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It is now well known that the cross-examination of a child or vulnerable witness should not be a combative exercise. By virtue of the change in culture heralded in R v B  EWCA Crim 4, the Judge now assumes the role of protector to such a vulnerable witness. This has led to a palpable tension between the rights of witness and defendant as described in R v B:
“The competency test is not failed because the forensic techniques of the advocate (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.”
This tension increases where advocates consider that they are being prevented from putting what they consider to be glaring inconsistencies to a witness. An advocate feels he has had his teeth extracted and that the fairness of the trial is undermined.
The aim of this article is to briefly explore this area of tension and consider the use of a schedule setting out key inconsistencies. Using what I hope is a helpful illustration from a recent case, I establish and test some principles to assist in practice.
Highlighting Inconsistencies with Vulnerable Witnesses
The Court of Appeal in R v B encouraged the adoption of short, simple questions to a child which:
“put the essential elements of the defendant’s case to the witness […] fully to ventilate before the jury the areas of evidence which bear on the child’s credibility.”
The Court made clear that the adoption of short questions does not necessarily permit one to highlight inconsistencies with the witness:
“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 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...Comment on the evidence, including comment on the evidence which may bear adversely on the credibility of the child, should be addressed after the child was finished giving evidence.”
That approach was endorsed in R v Wills  EWCA Crim 1938 and led to the production of the useful toolkits on the Advocates Gateway Website. The toolkits give no practical assistance in determining how to put inconsistencies before the jury. Some assistance can be derived from the Criminal Practice Direction (General Matters)  EWCA Crim 1631 at paragraph 3E.4:
“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.”
Paragraph 3E.4 was explicitly endorsed in R v Lubemba  EWCA Crim 2064:
“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.”
It is submitted that in situations where it is judged to be inappropriate to put inconsistencies to a vulnerable witness the following principles arise:
a) Inconsistencies should be highlighted to the jury after the witness’ evidence.
The Court of Appeal has repeatedly stressed that it is desirable, particularly in long or complex cases, that the inconsistencies be highlighted after the witness’s evidence rather than simply at the end of the trial. They should be highlighted with a suitable direction.
b) Those inconsistencies must not be trivial. They should be important and/or significant.
Advocates must remember that inconsistencies would be those ordinarily highlighted in the course of cross-examining a witness who is not vulnerable. Competent counsel would not highlight trivial, unimportant inconsistencies in cross-examination of such a witness. Therefore it is inappropriate for the schedule to be an exhaustive list of every wrong or mistaken word spoken by the witness. This is a matter for counsel’s (and ultimately the Judge’s) judgment in the factual context of the case.
c) Matters which are not true inconsistencies should not be permitted to go before the jury in this way.
The inconsistencies highlighted should be previous inconsistent statements.
Schedule of Inconsistencies
It is desirable that inconsistencies be set out in a single document (a “schedule of inconsistencies”) to go before the jury. It is assumed there will be a single schedule regardless of the number of defence counsel, unless unfairness arises.
To the principles highlighted above I add a further one of my own:
d) The content of the document should be finalised and checked by the Crown and the Court before the witness gives evidence.
The schedule is not a set of admissions or agreed evidence. It must therefore be considered as soon as possible so that it can be discussed and finalised with least disruption to the trial.
I hope this example from a recent case illustrates the importance of adhering to these principles so as to ensure fairness. It also highlights a further principle for adoption.
In a multi-handed case which involved cross-examination of a number of young, vulnerable witnesses, one of the orders made at the ground rules hearing was that counsel could not put inconsistencies to the witnesses. Instead, inconsistencies could be highlighted in a schedule which would go before the jury at an undefined stage in the trial. Some counsel were told that they could exercise an option not to cross-examine the witnesses. They were told that the schedule of inconsistencies could operate as a replacement for their cross-examination. This was despite the fact that the witnesses were capable of being cross-examined and in fact were cross-examined by other defence counsel.
The format and content of the schedules were left to counsel by the learned Judge. Despite the fact there were multiple ground rules hearings, opportunity was not taken to examine the matters counsel wanted to include as part of their schedule until the end of the defence case, some two months after the witnesses gave evidence. It follows that the inconsistencies were not highlighted after the witnesses’ evidence.
As they had not cross-examined at all, counsel naturally wanted to include a great number of matters which bore on the witnesses’ credibility and assisted the defence case. Not all could be said to be inconsistencies per se. Some of the matters could have been adduced in evidence with other witnesses (for example, those who kept records). The learned Judge took issue on those bases and gave judgment which made swingeing cuts to the schedules before him. As a result, evidential matters which the defendants wished to place before the jury to support their case were not placed before the jury.
Yet with the earlier assurance that the schedule would replace their cross-examination in full, no early indication that certain matters should have been put to other witnesses in the schedule and a lack of judicial oversight at an earlier stage, it is arguable the defendants suffered unfairness.
This approach clearly offended all four principles above. It also illustrates a further and final principle:
e) That the schedule of inconsistencies should not be a replacement for cross-examination altogether.
This final principle is in fact clear from the authorities set out above. The Court of Appeal, in emphasising the importance of modifying cross-examination, could not be taken to be permitting counsel to abrogate the responsibility to cross-examine at all. In Pooley, (the conjoined appeal to Lubemba) where defence counsel was prevented from cross-examining the child at all, the fact that there was a list of questions before the jury which counsel would have asked did not cure the unfairness suffered. That judgment can only be seen as reinforcing the importance of the process of cross-examination, rather than encouragement to replace it by other methods. Naturally, if counsel only wishes to put inconsistencies to the witness then the document is capable of being a replacement to cross-examination.
The example is also instructive of the need for defence counsel to raise these issues with the judge at the earliest stage, if possible at a pre-trial hearing. The failure to do so can lead to disappointment later.
Counsel should still seek to adopt their approach as endorsed in R v B to cross-examine a witness. It is only where ground rules state that counsel cannot put inconsistencies that they may wish to partially replace their cross-examination (to the extent it would deal with inconsistencies) with a schedule. The document can be a powerful aide to the defence case.
I say ‘may wish’ as in many cases involving vulnerable witnesses there remains the opportunity to put matters one would have put to the vulnerable witness to another witness (for example a foster carer or social worker) and then simply comment on all these matters in a well-tailored speech. Many counsel, in the finest traditions of the Bar, are understandably attracted by this approach: the “old-fashioned” way.
Posted by Joshua Normanton on 03 November 2015 at 11:01