A united approach

HHJ Simon Drew QC and Lynda Gibbs explain why the pan-profession s 28 and ‘advocacy and the vulnerable’ training – being delivered to over 14,000 criminal advocates over the next two years – heralds a sea change

Twenty-seven years ago, the Pigot Committee proposed a mechanism to allow for the whole of a young child’s evidence to take place out of court, in advance. 

A decade later, those proposals were incorporated into ss 16-33 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), which introduced special measures directions in case of vulnerable and intimidated witnesses. Unfortunately, not all of those provisions were then brought into force. In particular, although vulnerable witnesses could be interviewed in accordance with the Achieving Best Evidence (ABE) protocols when they made their complaint, and the recording of that interview could then be played at trial as the witness’s evidence-in-chief, the witness still had to attend at the trial, usually many months later, in order to be cross-examined. Thus one of the main purposes of the Pigot recommendations – taking the vulnerable witness’s evidence substantially in advance of the trial – was frustrated.

The pilot courts: s 28 achieves traction

It was not until December 2013 that s 28 of the YJCEA 1999, which provides for video-recorded cross-examination and re-examination, achieved partial ministerial traction when pilots were commissioned at Liverpool, Leeds and Kingston-upon-Thames Crown Courts. The cases were confined to s 16(1) of the YJCEA 1999, and further limited (if the qualification was age) to witnesses aged under 16. During the pilot period, 194 s 28 cases were sent to those pilot courts; the majority of those cases were sexual offences cases. The pilot scheme has been run at a time when the Court of Appeal, in a series of cases which culminated in the leading case of R v Lubemba [2014] EWCA Crim 2064, has made it clear that there needs to be a ‘sea-change’ in the approach to cross-examination taken by advocates, coupled with a much more interventionist role taken by the judiciary.

The pilot scheme is generally regarded as having been a success, in no small part due to the tenacity of the advocates and pioneering judges at those court centres. As a result, from January 2017, a new commencement order expands the availability of s 28 directions, in pilot courts, to include witnesses who are aged 16 or 17 at the time of the hearing.

National rollout

In summer 2016 Mike Penning, then Justice Minister, announced the long awaited and much hoped for national rollout of s 28 recorded cross-examinations, which was to be completed by the end of March 2017. That rollout has been partially delayed but it is now believed that the rollout in relation to s 16 witnesses has been put back until October/November 2017, and for s 17 witnesses until October/November 2018. As a result, s 28 will soon be available to all witnesses to whom the special measures provisions apply. That is a very broad spectrum of witnesses indeed, although it must be borne in mind that a s 28 direction can only be made where the witness has been ABE interviewed and the court has directed that the video should be admitted as the witness’s evidence-in-chief. Thus, how extensively these provisions will be used in practice remains to be seen; inevitably it is likely to be resource driven.

Judicial training programme

In response to the government’s announcement, the judiciary has embarked upon an intensive s 28 training programme. Judges will expect any advocate undertaking cases involving vulnerable witnesses or children to be familiar with the modern approach to questioning. Judicial training has drawn heavily on materials created for the Bar and this approach accords with the recommendation of Dame Joyce Plotnikoff that ‘s 28 training should coordinate with the rollout of pan-profession advocacy training on vulnerability; that programme draws heavily on lessons from s 28’ (Archbold Review). The judiciary has a responsibility to protect the interests of a vulnerable witness without, of course, undermining a defendant’s right to a fair trial. In Lubemba, the Court of Appeal considered what a trial judge might be expected to do to. Hallett LJ said:

‘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.’

It has been widely reported that sex offence cases now account for half of all Crown court work. Judicial sitting has increased to record numbers of days to deal with the increase in cases. To assist the newly trained judiciary with implementation of s 28, they have been supplied with and received training on the Judicial Protocol (Judiciary of England and Wales Judicial Protocol on the Implementation of s 28: prerecording of cross-examination and re-examination, September 2014) issued to the pilot courts and likely to be the basis of a new Criminal Practice Direction, and the pilot courts’ Guidance Note concerning ground rules hearings (HHJs Aubrey QC, Cahill QC and Tapping Draft Guidance Note for s 28 ground rules hearings at the Crown Court in Kingston, Leeds and Liverpool, September 2014).

Training for the profession

A Bar Council working group, including representatives from the Inns of Court College of Advocacy (ICCA), Inns, Circuits, The Law Society, Criminal Bar Association and Crown Prosecution Service, is overseeing the governance and implementation of the training. TheICCA has worked alongside HHJ Peter Rook QC and the pan-profession working group to create a suite of materials, embedded in which are a number of essential principles which underpin the developmentally acceptable approach to questioning of the vulnerable. Materials are now available on the ICCA website.

Every advocate wishing to be trained is required to undertake eight hours of online preparation including the drafting of three sets of questions for different vulnerable complainants. Stage two is a three-hour face-to-face training session looking at question construction and advocacy techniques. The third and final stage will be the viewing of four films via a specially created portal at the conclusion of which the participating delegate will be automatically accredited and his/her details will be sent to the Bar Council.

This training is specifically designed for any advocate who conducts cases involving vulnerable witnesses or defendants, and particularly for those advocates who undertake cases to which s 28 will apply. There has been a determined and collaborative approach to the development of training materials for both the profession and the judiciary relying on the same 20 Principles of Questioning which have been developed with the help of HHJ Sally Cahill QC, Professor Michael Lamb and Professor Jacqueline Wheatcroft.

This specialist training has already started with over 300 facilitators who will deliver training to over 14,000 criminal advocates over the next two years. Courses will be offered by Circuits, each of the four Inns, the CBA, the Law Society and the CPS.

Why the Bar has to adapt

There is still no full government clearance for the national rollout of s 28. The Ministry of Justice has not yet confirmed that specialist advocacy training for sexual offences cases involving vulnerable witnesses in publicly funded cases will become mandatory. Nevertheless, most members of the profession now recognise that there is no longer any place for the traditional robust cross-examination of a child or a vulnerable witness just because that is what advocates do best and that is how it has always been done.

Advocates and the judiciary must now come together to ensure that questioning does not infringe the principle of a fair trial and that vulnerable witnesses are protected from unnecessary or oppressive questioning. It is this collaborative approach that will afford such witnesses the ability to give their best evidence and allow for a fair trial process. The same safeguards apply equally to vulnerable defendants. Prosecutors have the same responsibilities and judges should be mindful of creating a level playing field. Gone are the days of controlling or confusing a vulnerable witness or defendant for the benefit of impressing a jury. Traditional methods are often exploitative and elicit evidence that is unreliable or false. Now is the time for courtesy; a gentler and less invasive, but no less specialist approach.

Whilst the advocate needs to recalibrate and adopt a softer, shorter, more focused and more skilful approach, the judiciary must and will actively intervene to temper the over-enthusiastic advocate and any tenacious questioning.

The new era of questioning: Court of Appeal authority

Hallett LJ set out the correct approach to the questioning of children and the vulnerable in Lubemba:

‘It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness and not the other way round.’

Further guidance and appellate authority exists in abundance to persuade any reluctant advocate that there is a new era of questioning. There is an impressive legal research paper on the College website, including references to Lubemba, R v Barker [2010] EWCA Crim 4 and R v Wills [2011] EWCA Crim 1938. Chapter 28 of Rook and Ward on Sexual Offences: Law & Practice also sets out the new approach succinctly.

An innovative and united approach to training must ensure that the profession continues to do what it does best, which is to be specialist advocates with an expansive and impressive toolbox of skills more than fit for purpose, regardless of whether or not training is mandatory.

Contributors HHJ Simon Drew QC, Judicial College Course Director of Circuit Training and Lynda Gibbs, ICCA Programme Director

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Author details: 
HHJ Simon Drew QC

Simon is the Judicial College Director of Circuit Training and author of the section 28 Judicial College training materials.

Lynda Gibbs

Lynda, a barrister and experienced legal educator, is now Programme Director at the Inns of Court College of Advocacy where she has co-authored the national ‘Advocacy and the Vulnerable’ course. Previously, Lynda designed and created materials for the BPTC and led the Kaplan course.