R v Lubemba
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT,MR JUSTICE SWEENEY |
| Judgment Date | 09 October 2014 |
| Neutral Citation | [2014] EWCA Crim 2064 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201401711 B3; 201402660 B2 |
| Date | 09 October 2014 |
[2014] EWCA Crim 2064
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Lady Justice Hallett DBE
Mr Justice Sweeney
Mr Justice Warby
No: 201401711 B3; 201402660 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Ms E Akuwudike appeared on behalf of the Applicant Lubemba
Ms C Milsom appeared on behalf of the Crown
Mr I Bennett appeared on behalf of the Applicant JP
Mr B Douglas-Jones appeared on behalf of the Crown
: We shall now give judgment in two conjoined applications for leave to appeal against conviction submitted by JP and Lubemba. They have been referred to the court by the Registrar to be heard together because they each raise the same issue, namely what measures a trial judge may legitimately take to protect a vulnerable witness, without impacting adversely on the right of an accused to a fair trial.
In addition to the Contempt of Court Act order above, the provisions of the Sexual Offences (Amendment) Act 1992 apply to both applications. Where a sexual offence has been committed against a person, no matter relating to that person shall be included in any publication that is likely to lead members of the public to identify that person as the victim of the offence during their lifetime. This prohibition applies unless waived or lifted; it has not been waived or lifted. In the circumstances an order under section 39 of the Children and Young Person's Act 1933, the provisions of which are also engaged, is unnecessary.
The application in JP
The background
The applicant JP was convicted of three counts of sexual assault of a child on 2nd May 2014 before His Honour Judge Huw Davies QC. He was sentenced to a total of three years.
The child complainant was eight years old and a friend of the applicant's step-son. She became a regular visitor to the applicant's home during 2013. On New Year's Eve 2013 the applicant walked her home from a party. When they arrived at her house the applicant's behaviour was considered strange by the child's mother and step-father.
The applicant asked to see the complainant's newly decorated bedroom and went upstairs with her. Shortly afterwards they were followed by the complainant's step-father. He heard the applicant tell the complainant to give him a kiss. His step-daughter was lying on the bed. She was on her front with her face in her hands. The applicant was sitting on the bed with his hands on her hips, trying to roll her over. The complainant tried to push his arm away. On seeing the step-father, the applicant fell to the floor, saying, "Oh, you've got me" as if the complainant had just got the better of him in a play fight. The complainant ran downstairs.
That night the complainant told her mother that the applicant attempted to kiss her on the mouth. After further questioning, she claimed that on earlier occasions he had taken her hand and put it on his penis over his trousers and he had put his hands down her knickers and touched her vagina. She said she had said nothing before because of his threats. The mother, enraged, went round to the applicant's house and assaulted him.
On 1st January 2014 both the applicant and the complainant's mother contacted the police: the applicant reported the physical assault; the complainant's mother reported the sexual assault of her child.
The applicant was arrested and interviewed. He denied any improper behaviour claiming innocent physical contact had been misinterpreted.
At the plea and case management hearing a week before trial the Recorder of Cardiff gave special measures directions. The child's video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate's Gateway Toolkit. All parties agreed that the complainant, described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.
On 28th April 2014 the complainant attended court to be cross-examined over the live link. Prosecuting counsel, then Mr Elias, went to see her in the child witness waiting room. She was with her mother and step-father. He then took defence counsel with him to introduce him to the child. Both counsel felt she was relaxed and content. Neither she nor her parents expressed any concern about the forthcoming questioning.
The transcript suggests that at this stage the judge also went to see her. However, Mr Bennett has informed us he had no knowledge of this.
The complainant was then shown her video interview in the presence of an usher and a representative from Witness Care. Given the timing of events and the fast tracking of the trial, it had not been possible to show her the interview before. The judge expressed concern about the timing of this. On advising her that the barristers would ask her questions, the complainant confirmed that she was "perfectly willing for this to happen".
After seeing her video interview the complainant received another visit from the judge, again without counsel. The judge returned to court and announced, with no warning, that the complainant was "not even managing to communicate in monosyllables on … neutral subjects". In his opinion the child could not participate in cross-examination, however sensitively done. Both counsel protested that this was not their understanding of the situation. Mr Bennett referred the judge to the applicant's right to a fair trial under Article 6 of the European Convention. Supported by Mr Elias, he urged the judge to let him at least try and ask a few questions to see whether the witness could communicate. Unfortunately, perhaps because they were both somewhat taken aback by events, neither of them referred the judge to the law (other than Article 6) and in particular the relevant statutory provisions that permit the playing of a recorded interview as the child's evidence in chief.
The judge would not be moved. He informed defence counsel he would not permit any questioning of the child, but indicated that the defence would be allowed the rest of the day to prepare a document to be placed before the jury, containing any points the defence would have wished to have made to the witness. We have a copy of that document.
The trial proceeded. The video interview was played as the only evidence of the child. Her parents and the applicant gave evidence. In his summing-up the judge gave the jury the standard direction on the use of video recorded interviews. He explained her absence from the trial in this way at page 6, letter E:
"It was my assessment that [the complainant] would not have been able to deal with further questions from people like us that would have added anything useful to the material with which you have to work.
In such circumstances there is a potential for imbalance in the evidence, to which the jury needs to be alert, and if you think there was any disadvantage to the defence from [the complainant's] inability to participate in further questioning, then you should make an appropriate allowance for that in your deliberations. In addition, you should consider carefully the points which are set out in the document which the defence put before you on the morning after [the complainant] has given evidence."
The jury requested to see the video interview again during their retirement. The judge directed the jury in these terms at page 35, letter F:
"… and as I shall remind you tomorrow, it is very important, since you will be seeing part of the evidence for the prosecution again, that you should not allow the replaying of the video recording to give an undue significance to that part of the evidence. It will be very important that you keep it in proportion, given that you will be having the opportunity to view a second time and to hear a second time one of the witnesses in the case. So what I will need you to understand is that you should therefore guard very carefully against giving disproportionate, in other words unfair weight, to the evidence of a witness whom you have had the opportunity to hear twice, in contrast to any other witness in the case.
In anticipation of your seeing [the complainant's] evidence again, I will call your attention now to the document in which the defence set out material that they would have raised, if it had been possible were this, for example, a case in which there had been no such problem; the material that they would have addressed one way or another in the course of cross-examination. So bear that carefully in mind after tomorrow when you have seen [the complainant's] video replayed."
The ground of appeal
In JP there is one ground of appeal: that the judge erred in preventing cross-examination of the complainant so that the applicant did not have a fair trial and his convictions are unsafe.
Mr Bennett began by emphasising that the complainant was the Crown's main witness. Without her there was little or no case against the applicant. It was only just, therefore, for the defence to be given a reasonable opportunity to test what she said. Mr Bennett knew of no reason for the judge to intervene and rule in the way that he did. Apart from her age, the complainant showed no other vulnerability and appeared well able to cope with questioning. Even if the judge's concerns were justified, Mr Bennett argued...
To continue reading
Request your trial
-
Mr S Dunbarry v Sainsbury’s Supermarkets Ltd: 3202301/2019
...to avoid criticism. 40 Case Number: 3202301/2019 126. We remind ourselves of what Lady Justice Hallett said in R v Lubemba; R v JP [2014] EWCA Crim 2064, para 45. ‘Advocates must adapt to the not the other way round.’ A sentiment later adopted in the Court of Appeal in R v Grant-Murray & An......
-
R v Janhelle Grant-Murray and Alex Henry
...rules hearing and for a proper approach to asking questions of young persons and other vulnerable witnesses, including defendants. In R v Lubemba [2015] 1 WLR 1579 [2014] EWCA Crim 2064 where, having considered the effect of R v Barker [2010] EWCA Crim 4, the court stated: "39. In R v Wills......
-
Duncan William Beggs Or Dreghorn Against Heer Majesty's Advocate
...and unfeeling” (Inch v Inch (1856) 18 D 997, LJC (Hope) at 998) or indeed “over rigorous” (see now for England and Wales, R v Lubemba [2015] 1 WLR 1579, Hallett LJ at para 51; R v Jonas [2015] EWCA Crim 562, Hallett LJ at para 31). The judge may place a limit on the time which can be taken.......
-
DPP v V.E.
...would take place. This was done at the invitation of the prosecution. Counsel for the prosecution referred the trial judge to the case of R v. Lubemba 3 (discussed in further detail below), a judgment of the Court of Appeal of England and Wales which refers to the measures which a trial jud......
-
Towards A Presumption Of Victimhood: Possibilities For Re-Balancing The Criminal Process
...[2010]; R v E [2011] EWCA Crim 3028; R v W [2010] EWCA Crim 1926; R v Wills (Alan Paul) [2011] EWCA Crim 1938; R v Lubemba (Cokesix), [2015] 1 WLR 1579 (2014). 125 Sections 16 and 17 of the 1999 Act. 126 That is, a s 16 witness; CPD V Evidence 18E.1. This does not extend to witnesses identi......
-
Addressing vulnerability in Ireland’s criminal justice system: A survey of recent statutory developments
...edition, amended April 2019.99. Criminal Practice Directions, s. 3E.3, October 2015 edition, amended April 2019. See also, RvLubemba [2014] EWCA Crim2064, para. 49, where Lady Justice Hallett remarked, ‘We would expect a ground rules hearing in every case involving avulnerable witness, save......
-
Communication and cross-examination in court for children and adults with intellectual disabilities: A systematic review
...EWCA Crim 4.9. R v E (2011) EWCA Crim 3028; R v RK (2018) EWCA Crim 603; R v Wills (2011) EWCA Crim 1938. 10. R v Lubemba; R v JP (2014) EWCA Crim 2064.11. R v Jones (2018) EWCA Crim Morrison et al. 369 The aim of this paper is to report a systematic review of previous empirical research th......
-
Witness assistance and familiarisation in England and Wales
...court to give evidence.12. RvDixon [2013] EWCA Crim 465.13. Re A (A Child) (Vulnerable Witness) [2013] EWHC 1694.14. RvLubemba; R vJP [2014] EWCA Crim 2064, conjoined appeals.15. Ibid. at para. 42.16. RvLubemba [2014] EWCA Crim 2064, para 51.164 The International Journal of Evidence & Proof......