Le Brocq v The Liverpool Crown Court

Where evidence of a complainant’s previous sexual activity is properly before a jury, counsel may make measured comment on its relevance to an alternative source of sexual knowledge. Counsel must not suggest that sexual experience supports an inference of consent or general unreliability. A Ground Rules hearing protects fair and effective testing of vulnerable witnesses’ evidence. Counsel may not characterise that procedure as making the trial unfair because it prevents antagonistic questioning, although restrained comment on the effect of special measures may be proper. Discharging a jury for counsel’s impropriety is exceptional. The judge must hear the parties’ submissions, and should use clear, tailored directions where they can cure the prejudice.

A barrister appealed against a wasted costs order made under Prosecution of Offences Act 1985, section 19A. He had represented the defence at a sexual-offences trial involving a child complainant whose evidence had been pre-recorded under section 28 of the Youth Justice and Criminal Evidence Act 1999.

The trial judge discharged the jury after defence counsel’s closing speech criticised the Ground Rules procedure and referred to the complainant’s sexual relationship with an older boyfriend. A retrial before another judge resulted in an acquittal. The wasted costs order required counsel to pay the prosecution’s costs of the aborted trial and prompted this appeal.

The central issues were whether the closing speech fell within section 19A, whether its effects could have been cured by directions, and whether the jury should have been discharged.

1. Appeal allowed. The wasted costs order was revoked. The circumstances after counsel’s closing speech fell far short of justifying discharge of the jury.

2. The trial judge’s rulings had prevented cross-examination about the complainant’s sexual relationship without a successful section 41 application. Counsel had complied with those rulings. However, the judge later allowed the complainant’s re-examination evidence about that relationship to remain before the jury, and Agreed Fact 21 reinforced it. That evidence was therefore relevant and available for measured defence comment.

3. Counsel was entitled to address the possibility that the complainant’s sexual knowledge had come from a source other than the defendant. He was not entitled to suggest that she was generally less credible because she was sexually experienced. That suggestion trespassed upon the impermissible credibility myth identified in R v Seaboyer [1991] 2 SCR 577. The language used was open to criticism, but it was not a frank breach of a ruling and could have been corrected in the summing up.

4. The attack on the section 28 and Ground Rules procedure was unreasonable in the Ridehalgh v Horsefield [1994] Ch 205 sense. Cross-examination exists to elicit and test evidence, not to permit aggressive, repetitive or oppressive questioning. A restrained observation about the practical effect of special measures may be proper, but counsel could not submit that the restrictions made the trial unfair or emasculated the defence. A short, tailored direction could readily have cured the improper comments.

5. A judge should not dispense with submissions from the parties before discharging a jury because of an event during trial. The usual response to counsel’s misconduct is to continue the trial and give unequivocal directions, as explained in R v Farooqi [2013] EWCA Crim 1649. Hearing both parties would probably have reminded the judge of the relevant history and available curative directions. The discharge therefore broke the asserted causal link between counsel’s conduct and the prosecution’s wasted costs.

6. The court rejected the separate procedural and proportionality objections to commencing the wasted costs process. A criminal court may act of its own initiative, but should do so cautiously where the prospective beneficiary does not support an order. Civil wasted-costs procedures could not simply be read across to the criminal jurisdiction.

• Court of Appeal (Criminal Division): Allowed counsel’s appeal and revoked the wasted costs order: [2019] EWCA Crim 1398.

• Crown Court at Liverpool: HHJ Wright discharged the jury after closing speeches, later made a wasted costs order against defence counsel, and ordered payment of £4,200 to the Crown Prosecution Service. At the retrial before another judge, the defendant was acquitted.