Ground rules hearings and the fair treatment
of vulnerable people in court

Table of Contents

3. Ground Rules requiring an Advocate to reduce questions to writing

4. Ground Rules About Special Measures And Other Adjustments

5. Ground Rules Relieving A Party Of Putting Their Case

6. Ground Rules On The Manner Of Questioning

7. Ground Rules On The Duration Of Questioning

8. Ground Rules About Questions That May Or May Not Be Asked

9. Ground Rules Allocating Topics Among Advocates For Co-Defendants

10. Ground Rules About Communications Aids

11. Extending The Use Of GRHs

Acknowledgements And Reading List

 

Introduction

The toolkit contains information about ground rules hearings (‘GRHs’) in the criminal courts and is primarily intended for use by advocates as well as solicitors, police officers, social workers and judges. This toolkit is written with criminal proceedings in England and Wales in mind, however, the ground rules approach is also being applied in other parts of the justice system, for instance, the family courts, the employment tribunals and the Court of Protection. See, for example, Re M (A Child) [2015] EWFC 71, J W Rackham v NHS Professionals Ltd [2015] UKEAT 0110_15_1612 and A County Council v AB and Others (Participation of P in Proceedings) [2016] EWCOP 41.

 

The approach has also spread beyond England and Wales to other jurisdictions, such as Northern Ireland (for example, see Galo v Bombardier Aerospace UK [2016] NICA 25) and New South Wales, Australia. However, Scotland is the first jurisdiction to include ground rules hearings in primary legislation; see section 5(2) of The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 which amends The Criminal Procedure (Scotland) Act 1995

This toolkit is supplemented by The Advocate’s Gateway ground rules hearing checklist (Cooper, 2015, 2016, 2019).

Key points include:

  • GRHs are commonly used by judges to make directions for the fair treatment and effective participation of vulnerable defendants and vulnerable witnesses. Courts must take reasonable steps to ensure the effective participation of vulnerable defendants and witnesses.

  • The most up to date versions of the Criminal Procedure Rules and Practice Directions, published by the Ministry of Justice and updated on a regular basis, can be found here.

  • Where directions for the appropriate treatment and questioning are required, the court must set ground rules (Criminal Procedure Rules (CrimPR), 3.9(7)(b)).

  • Courts have a safeguarding responsibility to children and vulnerable adults.

  • When there is an intermediary they ‘must’ be invited to make representations (CrimPR 3.9(7)(a)); in other words they must be included in the discussion at the GRH.

  • Advocates and judges should consider special measures and other reasonable adjustments throughout proceedings. Thus, it may be necessary to revisit the ground rules set at the start of the proceedings by way of a further GRH.

  • Guidance for family courts, including on GRHs, is available in Toolkit 13 - Vulnerable witnesses and parties in the family courts.

 

1. General Principles, Definitions and Context

1.1  GRHs are commonly used by judges to make directions for the fair treatment and participation of vulnerable defendants and vulnerable witnesses.

Ground rules hearings provide an opportunity to plan any adaptations to questioning and/or the

conduct of the hearing that may be necessary to facilitate the evidence of a vulnerable person.’

(Equal Treatment Bench Book 2018, page 2-26 to 2-28)

 

Advocates should therefore be alert to risk factors which may indicate that a witness or party is vulnerable and that a GRH is required. General risk factors that suggest a witness is vulnerable are outlined in Toolkit 10 - Identifying vulnerability in witnesses and defendants. When necessary, expert advice (including an intermediary assessment) should be sought.

1.2 Courts must take every reasonable step to ensure the participation of vulnerable witnesses and defendants.

The CrimPR state that ‘the overriding objective’ is that cases are ‘dealt with justly’ (CrimPR 1.1(1)). In addition:

  • ‘In order to prepare for the trial, the court must take every reasonable step―to encourage; and to facilitate the attendance of witnesses when they are needed; and to facilitate the participation of any person, including the defendant.’ (CrimPR 3.9(3)(a)–(b))

  • ‘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.’ (CrimPR 3.9(6))

  • ‘The judiciary is responsible for controlling questioning. Over-rigorous or repetitive cross-examination of a child or vulnerable witness should be stopped. Intervention by the judge, magistrates or intermediary (if any) is minimised if questioning, taking account of the individual’s communication needs, is discussed in advance and ground rules are agreed and adhered to.’ CrimPD 3 E.1

1.3 Where directions for appropriate treatment and questioning are required, the court must invite representations by the parties and by any intermediary and must set ground rules.

The ground rules hearing should cover, amongst other matters, the general care of the witness, if, when

and where the witness is to be shown their video interview, when, where and how the parties (and the judge if

identified) intend to introduce themselves to the witness, the length of questioning and frequency of breaks and

the nature of the questions to be asked.

(R v Lubemba; R v JP [2014] EWCA Crim 2064, [43])

 

In addition, ground rules may include directions about relieving a party of putting their case, the manner of questioning, the duration of questioning, the topics that may or may not be covered, allocations of questions amongst co-defendants and the use of communications aids (in force from 6 April 2015):

(7) Where directions for appropriate treatment and questioning are required, the court must—

    (a) invite representations by the parties and by any intermediary; and

    (b) set ground rules for the conduct of the questioning, which rules may include―

          (i) a direction relieving a party of any duty to put that party’s case to a witness or a defendant in its entirety,

         (ii) directions about the manner of questioning,

        (iii) directions about the duration of questioning,

        (iv) if necessary, directions about the questions that may or may not be asked,

         (v) where there is more than one defendant, the allocation among them of the topics about which a witness may be asked, and

        (vi) directions about the use of models, plans, body maps or similar aids to help communicate a question or an answer.

(CrimPR 3.9(7))

 

1.4 A GRH is required in all intermediary trials and is good practice in any case where a witness or defendant has communication needs.

‘Discussion of ground rules is required in all intermediary trials where they must be discussed between the

judge or magistrates, advocates and intermediary before the witness gives evidence.’

(CrimPD 3E.2)

‘Discussion of ground rules is good practice, even if no intermediary is used, in all young witness cases and in

other cases where a witness or defendant has communication needs.’

(CrimPD 3E.3)

A GRH is expected in every case where there is a vulnerable witness, save in exceptional circumstances:

‘judges are taught, in accordance with the Criminal Practice Directions, that it is best practice to hold hearings in advance

of the trial to ensure the smooth running of the trial, to give any special measures directions and to set the ground rules

for the treatment of a vulnerable witness. We would expect a ground rules hearing in every case involving a vulnerable

witness, save in very exceptional circumstances. If there are any doubts on how to proceed, guidance should be sought

from those who have the responsibility for looking after the witness and or an expert.’

(R v Lubemba; R v JP [2014] EWCA Crim 2064, [42])

For ground rules hearings and intermediaries for vulnerable defendants, see CrimPD (Amendment No 1) [2016] EWCA Crim 97, 3F in particular.

 

1.5 The GRH should take place about a week before the witness gives evidence (and at least the day before the trial) to enable advocates to prepare and, if necessary, to adjust their approach; the judge should state what the ground rules are and they should be recorded; advocates must abide by the ground rules.

‘Discussion before the day of trial is preferable to give advocates time to adapt their questions to the witness’s needs.

It may be helpful for a trial practice note of boundaries to be created at the end of the discussion. The judge may use such a document in

ensuring that the agreed ground rules are complied with.’

(CrimPD 3E.3)

·       The advocate has a duty to abide by court rulings: ‘In the forensic process the decision and

judgment of this court bind the professions... in the course of any trial, like everyone else,

the advocate is ultimately bound to abide by the rulings of the court.’

(R v Farooqi and Others [2013] EWCA Crim 1649, [109])

Where necessary, advocates will need to address GRH and related issues in the appropriate case management forms.

 

In section 28 (pre-recorded cross-examination) cases:

Orders are likely to include:

‘Fixing a date for a ground rules hearing, about one week prior to the recorded cross-examination

and re-examination hearing, see CPD General matters 3E: Ground rules hearings to

plan questioning of a vulnerable witness or defendant;’

(CrimPD 18E.21 (vii))

‘The ground rules hearing will usually be soon after the deadline for service of the defence statement,

the recorded cross-examination and re-examination hearing about one week later. However,

there must be time afforded for any further disclosure of unused material following service of the defence statement

and for determination of any application under s.8 of the CPIA 1996.’

(CrimPD 18E.22)

‘It is imperative parties abide by orders made at the PTPH, including the completion and service of the

Ground Rules Hearing Form by the defence advocate. Delays or failures must be reported to

the judge as soon as they arise; this is the responsibility of each legal representative.’

(CrimPD 18E.27)

 

Advocates ensure they are familiar with CPD V Evidence 18E: USE OF S. 28 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999; PRE-RECORDING OF CROSS-EXAMINATION AND RE-EXAMINATION FOR WITNESSES CAPTURED BY S.16 YJCEA 1999.

1.6 The GRH directions should be recorded in open court.

GRH like any hearing should normally take place in public, the court may adapt that in the circumstances, e. g., because of the witness or any issues being discussed, it can take place in private or through use of remote live link. 

Research in 2016 (Cooper) with registered intermediaries in Northern Ireland suggests that one effective approach is to have ground discussions in chambers and then the judge makes the ground rules directions in open court.

The court should consider how technology might be used to allow the GRH participants to take part in the discussion from remote location(s).

 

2. Ground Rules Hearings involving an Intermediary

2.1   The intermediary (if there is one) must be involved in the ground rules discussion (CrimPR 3.9 (7)).

‘Ground rules for questioning must be discussed between the court, the advocates and the intermediary before

the witness gives evidence, to establish (a) how questions should be put to help the witness understand them,

and (b) how the proposed intermediary will alert the court if the witness has not understood, or needs a break.’

(Application for a Special Measures Direction, Part F)

  • ‘[Intermediaries] are used … to flag up potential difficulties in advance of the trial.’ (Judge, 2011)

  • The judge may require the advocates to consult the intermediary regarding the wording of their questions. (See further Section 3 below.)

  • In the event of disagreement about the proposed questions, the judge must decide what is appropriate: ‘a trial judge is not only entitled, he is duty bound to control the questioning of a witness’ (R v Lubemba; R v JP [2014] EWCA Crim 2064 [51])

  • The trial judge has a duty to intervene if he or she thinks the questioning is inappropriate even if the intermediary does not: ‘[T]he trial judge is responsible for controlling questioning and ensuring that vulnerable witnesses and defendants are enabled to give the best evidence they can. The judge has a duty to intervene, therefore, if an advocate’s questioning is confusing or inappropriate.’ (R v Lubemba; R v JP [2014] EWCA Crim 2064 [44])

 

GOOD PRACTICE EXAMPLE

In what may be the first Court of Appeal hearing that required an intermediary to assist a witness, ground rules were set,

prosecution and defence counsel  ‘worked as a team, the better to promote the interests of justice in the conduct of this case’

and as directed by the ground rules, questions to be put to the vulnerable witness  ‘were reviewed by the registered

intermediary, whose sensible expert suggestions were unhesitatingly adopted.’

Re FA [2015] EWCA Crim 209

The trial judge and the advocates should agree the wording of the direction that will be given to the jury about the intermediary’s role. Sample directions are included in the Crown Court Compendium (2018, section 3-7).

 

2.2 Warning the jury about special measures for a witness

‘Where on a trial on indictment evidence has been given in accordance with a special measures direction, the judge must

give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in

relation to the witness does not prejudice the accused.’

(Youth Justice and Criminal Evidence Act 1999 (YJCEA), section 32)

An appropriate direction should given ‘before the evidence is presented and a short reminder of this should be given in the summing up’; in ‘all special measures cases an explanation should be given about the purpose of presenting evidence with special measures’. (Crown Court Compendium, 2020, page 3-28, para 10 and 11 respectively). See further pages 3-28 to 3-35 of the Crown Court Compendium (2020) for examples of special measures directions.