G v R.

A witness’s visible distress does not, without more, establish that the witness has become vulnerable. When distress arises during evidence, the judge must balance the need to enable the witness to give their best evidence against the defendant’s right to test the account fairly. A short adjournment may be the preferable immediate course.

Although the court controls questioning, requiring counsel during cross-examination to submit proposed questions for approval is exceptional in an ordinary case. A defence which denies that an event occurred may test the likelihood and mechanics of the account without having specifically foreshadowed that challenge in a compliant defence statement. An erroneous restriction will not make a conviction unsafe if the defence retained a fair opportunity to advance its substantive challenge.

The appellant was convicted of three counts of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. During the complainant’s cross-examination, she became visibly distressed and asked for a break. The recorder adjourned overnight and required defence counsel to prepare proposed questions before cross-examination resumed.

The appellant appealed against conviction, contending that the complainant had not become vulnerable and that the ruling improperly prevented questioning about the detail and physical possibility of her account. The court also granted leave to appeal against sentence and allowed that appeal in a separate judgment delivered at the time. The central issue on the conviction appeal was whether the management of cross-examination had rendered the convictions unsafe.

1. The appeal against conviction was dismissed. Leave to appeal against sentence was granted and that appeal was allowed in a separate judgment given at the hearing.

2. The recorder was wrong to regard questions testing the mechanics of the alleged assaults as objectionable because they were speculative or had not been foreshadowed in the defence statement. A defence which denies that an event occurred may test the truth, accuracy and likelihood of the prosecution account. Such a challenge need not be specifically set out in a defence statement which otherwise complies with section 6A of the Criminal Procedure and Investigations Act 1996.

3. The court reaffirmed that the judge controls questioning and must enable vulnerable witnesses to give their best evidence, consistently with Lumemba [2015] 1 WLR 1579. The judge must balance that objective against the defendant’s potentially conflicting interest in properly challenging the witness’s account. Distress may have several causes and does not necessarily establish vulnerability.

4. Where distress first emerges during evidence, an adjournment to see whether the witness can return composed may be the better course. In an ordinary case, particularly where the witness has no difficulty understanding questions and counsel’s questioning is proper, requiring a written list of questions during cross-examination is exceptional. It may inhibit the development of cross-examination in response to answers.

5. Despite those misgivings, the ruling caused no unfairness. The defence had tested the detail of the first allegation, asked comparable questions about the other allegations, and remained able to challenge every aspect of the account and address the points in closing. The convictions were therefore safe.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 617, dismissed the appeal against conviction as the convictions were safe. It granted leave to appeal against sentence and allowed that appeal in a separate judgment delivered at the hearing.
• Crown Court: The appellant was convicted by a jury of three counts of assault by penetration and received concurrent terms of youth detention.