Zenith Crime Current Awareness

​Please handle with care. You can’t just ask me anything, you know.

21 September 2017

Michele Stuart-Lofthouse

A new criminal practice direction based on the existing protocol that was used to support the pilot scheme of Section 28 YJCEA 1999 comes into force on the 2nd October 2017.    

When will it apply?

It will apply ‘When Section 28 of the Youth Justice and Criminal Evidence Act 1999 (s.28 YJCEA 1999) is bought into force by Statutory Instrument for a particular Crown Court,’

Who will it apply to?

‘under that S.I., a witness will be eligible for special measures under s.28 if

  • he or she is under the age of 18 at the time of the special measures hearing; or
  • he or she suffers from a mental disorder within the meaning of the Mental Health Act 1983, or has a significant impairment of intelligence and social functioning, or has a physical disability or a physical disorder, and the quality of his or her evidence is likely to be diminished as a consequence’.

You can’t just ask me anything, you know.

Beyond setting out case management throughout the case process, the practice direction is accompanied by an annex which provides useful guidance to assist advocates in their preparation for such a case. This includes how the ground rules hearing operates and tools for cross-examination of vulnerable witnesses.

Careful preparation for the ground rules hearing is essential. You will be expected to discuss the length of your cross-examination of the witness (including being ready to deal with any application under section 100 of the CJA 2003 or section 41 of the YCEA 1999, or any other application that may affect your cross examination), and be prepared to address restrictions on the usual duty to “put the defence case”.

The guidance warns that all advocates will be expected to be familiar with the case of Regina v Lubemba and Pooley 2014 EWCA Crim 2064, which made it plain that advocates cannot insist upon any supposed right “to put one's case”.

In putting a defendant’s case, you will be expected to tailor your style of questioning for young or vulnerable witnesses to ensure they are not intimidated or distressed. The use of admissions can provide a useful tool to ensure the jury are made aware of significant inconsistencies or issues as to credibility.

Current Awareness

By the Crime team