Wills v R

In trials involving young or vulnerable complainants, cross-examination must be adapted so that the witness can give the best evidence of which they are capable. The defendant’s right to a fair trial remains undiminished. Short, simple questions can put the essential defence case and explore credibility effectively. A departure by another advocate from proper limits does not itself make the trial unfair or the conviction unsafe.

The prosecution retains discretion over which witnesses to call. The court will intervene only where that discretion was exercised wrongly in principle or the resulting omission caused material unfairness.

The appellant was convicted at Truro Crown Court of multiple sexual offences against young girls. The prosecution alleged that he groomed and sexually abused the complainants between December 2008 and April 2009. The defence maintained that the allegations were false and had been encouraged by a family member following disputes involving the appellant’s daughter.

On his appeal against conviction, the appellant pursued two grounds. First, he contended that the different approaches taken by defence advocates when questioning young complainants made the trial unfair. Secondly, he contended that RF, a previously notified prosecution witness, should have been called by the prosecution or by the judge.

The central issues were whether the conduct of cross-examination created unfairness and whether the prosecution’s decision not to call RF rendered the convictions unsafe.

1. Appeal dismissed. Neither ground disclosed unfairness capable of rendering the convictions unsafe.

2. The court applied the guidance in R v B [2010] EWCA Crim 4. Cross-examination of child and vulnerable witnesses must be adapted to their needs, while preserving the defendant’s undiminished right to a fair trial. The advocate can put the essential defence case and test credibility through short, simple questions. Detailed forensic comment need not be put directly to the child.

3. The appellant’s advocate complied with the judge’s limits and was able to elicit the evidence necessary for the defence. Counsel for the co-defendant had improperly adopted a more traditional and robust style, but that did not make the appellant’s trial unfair. The judge’s summing-up direction adequately addressed the difference in styles, although an earlier direction would have been preferable.

4. The court added guidance for future trials. Judges must define and enforce any limits on cross-examination, explain them to the jury where fairness requires it, and give a contemporaneous direction if an advocate departs from them. Important inconsistencies may be drawn to the jury after the vulnerable witness has completed their evidence.

5. Applying R v Russell-Jones [1995] 1 Cr App R 538, the prosecution had a discretion whether to call RF, to be exercised in the interests of a fair trial. Its decision not to rely on RF was not wrong in principle. Her evidence was not necessary, and its absence could not have caused unfairness because it would, if anything, have supported the prosecution. There was therefore no basis for judicial intervention or for finding the convictions unsafe.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2011] EWCA Crim 1938.
• Truro Crown Court: The appellant was convicted of multiple sexual offences against children and sentenced to 16 years’ imprisonment, less time spent on remand.