Recent suggestions that prosecutors
in England and Wales may, for the first time, be allowed direct
access to witnesses ahead of trial, have sparked off a renewed
debate about the dangers of witness coaching and the threat it
poses to the administration of justice. When, in the wake of the
Damilola case the Attorney General, Lord Goldsmith, asked the
CPS to consider publicly whether or not the time had come for
prosecutors to be permitted to interview witnesses pre-trial,
the DPP at the time, Sir David Calvert-Smith QC wrote “I
acknowledge that there are strongly held views that allowing prosecutors
to interview a witness and to speak about that witness’s
evidence before trial, carries potential risks of coaching or
otherwise tainting the witness’s evidence.” But just
how real are those risks and are they worth taking? How far along
the line from preparation to coaching can a lawyer go before he/she
poses a threat to the administration of justice and indeed to
his/her own livelihood?
Since ‘witness coaching’ is not an offence in its own right, we must look to the individual participants to ascertain the consequences of engaging in this activity. While all parties involved leave themselves open to accusations of ‘perverting the course of justice’, in broad terms the coached witness risks prosecution under the perjury statutes while the coach, be it solicitor or barrister, risks being in breach of his/her professional code of conduct.
For barristers, the pertinent provision is Paragraph 705 of the Bar Council Code of Conduct, according to which a barrister must not “(a) rehearse, practice or coach a witness in relation to his evidence” or “(b) encourage a witness to give evidence which is untruthful or which is not the whole truth”
Clearly what has been described as ‘Grade I’ coaching which involves “ a dishonest lawyer brazenly telling a compliant witness what to say under oath” , would fall foul of these provisions, but since the risk of inadvertent coaching can arise at any stage, it is worth examining the less obviously dangerous practices of witness preparation and witness training before returning to “Grade 1” coaching.
Things have changed since the days when witnesses were warned to attend court at the last moment and when at court they waited for hours or days without being given any information. Nowadays members of the Witness Service (run by the voluntary charity Victim Support) are visible daily in our courts and they proudly promote their willingness to:
Arrange for a visit to the court before the hearing
Arrange for someone to accompany the witness into the courtroom when they have to give evidence
Provide the opportunity to talk over the case when it has ended and to get more help and information
For lawyers too things have changed. Whereas not so long ago even the most basic level of preparation or contact between barrister and witness would have been frowned upon, now permission to introduce oneself and instruct a witness on procedure is enshrined in Paragraph 6.1.3 of the Bar Council’s “Written standards for the conduct of professional work”. Indeed the provisions of the guidance go even further. Paragraph 6.1.4 makes it the “responsibility of the barrister, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar court procedures are put as much at ease as possible”. But then the code pulls back and in paragraph 6.2.4 barristers are warned that they “should be alert to the risks that any discussion of the substance of a case with a witness may lead to suspicions of coaching, and thus tend to diminish the value of the witness’s evidence in the eyes of the court, or may place the barrister in a position of professional embarrassment”.
Despite the cautionary words, there is no doubt it may be thought, that it can only benefit all the parties if a witness is prepared for their appearance in court, in the sense that they understand how the system works, what the procedures are that they will go through in court and importantly, the way the adversarial system works. It is this last aspect that is open to extension in the future by way of a potential examination of what a witness will say and how the witness will respond to certain questions.
It should also be noted that rules on contact with witnesses in civil cases are substantially different. Guidance on dealing with witnesses in these circumstances also is given by the Bar Council.
It is against this background of prohibition on discussion of the evidence with witnesses, that the CPS launched its consultation paper on ‘Pre-trial Witness Interviews by Prosecutors’ last May. In that paper, the case was made for allowing prosecutors direct access to witnesses before trial with a view to “reducing the number of cases that fail through lack of reliable evidence”. Arguments put forward in favour of this approach included the fact that police officers are not always in the best position to assess the importance of witness evidence; prosecutors would be in a position to assess the demeanour of the witness and to question for clarification or expansion of detail in a witness statement as a result of which weak cases would be weeded out at an early stage and prosecutors could put witnesses at ease in such a way that potentially reluctant witnesses may be more likely to proceed.
There are potential difficulties, however. It is in the nature of lawyers to test material before them and complaints from witnesses in problem cases can be envisaged along the lines that the prosecutor tended not to believe them by saying things like “How can you be sure?” “Why did you not report the matter earlier?” Why do you think your friend failed to remember this point?” The police rightly abandoned their historical role in testing complainants’ accounts particularly in rape cases. However, if prosecution lawyers are to take the witness past the point of simple reassurance, it is difficult to see how this can be avoided unless they simply adopt a subjective belief in any account put forward. This brings with it, its own raft of problems.
Ideas for safeguards against coaching or contamination of evidence were also solicited in the paper and the suggestion was made that audio and/or video recordings of interviews might be appropriate. The arguments advanced against allowing such pre-trial contact can be summed up as the risk of prosecutors losing their objectivity and the risk that prosecutors would be open to accusations of coaching.
Solicitors, it should be noted, do not face the same restrictions on contact or preparation as their colleagues at the Bar. The Guide to the Professional Conduct of Solicitors states at Paragraph 21.10 that “It is permissible for a solicitor acting for any party to interview and take statements from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party”. It is worth noting too, that other common law jurisdictions such as Scotland and Canada already allow interviews by prosecutors prior to trial and Sir David Calvert-Smith QC remarked that in these jurisdictions “ The risk of coaching or otherwise contaminating the evidence does not appear to be regarded as a significant issue and defence accusations of coaching appear to be rare”
Further along the scale towards coaching comes the issue of witness training. This too is an area, which has changed dramatically in recent years. Only 15 years ago Professor David Gee made an impassioned call for “formal training in witness techniques of groups of doctors in disciplines likely to lead to court exposure” and warned that allowing expert witnesses to learn by experience alone “could be disastrous, both for the outcome of the case itself and also for the morale of the young doctor” . His call appears to have been heeded by experts in all fields required to give evidence. The results of the Bond Solon Training Expert Witness Survey 2003 show that 96% of respondents think that experts need training in witness skills and 76% have already received training in how to appear in court. But who is providing this training and does it carry any risk of witness coaching?
Bond Solon which conducted that
research into expert witnesses is also the leading provider of
witness training in the UK. The company, which was established
in 1994 by Catherine Bond and Mark Solon, has put tens of thousands
of trainees, both lay and expert through their courtroom paces.
They boast clients from Customs and Excise to the Home Office,
law firms; local authorities and major national and international
corporations and they claim to provide 90% - 95% of all witness
training in the country. They are also accredited to both the
Law Society and the Bar Council and some of their courses carry
CPD points. Since both founders are lawyers themselves they abide
by both the solicitors’ and barristers’ codes of conduct.
But aside from this voluntary adherence to the professional codes
they are subject to no regulatory body and there is nothing to
stop a less scrupulous organization setting up to provide witness
training. A quick trawl of the Internet suggests that there is
some cause for concern. Key in ‘Witness Coaching’
on any major search engine and you will come up with thousands
of sites, the majority of them being American, in which a wide
variety of individuals, from midwives to neuro-linguistic programmers
offer their unregulated services as witness trainers.
A smaller operator in the UK field is Lee Moore & Co. Moore is a barrister who functions within the Bar Council code of conduct. She established her witness training programme in 1998 and specializes in the training of adults abused in childhood.
Her aim is to enable them to present
their oral testimony more effectively. Although Moore detects
a sea change in attitudes to the acceptability of witness training
she believes that there is insufficient awareness of the impact
of giving evidence on victims and insufficient awareness of the
risks involved in giving evidence and the consequences for the
witness’s physical and mental health and safety