Dinc, R. v

There is no inherent unfairness in requiring proposed cross-examination questions to be approved in advance where a child or mentally disabled witness needs that protection. The trial judge must control questioning fairly for both witness and defendant. Properly focused cross-examination, coupled with admissions capable of undermining credibility, may secure an effective defence.

Whether restrictions render a conviction unsafe depends on their practical effect. An appellant must identify a legitimate line of questioning that was wrongly prevented. A prompt and clear judicial correction can remove any prejudice caused by an inappropriate question. A closing submission will not make a trial unfair where the judge’s summing-up gives the jury a fair and balanced direction.

The appellant was convicted by a jury of causing H, a 14-year-old child with an autistic spectrum condition, to engage in sexual activity. H’s pre-recorded cross-examination was conducted through an intermediary under the pilot implementing section 28 of the Youth Justice and Criminal Evidence Act 1999.

Before trial, the judge held a ground rules hearing. She approved defence questions and ruled on applications concerning H’s sexual behaviour and bad character under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999 and section 100 of the Criminal Justice Act 2003. Substantial agreed evidence about H’s sexualised behaviour, credibility and tendency to mix truth with fantasy was admitted; further material was excluded.

The appellant appealed against conviction, alleging that the trial protections and evidential rulings were unfair, that two judicial questions about DNA evidence were prejudicial, and that the prosecution’s closing submission gave a false impression of H’s background.

1. Appeal dismissed. The conviction was safe. The trial judge’s case management, evidential rulings and summing-up did not create unfairness or a risk of injustice.

2. There is nothing inherently unfair in restricting the scope, structure or nature of cross-examination, or in requiring advance submission of questions, where a witness is a child or has a mental disability or disorder. This is part of the judge’s duty to ensure fairness to both the witness and the defendant. Admissions and focused questioning can adequately place credibility issues before the jury.

3. The court explained SG, 2017 EWCA (Crim) 617. Its warning about requiring questions during cross-examination concerned a mature and articulate witness who had no difficulty understanding questions. It did not undermine advance judicial control of questioning where, as here, the child complainant’s age and difficulties justified it.

4. The defence identified no legitimate topic which it had been prevented from pursuing. The judge had admitted a broad body of material showing that H could misunderstand situations, behaved in a sexualised way and sometimes mixed truth with fantasy. The excluded incidents would have added little. If the defence considered that later evidence altered the position, it could have sought reconsideration of the rulings; it did not do so.

5. The judge’s questions about the DNA evidence caused no prejudice. The appellant repeated his account, and the judge immediately recalled the jury, repeated the agreed scientific evidence that either account could explain the DNA findings, and directed that it had been unfair to require an explanation. Any possible prejudice was thereby removed.

6. The prosecutor’s reference to H “warts and all” did not render the trial unfair. The judge’s balanced summing-up directed the jury to assess H’s background, reliability and truthfulness carefully. The prosecution case was also powerful, including DNA evidence, H’s prompt complaint and the appellant’s initial lies to police.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction.
• Trial court The appellant was convicted by a 10–2 jury majority on 22 August 2016 and sentenced to five years’ imprisonment. Before trial, the judge made rulings concerning cross-examination and evidence under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999 and section 100 of the Criminal Justice Act 2003.