Lubemba, R. v

A child or other vulnerable witness is competent where the statutory criteria are met. Competence depends on the individual witness’s ability to understand questions and give understandable answers, not on age or credibility. The court must take reasonable steps, including appropriate special measures and ground rules, to enable the witness to give the best evidence while preserving a fair trial.

A trial judge may control questioning, impose reasonable time limits and restrict the conventional practice of putting the case. However, a judge cannot prevent all questioning of the principal prosecution witness without a sound statutory basis, consideration of alternatives and proper regard to the fairness of the trial under the Youth Justice and Criminal Evidence Act 1999.

Two applications for leave to appeal against conviction were heard together because both concerned the permissible measures for protecting child witnesses without impairing the accused’s right to a fair trial.

JP had been convicted of three sexual assaults on a child after the trial judge refused to permit any cross-examination of the eight-year-old complainant. Her recorded interview was played to the jury, and the defence was instead allowed to provide a written document of proposed challenges. Lubemba had been convicted of two rapes of a child after the judge limited and controlled defence cross-examination of the ten-year-old complainant.

The central issue was whether the respective judicial restrictions on questioning rendered either conviction unsafe.

1. JP’s appeal was allowed. The court quashed his convictions and ordered a retrial on counts 1, 2 and 3. A fresh indictment was to be served, he was to be re-arraigned within two months, and the retrial was to be expedited if possible.
2. Competence under sections 53 and 54 of the Youth Justice and Criminal Evidence Act 1999 is a statutory judgment about the individual witness’s ability to understand questions and give understandable answers. It is not a discretionary assessment based on age, anticipated reliability or a judge’s view of whether giving evidence would be beneficial. The approach in R v Barker [2010] EWCA Crim 4 confirmed that necessary adaptations to questioning do not diminish the accused’s right to a fair trial.
3. Where competence is in issue, the judge must follow the statutory procedure. The witness must be treated as having the benefit of available special measures. If questioning is necessary, it must be undertaken by the court in the parties’ presence. The judge in JP’s case questioned the child alone, did not obtain submissions before ruling, did not consider an intermediary or expert assistance, and did not properly determine competence.
4. If a judge concludes that a witness cannot be cross-examined, the judge must reconsider whether the recorded interview remains admissible under section 27, including the statutory requirement that the witness be called by the party tendering the recording. Above all, the judge must assess openly whether preventing the defence from testing the principal prosecution evidence is fair. Those failures made JP’s convictions unsafe.
5. Lubemba’s application was refused. A trial judge has a duty to control confusing or inappropriate questions addressed to a vulnerable witness. There is no unqualified right to put the defence case to a young or vulnerable witness. Reasonable time limits, clear ground rules and interventions may be necessary, provided that the defence retains a fair opportunity to test the material evidence.
6. In Lubemba’s trial, the interventions addressed long, complex and potentially confusing questions. Counsel had sufficient time to test the straightforward issue of truthfulness and had not been prevented from advancing a material challenge. The judge’s case management was reasonable and did not undermine trial fairness.

• Court of Appeal (Criminal Division) Heard the conjoined applications. It allowed JP’s appeal, quashed his convictions and ordered a retrial. It refused Lubemba leave to appeal against conviction.
• Crown Court JP was convicted on 2 May 2014 of three sexual assaults on a child and sentenced to three years’ imprisonment.
• Wood Green Crown Court Lubemba was convicted on 7 March 2014 of two counts of rape of a child and sentenced to 15 years’ imprisonment.