Section 28 breakout session, Intermediaries for Justice Conference 5 May 2017 Joyce Plotnikoff and Rosemary Wyatt

Transcription

1 Section 28 breakout session, Intermediaries for Justice Conference 5 May 2017 Joyce Plotnikoff and Rosemary Wyatt The process evaluation of the section 28 pilots can be found at /file/553335/process-evaluation-doc.pdf. Two judicial guidance documents were issued for the pilots. It is likely that these will be updated and merged before national roll out. Excerpts that are particularly relevant to the RI are set out below. Judicial Protocol on implementation of section 28 YJCEA 1999 Prerecording of cross-examination and re-examination Sept The orders made [at the preliminary hearing] are likely to include vi. Fixing a date for a ground rules hearing, usually at least one week prior to the recorded cross-examination viii. Making arrangements for the recorded cross-examination and reexamination hearing under section 28, including fixing a date, time and location 23. As far as possible, without diminishing the defendant s right to a fair trial, the timing and duration of the recorded cross-examination should take into account the needs of the witness. If the witness is a young child, the recorded cross-examination and re-examination hearing should usually take place in the morning and conclude before lunch time. 28. The witness court familiarisation visit must take place, including an opportunity not just to view but to practice on the live link/recording facilities, see CPD Evidence 29B.4 and the Code of Practice for Victims of Crime, 2013, Chapter 3, paragraph The witness must also be given the opportunity to view his or her ABE interview to refresh his or her memory. It may or may not be appropriate for this to take place on the day of the court visit: CPD Evidence 29C must be followed. 1

2 Ground rules hearing 30. In preparation for the ground rules hearing, all the advocates should have read and be familiar with the relevant toolkits available through The Advocate s Gateway. These provide guidance on questioning a vulnerable witness, see CPD General matters 3D. 31. If a Registered Intermediary has been appointed, he or she must attend the ground rules hearing, see CPD General matters 3E.2. The Intermediary must not be instructed unless s/he is available on the dates for both the ground rules hearing and the section 28 hearing ordered by the Court. 32. The defence advocate attending the ground rules hearing must be the same advocate who will be conducting the recorded cross-examination. The defence advocate must complete the section 28 Defence Ground Rules Hearing Form by the date and time ordered at the preliminary hearing 33. The topics for discussion and agreement at the ground rules hearing will depend on the individual needs of the witness, and the intermediary may be able to provide some indications in advance. CPD General Matters 3E must be followed. Topics that will need discussion in every case will include: a. The overall length of cross-examination; b. Cross-examination by a single advocate if the case is multi-handed; c. Any restrictions on the advocate s usual duty to put the defence case. 34. It may also be helpful to discuss at this stage how any limitations on questioning will be explained to the jury. Recording of cross-examination and re-examination: hearing under section At the hearing, the witness will be cross-examined and re-examined, if required, via the live link within the court building [no provision for remote link] and the examination will be recorded any intermediary or supporter should sit in the live link room with the witness. The intermediary s role is transparent and therefore must be visible and audible to the judge and advocates at the time of crossexamination and in the subsequent recording. 38. The judge, advocates and parties, including the defendant will usually assemble in the court room for the hearing. In some cases the judge and/ or advocates may be in the same room as the witness. The defendant should be able to communicate 2

3 with his or her representatives and should be able to hear the witness via the live link and see the proceedings: section 28(2). Whether the witness is screened or not will depend on the other special measures ordered, for example screens may have been ordered under section 23 of the YJCEA No further cross-examination or re-examination of the witness may take place unless the criteria in section 28(6) are satisfied and the judge makes a further special measures direction under section 28(5). Any such further examination must also be recorded via live link as described above. 58. Advocates. It is the responsibility of the defence advocate, on accepting the brief, to ensure that he or she is available for both the ground rules hearing and the hearing under section 28; continuity at trial is obligatory except in exceptional circumstances. The judge and list office will make whatever reasonable arrangements are possible in order to achieve this, assisted by the Resident Judge where necessary. 60. It is essential that the ground rules hearing and the section 28 hearing are before the allocated judge; it is highly desirable that the allocated judge also conducts the trial, but this may not always be possible. 62. Listing. Due to the limited availability of recording facilities, the hearing held under section 28 must take precedence over other hearings. Section 28 hearings should be listed as the first matter in the morning and will usually conclude before lunch time. Ground rules hearings may be held at any time before the witness gives evidence, including towards the end of the court day, to accommodate the advocates and intermediary (if there is one) and to minimise disruption to other trials. Section 28 GRH Guidance Note, Sept 2014 (excerpt) (issued for the three Crown Court pilots at Liverpool, Leeds and Kingston by HHJs Aubrey QC, Cahill QC andtapping) Introduction In appropriate cases and in particular where the witness is of tender years or suffers from a disability or disorder it is expected that the advocate will 3

4 have prepared his or her cross examination for consideration by the Court. Attendance at, and procedure during, the GRH 1. In preparation for trial, courts must take every reasonable step to facilitate the participation of witnesses and defendants CPR 3.8(4) (d). However, the defendant does not have to attend the GRH. 2. The Defence Advocate must complete and submit the Ground Rules Hearing form, annexed to this note, by the time and date ordered at the preliminary hearing. 3. The hearing facilitates the judge s duty to control questioning if necessary. 4. The hearing enables the court to ensure its process is adapted to enable the witness to give his or her best evidence whilst ensuring the defendant s right to a fair trial is not diminished. Accordingly the ground rules and the nature of the questioning of the witness by the advocate (and limitations imposed if necessary in accordance with principles above) will be discussed. 5. Prior to the hearing it is necessary for both advocates and the judge to view the ABE evidence. 6. The judge will state what ground rules will apply. 7. Any Intermediary must attend the GRH. It is the responsibility of those calling the Intermediary to ensure this. 8. The defendant s advocate attending the hearing must be the same advocate who will be conducting the recorded cross examination (and the subsequent trial, if any). 9. An Intermediary should only be warned for the GRH and the section 28 hearing they are assisting with and not for the whole trial save with the specific leave of the Judge. An Intermediary should not be instructed unless available to attend the GRH and the section 28 hearings ordered by the Court. 4

5 10. Topics for discussion and agreement at the GRH will depend on the individual needs of the witness. CPD I General Matters 3E must be followed ( rules/criminal/docs/2012/crim-practice-directions-i-general-matters pdf). 11. Topics of discussion at the hearing will include the length of crossexamination and any restrictions on the advocate s usual duty to put the defence case. It should not be assumed this will be restricted. Unless restrictions are ordered by the Judge the normal comments about failure to put a case may be made. 12. A Section 28 Defence GRH form should be completed as far as possible prior to attendance at the GRH before the Judge. 13. Rulings will be made on any application under section 100 of the CJA 2003 or section 41 of the YCEA 1999, and on any other application that may affect the conduct of the cross examination. Any ruling will be included in the trial practice note. 14. A review will take place of the progress made by the parties in complying with the orders made at the preliminary hearing and the Court will make any other necessary orders. ANNEX In the Crown Court Before HHJ R v Case number S28 Defence Ground Rules Hearing Form (S28 YJACEA 1999) For GRH on. 1) I am instructed to represent the Defendant (defendant s name ) at the GRH, the S28 cross examination(s) and the trial. 5

6 2) I confirm that I have read the Judicial Protocol on the implementation of S28 YJACEA 1999, and the relevant Toolkit on the Advocate s Gateway, which in this case is Toolkit (insert number and name ). 3) The witness to be cross examined is (insert name ) DOB ( ). 4) I have viewed the ABE interview of recorded on (date ). I have full instructions following a conference with the defendant and his/her signed defence statement is attached. 5) The defendant viewed the ABE interview on (Date ). 6) The nature of the defendant s case is: 7) I require direction from the Court about whether in this case it is appropriate to put the case in full or whether due to the vulnerability of the witness I should not do so. The following are the areas upon which I require directions (set out those areas upon which you would in the case of an adult or non vulnerable witness which to cross examine, eg: a) Is the witness lying/fabricating b) Does the witness remember certain incidents (specify) 8) The following are my proposed questions. (Set out all proposed questions which should be drafted taking in to account the relevant Toolkit. The questions should be headed with a headline and then numbered sequentially under each headline, eg: 1. I am going to ask you about. a) Did you.? b) Did? c) Was..? 9) I would like direction from the Court about how the following matters will be put to the jury. I attach the direction I would ask the Court to make. 10) I understand if I do not raise matters with the Judge at the GRH and later wish to comment about them to the jury, I may be precluded from so doing. 11) I understand that the Judge is likely to go to meet the witness before the cross-examination and I would (not) wish to go and meet the witness at the same time. 12) The defendant has been advised that he/she will receive full credit for his/her plea if s/he pleads guilt prior to date of S28 hearing, and that the S28 hearing will count as the first day of the trial for the purposes of credit as defined by the Sentencing Council, and the maximum credit s/he may receive at PCMH is 10%. Signed by Counsel: Dated: 6