Ashley Fairbrother, of Edmonds Marshall McMahon, takes a look at the controversial CPS guidelines providing for witness/victim assistance at court.
Earlier this year the Crown Prosecution Service (“CPS”) released for consultation the highly controversial ‘Draft Guidance on Speaking to Witnesses at Court’. Since its release, this guidance has been the subject of much controversy across the legal community and has inflamed hardened defence lawyers who consider the guidance tantamount to coaching a witness as to what to say. They are of the view that it will erode the ‘fundamental principle’ that the prosecution must prove its case.
The Director of Public Prosecutions, Alison Saunders – who is still facing calls to resign over the Lord Janner and Operation Elveden scandals – was forced to defend the guidelines as mostly ‘common sense’, aimed at ensuring witnesses give their best evidence in court, fully informed of what will happen on the battleground, otherwise branded the courtroom. The DPP remarked ‘the fear of not knowing what is going to happen in court is often worse than the actual experience of giving evidence’. Lawyers can often forget that whilst the courtroom is the place of business for barristers and solicitor-advocates, it can be an alien and unsettling place for most.
The guidelines suggest that witnesses should be told of the ‘general nature’ of the defence case and, more controversially, of any material the defence has that may form the basis of cross-examination – whether it be the issue of consent in a rape case or identity in an assault case. Those opposing argue to the contrary; that it is this element of surprise that is the cornerstone of our adversarial system.
Despite the controversy the guidelines have evoked, it should be noted that barristers already play a significant role in the preparation and presentation of witness evidence; it is their responsibility to ensure those facing unfamiliar court procedures are put at ease as much as possible. Under the Bar Council’s Written Standards for the Conduct of Professional Work, barristers are asked to prepare witnesses for the giving of oral evidence, whilst also complying with the fundamental prohibition not to ‘rehearse, practice or coach a witness in relation to his/her evidence’. It is this line – between witness preparation that is encouraged, and impermissible rehearsing or coaching – that may not always be understood. The guidelines may serve as a useful instruction to those prosecuting in defining where this line should be drawn.
Indeed in a time of state retrenchment, spearheaded by the condemned Grayling, some witnesses may have little or no idea when they turn up to court of what they said in their original witness statement, never mind what the defence have to say. Witnesses usually provide their statements several months or even years before the offender is brought to justice and are not typically given a copy. When the witness arrives at court, teeth chattering and sometimes only 30/40 minutes before they are due to give evidence, it can often be the first time they have seen their statement since signing. They are then required to spend those precious minutes between biting their nails, wondering what will happen and what the judge or the courtroom may look like and reading the contents of their statement. A calming and reassuring few words from the prosecutor during this time about the prosecution case, procedure and the defence case may serve to settle those nerves slightly and provide for a more useful witness.
CPS Draft Guidance in Context
Taking a look at the guidelines, they propose that prosecutors should adopt a six stage approach to ensuring that witnesses are fully prepared for giving oral evidence. They are:
(a) Meet & Greet –the prosecutor should meet the witness before s/he gives evidence and conduct the usual pleasantries.
(b) Provide Assistance about Procedure– the prosecutor should advise the witness on oath taking, the order in which questions will be taken, the role of the defence advocate and specifically advise the witness that it is the defence barrister’s job to challenge the prosecution’s version of events.
(c) Providing Assistance about Giving Evidence– witnesses will then be told to answer questions truthfully – perhaps a given – and be told of the importance of refreshing their memory from their statement before going into court. Witnesses will no doubt be advised that giving evidence is not a “memory game” and they will be given access to their statement in the witness box should they need it.
These first three stages are fairly common practice and are not controversial.
(d) Providing Assistance for Cross-Examination– witnesses will then be educated on the fact that cross examination within the adversarial system is designed to cast doubt on the prosecution’s version of events. The DPP has said that relying on witnesses to ‘work it out for themselves’ is clearly unfair and unrealistic. The guidelines do, however, warn prosecutors not to elicit information from their witnesses and to discourage them from giving information about the case. The guidelines propose that barristers should inform the witness of the following:
- The general nature of the defence case where it is known (mistaken identification, consent, self-defence, lack of intent for example). The prosecutor must, however, avoid any discussion of the factual basis of the defence case.
- Where third party material about a particular witness has been disclosed to the defence as being capable of undermining the prosecution case or assisting the defence case (such as social services, medical or counselling records) then that particular witness should be informed of the fact of such disclosure.
- Where leave has been given for a particular witness to be cross-examined about an aspect of their bad character under section 100 Criminal Justice Act 2003 or their sexual history under section 41 Youth Justice and Criminal Evidence Act 1999 then that particular witness should be informed that such leave has been given.
(e) The remaining stages of the guidelines deal with prosecutors keeping witnesses updated on the case
Coaching – What is the problem?
The CPS guidelines have to be considered against the backdrop of the seminal case on witness coaching, R v Momodou & Limani  EWCA Crim 177;  2 All ER 571. In this case the court considered the impact of training being delivered to witnesses that included a case study which strongly resembled the circumstances of the case, thereby giving the witness the chance to rehearse an answer that could be easily regurgitated in the court room, albeit with names and dates modified accordingly. The court stated that, ‘There is a dramatic distinction between witness training or coaching, and witness familiarisation’… ‘Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted’. The court did, however, qualify this by stating, ‘This principle does not preclude pre-trial arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants.’ There are and always will be risks inherent in witness familiarisation, however the CPS guidelines can only assist in supporting vulnerable and often terrified witnesses.
The DPP has stressed that the principles would apply to all prosecutors, whether from the Crown Prosecution Service or from the self-employed Bar, and will no doubt be employed by those prosecutors on behalf of private prosecuting bodies, stating, ‘This guidance seeks to improve our support to victims through this process and they will give prosecutors confidence to do so without fear of allegations of coaching’.
The guidance was welcomed by the victims’ commissioner Baroness Newlove and the independent charity Victim Support.
The closing date for responses to the consultation was the 16th March 2015 and we await with anticipation the response, which will be published on the CPS website very shortly.