The End Product: Think Trial David Wurtzel The City Law School

1. The End Product: Think Trial David Wurtzel The City Law School World-class legal education in the heart of London www.city.ac.uk/law

2. What the Crown advocate starts with • Video and transcript of the ABE • But how well was it conducted? • Did the officer think trial? • When was the vulnerability identified? • The defendant’s interview • Was he vulnerable?

3. A statement from the defendant Case analysis Writing your closing speech first How I am entitled to ask questions Defence advocate prepares

4. Enhance your case: counsel’s win/win Undermine the other side’s case: why is evidence in chief not so believable? Put your case. The difference between challenging and putting Lead lead lead. Tell tell tell. Never ask why The same for vulnerable witnesses but nicer The 3 principles of cross examination

5. ‘So you don’t tell fibs and C asked you—not in the tape—whether S had ever touched you and you said he didn’t. S never touched you with his willy, did he? Did he, X?’ None of the characteristics of childhood or of special measures carry with them ‘the implicit stigma that children should be deemed in advance to be somehow less reliable than adults’ R v Barker [2010] EWCA Crim 4

6. The witness does not need to understand the special importance that the truth be told in court [paragraph 38] ‘It is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children’ Understanding what is true

7. ‘It should not be over-problematic for the advocate to formulate short , simple questions which put the essential elements of the defendant’s case to the witness . . Advocates may have to forego much of the kind of contemporary cross examination which consists of no more than comment on matters which will be before the jury in any event from different sources’ [paragraph 42] Fitting the question to the witness

8. Complainant of 8; defendants aged 10 How often can a judge intervene? S did not pick you up at any time, did he? Do you know what I mean by saying pick you up? ‘there is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree’ R v W and M [2010] EWCA Crim 1926

9. ‘I put it to you that because of the absence of light in the room, it was not possible for you to have seen what you say you saw, was it?’ ‘I put it to you that you did not see X doing any of those things, did you?’ ‘But if as you say it was dark outside, and if as you say there was no light on in the room, it would not have been possible for you to see what was happening, would it?’ Intermediary and judge intervene

10. Special measures under the Youth Justice and Criminal Evidence Act 1999 Witness profiling Registered Intermediaries Training for judges Advocates: the duty to ask questions that this witness can deal with Things get better

11. Training: what? Ticketing: how? When? ‘It is the advocate’s professional duty to ensure witnesses can give their evidence fairly and effectively’ Witness handling of vulnerable witnesses is a specialist skill Ask as far as you are able to Raising the Bar: April 2011

12. Before and after studies of cross examination of children Did advocates get better after learned articles and courses about children? No different in Australia The need to refocus the purpose of cross examination News from New Zealand, Australia

13. Success on a trial by trial, witness by witness, advocate by advocate basis Carrying the lessons forward Let us be pro active but patient In 2010, 14,897 children attended a court hearing in the magistrates court, and 6,384 in the crown court Intermediaries can make a difference

14. Court familiarisation visit Liaise with witness service over witness’s needs When the witness should watch the video Timetabling of evidence Cases of particular needs Helping pre-trial

15. ‘There are things that the court can do but they are not things that it is used to doing at present.’ ‘One possibility is an early video’d cross examination as proposed by Pigot. Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.’ [ Re W, Para 28] ‘Special measures’ in family cases

16. ‘the function of the criminal just system must be wider than merely dispensing justice . . We must re-establish the system so that proper dignity and respect are given to the victim and to the community’ [Jack Straw, April 1999] David Wurtzel D.wurtzel@city.ac.uk Thank you