THE INDEPENDENT MAGAZINE FOR PRACTISING BARRISTERS




 

 


Witness Coaching in Criminal Cases
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.

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.

Witness Preparation
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.

CPS consultation
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”

Witness Training
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


Those risks were highlighted in the case of Lindsay Armstrong the 17-year-old victim of a teenage rapist who committed suicide last year after giving evidence in her assailant’s trial. Far from risking coaching or contamination by training such witnesses Moore believes that conviction rates would be improved if training was more widely available and she calls for more research into this area, although one must remember that higher conviction rates are not antithetical to coaching.

Witness Coaching
The courses run by reputable providers make a point of not taking witnesses through their own evidence but training them to express themselves in examination and chief and withstand cross-examination through the use of previous cases or case studies. Witness coaching goes beyond this and can include what Professor C Wydick classes as Grade II coaching whereby a lawyer “knowingly and overtly induces a witness to testify to something the lawyer knows is false” . Great difficulties can arise when taking a witness through their own evidence, and this is something that the CPS will have to be alive to. First, as all advocates know for themselves, speaking something out loud to a third party (as opposed to running it in one’s head whilst luxuriating in a warm bath) often brings home its inadequacy or flaws. Second, even where the third party does not coach overtly, a look or gesture can convey to the witness that this was the ‘wrong’ answer. Richard Hughes’ novel A High Wind in Jamaica conveys this well, where the children, taken on board a pirate vessel and who in truth terrorize the pathetic pirates, rather than the other way round, tell terrible tales of wrongdoing by the sailors at the eventual criminal trial because they notice how these answers please the adults - particularly the judge. However, apart from high profile allegations, like those made in a UN report in 2000 against two American lawyers suspected of coaching in the Lockerbie case, incidents of suspected coaching in the our courts more often involve non lawyers, noticeably police or parents, although one bears in mind the old Irish tale of counsel opening the door to a room containing opposing counsel and witnesses and hearing the immortal words: “Now then, one last time and all together…”

Have there been appeals, the basis of which is an allegation of witness coaching?
In the case of R v Skinner (1994) 99 Cr. App. R. C.A. the issue had been whether or not a conviction was unsafe when there had been a discussion between police officers before they gave evidence. Farquharson LJ quoted Nolan LJ in the case of Arif when he said “Each case has to be dealt with on its own facts. In some cases it may emerge in the course of cross-examination at the trial of the witnesses concerned that such discussions may well have led to the fabrication of evidence …. In such a case the court might properly take the view that it would be unsafe to leave any of the evidence of the witnesses concerned to the jury” . On the facts in the Skinner case Farquharson LJ decided to uphold the conviction and said that it was sufficient for the judge “to bring to the notice of the jury …the ‘down side” of what had undoubtedly taken place….they should bear in mind that the evidence for that reason is all the more suspect”. Thus it appears that in case of suspected coaching of police evidence the system contains its own safeguards in the form of cross examination and careful direction to the jury. In truth, the most likely form of coaching to be encountered is from a previously examined witness towards a forthcoming one. This is very common and, unfortunately, not uncommonly occurs with most types of witnesses (including police officers) who doubtless feel they are helping a friend, relation, colleague or ‘partner’. It is also very obvious and most often revealed by the witness anticipating a previously explored issue.

That also appears to be the case in situations of suspected child coaching. In R v (1) Nigel Barrett Smith (2) Mark Jerome Broderick [2003] EWCA Crim 696 the issue before the court was that of the credibility of L a six year old victim/witness in a child abuse case. Dismissing Smith’s appeal against conviction Potter L.J. said of L’s evidence against him “The terms, the detail and the broad consistency with which she described the events of indecency with Smith, in our view precluded the likelihood of invention…L did not display discomfort, or refuse to answer questions in respect of Smith when cross examined” In contrast to this, the fact that L refused to answer questions in cross examination on her allegations against Broderick, was instrumental in allowing Broderick’s appeal .

However, with or without these safeguards, there are those who clearly consider that the risk that a child witness has been coached is considerably higher than the risk attached to other witnesses. In May this year High Court Judges in Scotland called on the Executive to scrap its proposed ban on the aggressive cross examination of child witnesses. Lord Osborne claimed that “The child witness may have been encouraged or even subjected to pressure by a parent in relation to the evidence to be given” . The judges also called for a ban on therapy for child abuse victims ahead of trials because of the “apparent risks to the administration of justice” . But is this fear of the coaching of child witnesses well founded? J.R. Spencer and Rhona Flin authors of The Evidence of Children, the Law and the Psychology do not think so. They asked a number of English judges whether they thought child witnesses were ever coached. “Of the majority who thought that deliberate coaching does take place, most said that the problem tends to arise in custody disputes in the civil courts. All but one judge said that it is rather rare…Significantly, the judges who mentioned coaching usually remarked that when it has taken place it is usually very obvious and the fact that it has happened gets exposed” .

Conclusion

Witness coaching may not be an offence as such, but it is clear that no lawyer can engage in it either intentionally or inadvertently without being in breach of their professional code of conduct and/or the law. Suggesting an answer to a witness (“I suppose you are trying to say…”) or conveying that an answer is wrong or implausible would and plainly ought to breach any professional code. To avoid falling foul of either, the cautious lawyer could stick to the status quo and engage in the minimal ‘preparation’ of witnesses by way of introductions and explanations of procedure. But by letting the risk of accusations of coaching outweigh the benefits of greater contact with witnesses, such as are anticipated if prosecutors are allowed to interview potential witnesses, and the training now on offer for witnesses both lay and professional it is arguable would be to hamper rather than facilitate the administration of justice. Anecdotal evidence suggests that vulnerable witnesses, who are rightly reassured as much as possible by visits to the court and, if appropriate, counselling, may actually be at a greater disadvantage with just this witness support than with nothing at all. They seem dazed when finally faced with the witness box, not so much by aggressive cross-examination (which is probably much rarer than pressure groups suggest for the obvious reason that it is usually a tactical error) but by the fact that the support system has not prepared them for a clinical dissection of their evidence. The judge protects their rights but he is not and cannot be their friend. To put it crudely, they are not sufficiently toughened for the experience. They become ‘victims’ rather than ‘complainants’.

Dishonest lawyers who would engage in Grade 1 coaching are hopefully thin on the ground and the risk of inadvertently coaching is a matter addressed at some length in our law schools and set out in the Code of Conduct. If the paucity of case law on the subject is anything to go by witness coaching is not a significant problem in our jurisdiction, and where it does arise it seems that our adversarial system and careful directions to our juries can, in combination, deal with it satisfactorily. Furthermore, it cannot be denied that the defendant is entitled to have his account thoroughly examined and sometimes tested in pre-trial conferences by the barrister representing him. This probably represents the greatest risk of at least Grade II coaching and is the hardest to detect because of the strict rules of confidentiality and privilege and because he alone of witnesses is entitled to hear all of the evidence in court. Can it be right that at least some form of preparation between lawyer and witness is denied - given that the witness will always have the disadvantage of not having heard the trial as a whole?


   
Search WWW Search The Barrister