Prepare and receive the evidence: ground rules, intermediaries and memory

Preparation must produce a usable plan. Identify communication, sensory and emotional needs early; obtain the person's views; seek an appropriate assessment; serve the application and necessary material; and test the proposed technology and aids. Explain where the witness will sit, who will ask questions and how to request a break. This is a proposed practical implementation of CrimPR Parts 3 and 18, not permission to promise a measure that only the court can authorise.

Ground rules govern questioning, not answers. A ground-rules hearingGlossary termGround-rules hearing allows the court to settle how evidence will be elicited and tested. Under CrimPR rr 3.8–3.9, the court plans the questioning of someone with communication needs and conducts the required pre-trial discussion where an intermediary is involved. It records directions about language, question length, topics, duration, breaks, aids and intervention. The parties must assist. Ground rules may be needed without an intermediary; vulnerability is not confined to a diagnostic label. CPD paras 6.1–6.4.

Understand the ordinary sequence before adapting it. In examination-in-chief, the calling party elicits the witness's evidence. A non-leading question, such as “What happened next?”, does not suggest the desired answer. A leading question, such as “The car was red, wasn't it?”, does. The ordinary approach is non-leading questioning on contested matters in chief; leading questions can appropriately deal with introductory or undisputed matters, subject to the court's control. In cross-examination, another party tests the account and may normally use leading questions. Re-examination by the calling party addresses matters arising from cross-examination, rather than offering unrestricted new evidence. The court controls departure from the usual scope. CrimPR rr 24.4(4), 25.11(4) and 3.8.

Fair testing does not require confusing language. A question can be legitimate in topic but unsuitable in form. “You didn't fail to see him leave, did you?” combines negatives and may produce an answer that cannot safely be interpreted. Ask one proposition at a time, use concrete language and check understanding without suggesting the answer. Repetition, accusation and compound questions may need restriction. The right to challenge evidence does not create a right to ask an incomprehensible question. CPD paras 6.1.1–6.1.11.

The duty to put the defence case is subject to judicial control. Ordinarily the witness should have a fair opportunity to respond to a material challenge. For a vulnerable witness, the court may restrict how that challenge is put, relieve a party of putting every detail, or arrange for a disputed point to be explained to the jury through another proper route. Several advocates may be required to divide topics rather than repeat questions. The ruling and any consequential jury explanation matter: counsel must not silently abandon a necessary challenge or assume that repeated questioning is mandatory. CrimPR r 3.8; CPD paras 6.1.6–6.1.11.

A witness intermediary is a communication specialist. Under YJCEA s 29, an approved intermediaryGlossary termIntermediary communicates questions and answers so that the witness and the court can understand them. The intermediary may flag a communication failure and help with suitable form. They do not supply an answer, coach the account, decide credibility or give legal advice. The judge remains in control. Under CrimPR rr 18.22–18.24, intermediaries owe an overriding duty to the court, must act impartially within their expertise, make the required declaration and provide a report explaining needs and recommendations. The witness's s 16 eligibility and the particular statutory direction still matter.

A defendant uses a different participation route. Sections 16–17 exclude the accused from the witness special-measures eligibility scheme. A defendant who needs support nevertheless has a right to effective participation: understanding the proceedings sufficiently, communicating with their lawyers and taking part in their defence. The court uses its participation powers and the current rules, rather than pretending that the defendant is an ordinary eligible prosecution or defence witness. A defendant who chooses to testify may also need carefully planned witness-box arrangements. CrimPR rr 3.8–3.9 and 18.19; CPD para 6.4.

When appointment is required, “may help” is not the test. Under r 18.19(1), the court must appoint an intermediary where the defendant's ability to participate is likely to be diminished by age, if under 18, or by the listed mental, intellectual/social or physical impairments, and appointment is necessary for effective participation. The court considers the reported communication needs, recommendations, the defendant's views and whether other questioning or support arrangements would be adequate. Being under 18, having a diagnosis or showing that assistance would improve matters does not alone prove necessity. Conversely, once both conditions are established, appointment is not merely an optional kindness.

The appointment's scope must fit the need. Under r 18.19(3)–(4) it can cover all hearings, specified hearings or parts, or a particular purpose. Unless the court directs otherwise, it includes communication with the defendant's legal representatives for that duration and purpose. Variation or discharge requires the material change and continuing effective-participation safeguards in r 18.19(6); rr 18.20–18.21 govern the application and response. Do not remove necessary support solely because a timetable is inconvenient. If no intermediary is appointed, the court must still consider practical adaptations such as plain explanations, breaks, seating and communication with the legal team. These arrangements do not change the accused's choice whether to testify.

Familiarisation is not rehearsal. A witness may be shown the room or link, told the order of events and helped to understand the role of each participant. The witness must still give their own account. Scripting answers, persuading the witness to change the substance, or practising the disputed evidence to improve its apparent consistency crosses the boundary. SRA Code of Conduct, paras 2.1–2.4; CPD paras 6.1 and 6.3.30. A technology test should test communication, not manufacture testimony.

Refreshing memory while giving oral evidence. Under Criminal Justice Act 2003, s 139(1), a witness may refresh memoryGlossary termRefreshing memory from a document made or verified earlier if the witness states that it records their recollection at that time and their earlier recollection was likely to have been significantly better than now. The witness need not have physically written the document, provided the verification requirement is met. The law does not impose a universal same-day writing rule. Section 139(2) separately covers a transcript of a qualifying earlier sound-recorded account, with the corresponding recollection conditions.

Using the record and admitting its contents are different acts. Establish the s 139 basis and allow the court to control the use of the record; do not simply place a script before the witness. The evidence then given orally is the witness's testimony. Refreshing does not by itself make the entire document evidence of the truth of everything it contains. A party seeking to rely on the record itself must identify the applicable prior-statement or hearsay route, and comply with disclosure and evidential rules. The separate Hearsay chapter explains those routes. CJA 2003, s 139; CrimPR rr 24.4(5) and 25.11(5).