Coming to a courtrooom near you

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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:

  • advocacy techniques and court processes must be adapted to enable the witness to give his or her best evidence. A departure (which may be radical) from traditional cross-examination will be necessary;
  • judges should direct what ground rules will apply before the day of the witness’s evidence, so that advocates’ questions can be properly prepared; and
  • advocates have a duty to abide by court rulings and to ensure that the client understands this (R v Farooqi and Others [2013] EWCA Crim 1649, paras 108, 109 and 114). If the advocate fails to comply with limitations imposed on cross- examination, the judge should give relevant directions to the jury and prevent further questioning that does not comply with the ground rules.

 

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 court may 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. This will be explained to the jury;
  • challenges to the witness’s evidence can be made in other ways, e.g. following discussion, the advocate or judge may point out important inconsistencies after (instead of during) the witness’s evidence. The judge should also remind the jury
    of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial;
  • judges should control repetitive questioning of a vulnerable witness, including in multi-defendant cases;
  • being accused of lying, particularly if repeated, may cause a vulnerable person to give inaccurate answers or to agree simply to bring questioning to an end. In some circumstances the judge will not permit the assertion to be put even once, but if
    such a challenge is justified, it should be addressed separately, in simple language, at the end of cross-examination;
  • judicial intervention will be triggered by a breach of the ground rules and by insulting vocabulary (e.g. calling the witness ‘wicked’); stereotypes (e.g. ‘‘It beggars belief that you remained overnight where you claim you were raped. You could have left
    that house at any time during the course of that evening”); and comment (e.g. “You’ve told this jury a complete pack of lies”). Lord Judge described assertion as “not true cross-examination” (Farooqi, para 113, above) and as “particularly damaging” to young witnesses (Half a Century of Change: The Evidence of Child Victims, 2013 Toulmin Lecture, King’s College London);
  • judges are entitled to impose reasonable time limits on cross-examination and are expected to challenge unrealistic estimates and to keep duration under review. Use of crossexamination as a technique to “wear down” the witness must not be permitted. Duration of cross-examination must not exceed what the witness can reasonably cope with, taking account of his or her age/intellectual development, with a total of two hours as the norm and half a court day at the outside. Specific witness needs may, however, require questioning to take place over more than one day;
  • advocates should not be permitted to range widely over the witness’s general history and supposed character to the extent that it assumes disproportionate importance over the central issues which the jury are to try/decide. The judge may direct that some matters be dealt with briefly in just a few questions.

 

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)

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Author details: 
Joyce Plotnikoff

A co-founder of The Advocate’s Gateway and co-author of its toolkits, Joyce contributed to the
Criminal Practice Directions and the Equal Treatment Bench Book.

Richard Woolfson

Richard is co-founder of The Advocate’s Gateway, co-author of its toolkits and contributor to the
Criminal Practice Directions and the Equal Treatment Bench Book.