In the usual run of events, a witness will give their evidence, be subject to cross-examination, and in some cases re-examination. But, things do not always go to plan, and the Court of Appeal has had to deal with several such cases.
In Stretton and McCallion (1988) 86 Cr. App. R. 7, CA a witness (‘Vera’) fell ill during cross-examination by the defence. The Judge decided to continue with the trial as opposed to discharging the jury and starting again at a later date, in the main because it was unlikely that the witness would be fit enough to return to Court.
The dilemma for the Judge was explained in these terms:
‘There was a discussion before the Judge as to what should be done in a case like this. As I have already said, and I repeat, counsel could not point to any precedent giving any help about this matter. We three members of this Court have never come across this situation in what I suppose is a combined total professional experience covering well over a hundred years. The trial judge took the view, in our judgment rightly, that in a situation like this he had to do something. He could, of course, have discharged the jury, but if he had discharged the jury it was accepted that there could never be another trial because of Vera’s mental and physical state. The consequence of that would have been that, if Vera had told the truth, she had been dealt with abominably by the two men in the dock. Justice would not have been done.’
The Judge gave the following direction to the jury:
‘What you have got to think about is this: whether you are satisfied in your own minds and sure that the cross-examination which Mr. Hopkins was able to do sufficiently probed and tested the evidence of Vera so as to enable you to judge fairly of her credibility. If you feel that Mr. Hopkins was deprived of the opportunity, and that means that his clients were, of properly testing and probing her evidence, why then my advice to you would be that you should acquit both these defendants because unless you feel sure that you as the jury are in a position to make a proper assessment as to her credibility, this case does not get off the ground and I am sure you realise that. It is a matter of common sense and fairness. It may be that you feel that during the time that she was answering questions put to her by Mr. Camden Pratt and during the time she was answering the many questions put to her by Mr. Hopkins that you did have a fair and complete opportunity of judging her credibility; but, ladies and gentlemen, that is for you to say and not for me. I must not be taken to be attempting to influence you about that in one direction or the other. I am not.’
The Court of Appeal upheld the conviction, observing as follows:
‘We have had to do our best to assess the situation. The first thing we have had to do is to remind ourselves that the Judge and the lay magistrate were present: we were not. The Judge was able to assess much better than we can whether there was any real prospect of Vera resiling from what she had said time and time again in her cross-examination that although she might agree about some matters, the one thing she was not going to agree about was that she had consented to these men doing anything, as she put it, “bad” to her. That was essentially a matter for the Judge to assess. He came to the conclusion that the jury might take the same view. If they did take the same view then they could go on with the case. On the other hand, if they thought that the appellants had been deprived of a chance, then it was their duty to find them not guilty. It is clear from the verdicts that the jury did think that in the four and half hours that they had seen and heard Vera in the witness box there was no chance whatsoever of her accepting that she had consented to any of the matters which were likely to be put to her. We have had to take a common-sense view of this matter. Was there on the facts which the Court now knows and which were before the Judge and the jury any real chance? As I have said, this woman was an epileptic. She had a fear of pregnancy for reasons I have stated. She was a virgin, and she was menstruating. It is clear from the way she dealt with menstruation that she thought that that was a time at which under no circumstances would she allow anyone to interfere with her. What the Judge had to decide was a matter of discretion. We cannot see that the Judge was wrong in his exercise of it: we think in the circumstances of this case that he was right. That point upon which the appellants rely has no foundation.’
Despite the unsatisfactory nature of what happened at the Crown Court, the Court of Appeal was satisfied that the conviction was safe. A contrary view was reached in Lawless and Basford (1994) 98 Cr. App. R. 342, CA, a case where there had yet to be any cross-examination at all.
The Court held:
‘…it was at least doubtful whether any direction to the jury, however strongly expressed, could have overcome the powerful prejudice of D’s damning evidence—which was the only direct evidence of corruption—going wholly unchallenged and untested by cross-examination.’
It is not uncommon for witnesses to become distressed when giving evidence, the approach to how to deal with this was set out in G [2017] EWCA Crim 617, and it emphasises the fact that some witnesses may be distressed due to being appropriately challenged on their evidence:
‘In deciding on the right course of action when a witness becomes distressed while giving evidence, it is important for the Court to hold a balance. On the one hand, the Court must bear in mind the importance of a witness being able to give the best evidence they can (see CPD1 3E.4) without being harassed by the form or nature of the questioning. On the other hand, it must also weigh in the balance the potentially conflicting interest of a defendant in being able properly to challenge a witness’s account. There may be a number of reasons for signs of distress. Witnesses may find giving evidence in Court (and reliving their experiences through their evidence) to be highly stressful. On the other hand, there may be a reason which might be said to favour the defence: a witness may have been caught out in a lie or may be apprehensive about being challenged in relation to an untruthful account given in evidence. Importantly in the present context, a witness exhibiting signs of distress is not necessarily to be treated as a vulnerable witness.’
In all cases, we take considerable care to monitor witness evidence and ensure the fairness of any trial process.
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[Image credit: “The Royal Courts of Justice” by R/DV/RS is licensed under CC BY 2.0]
