RL, Re

Restrictions on the cross-examination of child or vulnerable witnesses are compatible with a fair trial where they prevent unnecessary, repetitive or inappropriate questioning while allowing the defence case and challenges to credibility to be put. The advocate must adapt questioning to the witness. A suitable jury direction can address any apparent imbalance between a lengthy recorded interview and focused cross-examination. On sentence, a custodial term imposed after proper regard to seriousness, harm and mitigation will not be varied unless it is manifestly excessive.

The applicant was convicted at Leeds Crown Court of three offences of cruelty to children under section 1(1) of the Children and Young Persons Act 1933. The prosecution alleged a prolonged course of excessive and violent discipline. The applicant denied the allegations and said that the children had been coached by their father during divorce proceedings.

The evidence of the two older children was given through pre-recorded interviews and pre-recorded cross-examination. At a ground rules hearing, the trial judge restricted and reformulated proposed questions. The applicant renewed an application for leave to appeal against conviction, contending that the combined restrictions made the trial unfair. She also appealed concurrent sentences of 30 months’ imprisonment.

Disposition. The court refused renewed leave to appeal against conviction and dismissed the appeal against sentence.

1. The court held that the trial judge was entitled to control the questioning of child witnesses. Rule 3.9 of the Criminal Procedure Rules requires the court to facilitate participation, including by directing the appropriate treatment and questioning of a witness.
2. Applying Lubemba [2014] EWCA Crim 2064, the court held that advocacy for vulnerable witnesses may require a substantial departure from conventional cross-examination. The need to protect the witnesses did not deprive the defence of a fair trial where counsel could put the case that the allegations were fabricated and challenge the children’s truthfulness.
3. The restrictions were fair in their operation. Counsel identified no particular question that should have been permitted. He could make further forensic submissions to the jury, and the judge gave an adequate direction explaining the limitations inherent in cross-examining children.
4. The comparative length of the recorded interviews and the shorter cross-examination did not establish unfairness. Nor did the acquittal on the separate count involving the children’s father show that the restrictions had prejudiced the defence.
5. On sentence, the offences involved a prolonged course of grossly excessive discipline, a breach of trust, and significant psychological harm to three children. The sentencing judge had properly weighed those features against good character, personal mitigation and the sentence’s effect on contact with the children. The concurrent 30-month terms, below the applicable guideline starting point, were not manifestly excessive.

• Court of Appeal (Criminal Division). In [2015] EWCA Crim 1215, the court refused renewed leave to appeal against conviction and dismissed the sentence appeal.
• Single judge. Leave to appeal against conviction was refused; leave to appeal against sentence was granted.
• Crown Court at Leeds. The applicant was convicted of three child-cruelty offences and received concurrent sentences of 30 months’ imprisonment.