R v Lubemba (Cokesix) & R v JP

Two cases clarifying what steps a trial judge may properly take to protect a vulnerable witness.

Two applications for leave to appeal were heard together as they raised the same issue; what measures a trial judge could legitimately take to protect a vulnerable witness, without impacting unfairly on an accused's right to a fair trial.

JP stood trial for three counts of sexual assault of an eight year-old. At the plea and case management hearing, special measures directions were given that the child complainant's ABE would be played to the jury, and that she was to be cross-examined by defence counsel via live link.

The trial Judge apparently visited the child, returned to counsel and declared that she was in no fit state to be cross examined. Defence counsel was instead to prepare a document for the jury setting out the areas the child would have been cross-examined on.

In summing up, the Judge informed the jury that the absence of cross-examination had caused an 'imbalance in the evidence,' that it was a matter for them whether this had prejudiced the defendant, and if it had, to make 'appropriate allowance' for this in their deliberations. The issue in the appeal was that the judge was wrong to have not permitted cross examination of the complainant, whilst permitting the ABE to be played (twice).

During the trial of Mr Lubemba, who was convicted on 7th March 2014 of two counts of rape of a child, defence counsel was permitted to cross-examine the witness; but was given a time limit of 45 minutes and interrupted on a number of occasions by the judge criticising her questions. The appeal was on the basis that cumulatively the judges handling of the cross examination had prevented defence counsel from properly putting their case.

Held:

Where a witness is not to be called for cross-examination, the Judge is obliged to consider whether the ABE remains admissible under section 27 of the Youth Justice and Criminal Evidence Act 1999.

If a judge visits a vulnerable witness in order to assess their competence both counsel should be in attendance, or the conversation should be conducted over live link in the presence of counsel.

If the judge in JP was considering competency he did not apply the relevant legislation, or consider what alternatives or further evidence might have assisted; he could have considered intermediaries or expert evidence on competence.

The Court highlighted best practice surrounding vulnerable witnesses.

A trial judge is duty bound to control the questioning of a vulnerable witness. He is entitled to set reasonable time limits and should interrupt where questioning is not age appropriate or is unclear. He is not required to allow defence counsel to ‘put their case'.

For all of these reasons JP's appeal was allowed and the conviction was quashed. The application on behalf of Mr Lubemba was dismissed.