Weekly Law Reports (ICLR)/2015/Volume 1 /*Regina¬†¬† v¬†¬† Lubemba ; Regina¬†¬† v¬†¬† Pooley ; Practice Note –  1 WLR 1579
 1 WLR 1579
*Regina¬†¬† v¬†¬† Lubemba ; Regina¬†¬† v¬†¬† Pooley ; Practice Note
Court of Appeal
 EWCA Crim 2064¬†
2014 Oct 9
Hallett LJ, Sweeney, Warby JJ
¬†Crime — Practice — Criminal proceedings — Vulnerable witnesses — Guidance as to measures to be taken by judge to protect vulnerable witnesses whilst ensuring fair trial of defendant — Matters to be considered — Youth Justice and Criminal Evidence Act 1999 (c 23) (as amended by Coroners and Justice Act 2009 (c 25) s 177, Sch 21, para 73), ss 27(5), 53, 54
¬†Guidance as to measures which a trial judge may legitimately take to protect a vulnerable witness without impacting adversely on the right of a defendant to a fair trial (post, paras 42–45).
The following cases are referred to in the judgment of the court:
Practice Direction (Criminal Proceedings: Various Changes)  EWCA Crim 1569;¬†  1¬† WLR 3001,¬† CA
R v B  EWCA Crim 4;¬† ¬† Crim LR 233,¬† CA
R v Wills  EWCA Crim 1938;¬†  1¬† Cr App R 16,¬† CA
No additional cases were cited in argument.
The following additional cases, although not cited, were referred to in the skeleton arguments:
Al-Khawaja v United Kingdom (2011) 54¬† EHRR 807
R v Ashford Justices, Ex p Hilden ¬† QB 555;¬†  2¬† WLR 529;¬†  2¬† All ER 154;¬† 96 Cr App R 92, ¬†DC
R v D  EWCA Crim 990;¬† ¬† QB 90;¬†  3¬† WLR 997;¬†  2¬† Cr App R 601,¬† CA
R v E  EWCA Crim 3028;¬† ¬† Crim LR 563,¬† CA
R v Horncastle ¬† EWCA Crim 964;¬†  2¬† Cr App R 230;¬†  4¬† All ER 183,¬† CA;¬†  UKSC 14;¬†  2¬† AC 373;¬†  2¬† WLR 47;¬†  2¬† All ER 359;¬†  1¬† Cr App R 194,¬† SC(E)
R v Ibrahim  EWCA Crim 837;¬†  4¬† All ER 225;¬†  2¬† Cr App R 420,¬† CA
R v MacPherson  EWCA Crim 3605;¬†  1¬† Cr App R 459,¬† CA
R v Riat  EWCA Crim 1509;¬†  1¬† WLR 2592;¬†  1¬† All ER 349;¬†  1¬† Cr App R 14,¬† CA
R v Shabir  EWCA Crim 2564;¬† 177 JP 271,¬† CA
APPLICATIONS¬† for permission to appeal against conviction
R v Lubemba
¬†On 7 March 2014 in the Crown Court at Wood Green, before Judge Simon Carr and a jury, the defendant, Cokesix Lubemba, was convicted of two counts of raping a child under the age of 13.¬† On 10 April 2014 he was sentenced to concurrent terms of 15 years’ imprisonment on each count.
 1 WLR 1579 at¬† 1580
The defendant applied for permisswion appeal against conviction on the grounds that (1) given the nature of the case against the defendant, and the number of alleged acts of rape, defence counsel should have been allowed more than 45 minutes to cross-examine the complainant; (2) the judge had prevented defence counsel from putting her case to the complainant, directing her on a number of occasions “don’t put your case”; (3) the judge had interrupted cross-examination of the complainant and (4) the judge had made inappropriate comments, such as “she is only ten years old” which might have alienated the jury from the defendant and attracted the sympathy of the jury towards the complainant.¬† The Registrar of Criminal Appeals referred the application to the full court.
The facts are stated in the judgment of the court.
R v Pooley
On 2 May 2014 in the Crown Court at Newport, Gwent, before Judge Huw Davies QC and a jury, the defendant, Jonathan Pooley, was convicted of three counts of the sexual assault of a child under the age of 13, contrary to section 7 of the Sexual Offences Act 2003.¬† On 23 May 2014 he was sentenced to a total of three years’ imprisonment.
The defendant applied for permission to appeal against conviction on the grounds that the judge had erred in preventing cross-examination of the complainant so that the defendant did not have a fair trial and his convictions were unsafe.¬† The Registrar of Criminal Appeals referred the application to the full court.
The facts are stated in the judgment of the court.
Emma Akuwudike ¬†(assigned by the Registrar of Criminal Appeals) for the defendant in the first case.
Catherine Milsom ¬†(instructed by Crown Prosecution Service, Appeals Unit ) for the Crown in the first case.
Ieuan Bennett ¬†(assigned by the Registrar of Criminal Appeals) for the defendant in the second case.
Ben Douglas-Jones ¬†(instructed by Crown Prosecution Service, Appeals Unit ) for the Crown in the second case.
9 October 2014.¬† HALLETT LJ¬† delivered the following judgment of the court.
1¬† We shall now give judgment in two conjoined applications for leave to appeal against conviction submitted by Pooley and Lubemba.¬† They have been referred to the court by the registrar to be heard together because they each raise the same issue, namely what measures a trial judge may legitimately take to protect a vulnerable witness, without impacting adversely on the right of an accused to a fair trial.
2¬† In addition to the Contempt of Court Act 1981 order, the provisions of the Sexual Offences (Amendment) Act 1992 apply to both applications.¬† Where a sexual offence has been committed against a person, no matter relating to that person shall be included in any publication that is likely to lead members of the public to identify that person as the victim of the offence during their lifetime.¬† This prohibition applies unless waived or lifted; it has not been waived or lifted.¬† In the circumstances an order under section 39 of the Children and Young Persons Act 1933, the provisions of which are also engaged, is unnecessary.
The application in Pooley
3¬† The defendant, Pooley, was convicted of three counts of sexual assault of a child on 2 May 2014 before Judge Huw Davies QC.¬† He was sentenced to a total of three years’ imprisonment.
 1 WLR 1579 at¬† 1581
4¬† The child complainant was eight years old and a friend of the defendant’s stepson.¬† She became a regular visitor to the defendant’s home during 2013.¬† On New Year’s Eve 2013 the defendant walked her home from a party.¬† When they arrived at her house the defendant’s behaviour was considered strange by the child’s mother and stepfather.
5¬† The defendant asked to see the complainant’s newly decorated bedroom and went upstairs with her.¬† Shortly afterwards they were followed by the complainant’s stepfather.¬† He heard the defendant tell the complainant to give him a kiss.¬† His stepdaughter was lying on the bed.¬† She was on her front with her face in her hands.¬† The defendant was sitting on the bed with his hands on her hips, trying to roll her over.¬† The complainant tried to push his arm away.¬† On seeing the stepfather, the defendant fell to the floor, saying, “Oh, you’ve got me” as if the complainant had just got the better of him in a play fight.¬† The complainant ran downstairs.
6¬† That night the complainant told her mother that the defendant attempted to kiss her on the mouth.¬† After further questioning, she claimed that on earlier occasions he had taken her hand and put it on his penis over his trousers and he had put his hands down her knickers and touched her vagina.¬† She said she had said nothing before because of his threats.¬† The mother, enraged, went round to the defendant’s house and assaulted him.
7¬† On 1 January 2014 both the defendant and the complainant’s mother contacted the police: the defendant reported the physical assault; the complainant’s mother reported the sexual assault of her child.
8¬† The defendant was arrested and interviewed.¬† He denied any improper behaviour claiming innocent physical contact had been misinterpreted.
9¬† At the plea and case management hearing a week before trial the Recorder of Cardiff gave special measures directions.¬† The child’s video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Ieuan Bennett, using the live link.¬† He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate’s Gateway Toolkit.¬† All parties agreed that the complainant, described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.
10¬† On 28 April 2014 the complainant attended court to be cross-examined over the live link.¬† Prosecuting counsel, then Mr David Elias, went to see her in the child witness waiting room.¬† She was with her mother and stepfather.¬† He then took defence counsel with him to introduce him to the child.¬† Both counsel felt she was relaxed and content.¬† Neither she nor her parents expressed any concern about the forthcoming questioning.
11¬† The transcript suggests that at this stage the judge also went to see her.¬† However, Mr Bennett has informed us he had no knowledge of this.
12¬† The complainant was then shown her video interview in the presence of an usher and a representative from Witness Care.¬† Given the timing of events and the fast tracking of the trial, it had not been possible to show her the interview before.¬† The judge expressed concern about the timing of this.¬† On advising her that the barristers would ask her questions, the complainant confirmed that she was “perfectly willing for this to happen”.
13¬† After seeing her video interview the complainant received another visit from the judge, again without counsel.¬† The judge returned to court and announced, with no warning, that the complainant was “not even managing to communicate in monosyllables on … neutral subjects”.¬† In his opinion the child could not participate in cross-examination, however sensitively done.¬† Both counsel protested that this was not their understanding of the situation.¬† Mr Bennett referred the judge to the defendant’s right to a fair trial under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.¬† Supported by Mr Elias, he
 1 WLR 1579 at¬† 1582
urged the judge to let him at least try and ask a few questions to see whether the witness could communicate.¬† Unfortunately, perhaps because they were both somewhat taken aback by events, neither of them referred the judge to the law (other than article 6) and in particular the relevant statutory provisions that permit the playing of a recorded interview as the child’s evidence-in-chief.
14¬† The judge would not be moved.¬† He informed defence counsel he would not permit any questioning of the child, but indicated that the defence would be allowed the rest of the day to prepare a document to be placed before the jury, containing any points the defence would have wished to have made to the witness.¬† We have a copy of that document.
15¬† The trial proceeded.¬† The video interview was played as the only evidence of the child.¬† Her parents and the defendant gave evidence.¬† In his summing up the judge gave the jury the standard direction on the use of video recorded interviews.¬† He explained her absence from the trial:
“It was my assessment that [the complainant] would not have been able to deal with further questions from people like us that would have added anything useful to the material with which you have to work.
“In such circumstances there is a potential for imbalance in the evidence, to which the jury needs to be alert, and if you think there was any disadvantage to the defence from [the complainant’s] inability to participate in further questioning, then you should make an appropriate allowance for that in your deliberations.¬† In addition, you should consider carefully the points which are set out in the document which the defence put before you on the morning after [the complainant] had given evidence.”
16¬† The jury requested to see the video interview again during their retirement.¬† The judge directed the jury:
“and as I shall remind you tomorrow, it is very important, since you will be seeing part of the evidence for the prosecution again, that you should not allow the replaying of the video recording to give an undue significance to that part of the evidence.¬† It will be very important that you keep it in proportion, given that you will be having the opportunity to view a second time and to hear a second time one of the witnesses in the case.¬† So what I will need you to understand is that you should therefore guard very carefully against giving disproportionate, in other words unfair, weight to the evidence of a witness whom you have had the opportunity to hear twice, in contrast to any other witness in the case.¬† In anticipation of your seeing [the complainant’s] evidence again, I will call your attention now to the document in which the defence set out material that they would have raised, if it had been possible were this, for example, a case in which there had been no such problem; the material that they would have addressed one way or another in the course of cross-examination.¬† So bear that carefully in mind after tomorrow when you have seen [the complainant’s] video replayed.”
The ground of appeal
17¬† In Pooley there is one ground of appeal: that the judge erred in preventing cross-examination of the complainant so that the defendant did not have a fair trial and his convictions are unsafe.
18¬† Mr Bennett began by emphasising that the complainant was the Crown’s main witness.¬† Without her there was little or no case against the defendant.¬† It was only just, therefore, for the defence to be given a reasonable opportunity to test what she said.¬† Mr Bennett knew of no reason for the judge to intervene and rule in the way that he did.¬† Apart from her age, the complainant showed no other vulnerability and appeared well able to cope with questioning.¬† Even if the judge’s concerns were justified, Mr Bennett argued that he should have been allowed to try to test her
 1 WLR 1579 at¬† 1583
evidence in some way.¬† The document that the defence was allowed to place before the jury did not undo the prejudice caused by the judge’s conduct.¬† Furthermore, additional prejudice was caused when the jury saw a second screening of the complainant’s video interview in their retirement.
19¬† Mr Ben Douglas-Jones, who now represents the prosecution, conceded that the judge’s ruling was wrong.¬† There was no need to prevent cross-examination.¬† He also acknowledged a number of procedural errors.¬† Nevertheless, he sought valiantly to persuade us that the convictions are safe.
20¬† The first procedural error conceded was that the judge and the parties failed to consider the provisions of section 27 of the Youth Justice and Criminal Evidence Act 1999, whereby the video interview of the complainant was admissible as evidence-in-chief.¬† In particular the judge failed to consider the provisions of subsection (5) (as amended by section 177 of and paragraph 73 of Schedule 21 to the Coroners and Justice Act 2009) which provides:
“Where a recording is admitted under this section– (a) the witness must be called by the party tendering it in evidence, unless– (i) a special measures direction provides for the witness’s evidence on cross-examination to be given in any recording admissible under section 28, or (ii) the parties to the proceedings have agreed as mentioned in subsection (4)(a)(ii) …”
21¬† Neither paragraphs (i) or (ii) above applied.¬† Thus the judge was obliged to consider whether the recording was still admissible in the light of a ruling that prevented the prosecution from calling the witness.
22¬† The second procedural error conceded was that the judge and the parties failed to consider the provisions of sections 53 and 54 of the 1999 Act relating to whether the witness was competent to answer questions.¬† Section 53, where relevant, provides:
“(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.”
“(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to– (a) understand questions put to him as a witness, and (b) give answers to them which can be understood.”
23¬† The complainant was not therefore deemed incompetent because of her age.¬† She could only be assessed as incompetent if the provisions of subsection 3 (a)(b) applied.¬† The judge did not suggest that they did, and if so what effect that would have on the admissibility of the video.¬† Further if the judge was considering the competence of the witness, the provisions of section 54 were relevant.¬† The section provides:
“(1) Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised– (a) by a party to the proceedings, or (b) by the Court of its own motion, shall be determined by the court in accordance with this section.
“(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.
“(3) In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 [special measures] which the court has given, or proposes to give, in relation to the witness.
 1 WLR 1579 at¬† 1584
“(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
“(5) Expert evidence may be received on the question.
“(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.”
24¬† The judge gave no consideration to the witness having the benefit of additional special measures such as an intermediary as he was bound to do.¬† He did not call for expert evidence and he questioned the child for the purposes of establishing if she could give evidence on his own.
25¬† Notwithstanding these significant failings, Mr Douglas-Jones sought to persuade us that the judge remedied the potential for unfairness by allowing the defence the unusual advantage of placing a document before the jury.¬† It contained all the matters on which the defence would have relied in testing the complainant’s evidence.¬† Thereafter the judge gave careful and repeated directions to the jury.¬† Mr Douglas-Jones also observed that there was ample scope to explore the complainant’s credibility and reliability in cross-examination of her stepfather and her mother.¬† Finally, he relied on the strength of the prosecution case, in particular the fact that the complainant’s evidence on count 3 was corroborated by her stepfather.
26¬† The facts of the application in Lubemba can be more shortly stated.¬† He was convicted on 7 March 2014 at the Wood Green Crown Court, before Judge Carr, of two counts of rape of a child by a majority of ten to two on count 3 and unanimously on count 4.¬† He was later sentenced to 15 years’ imprisonment.
27¬† The complainant, a ten-year-old girl, used to visit the defendant and his partner in the school holidays.¬† During the weekend of 7 September 2013 the complainant told her mother of alleged abuse during the previous summer holidays.¬† The police were informed.¬† The complainant was medically examined but the findings were neutral.
28¬† In her achieving best evidence interview she claimed she had been raped ten times in July and August 2013.¬† Her allegations were reflected in a four-count indictment, the first two of which were multiple offending counts (later withdrawn at the instigation of the judge) and the second two were specific counts of vaginal and anal rape.
29¬† In relation to the vaginal rape, the complainant said she had been watching television with her nephew when the defendant told her to follow him upstairs.¬† She refused but he grabbed her hand and pulled her.¬† She was carrying her nephew.¬† She kicked the defendant in the back and tried to throw a shoe at him.¬† He took her to the main bedroom and put her nephew on a mattress beside the bed.¬† He then removed his clothes and hers.¬† He gave her nephew a sweet to stop him crying.¬† He used both hands to hold down her shoulders, forced her legs apart and inserted his penis in her vagina.¬† He left and had a shower.¬† She got up and dressed, took her nephew downstairs and cried.¬† He threatened to kill her if she told anybody what he had done.
30¬† She described in very similar terms the final occasion of rape.¬† The only significant difference in her account was that on this occasion it was anal, not vaginal, rape that she alleged.
31¬† The defendant was arrested on 7 and interviewed on 8 September 2013.¬† He denied the allegations claiming that they had been fabricated.
32¬† The complainant’s video was played to the jury and the judge allowed defence counsel, Ms Emma Akuwudike, to cross-examine the witness.¬† However, he imposed certain restrictions on her.¬† He limited her cross-examination to 45 minutes and he interrupted when he felt her questions were unclear or inappropriate.¬† Following the cross-examination, and in the absence of the jury, Ms Akuwudike
 1 WLR 1579 at¬† 1585
expressed her concern that she had not been permitted to put her case to the complainant.¬† Those concerns were rejected by the judge.
The grounds of appeal
33¬† Ms Akuwudike reminded the court, as Mr Bennett had done in Pooley, that the complainant was the only effective witness in the prosecution case against her lay client.¬† In Lubemba there was no suggestion of corroboration from any other witnesses.
34¬† Ms Akuwudike has four main criticisms about the restrictions placed on her.¬† First, given the nature of the case against the defendant, and the number of alleged acts of rape, she insists that she should have been allowed more than 45 minutes to cross-examine the complainant.¬† Second, she complains that the judge prevented her from putting her lay client’s case to the complainant, directing her on a number of occasions “don’t put your case”.¬† Third, she alleges that the judge interrupted her cross-examination, thereby disrupting the flow of her questioning, and undermining her in the presence of the jury.¬† Fourth, a number of the judge’s comments, such as “she is only ten years old”, she described as inappropriate.¬† They may have alienated the jury from her and the defendant and attracted the sympathy of the jury towards the complainant.
35¬† She invited us to note that the complainant in this case was not an unusually vulnerable witness.¬† She was vulnerable solely be reason of her age; she was otherwise a perfectly competent and capable child.
36¬† Ms Akuwudike has taken us through the judge’s interruptions, which she submits were unnecessary and excessive and which prevented her putting her case in the time available.¬† When pressed as to what matter she had been unable to put, she informed us of only one: a crime report in which the child was recorded as complaining that the defendant had offered to buy her gifts and had not supplied them.¬† This was said to be relevant in establishing a motive for the child to lie.¬† Albeit the judge did not say anything to bring her cross-examination to an end, she claimed she did not have the opportunity to ask about it because she was conscious of what she called his “clock watching”.
37¬† Ms Catherine Milsom for the Crown reminded the court that the judge explained very carefully to the jury that he had prevented certain aspects of defence counsel’s cross-examination in order to minimise the distress and discomfort to a young witness and to improve the quality of her evidence.¬† She maintains he only interrupted the cross-examination in order to clarify and assist the complainant understand the questions, in line with relevant authorities.¬† He interrupted 11 times at most.¬† She rejected the suggestion that the time limit was unfair given the child’s age.¬† She observed that there was, in truth, one narrow and straightforward issue, namely: was the complainant telling the truth.¬† Testing this issue did not require lengthy questioning.¬† The judge repeatedly gave fair and sensible directions about the age of the complainant, the difficulties faced by all parties and the need to examine the facts without sympathy or emotion.
The treatment of vulnerable witnesses
38¬† The treatment of vulnerable witnesses has changed considerably in the last few years.¬† In R v B ¬† EWCA Crim 4, a specially constituted court of the Court of Appeal, Criminal Division, presided over by Lord Judge CJ, considered the circumstances in which very young children may give evidence.¬† Having referred to section 53 of the Youth Justice and Criminal Evidence Act 1999, the court observed, at paras 38-43:
 1 WLR 1579 at¬† 1586
¬†These statutory provisions are not limited to the evidence of children.¬† They apply to individuals of unsound mind.¬† They apply to the infirm.¬† The question in each case is whether the individual witness, or, as in this case, the individual child, is competent to give evidence in the particular trial.¬† The question is entirely witness or child specific.¬† There are no presumptions or preconceptions.¬† The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give a readily understood answer to every question.¬† Many competent adult witnesses would fail such a competency test.¬† Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent.¬† If the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is not.¬† The questions come, of course, from both sides.¬† If the child is called as a witness by the prosecution he or she must have the ability to understand the questions put to him by the defence as well as the prosecution and to provide answers to them which are understandable.¬† The provisions of the statute are clear and unequivocal, and do not require reinterpretation.¬† (R v MacPherson¬†¬† 1 Cr App R 459:¬†R v Powell¬†¬† 1 Cr App R 468:¬†R v M¬†¬† EWCA Crim 2751 and¬†R v Malicki¬†¬† EWCA Crim 365.)
“39. We should perhaps add that although the distinction is a fine one, whenever the competency question is addressed, what is required is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria.¬† In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children.¬† In particular, although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end the decision is a decision about the individual child and his or her competence to give evidence in the particular trial.
“40. We emphasise that in our collective experience the age of a witness is not determinative on his or her ability to give truthful and accurate evidence.¬† Like adults some children will provide truthful and accurate testimony, and some will not.¬† However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be.¬† Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults.¬† The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child.¬† If competent, as defined by the statutory criteria, in the context of credibility in the forensic process, the child witness starts off on the basis of equality with every other witness.¬† In trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.
“41. The judge determines the competency question, by distinguishing carefully between the issues of competence and credibility.¬† At the stage when the competency question is determined the judge is not deciding whether a witness is or will be telling the truth and giving accurate evidence.¬† Provided the witness is competent, the weight to be attached to the evidence is for the jury.
“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
 1 WLR 1579 at¬† 1587
(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.
“43. The competency test may be re-analysed at the end of the child’s evidence.¬† This extra statutory jurisdiction is a judicial creation, clearly established in a number of decisions of this court (R v MacPherson : R v Powell : R v M : R v Malicki ; see to the contrary effect Director of Public Prosecutions v R ¬† EWHC 1842 (Admin)), where it was emphasised that an asserted loss of memory by a witness does not necessarily justify the conclusion that the appropriate level of understanding is absent).¬† If we were inclined to do so, and we are not, it would be too late to question this jurisdiction.¬† This second test should be viewed as an element in the defendant’s entitlement to a fair trial, at which he must be, and must have been, provided with a reasonable opportunity to challenge the allegations against him, a valuable adjunct to the process, just because it provides an additional safeguard for the defendant.¬† If the child witness has been unable to provide intelligible answers to questions in cross-examination (as in Powell ) or a meaningful cross-examination was impossible (as in Malicki ) the first competency decision will not have produced a fair trial, and in that event, the evidence admitted on the basis of a competency decision which turned out to be wrong could reasonably be excluded under section 78 of the [Police and Criminal Evidence] 1984 Act.¬† The second test should be seen in that context, but, and it is an important but, the judge is not addressing credibility questions at that stage of the process any more than he was when conducting the first competency test.”
39 ¬†In R v Wills ¬† 1 Cr App R 16, the court endorsed the R v B ¬†approach and the approach of the Advocacy Training Council (the “ATC”) as set out in their report entitled “Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court” (2011).
40¬† Experts in the field responded to the ATC’s recommendations and produced toolkits on how to treat vulnerable witnesses fairly and to get the best from them, without undermining the accused’s right to a fair trial.¬† The toolkits may be downloaded at no cost from the Advocates Gateway Website.¬† They provide excellent practical guides and are to be commended.¬† They have been endorsed by Lord
 1 WLR 1579 at¬† 1588
Thomas of Cwmgiedd CJ, in the Practice Direction (Criminal Proceedings: Various Changes) ¬† 1 WLR 3001 as best practice.¬† The Criminal Practice Directions Division I: General Matters (October 2013 include, at paragraph 3E.4, the following:
“All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can.¬† In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination.¬† The form and extent of appropriate cross-examination will vary from case to case.¬† For adult non-vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it.¬† When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and 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.¬† Where limitations on questioning are necessary and appropriate, they must be clearly defined.¬† The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them.¬† If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance.¬† Instead of commenting on inconsistencies during cross-examination, following discussion between the judge and the advocates, 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.”
41¬† Further, considerable progress has been made in terms of the provision of training for judges and advocates.¬† The aim of the training, which all judges who try cases involving vulnerable witness are expected to undergo, echoes the aim of the toolkits.
42¬† 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.
43¬† In general, experts recommend that the trial judge should introduce him or herself to the witness in person before any questioning, preferably in the presence of the parties.¬† This seems to us to be an entirely reasonable step to take to put the witness at their ease where possible.¬† 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.
44¬† Considerable emphasis is also placed in judicial training on the role of the judge at trial.¬† The trial judge is responsible for controlling questioning and ensuring that vulnerable witnesses and defendants are enabled to give the best evidence they can.¬† The judge has a duty to intervene, therefore, if an advocate’s questioning is confusing or inappropriate.
 1 WLR 1579 at¬† 1589
45¬† Professional organisations such as the Inns of Court provide training and guidance along similar lines for advocates.¬† 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, not the other way round.¬† They cannot insist on any supposed right “to put one’s case” or previous inconsistent statements to a vulnerable witness.¬† If there is a right to “put one’s case” (about which we have our doubts) it must be modified for young or vulnerable witnesses.¬† It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidating or distressing a witness: see for example paragraph 3E.4 of the Criminal Practice Directions.
46¬† With those observations in mind, we turn to our conclusions.
47¬† As far as the application in Pooley is concerned, we unhesitatingly give leave.¬† With respect to the judge, who no doubt had the child’s best interests at heart, we simply do not understand what he was saying as a matter of law, why he concluded the child could not be cross-examined and why he did not allow defence counsel to try a few sensitively phrased questions.¬† It is not clear to us whether he had concluded the child was not competent to give evidence, not fit to give evidence, or it would not be good for her to give evidence.¬† These difficulties might not have arisen had it been arranged for him to introduce himself to the witness at the same time as the advocates did.
48¬† The judge’s approach was wrong in a number of respects.¬† If his visit was designed to assess her competence, he should have taken the parties with him or used the live link in their presence.¬† He should not have questioned her alone: see section 54(6) of the Youth Justice and Criminal Evidence Act 1999.¬† If his visit was merely designed to introduce himself properly to her and he unexpectedly began to question her ability to participate, he should have informed the parties of his concerns and sought their submissions, before making a ruling.¬† He should have considered whether any other special measures such as the services of an intermediary might benefit the witness: section 54(3).¬† Furthermore, he could have considered calling for an expert to assist him.
49¬† If he had then concluded, on a sound basis, that the witness could not be cross-examined, he should have revisited the provisions of section 27 of the 1999 Act and the decision to allow the video recording to be played.¬† He should have considered whether or not it was admissible where the prosecution could not tender the witness as required by section 27(5) of the 1999 Act (as amended).¬† Finally, and most importantly, the judge should have openly and clearly given far greater consideration to the impact on the fairness of the trial of prohibiting the defence from testing the evidence of the main prosecution witness.
50¬† In all those circumstances we feel that we have no choice but to allow the appeal and to quash the conviction.¬† We will hear submissions in a moment as to whether or not a retrial is sought.
51¬† In Lubemba, on the other hand, Judge Carr did not go too far in trying to protect a vulnerable witness.¬† As we have already explained, a trial judge is not only entitled, he is duty bound, to control the questioning of a witness.¬† He is not obliged to allow a defence advocate to put their case.¬† He is entitled to and should set reasonable time limits and to interrupt where he considers questioning is inappropriate.
 1 WLR 1579 at¬† 1590
52¬† We have no doubt Ms Akuwudike was doing her best to examine the child in short, non-confrontational questions; she was far from aggressive.¬† But, as she herself conceded, she fell into the trap of asking questions which were more suited to an adult witness than a child.¬† Many of her questions were what are called “tag” questions which children find confusing, some of her questions were simply too long and some too complex.¬† In our view, the judge was bound to intervene when he did.¬† The interruptions were not excessive, they were justified, and they did not prevent counsel from testing the evidence.¬† We note that Ms Akuwudike sat down stating that she had no further questions before the judge had a chance to impose any kind of guillotine on her.¬† This does not surprise us.¬† As Ms Milsom observed, the issues were extremely straightforward and Ms Akuwudike had ample time to put what she needed to put in the time allowed.¬† If any matters remained that the defence considered important, such as the crime report, it would have been open to Ms Akuwudike to ask for a little more time and/or she could have invited the prosecution to make admissions.
53¬† We are satisfied, therefore, that the judge exercised his case management powers entirely reasonably and did nothing to undermine the fairness of the trial.¬† We refuse leave to appeal against conviction.
Application in first case refused.
Application in second case granted.
¬†Clare Barsby, Barrister