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Joyce Plotnikoff and Richard Woolfson explain the new ground rules for counsel and the recently launched advocacy toolkits designed to help.
Counsel will need to “up their game” when dealing with vulnerability at court, thanks to recent guidance which requires greater fl exibility and advance planning. New Criminal Procedure Rule 3.8(4)(d) requires courts to take “every reasonable step” to facilitate the participation of witnesses and defendants. This includes ground rules hearings (GRHs), at which the judge, advocates – and intermediary, if any – discuss how a vulnerable person should be questioned, or how a vulnerable defendant can be enabled to participate effectively in the trial. Decision-making at the GRH is given a high profile in the Lord Chief Justice’s Criminal Practice Direction 3E and the Judicial College’s Equal Treatment Bench Book chapter 5, both issued this autumn. While GRHs have been obligatory in intermediary trials since Part F.1 Application for a Special Measures Direction was introduced in 2010, the new guidance emphasises that a GRH should be scheduled in any case involving a vulnerable witness or defendant, whether or not an intermediary takes part in the trial.
The new GRH agenda strengthens judicial case management and control of cross-examination through use of ground rules. (In addition, the new Code of Practice for Victims of Crime (para 3.3, October 2013) reinforces the prosecutors’ responsibility to seek the court’s intervention where cross-examination is inappropriate or too aggressive – as one QC puts it, ‘Nudge the judge’.)
New ground rules hearing policies make clear that:
These requirements are explained in Ground rules hearings: Planning to question a vulnerable person or someone with communication needs, one of 11 toolkits on The Advocate’s Gateway
(www.theadvocatesgateway.org). These toolkits bring together policy, research, case law and practice examples concerning the questioning of vulnerable witnesses and defendants. Judges are increasingly likely to ask advocates to refer to the toolkits in case preparation, as recommended by the Criminal Practice Direction which describes them as “best practice” (para 3D.7).
The ground rules toolkit sets out the following principles:
The new approach is demonstrated in A Question of Practice, a film developed in 2013 for the Criminal Bar Association and other organisations by Paul Mendelle QC and Lesley Bates. It discusses modifications to cross-examination to accommodate the needs of the vulnerable person, including alternatives to “putting your case”. This free film can be found on the Criminal Bar Association and Advocate’s Gateway websites.
Effective use of ground rules are now a central plank of judicial training. Compliance is expected from all barristers, of whatever Call or rank. Judge Rook QC, who appears in the film, has lamented that one of his best lines ended up on the cutting room floor. However, it accurately sums up the extent of the challenge set by the senior judiciary: ‘Old habits die hard – but die they must.’
The authors are currently working on a book about intermediaries, and would welcome your input (enquiries@lexiconlimited.co.uk).
Joyce Plotnikoff and Richard Woolfson Lexicon Limited (co-founders, www.theadvocatesgateway.org)
The new GRH agenda strengthens judicial case management and control of cross-examination through use of ground rules. (In addition, the new Code of Practice for Victims of Crime (para 3.3, October 2013) reinforces the prosecutors’ responsibility to seek the court’s intervention where cross-examination is inappropriate or too aggressive – as one QC puts it, ‘Nudge the judge’.)
New ground rules hearing policies make clear that:
These requirements are explained in Ground rules hearings: Planning to question a vulnerable person or someone with communication needs, one of 11 toolkits on The Advocate’s Gateway
(www.theadvocatesgateway.org). These toolkits bring together policy, research, case law and practice examples concerning the questioning of vulnerable witnesses and defendants. Judges are increasingly likely to ask advocates to refer to the toolkits in case preparation, as recommended by the Criminal Practice Direction which describes them as “best practice” (para 3D.7).
The ground rules toolkit sets out the following principles:
The new approach is demonstrated in A Question of Practice, a film developed in 2013 for the Criminal Bar Association and other organisations by Paul Mendelle QC and Lesley Bates. It discusses modifications to cross-examination to accommodate the needs of the vulnerable person, including alternatives to “putting your case”. This free film can be found on the Criminal Bar Association and Advocate’s Gateway websites.
Effective use of ground rules are now a central plank of judicial training. Compliance is expected from all barristers, of whatever Call or rank. Judge Rook QC, who appears in the film, has lamented that one of his best lines ended up on the cutting room floor. However, it accurately sums up the extent of the challenge set by the senior judiciary: ‘Old habits die hard – but die they must.’
The authors are currently working on a book about intermediaries, and would welcome your input (enquiries@lexiconlimited.co.uk).
Joyce Plotnikoff and Richard Woolfson Lexicon Limited (co-founders, www.theadvocatesgateway.org)
Joyce Plotnikoff and Richard Woolfson explain the new ground rules for counsel and the recently launched advocacy toolkits designed to help.
Counsel will need to “up their game” when dealing with vulnerability at court, thanks to recent guidance which requires greater fl exibility and advance planning. New Criminal Procedure Rule 3.8(4)(d) requires courts to take “every reasonable step” to facilitate the participation of witnesses and defendants. This includes ground rules hearings (GRHs), at which the judge, advocates – and intermediary, if any – discuss how a vulnerable person should be questioned, or how a vulnerable defendant can be enabled to participate effectively in the trial. Decision-making at the GRH is given a high profile in the Lord Chief Justice’s Criminal Practice Direction 3E and the Judicial College’s Equal Treatment Bench Book chapter 5, both issued this autumn. While GRHs have been obligatory in intermediary trials since Part F.1 Application for a Special Measures Direction was introduced in 2010, the new guidance emphasises that a GRH should be scheduled in any case involving a vulnerable witness or defendant, whether or not an intermediary takes part in the trial.
The Bar Council faces both opportunities and challenges on our key areas this year
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