously the “ACPO, CPS & HMCTS Protocol To Expedite Cases involving Witnesses Under 10 Years” (January 2015), despite its aim of helping very young witnesses to give evidence, states: “The Court should consider whether or not a ground rules hearing is necessary.” But it is not a case of “whether or not”. Lubemba (supported by CPD 3E.3) creates the presumption of a Ground Rules Hearing in vulnerable witness cases. A witness under ten is without doubt “vulnerable” and there should be a Ground Rules Hearing “save in very exceptional circumstances”. The Protocol does say that if there is a Ground Rules Hearing the procedure should follow the section 28 judicial procotol.
The section 28 pilot “Ground Rules Hearing Form” includes space for instance for counsel to set out their proposed questions and whether they seek a direction on “putting the case” to the witness. (For more information on “putting the case” see “Ground Rules Hearings and the Fair Treatment of Vulnerable People in Court”, March 2015, theadvocatesgateway.org)
Ground rules in operation in the Court of Appeal
The Court of Appeal adopted the ground rules approach in R v FA  EWCA Crim 209 – the first occasion that a vulnerable witness gave evidence with the assistance of an intermediary in the Court of Appeal.
The applicant FA had been convicted of a number of sexual offences, the jury having accepted the evidence of the complainant KK who had an IQ of between 55 and 69. The applicant appealed his conviction on the ground that it was unsafe as a consequence of fresh evidence; namely, a note had been produced signed by KK in which she retracted her allegation. In the circumstances the Court of Appeal felt that it needed to hear oral evidence from the person who produced the note and from KK.
In advance of the hearing the Court of Appeal made over 20 ground rules directions regarding the questioning of KK. KK’s original ABE (achieving best evidence) recorded interview would stand as her evidence in chief, she would give evidence by live link from the Central Criminal Court, questions would be supplied in advance to the parties and to KK’s intermediary and all questions would have a maximum of “five key words” and would be “in everyday language”. The ground rules were set by the court based on the recommendations in the intermediary report and with the agreement of the parties.
On the day of the hearing the applicant’s witnesses gave evidence first. Meanwhile KK was at the Central Criminal Court with the Witness Service and the intermediary. KK watched the recording of her ABE interview to refresh her memory. The live-link was checked before she gave evidence. The camera position was concentrated on counsel’s bench but since from the live link room the witness could also see part of the courtroom, the usher made sure that “reserved” seating signs were placed on the benches so that during cross-examination there would be no distractions taking place behind counsel. A piece of paper was also stuck over part of the part of the witness’s TV screen at the Central Criminal Court to block out the view of part of the courtroom behind counsel.
During KK’s evidence the note was read out to KK slowly and carefully. She said that she had only signed it because “she told me to, my mum”, para 29. The Court of Appeal found that KK had “not resiled from her account to the jury” and was “unshaken in her evidence that she did not say the words recorded in her name on the note. She was stalwart in her rejection of any withdrawal of her evidence and decisive in her account that, when she declined to lie, her mother urged her again so to do”, para 30. The defendant’s application failed.
Lady Justice Rafferty’s decision drew attention to the good practice demonstrated by the intermediary and counsel on both sides:
”Ms Kate Man, registered intermediary, Ms Smart for the applicant and Ms Lindop for the respondent Crown have worked as a team, the better to promote the interests of justice in the conduct of this case. It is clear they have had in mind not only the course of the hearing and the welfare of KK, but also the interests of the applicant himself. Questions to be put by Ms Smart to KK in cross-examination were reviewed by the registered intermediary, whose sensible expert suggestions were unhesitatingly adopted.”
What does this mean for practitioners?
In criminal cases cross-examination practices are changing. We know that:
- It is not merely desirable for the judiciary to control cross-examination, it is essential.
- Ground Rules Hearings are a sensible way of judges taking control in advance (as opposed to the unpredictable and often unsatisfactory ‘Let’s see how we get on’ approach).
- The intermediary for a vulnerable witness or defendant, where there is one, must be involved in the discussions about the ground rules.
- Counsel and the intermediary must follow the ground rules set by the judge.
- A collaborative approach to the planning of questioning may be directed.
The Advocate’s Gateway (theadvocatesgateway.org) includes toolkits to help counsel to plan to question a vulnerable person. Advocates should, however, bear in mind that toolkits are no substitute for an intermediary report providing specialist and particular advice on the vulnerable person’s communication abilities and needs; for example it would be wrong to assume that as long as it is not a “tag” question the child will be able to answer it, or to think that all witnesses with autism will be unable to make eye contact. As an adviser with an overriding duty to the court, the intermediary must impartially and transparently help everyone to communicate with the vulnerable person. Advocates should seek out their advice.
The Advocate’s Gateway includes new toolkits about intermediaries, Ground Rules Hearings and a Ground Rules Hearing Checklist. Ground Rules Hearings prior to questioning a vulnerable witness and at the start of the trial of vulnerable defendants have become commonplace, but will the ground rules approach become even more widely used? It is possible:
“In due course, consideration should be given to whether or not this [ground rules] approach may sensibly be extended to other areas of cross-examination in which it may take place (for example, with expert witnesses)” - Sir Brian Leveson (2015), Review of Efficiency in Criminal Proceedings at 267.
Contributor Penny Cooper
Co-creator and Chair of The Advocate’s Gateway theadvocatesgateway.org