‘Putting the case’ – ie putting the opponent’s version of the facts to a witness in cross-examination – is an essential part of advocacy in every case. Contrary to the argument of Professor Spencer QC (Hon) in several public lectures, it is not an obsolete artefact of the pre-1898 era when the accused was incompetent to testify. The rule originates in Browne v Dunn (1894) 6 R 67, a civil case where there never was a bar to a party being competent to testify. More importantly, it is a rule of fundamental fairness: not just to the witness whose credibility the advocate plans to impugn in closing submissions and so must be given an opportunity to respond, but also to the trier of fact, who will want to see issue joined on the most crucial facts in dispute. The obvious example is consent in a rape trial, but it applies in every criminal and civil case, and also applies in other common law jurisdictions such as Canada.
Cast off defeatist attitudes
Recently a practice has grown up whereby defence advocates have elected not to cross-examine a vulnerable witness, especially a young child, notwithstanding that witness being assessed as competent. Instead the advocate has decided to rely upon the trial judge to direct the jury on the questions which the defence would have put in cross-examination, and to highlight the caution with which the unchallenged Achieving Best Evidence (ABE) interview should be approached. In part this practice has grown up because of a defeatist attitude regarding what can be accomplished in cross-examining such a witness, given that the trial judge will ‘blue-pencil’ the questions in advance so as not to be too confrontational; the practice might also be due to defence counsel being relieved not to have to formulate appropriate questions or to be ‘stuck’ with unfavourable answers.
In a still-unreported important judgment, R v RK  EWCA Crim 603, Hallett VP has deplored this practice, admonishing prosecuting counsel to ‘think very carefully’ before agreeing to go just with the ABE video interview (even where, as there, the defence concluded that the case could be put to another witness instead of to the three-year-old complainant).
Hallett VP stated at :
‘We understand the concern to protect a child witness and the desire of a defence advocate to avoid any suggestion of confronting a child witness. However, if a child is assessed as competent and the judge agrees the child is competent, we would generally expect the child to be called and cross-examined, with the benefit of the range of special measures we now deploy. There is no reason to distress her or cause her any anxiety and therefore no reason to avoid putting the defence case by simple, short and direct questions. Although this court has in the past doubted the right to put every aspect of the defence case to a vulnerable witness, whatever the circumstances, it has not questioned the general duty to ensure the defence case is put fully and fairly and witnesses challenged, where that is possible. [Emphasis in original].’
Moreover, a tactical decision not to cross-examine a competent vulnerable witness will be even more risky now, because the Court of Appeal instructed that ‘[t]he directions should not indicate the child is incompetent when she is competent and should not inadvertently leave the jury with the impression that the child is not worthy of belief’ (at ).
"In R v Rashid and R v Grant-Murray & Henry advocates were warned that it might well be professional misconduct to take on a case requiring cross-examination of a vulnerable witness without such specialised training"
In R v Barker  EWCA Crim 4, involving a four-year-old rape complainant, Lord Judge CJ noted that ‘[i]f 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’ (at ). So the advocate owes the self-same duty of fairness to any competent child or other vulnerable witness. The Lord Chief Justice continued at :
‘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.'
Use clear and signposted questioning
It is entirely possible to put the essence of the case in a series of brief, clear propositions to a competent vulnerable witness. Best practice is to inform the witness of the number of forthcoming propositions: ‘I have four questions to ask you about what your father says…’ and that s/he will be asked for a response to each of them in turn, then signpost each one. For example:
- Question: ‘Your father says he never hit you with a belt. What do you say?’
- Question: ‘Uncle John says that he never touched you between your legs. Is Uncle John lying?’
This strategy avoids charging the witness with lying, which can be unnecessarily distressing and also risks being counter-productive with the jury, but makes the exact defence message clear to them. They also will not speculate that the defence did not dare to address the issues directly with the witness.
Reach the gold standard in every case
The way the case is put must be tailored to any specific vulnerability of the witness, particularly any learning difficulty or mental illness or fragility. A discussion with an intermediary and the toolkits on The Advocate’s Gateway (www.theadvocatesgateway.org) can be invaluable. So also would attending the Criminal Bar Association’s or the Law Society’s Vulnerable Witness Training Programme; in R v Rashid  EWCA Crim 2 at  and in R v Grant-Murray & Henry  EWCA Crim 1228 at , advocates were warned that it might well be professional misconduct to take on a case requiring cross-examination of a vulnerable witness without such specialised training. Regardless, Barker, and now RK, coupled with warnings from successive Chief Justices, make it clear beyond any doubt that advocates must not assume that they will be dispensed from putting the case to young children or other vulnerable witnesses, and that they will be expected to do so competently. It is all about fairness, in every case. ●
Laura Hoyano is a tenant at Red Lion Chambers and Associate Professor of Law at Oxford University.