13. The rules relating to the examination of witnesses

Question 1

What is examination in chief?

Answer 1

The examination of a witness by calling him or her to elicit evidence supportive of the party’s case.

Question 2

What type of questions are not allowed to be asked in EIC?

Answer 2

May not be asked leading questions generally (evidence is admissible but the weight is much lower).
Strict adherence to the rule is not always desirable or possible so it may be allowed, in the interests of justice, at the discretion of the judge (such as to identify a person or object in court, or on formal and introductory matters, about relevant facts which are not in dispute or are introductory to those that are, or if one party is allowed to treat the witness as hostile).

Question 3

When may a witness refresh his memory in EIC?

Answer 3

On two conditions:
that the witness gives evidence that the document records his or her recollection at the time it was made; and
that his or her recollection at that time is likely to have been significantly better than at the time of oral evidence (this is still a matter for the judge to decide, whatever the witness says)
This includes a transcript of previous oral evidence.
The Judge can still refuse even where these conditions are met.
It may be appropriate to have the witness read the statement in peace or (if dyslexic, for example) having it adopted by counsel reading it in the absence of the jury.
Section 139 CJA 2003.

Question 4

How is an application to refresh memory made?

Answer 4

Made by an advocate or can be suggested by a judge, at any stage (including re-examination).

Question 5

What is a ‘document’ for the purposes of refreshing memory?

Answer 5

Document means anything in which information of any description is recoded, but not including recording of sounds or moving images.
Document must have been prepared by the witness him or herself or by another (so long as the witness verifies the document).

Question 6

Can a witness refresh memory outside of court?

Answer 6

Prior to going into the witness box, there is no restriction:
In Richardson, Sachs LJ, giving the judgment of the Court of Appeal, made the following observations:
(a) It has been recognised in Home Office Circular 82–1969 … that witnesses for the prosecution in criminal cases are normally entitled, if they so request, to copies of any statements taken from them by police officers.
(b) It is the practice, normally, for witnesses for the defence to be allowed to have copies of their statements and to refresh their memories from them before going into the witness-box.
(c) The court agreed with the following two observations of the Supreme Court of Hong Kong in Lau Pak Ngam v R [1966] Crim LR 443: ‘Testimony in the witness-box becomes more a test of memory than truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.’ ‘Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.’
(d) Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said (should ensure they know they should not discuss cases in which they are involved).
If discussions between witnesses or reading of statements occur in the presence of other witnesses, then this must be dealt with on the case-specific facts. If it may be that fabrication could have taken place, the court may take the view that it would be unsafe to leave any of the evidence to the jury, others may simply need a direction.

Question 7

May there be cross-examination on memory refreshing documents?

Answer 7

Yes, Counsel for the other side is entitled not only to inspect the document but also to cross-examine upon it. XX on matters in the document from which the witness refreshed his or her memory does not mean the document is thereby made evidence, except where XX is upon material not referred to the witness (the party calling the witness can thereafter put this in evidence).

Question 8

What is the general rule against previous consistent statements in evidence?

Answer 8

Under the general rule, a witness may not be asked about a previous oral or written statement made by them consistent with his or her evidence. Evidence may also not be given by any other witness.
It is excluded as evidence of the accused’s consistency.
Still not admissible even if XX’d on previous INCONSISTENT statements.
However, the court does retain a residual discretion, necessary in the interests of justice, to permit re-examination to show consistency to ensure the jury are not positively misled as a result of the XX as to the existence of some fact or the terms of an earlier statement

Question 9

Are self-serving statements made on accusation admissible?

Answer 9

Not if they are wholly self-serving for the purposes of showing the truth of the matter, but merely of the accused’s reaction when first taxed with the incriminating facts.
Adverse statements, partly or wholly, are admissible evidence of the truth of the facts contained within it (including, where mixed, for both parts).

Question 10

When are previous statements of witnesses admissible for complaints?

Answer 10

Under the statutory provisions, the witness’s complaint, whether oral or written, is admissible subject to a number of conditions, principally:
* that the witness testifies that to the best of his or her belief he or she made the statement and it is true;

• that the witness claims that an offence was committed against him or her;
• that the offence is one to which the proceedings relate;
• and that the complaint is about conduct which would, if proved, constitute the offence or part of it.
• And the complaint was not made as a result of a threat or a promise, and
• And before the statement is adduced the witness gives oral evidence in connection with its subject matter.
  The fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.
  An ‘offence … to which the proceedings relate’ refers to an offence on the indictment and therefore the provisions do not cover a statement made by a person against whom an offence has been committed if that offence is not on the indictment.
  A statement received under these provisions is admissible as evidence of the matters stated and also goes to the consistency of the witness.
  In summary, where it is a previous complaint.
  There is also an exception in the case of recent complaints in sexual cases.

Question 11

Can a party impeach the credit of its own witness?

Answer 11

The general rule is no (i.e. adducing evidence of bad character, previous convictions, bias, or previous inconsistent statement).
However, allowed where it is introduced not to impeach but because it supports some other discrete part of the prosecution case.
For unfavourable witnesses (i.e. strictly those who fail to come up to proof, not a hostile one) then the general rule prevails. The remedy in these cases is calling other witnesses and asking the jury to reject the evidence of that other witness (may be done without treating the witness as hostile) but this may not include, where not treated as hostile, giving evidence of previous inconsistent statements.
In respect of a hostile witness (that is to say, not desirous of telling the truth to the court at the instance of the party calling him or her), the general rule is modified in two respects:
(a) the party may adduce a previous inconsistent statement
(b) the party may cross-examine him by asking leading questions

Question 12

When should an application to treat a witness as a hostile one be made?

Answer 12

When the witness first shows unmistakable signs of hostility.
If counsel for the prosecution/defence has a statement directly contradicting one of their witnesses who gives evidence that he or she is unable to identify the accused, counsel should at once show the statement to the judge and ask for leave to XX the witness.
However, even where the witness appears hostile, if the witness gives evidence contrary to an earlier statement or fails to give expected evidence, there should be an application for memory refreshing before treating as hostile.
A witness can be treated as hostile in RX.
Cross-examination on the contents of an Achieving Best Evidence interview may be permitted notwithstanding an earlier ruling by the judge that it would not be in the interests of justice to permit the interview to be played as the evidence-in-chief of the witness.
If the witness, when asked, admits making the previous statement, this will clearly suffice as proof that the witness did make it. If the witness does not make such an admission, whether the earlier statement can be used depends on the facts of the particular case.
If the nature of the evidence given justifies it, an application may be made to treat as hostile the spouse or civil partner of an accused who is competent but not compellable for the prosecution, and who has waived his or her right to refuse to testify. However, it is desirable that the judge should explain to the spouse or civil partner, in the absence of the jury and before the oath is taken, that if the choice is made to give evidence, he or she may be treated like any other witness.

Question 13

How much discretion does the judge have to grant or deny the application to treat a witness as hostile?

Answer 13

An absolute discretion and will be rarely open to successful challenge on appeal.
Although the question of whether a witness is hostile should be conducted in the absence of a jury, the evidence and demeanour of the witness should be tested in the presence of the jury.
There is no such discretion, however, where a witness refuses to speak at all or says that he or she made a statement to the police, without saying that it was untrue, and then indicates an unwillingness to answer any further questions

Question 14

What is a hostile witness?

Answer 14

In assessing whether a witness is hostile for the purposes of s. 3, a judge will consider many factors, including whether the witness is in a position to assist, whether the witness has indicated a willingness to assist, any previous accounts given, and demeanour in the witness-box. The issue does not depend solely on whether the witness has been previously inconsistent in a written statement or in evidence on oath.

Question 15

When may a previous consistent statement be admitted in a case where the other side suggests recent fabrication?

Answer 15

A statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witness’s credibility.
Will not be activated merely by XX on previous inconsistent statements, there must be an allegation of RECENT FABRICATION (not merely that it was fabricated from the outset unless the effect is to create the impression the witness invented the story at a later stage).
Evidence admitted for this purpose does not need to satisfy the criteria in 120(4) and (7).

Question 16

What is ‘recent’ fabrication?

Answer 16

It is an elastic description for where there is a rational basis for its use as a tool for deciding where the truth lies.
The touchstone is whether the evidence may fairly assist in that way, and not the length of time.

Question 17

When may and what evidence of previous inconsistent statements is admissible?

Answer 17

statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
It is admissible for the truth of its contents against its maker (thus, if it implicates a co-accused, it will not be allowed under this part but may be under s114).
The fact a witness has said they cannot remember will not necessarily make the statement a previous inconsistent statement.
It is a previous inconsistent statement where the witness denies the truth of the earlier statement or, in the circumstances of the case, the witness is likely to remember the matter and so, by claiming they cannot, is not telling the truth.

Question 18

What is cross-examination?

Answer 18

The questioning of a witness by the opponent of the party calling the witness or any other party to the proceedings. Thus, an accused has the right to cross-examine a co-accused who has chosen to give evidence including where the co-accused has given evidence only in his defence which is not adverse.
Usually cross-examination follows immediately after examination-in-chief, but witnesses are sometimes merely tendered by the prosecution for cross-examination. Such a witness is called by the prosecution, sworn, asked no questions in chief other than name and address, and then cross-examined by the defence.
Specific provision for the sequence is made for the Crown Court where both prosecution and defence witnesses may be cross-examined by any co-accused in the order their names appear in the indictment or as directed by the court (CrimPR 25.11(4)(b) and (c); see Supplement, R25.11); a defence witness may be cross-examined by the prosecution after cross-examination by any co-accused (r. 25.11(c)).

Question 19

Is the accused entitled to cross-examine in person?

Answer 19

Generally yes.
However, an unrepresented accused does not have the freedom to ask whatever question, at whatever length, they wish.
Furthermore:
no person charged with a sexual offence may cross-examine in person the complainant, either in connection with the offence or any other offence with which the person is charged in those proceedings;
nor may they cross-examine a ‘protected witness’ in a. specified number of offences either for that offence or any other offence in the proceedings; and
the court also has a general power to prevent XX in person if:
(a) The quality of evidence is likely to be diminished by such XX and would be likely improved by such a direction; and
(b) It would not be contrary to the interests of justice
In deciding (a) the court should have regard to the nature of questions likely to be asked among others.

Question 20

How is XX conducted when the accused is refused the right to XX in person?

Answer 20

The court must invite the accused to choose a legal rep.
If the accused fails to and the court decides it is in the interests of justice for the witness to be xx by a representative appointed to represent the interests of the accused, the court must choose and appoint such a representative who will not be responsible to the accused. Such an advocate does not have a free-ranging remit to conduct the trial: only the XX and any applications relevant to it. The role ends after XX but the advocate can help pro-bono.

Question 21

Where the accused is prevented from XX a witness in person, what should be done to ensure fairness with the jury?

Answer 21

Given a direction to ensure insofar as is possible the accused is not prejudiced about any inference by the prevention of that XX.

Question 22

What is the object of XX?

Answer 22

To:
(a) Elicit from the witness evidence supporting the XX party’s version of facts in issue
(b) To weaken or cast doubt upon the accuracy f the evidence given; and
(c) To impeach credibility.

Question 23

What is the role of the judge during XX?

Answer 23

May ask a witness questions and, in particular, where the accused is not represented, ask a witness any question necessary in their interests. The judge’s discretion.
Where XX is conducted by a competent advocate, the judge should not intervene save to clarify matters the judge does not understand or thinks the jury may not.
If the judge wants to touch upon matters XX has not gotten to, they should wait until the end to put them.
Depending upon the nature of the judge’s interventions, the CoA may decide that a defence XX was so hampered by questions that the conduct amounts to a material irregularity. There comes a point where it is so gross or persistent or irremediable that the trial becomes unfair and the conviction has to be quashed including adding a flourish of ‘so you tell the jury’.
The guidance is:
(1) It is a fundamental tenet of the administration of law that all those who appear before the courts are treated fairly and that judges act—and are seen to act—fairly and impartially throughout the trial.
(2) It is a duty of a judge to intervene in the course of witness evidence ‘to ask questions which clarify ambiguities in answers previously given or which identify the nature of the defence, if this is unclear’.
(3) It is wrong for a judge ‘to descend into the arena and give the impression of acting as advocate’ (which will be assessed by whether his conduct renders the trial unfair).
Judges should take account that witnesses are unlikely to be equipped to withstand a degree of judicial pressure.

Question 24

What must a party do in respect of its case in XX?

Answer 24

It must put it. It also must not make a serious allegation without putting this first.

Question 25

What happens if a party fails to put its case in XX?

Answer 25

It tacitly accepts the truth on that matter and will not be entitled to invite the jury to disbelieve the witnesses.
The proper course is to challenge the witness while in the witness-box or, at any rate, to make it plain at that stage that the evidence is not accepted.
Code of conduct also forbids it.

Question 26

Can a failure to put one’s case in XX be rectified?

Answer 26

Yes, by re-calling in order to put new evidence.

Question 27

What do the authorities say in respect of putting one’s case in XX?

Answer 27

) The rule covers both witnesses as to fact and expert witnesses.
(b) The purpose of the rule is to make sure that the trial is fair.
(c) Maintaining the fairness of the trial includes fairness to the party calling the witness and fairness to the witness. It also includes enabling the tribunal of fact to make a proper assessment of all the evidence.
(d) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. This is particularly important when the opposing party intends to accuse the witness of dishonesty, but the rule is not confined to cases of dishonesty.
(e) The rule is flexible. Its application depends on the circumstances of the case, the criterion being the fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where the judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in deciding on application of the rule. (On the power of the judge to impose time-limits and limit cross-examination, see F7.20.)
(f) There are circumstances in which the rule may not apply, for example where there is a bold assertion of expert opinion without any reasoning to support it.

Question 28

What rules are there governing the conduct of XX?

Answer 28

It must be done with restraint and a measure of courtesy and consideration. Thus, should be done only where relevant.
Likewise, questions should not be in the nature of comment on the facts; comments should be confined to speeches. Nor should questions be framed in such a way as to invite argument rather than elicit evidence on the facts in issue. Thus, an advocate should avoid questions such as ‘I suggest to you that …’ and ‘Do you ask the jury to believe that …’. Cross-examination should be confined to putting questions of fact.
An advocate should not state what somebody else has said or is expected to say.
Same restrictions apply to judges.
An advocate must not make statements or ask questions merely to insult, humiliate or annoy a witness’.

Question 29

What discretion does the judge have to restrict XX generally?

Answer 29

They have a general one to prevent any questions in XX which the judge considers to be unnecessary, improper, or oppressive.

Question 30

Does the court have a duty to promote participation of witnesses during XX?

Answer 30

Yes, in addition to vulnerable witnesses, the court must facilitate the participation of ‘any person’, including the accused. This includes enabling witnesses to give their best evidence, and the pre-trial and trial process should, so far as is necessary, be adapted to meet such ends.

Question 31

What is the scope of XX?

Answer 31

Any matter in issue or credibility.

Question 32

Can leading questions be asked in XX?

Answer 32

Yes, even where the witness appears to be more favourable to the XXing party than the one calling them.

Question 33

Do the exclusionary rules of evidence also apply to XX?

Answer 33

Yes, the same way as they apply to EIC.
It has been said that the principle established in this case, that an accused cannot be cross-examined by the prosecution in such a way as to reveal that the accused made an inadmissible confession, also obtains in favour of any co-accused.

Question 34

Does the judge have any power to institute time-limits or otherwise limit XX?

Answer 34

Yes, in accordance with the CrimPR.
It is said about instituting time limit:
(a) Although it should not become a routine feature of case management, judges are fully entitled and obliged to impose reasonable time-limits where counsel indulge in prolix and repetitious questioning
(b) It is not the duty of counsel to put every point of an accused’s case, however peripheral, or to embark on XX about matters not in issue. The duty is to discriminate between important and relevant features as compared to those that are not.
(c) A fair trial is not inconsistent with this and the CoA will not interfere unless shown unfairness was caused.

Question 35

How would cross-examination in respect of credibility be conducted?

Answer 35

A witness may be cross-examined about:
his or her means of knowledge of the facts to which he or she has testified;
opportunities for observation;
powers of perception; the quality of the witness’s memory (such as about the risk of contamination or collusion if officers have conferred in the production of statements about events or interviews);
mistakes, omissions (such as what facts are known to the accused that might explain why a false accusation may be made) and inconsistencies in evidence;
and omissions or inconsistencies in previous statements that relate to the witness’s likely standing with the jury after cross-examination but which are not ‘relative to the subject matter of the indictment’
if XX is about delay in making a complaint, the judge should direct the jury about the fact truthful complainants can delay.
May also be XX’d about previous convictions or bias, any mental or physical disability affecting reliability, and any previous statement relative to the subject-matter to the indictment which are inconsistent. And if the witness denies any of these matters, the XXing party is entitled to prove them.

Question 36

What rules are there about XXing about a witness’ bad character?

Answer 36

Only if it comes within one of the specified categories of admissibility set out in s100:
(a)it is important explanatory evidence,
(b)it has substantial probative value in relation to a matter which—
(i)is a matter in issue in the proceedings, and
(ii)is of substantial importance in the context of the case as a whole,
or
(c)all parties to the proceedings agree to the evidence being admissible
There is also an additional restriction where the bad character relates to offences committed when they were a child:
In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless—
(a)both of the offences are triable only on indictment, and
(b)the court is satisfied that the interests of justice require the evidence to be admissible.

Question 37

What bearing does the code of conduct for barristers have on XX?

Answer 37

It also governs the rules.

Question 38

Is evidence to contradict a witness on collateral matters admissible (i.e. finality of collateral matters)?

Answer 38

No, but there is a fine distinction on what constitutes collateral matters. Examples:

The narrowness and difficulty of this distinction may be illustrated by comparing the decision in A-G v Hitchcock with the decisions in TM [2004] EWCA Crim 2085 and Busby (1981) 75 Cr App R 79. In A-G v Hitchcock a maltster was charged with having used a cistern for the making of malt in breach of certain statutory requirements. A prosecution witness, having sworn that the cistern had been used, was asked in cross-examination whether he had not said to one Cook that the Excise officers had offered him £20 to give evidence that the cistern had been used. Upon denial of this allegation, it was held that the defendant was not allowed to call Cook to contradict the witness, because proof that a bribe was offered to the witness and not accepted was irrelevant to the matter in issue.
In TM certain sexual offences came to light when a private investigator and inquiry agents, being used for the purposes of family proceedings by a man, S, whose wife had been having an affair with D, interviewed the victims of the offences. D denied all the offences and said that S had set out to destroy him and had induced the victims to give evidence against him by offers of financial reward. It was held that D should have been allowed to call a witness to give evidence that she had been approached by the private investigator and when she had refused to give adverse information had been told that S had unlimited funds for the right information. When viewed in isolation, the witness’s evidence was collateral, but although ‘borderline’, it was relevant as showing that the victims might have been offered money or been influenced by the offer of money.
In Busby, a prosecution for burglary and handling, police officers were cross-examined to the effect that they had fabricated statements attributed to D and indicative of his guilt, and had threatened W, a potential defence witness, to stop him giving evidence. These allegations were denied. The trial judge ruled that the defence could not call W to give evidence that he had been threatened by the officers, because this would go solely to their credit. Allowing the appeal against conviction, the Court of Appeal held that the trial judge had erred: the evidence was relevant to an issue which had to be tried, because, if true, it showed that the police were prepared to go to improper lengths in order to secure a conviction, which would have supported the defence case that the statements attributed to D had been fabricated.

Question 39

What is a collateral matter?

Answer 39

‘The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence — if it have such a connection with the issues that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.’

Question 40

Is evidence of bias or partiality admissible?

Answer 40

Yes, to contradict a denial of bias or partiality and to show that the witness is prejudicial concerning the case being tried. If of bad character, then while it is originally prevented from coming in, it may come in under s100 CJA as evidence that has a substantial probative value in respect of matters in issue and in the context of the case as a whole.
Evidence is not admissible to contradict a denial of being offered a bribe, but is for a denial of accepting one because that shows partiality.
Some examples include persons being ‘schooled into giving evidence by one parent against the other’ or threatening to revenge after a quarrel.
At her trial, prospective witnesses were kept out of court in accordance with the normal practice. While a police officer was giving evidence, a man in the public gallery was seen taking notes. He was later seen discussing the case with D’s husband, apparently describing the officer’s evidence to him. The husband, under cross-examination, denied this incident. The Court of Appeal held that the trial judge had properly allowed the prosecution to call evidence in rebuttal: the husband was prepared to lend himself to a scheme, designed to defeat the purpose of keeping prospective witnesses out of court, to enable him the more convincingly to describe how he, and not his wife, had caused the injuries alleged.

Question 41

What is re-examination and how is it conducted?

Answer 41

A witness may be re-examined by the party that called them even if hostile on any new matters which arose out of cross-examination.
Leading questions may not be asked.
The principal rule of re-examination is that, except with the leave of the judge, questioning should be constricted to matters arising out of XX.
This rule applies not only in the case of a witness who has been examined in chief, but also in the case of a witness whose name is notionally on the back of the indictment and who was called by the prosecution merely to allow the defence to cross-examine him.
Where a witness under cross-examination gives evidence of part of a conversation on some previous occasion, questions may not be asked in re-examination about everything else that was said at the same time, but only about so much as can be in some way connected with the statement as to which the witness was cross-examined, such as other statements which qualify or explain it in any way.

Question 42

What is the objective of using special measures for witnesses?

Answer 42

To allow all child and other vulnerable witnesses and defendants, including those with physical or mental disabilities, to facilitate their participation.
Advocates must adapt to the witness, not the other way around.
This allows a witness to give their best evidence, and enables an accused to comprehend the proceedings.

Question 43

What impact does the Equality Act have on how witnesses should be treated?

Answer 43

It demands substantive equality for those appearing to ensure their full participation and provides that the court has safeguarding responsibilities in respect of children and vulnerable adults, often discharged through judicial discretion.

Question 44

Who are special measures for and what do they do?

Answer 44

Modify the orthodox trial process for witnesses who are in fear, suffering from a physical or mental disability, or are complainants of sexual offences, as well as witnesses aged under 18, to enable them to provide their best evidence.

Question 45

Can a judge make modifications to the trial process even where the person does not qualify under the act for special measures?

Answer 45

Yes to non-defendants, though it does not extend to live link or vide-recorded interview where not covered in statute.

Question 46

Who can access the live link?

Answer 46

Defendants or other witnesses. No defence application is required or are any exigent circumstances making it impossible or inadvisable for the defendant to attend.

Question 47

What is the test of whether special measures are required?

Answer 47

What measures will maximise the quality of the evidence

Question 48

How is the test of special measures satisfied?

Answer 48

For those under 18, the test is presumed to be satisfied by playing their recorded interviews with the police as their EIC and by XX via video link. In certain circumstances, this presumption can be displaced.
In other cases, the measures should be tailored to the needs of the individual witness and defendant; flexibility is encouraged.

Question 49

Should a hearing be held to determine special measures?

Answer 49

A ground rules hearing is strongly encouraged to make written rulings concerning the testimony of any young or otherwise vulnerable witness or defendant, however that may be delivered.

Question 50

What special measures are available?

Answer 50

In addition to measures to guarantee anonymity of witnesses, the below:
(a) Screening the witness from the accused
(b) Giving evidence by live link, accompanied by a supporter
(c) Giving evidence in private, for sexual offences or modern slavery, servitude, forced labour, or human trafficking or where intimidation is a concern
(d) Removal of wigs and gowns
(e) Video recording of EIC
(f) Video recording of XX and RX where the EIC has already been video-recorded and admitted
(g) Examination through an intermediary for a young or incapacitated witness
(h) Provision of aid to communication for a young or incapacitated witness
(i) A witness anonymity order, which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure.
(j) Restricting reporting and public access, to protect a fearful or distressed adult witness’s identity
(k) Complainant anonymity in sex offence cases
(l) Prohibition on cross-examination in person of
a. Child complainants of or witnesses to sexual or violent offences, cruelty, kidnapping, false imprisonment or abduction and
b. Adult complainants alleging sexual offences and
c. On application to complainants or witnesses to other offences such as domestic abuse, the quality of whose evidence would be diminished
(m) Pre-trial depositions of children or young persons.

Question 51

Where may you find other suggestions on special measures?

Answer 51

Equal treatment bench book.

Question 52

Who is eligible for special measures?

Answer 52

Prosecution and defence witnesses:
(a) All witnesses under 18 at the time of hearing or video recording
(b) Vulnerable witnesses affected by a mental or physical impairment
(c) Witnesses in fear or distress about testifying
(d) Adult complainants of sexual offences, slavery, servitude, or forced/compulsory labour and human trafficking or of any other offences where the accused’s behaviour would have amounted to domestic abuse
(e) Any witnesses in a case involving a relevant offence, including homicide offences and others involving a firearm or knife.
For those in (b) and (c), the court must determine whether the quality of the evidence would be diminished by the witness’s condition.
Adult complainants of sexual offences and witnesses in relevant offence cases have an unqualified right to opt out of special measures.
After making the eligibility declaration, the court must consider which special measures would maximise their evidence.
Testifying through an intermediary and aids to communication are not available to witnesses eligible only by reason of fear and intimidation.

Question 53

Where are defendants eligible for live link?

Answer 53

The court must consider all the circumstances of the case and be satisfied that it is in the interests of justice and that the parties have been given an opportunity to make representations. Same criteria apply to a decision on whether the rescind (must have been a material change in circumstances). The prescribed circumstances are:
(a) The person’s availability
(b) Any need for them to attend in person
(c) The person’s views
(d) The suitability of the live link facilities
(e) Whether that person would be able to take part effectively
(f) For a witness:
a. The importance of their evidence to the proceedings
b. Whether a direction would inhibit testing of their evidence
(g) The arrangements that would or could be put in place for members of the public to see or hear the proceedings

Question 54

Where and how may a defendant access an intermediary?

Answer 54

Through inherent powers. They are no longer rare cases.
They are entitled to do so to facilitate their effective participation in the trial. The court must exercise its powers where two criteria are met:
(a) The D’s ability to participate is likely to be diminished by reason of age, if under 18; or by a mental disorder if over, or a physical disability or disorder; and
(b) The appointment is ‘necessary’ for the purpose of facilitating effective participation
CrimPD 2023 provides that consideration ‘must be given’ to the communication needs of all children and young people appearing in the criminal courts, and that assessment by intermediary ‘should be considered’ for, inter alia, defendants under 18 who seem liable to misunderstand questions or to experience difficulty expressing answers.
The court may act on its own initiative to do so and will not vary it or discharged unless satisfied that since the order the communication needs or other circumstances have changed materially, and the defendant would be able to participate effectively without.

Question 55

What role do practitioners have in relation to appointment of intermediaries?

Answer 55

They should be vigilant to identify defendants with comprehension difficulties which could warrant an application for one.

Question 56

What may an assessment for an intermediary instead conclude?

Answer 56

The assessment may conclude that there is no need for an intermediary’s assistance at trial, instead recommending ground rules for conduct of the trial (as in Grant-Murray [2017] EWCA Crim 1228, at [140]). Those ground rules should take account of how all evidence is led throughout the trial to enable the defendant to understand and participate in the proceedings.

Question 57

What is the role of an intermediary?

Answer 57

A person who is either approved by the court or asked to assess a defendant’s communication needs, or appointed by the court to facilitate a defendant’s effective participation in the trial at any time, where otherwise that defendant’s communication needs would impede such participation.
Intermediaries can be such even when not on the register for them.
Duty is to the court and they are independent of the parties.
Must assist with achieving the overriding objective, including assessing continually the witness or defendant’s ability to participate.
They also can explain in terms the defendant can understand what is said or done by other participants.
An intermediary should not be sworn at a GRH or asked to provide expert opinion or testimony or an opinion regarding reliability or on fitness to plead.
An intermediary’s report may be provided to the jury, however, to give them the full picture.
Intermediaries are good for profoundly disabled witnesses incapable of speech.
Assist to help the court understand what type of questions will impair understanding.
An intermediary will likely only intervene on an answer in XX/EIC where a misunderstanding is likely to have occurred, though they can explain questions and answers.
Should ensure they do not jeopardise their impartiality and that transparency to their involvement is maintained at all times.