No: 201405378 B5 
Neutral Citation Number: [2015] EWCA Crim 1215

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday 24th June 2015

B e f o r e:

LORD JUSTICE LAWS 
 
MR JUSTICE BLAIR
MR JUSTICE HOLROYDE 
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R E G I N A 

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"RL"
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Mr J Dunning appeared on behalf of the Appellant

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J U D G M E N T
1.	MR JUSTICE HOLROYDE:  This is a renewed application for leave to appeal against convictions of cruelty to a child. Leave was refused by the single judge.  
2.	We record, lest there be any doubt about it, the making of an order under section 45 of the Youth Justice and Criminal Evidence Act 1999, prohibiting the identification of any of the children to whom we shall refer.  It follows that this judgment must be anonymised accordingly.
3.	The applicant is the mother of three boys born respectively in June 2001, October 2007 and April 2010.  Over a period of more than a year, between 2012 and 2013, it was alleged that the applicant would frequently shout at the children, threaten them and hit them with implements which included a wooden spoon on frequent occasions, and on some occasions a rolling pin or a slipper.  Her defence to those allegations was that she had raised her voice to the boys, and had occasionally tapped one of them on the bottom as a last resort, but that she had not hit any of the boys, or used any implement upon them.  The applicant asserted that the allegations against her had been fabricated by her husband, who had coached the boys to give untruthful accounts in order to assist his position in pending divorce proceedings.  It was also alleged that she had committed an offence against her husband of putting him in fear of violence by harassment.  She was acquitted of that count but was convicted of three offences of cruelty to a person under 16 years of age contrary to section 1(1) of the Children and Young Persons Act 1933, those three charges relating to the boys respectively.
4.	The youngest child, "C", did not provide any evidence, being but four years old at the time of the proceedings.  The evidence of the older boys, "A", who was then 13, and "B", who was approaching his seventh birthday, was adduced by way of pre‑recorded ABE interviews.  
5.	The case was proceeding in the Crown Court at Leeds, which is one of three courts in the country at which there is being piloted the pre‑recording of cross‑examination in accordance with the amended provisions of section 28 of the Youth Justice and Criminal Evidence Act 1999.  In accordance with the appropriate procedure, a ground rules hearing was held on 9th June 2014 before the trial judge, HH Judge Marson.  
6.	In advance of that hearing, Mr Dunning, on behalf of the applicant, provided a list of the questions which he proposed to ask boys A and B.  In the course of the ground rules hearing the learned judge considered those proposed questions.  He had the assistance of an intermediary, who was to assist the younger of the two boys to give evidence.  The intermediary was able to assist the court in relation to both boys on questions such as whether they would have difficulty understanding questions asked in particular terms.
7.	Throughout the ground rules hearing the learned judge followed the advice contained in the well‑known Advocate's Gateway Toolkit No 1. He ruled that a number of the proposed questions should not be asked because they were either unnecessary or repetitious, or because he regarded them as inappropriate having regard to the age of the boy concerned.  He ruled that the form and wording of a number of other questions must be amended, for example so as to avoid the inappropriate format of what is commonly known as a tagged question.  Mr Dunning successfully argued against some of the judge's restrictions on cross‑examination, but changes were made to the list of proposed questions in the way we have summarised.
8.	At the conclusion of the ground rules hearing Mr Dunning had very helpfully offered to submit a corrected copy of his proposed list of questions and the learned judge said this:
"It would be very helpful and then we can stick to the script.  I mean I appreciate some of it depends upon the answers.  There has to be some flexibility but yes, it would be very helpful, Mr Dunning.  Thank you very much."
9.	The members of this court have seen copies both of the original list of proposed questions and of the truncated list prepared in the light of the judge's rulings.
10.	In his submissions to this court, Mr Dunning rightly accepts on authority that steps legitimately taken to protect witnesses, for example special measures to protect a child witness, will not breach a defendant's rights under Article 6 of the Convention.  He further accepts that the advice contained within the Advocate's Gateway is commonly followed and that the trial judge has a discretion to prevent cross‑examination which he regards as unnecessary, improper or oppressive.  Moreover, Mr Dunning recognises and accepts that later on, towards the end of the trial, the learned judge in his summing‑up gave an entirely sufficient and proper direction to the jury, to the effect that cross‑examination of a child witness necessarily differs from cross‑examination of an adult witness and that counsel had accordingly been limited in the questions he could ask of boys A and B.  The relevant passage in the summing‑up concluded in these terms:
"So far as [the] Defendant is concerned you must also bear in mind the difficulty which Mr Dunning had in cross‑examination of the children.  It is not possible to cross‑examine children in the same way as you would an adult, it necessarily has to be more simple and inevitably cannot be as incisive as cross‑examination of an adult.  So please bear that disadvantage in mind." (Summing‑up page 3G) 
11.	Having made those realistic concessions, however, Mr Dunning submits that in the circumstances of this case the rulings made by the learned judge at the ground rules hearing went beyond the legitimate protection of young witnesses and restricted permissible cross‑examination to such a draconian extent that the applicant was unfairly disadvantaged and prevented from having a fair trial.  
12.	In his helpful oral submissions this morning, Mr Dunning indicates that he points not to an individual question or an individual refusal of permission to ask a question, but rather to the combined effect of the judge's rulings.  That combined effect, he argues, was so to emasculate his cross‑examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.
13.	In support of his argument, Mr Dunning relies on two particular points.  First, he draws a contrast between the length of the recorded ABE interviews, which stood as the evidence‑in‑chief of the two boys, and the much shorter duration of the cross‑examination by him which was permitted by the judge's rulings.  Secondly, he points to the fact that he was able to cross‑examine the boys' father in a conventional manner and, as will be recalled, the jury acquitted the applicant of the charge relating to that adult complainant.
14.	Like the learned single judge, we do not find these arguments persuasive.  The Criminal Procedure Rules, at rule 3.9(3), provide as follows:
"In order to prepare for the trial, the court must take every reasonable step ‑
 (a) to encourage and to facilitate the attendance of witnesses when they are needed; and
 (b) to facilitate the participation of any person, including the defendant." 
Rule 3.9(6) goes on to say: 
"Facilitating the participation of any person includes giving directions for the appropriate treatment and questioning of a witness or the defendant, especially where the court directs that such questioning is to be conducted through an intermediary."
15.	The practice of the court imposing restrictions upon the scope and content of cross‑examination of children and other vulnerable witnesses is well established.  Thus, in Lubemba [2014] EWCA Crim 2064, at paragraph 45, this court said:
"It is now generally accepted that if justice is to be done to the vulnerable witness and also to the accused, a radical departure from the traditional style of advocacy will be necessary.  Advocates must adapt to the witness, not the other way round. They cannot insist upon any supposed right 'to put one's case' or previous inconsistent statements to a vulnerable witness.  If there is a right to 'put one's case' (about which we have our doubts) it must be modified for young or vulnerable witnesses.  It is perfectly possible to ensure the jury are made aware of the defence case and of significant inconsistencies without intimidating or distressing a witness ..."  
16.	In the circumstances of this case the learned judge was, in our view, correct to impose limitations upon the cross‑examination of boys A and B.  He did so, moreover, in a manner which in our judgment was fair to the defence.  Mr Dunning was, as he acknowledges, in fact able to put the applicant's case to the boys.  That case was, as we have said, that the allegations against the applicant were fabricated and had been orchestrated by the father, who had allegedly coached the boys.  
17.	It is, we think, significant that in his general challenge to the effect of the judge's rulings, Mr Dunning has not sought to identify a specific example of a question which he says he should have been permitted to ask but was not allowed to do.  Nor, in our view, is it entirely fair for Mr Dunning to complain that he was effectively bound by the answers given by the young witnesses.  He was able to put his case, he was able to challenge the veracity of the witnesses, and he was of course able, when addressing the jury, to make his forensic points in terms other than those appropriate to the cross‑examination of young children.  
18.	As to the two specific points on which Mr Dunning relies, we say simply this.  First, it is often the case that an ABE recorded interview will be substantially longer than the focused cross‑examination of that witness.  If there is thought to be any seeming disproportion such as might influence a jury, the counterbalance is provided by an appropriate judicial direction, of the kind which was admittedly given in this case.  Secondly, the fact that the jury acquitted of the allegation in relation to the boys' father does not, in our view, provide any support for the argument that the applicant was unfairly handicapped by restrictions on the cross‑examination of the children.  
19.	In those circumstances, we see no arguable ground on which it could be said that these convictions are unsafe.  Leave to appeal against conviction is accordingly refused.
(Submissions followed on sentence)
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20.	MR JUSTICE HOLROYDE:  We turn to the appeal against sentence, which is brought with the leave of the single judge.  
21.	The learned judge below imposed concurrent sentences of 30 months' imprisonment on each of the three counts of which the appellant had been convicted.  In his sentencing remarks he noted that the offences involved a course of conduct over a period of more than a year.  It involved, amongst other things, the appellant hitting her children with a wooden spoon.  The judge added that it was obvious to him, having conducted the trial, that the children lived, because of the appellant, in "a bullying and threatening atmosphere".  The judge recorded the significant fact that in July 2012 child A had complained to staff at his school that he had been hit with a wooden spoon and as a result social services became involved.  That led to the appellant being warned, but, as the judge noted:
"... your abuse of your children continued thereafter.  It was a case, I am satisfied, of grossly excessive discipline.  You threatened them, you hit them, you shouted at them".  
The judge went on to say that he regarded the offences as a gross breach of trust, for which the appellant had shown no remorse.  He accepted that there was no evidence of serious physical injury, but said:
"... it was perfectly obvious to me that the two children who were videoed had suffered significant psychological damage which will live with them for very many years."
22.	On the other side of the coin, the appellant was previously of good character, a woman of 39 years of age who, as a result of her commission of these offences, would in all probability be prevented from spending time with her children in the foreseeable future.  
23.	The judge accepted a number of important points in mitigation, which Mr Dunning has effectively and persuasively repeated before the court this morning.  As Mr Dunning says, this was a case of cruelty in the form of excessive discipline.  The judge said:
"... I am prepared to accept that you were brought up in a different culture as to the discipline of children.  I also accept that the other side of you shows you to be a hard‑working woman who provided materially for your children.  You ensured a tidy and clean home and you ensured that the children were well clothed and well fed.  You have no previous convictions, and I accept of course that part of the burden of your conduct is that you are likely to be deprived of the care of your children.  
Bearing all those matters in mind, I am prepared to accept that, notwithstanding the fact that there are three children involved here, this comes towards the lower end of the sentencing range."
24.	We agree, in the light of the submission made by Mr Dunning, that there are points to be made strongly in the appellant's favour and that there is no doubt a better side to her nature.  The judge had the task of balancing the seriousness of the offending with those mitigating factors.  He identified each offence as falling within category 2 of the relevant sentencing guideline, and Mr Dunning accepts that that was a correct categorisation.  For such an offence, even a single offence, the guideline indicates a starting point of three years' custody, with a range of between two and five years.  As can be seen, and as is evident from the remark we have just quoted, the learned judge imposed a sentence which was below the guideline starting point.  
25.	Mr Dunning submits he should have gone further.  He argues that a sentence at the very bottom end of the range, namely two years' custody, would have been sufficient and would then have opened the way for Mr Dunning to address further submissions as to the possible suspension of that sentence.
26.	We have considered these submissions with care, but we bear very much in mind that this was, as the learned judge said, a prolonged course of conduct which resulted in significant harm being done to three young victims.  Despite Mr Dunning's submissions, we are not persuaded that the total sentence of 30 months, coming as we say below the guideline starting point, was manifestly excessive.  The learned judge clearly had regard to the personal mitigation of this appellant and took it into account.  We can see no basis on which his conclusion can be said to be wrong.  It follows that the appeal against sentence is dismissed.