Lubemba, R. v

THE VICE PRESIDENT: We shall now give judgment in two conjoined applications for leave to appeal against conviction submitted by JP 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.

In addition to the Contempt of Court Act order above, 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 Person's Act 1933, the provisions of which are also engaged, is unnecessary.

The applicant JP was convicted of three counts of sexual assault of a child on 2nd May 2014 before His Honour Judge Huw Davies QC. He was sentenced to a total of three years.

The child complainant was eight years old and a friend of the applicant's step-son. She became a regular visitor to the applicant's home during 2013. On New Year's Eve 2013 the applicant walked her home from a party. When they arrived at her house the applicant's behaviour was considered strange by the child's mother and step-father.

The applicant asked to see the complainant's newly decorated bedroom and went upstairs with her. Shortly afterwards they were followed by the complainant's step-father. He heard the applicant tell the complainant to give him a kiss. His step-daughter was lying on the bed. She was on her front with her face in her hands. The applicant 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 step-father, the applicant 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.

That night the complainant told her mother that the applicant 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 applicant's house and assaulted him.

On 1st January 2014 both the applicant and the complainant's mother contacted the police: the applicant reported the physical assault; the complainant's mother reported the sexual assault of her child.

The applicant was arrested and interviewed. He denied any improper behaviour claiming innocent physical contact had been misinterpreted.

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 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.

On 28th April 2014 the complainant attended court to be cross-examined over the live link. Prosecuting counsel, then Mr Elias, went to see her in the child witness waiting room. She was with her mother and step-father. 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.

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.

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".

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 applicant's right to a fair trial under Article 6 of the European Convention. Supported by Mr Elias, he 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.

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.

The trial proceeded. The video interview was played as the only evidence of the child. Her parents and the applicant 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 in this way at page 6, letter E:

The jury requested to see the video interview again during their retirement. The judge directed the jury in these terms at page 35, letter F:

In JP there is one ground of appeal: that the judge erred in preventing cross-examination of the complainant so that the applicant did not have a fair trial and his convictions are unsafe.

Mr Bennett began by emphasising that the complainant was the Crown’s main witness. Without her there was little or no case against the applicant. 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 test her 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.

Mr 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.

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 (“the Act”), 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) which provides

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.

The second procedural error conceded was that the judge and the parties failed to consider the provisions of sections 53 and 54 of the Act relating to whether the witness was competent to answer questions. Section 53, where relevant, provides:

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) and (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:

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.

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 upon 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 step-father 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 step-father.

The facts of the application in Lubemba can be more shortly stated. He was convicted on 7th March 2014 at the Wood Green Crown Court before His Honour 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.

The complainant, a ten-year-old girl, used to visit the applicant and his partner in the school holidays. During the weekend of 7th 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.

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.

In relation to the vaginal rape, the complainant said she had been watching television with her nephew when the applicant told her to follow him upstairs. She refused but he grabbed her hand and pulled her. She was carrying her nephew. She kicked the applicant 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.

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.

The applicant was arrested on 7th and interviewed on 8th September 2013. He denied the allegations claiming that they had been fabricated.

The complainant's video was played to the jury and the judge allowed defence counsel, Ms Akuwudike, to cross-examine the witness. However, he imposed certain restrictions upon 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 expressed her concern that she had not been permitted to put her case to the complainant. Those concerns were rejected by the judge.

Ms Akuwudike reminded the court, as Mr Bennett had done in JP, 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.

Ms Akuwudike has four main criticisms about the restrictions placed upon her. First, given the nature of the case against the applicant, 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 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 applicant and attracted the sympathy of the jury towards the complainant.

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.

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 applicant 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".

Ms 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 eleven 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 has changed considerably in the last few years. In R v Barker [2010] 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 paragraphs 38 to 43:

In R v Wills [2011] EWCA Crim 1938, [2012] 1 Cr App R 2, the court endorsed the Barker 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".

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 the Lord Chief Justice in the Criminal Practice Directions Amendment No2 as best practice. The Directions include at 3E.4 the following:

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.

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.

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.

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.

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 upon 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 intimidation or distressing a witness (see for example paragraph 3E.4 of the Criminal Practice Directions).

With those observations in mind, we turn to our conclusions.

As far as the application in JP 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.

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.

If he had then concluded, on a sound basis, that the witness could not be cross-examined, he should have re-visited the provisions of section 27 of the 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 Act. Finally, and most importantly, the judge should have openly and clearly given far greater consideration to the impact upon the fairness of the trial of prohibiting the defence from testing the evidence of the main prosecution witness.

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 re-trial is sought.

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.

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 upon 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.

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.