What Happens If The Witness Can’t (Or Won’t) Continue With An Examination

From Judge Wayne Gorman:

In RT & Anor, R. v [2020] EWCA Crim 155, February 13, 2020, the Court of Appeal for England Wales considered an appeal involving the following issue:

This appeal raises an issue about whether the trial judge was entitled to continue a trial in circumstances where a prosecution witness, aged 16 years who had been diagnosed with ADHD, who had given evidence in chief and who had been cross-examined in part on behalf of one appellant, became distressed and refused to continue to give evidence.

The Court of Appeal noted that an accused person “has a fundamental right under the criminal law to a fair trial. The right of a legal representative to ask questions of witnesses giving evidence against the defendant is one way in which a fair trial is delivered but limitations have long been recognised to the right to question…In some cases the effect of not being able to cross examine a witness who has become ill and unable to continue has meant that a fair trial becomes impossible. In other cases it has proved possible to continue the trial and ensure that it is fair” (at paragraph 37).

The Court of Appeal indicated that when “considering whether a fair trial is possible when a witness’s evidence has been cut short a judge will have regard to the extent to which the defence has been put and explored with the witness, whether previous inconsistent statements can be put into agreed facts, and whether there is other relevant evidence” (at paragraph 39).


The Court of Appeal concluded that “the trial judge was entitled to continue the trial” (at paragraphs 42 to 44):

In our judgment the trial judge was entitled to continue the trial of RT and Mr Stuchfield even though Ms F was not available for the whole of the cross examination on behalf of Mr Stuchfield and there was no cross examination on behalf of RT. This was because the trial remained fair for both RT and Mr Stuchfield in the particular circumstances of this case. The relevant circumstances included the facts that first the jury had seen Ms F give evidence and be cross examined at least in part. Secondly there was some unfortunate questioning of Ms F which explained her refusal to stay for the whole of the cross examination, although we make it clear that the trial judge found that this questioning was not carried out deliberately to provoke the witness, and counsel for RT did not have the opportunity to carry out any questioning. Thirdly there was material which was admitted, including the Facebook messages, which enabled the jury to make a fair assessment of the credibility and reliability of Ms F’s evidence. Fourthly Ms F’s evidence could be assessed in the context of the other evidence which included: DNA evidence against RT; evidence about earlier social media conversations about a plan to commit a robbery; CCTV evidence showing the movements of RT and Mr Stuchfield; and Mr Stuchfield’s letter sent after the offence. Fifthly the judge gave proper directions to the jury identifying the limitations of Ms F’s evidence.

We are also satisfied that there was no abuse of process in continuing the trial in the circumstances set out above. This was because the trial process enabled the appellants to deal with the effect of the absence of Ms F. We can see no basis for saying that the conviction of either RT or Mr Stuchfield was unsafe.

For the detailed reasons given above we dismiss the appeal against conviction.


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