How to: the cross examination of vulnerable witnesses (part 1)

Over the past decade, the criminal justice system in England and Wales has greatly improved its ability to accommodate the needs of vulnerable witnesses. If, as I do, you specialise in defending clients accused of serious sexual offences, you will no doubt have completed the Advocacy and the Vulnerable Witness training some time ago. You will also be very familiar with the various toolkits within The Advocate’s Gateway.

There are a huge number of variables in cases involving vulnerable witnesses, however. As well as considering the nature of your client’s case, you must accommodate the individual differences within a particular disability or vulnerability and work alongside different Registered Intermediaries (RI). This article is the first in a series which aims to explore some common themes by providing tips which you can then adapt to your client’s case.

Work with your intermediary

Unfortunately, some advocates still seem to regard the RI as an annoyance whose sole purpose is to frustrate their cross-examination. Obviously, this really isn’t the case – a good RI can actually make your cross examination far more effective. The RI’s report should be the foundation upon which you build the first draft of your questions. Once that draft is completed, engage in a dialogue with the RI. If they understand what you are trying to ask, they will be able to assist you in reaching a form of words which the witness can understand.

Communicating with children

As adults, we run the risk of drafting what appears to be a simple cross examination question, but which is actually laden with assumptions. Getting the question right in the first draft can make the subsequent dialogue with the RI much more straightforward.

Let us consider an imaginary scenario by way of an example. The complainant is 5 years old. He has age-appropriate communication skills. I act for his grandmother. The allegation is one of sexual assault – he has reported that, when he woke up in the night, my client ‘pulled on his winky’. He has also said that she took him to the lavatory before the alleged offence occurred. My client has instructed that she sat the boy on the lavatory and removed his nappy-like overnight pants which may have accidentally caught on his penis, hence the complaint. She then took him back to bed. None of the other prosecution witnesses in the house at the time can comment on this incident. Thus, my only option is to ask the complainant about this trip to the lavatory.

Your initial inclination may be to lead into the draft a question such as this: ‘When you woke up in the night and grandma took you to the loo, did she pull your overnight pants down?’

However, this ostensibly innocuous question is fraught with difficulties.

First, it is simply too long for a five-year-old child. Second, its formulation relies upon the ability that an adult may have to hold both time and action in their working memory to first identify and recall a specific incident before dealing with the matter in issue: ‘Did she pull your overnight pants down?’.

Third, the question assumes that grandma was in the lavatory with the complainant and expects that, if this were not the case, the witness would identify that misapprehension and correct it by responding ‘No, because she waited outside the bathroom’.

However, a young child is likely to simply respond ‘no’, which could mean that grandma did not enter the bathroom, grandma was in the loo but didn’t pull his overnight pants down or that grandma was in the loo but removed his pants in a different way. Clearly, I would not want to preclude the possibility of the third option being given in evidence as it is fairly close to my client’s instructions.

So, how do we reach a suitable question? It is common ground that the complainant woke in the night and grandma took him to the lavatory. I do not therefore need – nor should the judge at the ground rules hearing allow me – to ask a series of introductory questions which serve to get the witness from his bed and into the bathroom with grandma. This is, with respect, a style of advocacy that is simply not suitable for vulnerable witness cases.

Having completed my vulnerable witness training, I could therefore decide to signpost by stating: ‘Now I’m going to ask you about when Grandma took you to the loo in the night’.

That is helpful but I would then need to elicit greater specificity: ‘Did Grandma come into the bathroom with you?’

Assuming that the witness responds ‘yes’ (and bearing in mind my vulnerable witness training) I may decide to adopt the formulation ‘Grandma says she pulled your overnight pants down. Did grandma pull your overnight pants down?’

However, this still doesn’t address the difficulty caused if the complainant responds ‘no’. He could mean either that Grandma didn’t pull his overnight pants down at all, or that she removed them in a different way.

I therefore need to ask directly ‘Did grandma take your overnight pants down?’ Only if the answer is yes, can I then give the witness an opportunity to provide a narrative answer: ‘How did grandma take your overnight pants down?’ A 5 year old witness functioning at an age-appropriate level should be able to answer this.

It is wise to plan for every eventuality though! If the witness seems to be struggling, there is the option of using a doll so that he can demonstrate what grandma did. (At the ground rules hearing, don’t forget to identify who is responsible for bringing a suitable doll – it may be the RI or the OIC may be asked to source one.) I can then ask – in two parts to ensure clarity and avoid a single lengthy question – ‘Can you show us with the doll? Show us how grandma took off your overnight pants’.

Thus, the draft questions will look like this:

Signpost: Now I’m going to ask you about when Grandma took you to the loo in the night.

Did Grandma come into the bathroom with you?

If yes:

Did grandma take your overnight pants down?

How did grandma take your overnight pants down?

If witness appears to struggle:

Can you show us with the doll? Show us how grandma took off your overnight pants.

I hope that you find this worked example helpful. In the next article I will deal with the cross-examination of non-verbal witnesses.

If you would like to consider instructing Charlotte Surley, please contact Robin Driscoll, Senior Clerk to the Public Defender Service Advocacy Team on 0203 334 4253 or Robin.Driscoll@justice.gov.uk