RT & Anor, R. v

A criminal trial does not become unfair merely because a vulnerable prosecution witness refuses to complete cross-examination. The court must assess fairness in the round. It should consider the extent to which the defence case has been explored, whether agreed material can expose inconsistencies, the availability of other evidence, and the adequacy of judicial directions on the limitations of the unfinished evidence.

Fairness also extends to witnesses. Courts may control questioning so that vulnerable witnesses can give their best evidence. Improper or repetitive questioning that contributes to a witness’s refusal to continue does not itself require the trial to be abandoned where effective safeguards preserve a fair trial.

RT and Paul Stuchfield appealed convictions for conspiracy to commit robbery, contrary to section 1(1) of the Criminal Law Act 1977, following a jury trial in the Crown Court at Carlisle.

A 16-year-old prosecution witness, Ms F, gave her evidence in chief and was partly cross-examined for Stuchfield. After an inappropriate question, she became distressed and refused to return. RT’s counsel therefore had no opportunity to cross-examine her. The trial judge refused to discharge the jury or stay the proceedings for abuse of process, admitted agreed material, and directed the jury about the limitations of her evidence.

The central issue was whether continuing the trial despite the curtailed cross-examination made the convictions unsafe or the proceedings unfair.

1. The appeals against conviction were dismissed. The judge was entitled to continue the trial because, in its particular circumstances, it remained fair to both appellants.

2. The right to question prosecution witnesses is an important means of securing a fair trial, but it is not absolute. A witness’s death, illness, distress or refusal to continue may prevent further cross-examination. The decisive question is whether the proceedings as a whole can nevertheless remain fair. The court applied the contextual approach described in Pipe [2014] EWCA Crim 2570.

3. The jury had seen Ms F give evidence in chief and undergo part of Stuchfield’s cross-examination. Although Stuchfield’s cross-examination was incomplete and RT had none, agreed Facebook material enabled the jury to assess her credibility and reliability. Her evidence was also capable of assessment against independent evidence, including DNA evidence, social-media material, CCTV footage and Stuchfield’s letter.

4. The judge gave proper and specific directions. He identified that Ms F’s evidence had not been fully tested, explained the matters which had not been put to her, and directed the jury to assess her evidence in the context of all the evidence. Those safeguards enabled the defence to address the consequences of her absence.

5. Fairness extends to witnesses as well as defendants. The court reaffirmed that questioning of vulnerable witnesses must comply with ground rules and may be limited under the Criminal Procedure Rules. The inappropriate and repetitive questioning helped explain Ms F’s refusal, although the judge found it was not deliberate. There was no abuse of process because the trial process adequately addressed the resulting disadvantage.

• Court of Appeal (Criminal Division) Dismissed both appeals against conviction in [2020] EWCA Crim 155.

• Crown Court at Carlisle On 11 July 2019, a jury convicted both appellants of conspiracy to commit robbery contrary to section 1(1) of the Criminal Law Act 1977. The trial judge refused to discharge the jury or stay the proceedings after Ms F declined to complete her evidence.