Over the last eighteen months, the courts have had the three opportunities (two criminal and one civil) to consider the acceptable boundaries for witness familiarisation (R v Momodou [2005] EWCA Crim 177, R v Salisbury – May 2004, Chester Crown Court, Transcript no. T20037200 and Ultraframe (UK) Ltd v Fielding and others [2005] EWHC 1638 (Ch)). What became apparent from the cases was that there were no clear definitions of what witness familiarisation or witness training are. The judgments themselves showed that there was confusion as to what was permissible and what was unacceptable. The cases generated much debate and have now been followed by new guidelines issued by the Bar Council in October 2005 (Guidance on Witness Preparation (Bar Council Professional Standards Committee – October 2005) (The Guidance)) .

1. What is Witness Familiarisation?
The cases have confirmed that it is acceptable to acquaint the witness with the “pitfalls” of giving evidence and to give tips on how best to prepare for the ordeal, were acceptable. On the other hand, witness coaching which might “affect the
accuracy of the evidence” or cause a witness to alter the emphasis of his evidence is not.

A definition of witness familiarisation has been provided in the Guidance: in the context of criminal cases; it includes “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”

As part of the process, barristers may advise on “the basic requirements for giving evidence, eg. the need to listen to and answer the question put, to speak clearly and slowly in order to ensure that the Court hears what the witness is saying, and to avoid irrelevant comments”. For expert witnesses in criminal cases or those who will be giving evidence of a technical nature, guidance may be provided on how to give technical evidence to a jury and how to resist the pressure to give evidence outside the expert’s area of expertise or matters covered by his statement. The Guidance emphasises that none of this will diminish the authenticity or credibility of the evidence given by such witnesses at trial.

For civil proceedings, neither the cases nor the Guidance provide any specific assistance on what witness familiarisation is in this context. In the case of Ultraframe (UK) Ltd v Fielding and others, Mr Justice Lewison said that he did not find anything objectionable in witness familiarisation sessions which give “an introduction to the theory, practice and procedure of giving evidence”. He also said that “It is a common experience that anxious witnesses are given general guidance on how to behave in court (listen carefully to the question; do not lose your temper etc)”. The Guidance indicates that the general principles applicable to criminal cases should apply in the civil arena.

2. Is Witness Familiarisation encouraged?
The Guidance says that witness familiarisation arrangements are “to be welcomed”. The onus is placed on counsel to “ensure that those facing unfamiliar court procedures are put at ease as much as possible, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct”
and that a process of witness familiarisation may “prevent witnesses from being disadvantaged by ignorance of the process or taken by surprise at the way it which it works”.

Care must be taken not to over-step the line so that the witness is “coached”. The Bar Council advises that great care must be taken in discussions with witnesses concerning the process of giving evidence to ensure that nothing done or said may be interpreted as suggesting “what the witness should say, or how he or she should express himself or herself in the witness box – that would be coaching.”

Reference can also be made to the Bar Code of Conduct (paragraph 705) and also to the Guidance on Preparation of Witness Statements (paragraph 9) for further guidance as to what might be permissible during discussions with witnesses. Any discussions which might influence or contaminate a witness’s evidence are not permitted.

3. Can the session include a mock cross-examination?
This is an important area and one which witnesses often find very illuminating. The Guidance recognises that such an experience may be part of the witness familiarisation process and considers that it is appropriate provided that “none of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events”. The purpose of the mock cross-examination must only be to give the witness “greater familiarity with and confidence in the process of giving oral evidence”.

The Guidance gives makes it clear that in criminal proceedings, the mock cross-examination must not be based on “facts which are the same as or similar to those of any current or impending trial, hearing or proceedings at which a participant is likely to be a witness”.

In the Ultraframe decision, Lewison J said that the case study used for any mock cross-examination should be “sufficiently far removed from the issues in [the] case as not to give rise to any inference of coaching”. The judge expresses a preference for “fictitious case studies”.

The Guidance on Preparation of Witness Statements confirms that any “….mock cross-examination or rehearsals of particular lines of questioning that Counsel proposes to follow are not permitted”.

4. Can witnesses be trained in groups?
Concerns were expressed in Momodou about witnesses being trained in groups since they might alter their recollections or be tempted to collude. The sources do not specifically address this point. Provided the sessions and, particularly the mock cross-examination, follow the Guidance, there does not appear to be any reason why witnesses cannot be trained in groups. In criminal cases, it may not be appropriate for witnesses to observe mock cross-examination of other witnesses in the same proceedings.

5. Is it necessary to maintain records of all those present?
The Guidance contains specific provisions which deal with maintaining a proper record of the session. In particular, in criminal cases, the participants need to sign a written confirmation that the course materials do not bear any similarity to any forthcoming case.

6. Why can’t barristers instructed in the case do this themselves?
The Guidance makes it clear that none of those involved in the witness familiarisation process should have any “personal knowledge” of the case.

7. Can a barrister, solicitor or anyone involved in the case observe the session?
The sources do not address this issue. Generally, this is inadvisable since what you might see in the session might influence the advice you might give to the witness concerning their performance in the witness box in the actual case. There is a risk of the process being contaminated and confused with the actual case – it is therefore safest to keep those running the actual case away from the witness familiarisation process. It is also an opportunity for the witness to ask some basic procedural questions.

A video can be provided to the witness as part of the familiarisation process: this is to enable the witness to review their performance. The video should not be reviewed by those involved in the case, for the reasons outlined above.

8. Can interpreters attend the witness familiarisation session?
If it is the same interpreter as will be used in the forthcoming proceedings, it must be made clear to them that there must be no discussion of the actual case. Sometimes, there can be an advantage of the interpreter who will be used at trial attending, since it gives them more of an opportunity to get to know the witness before they give live evidence.

9. Do details of the training have to be disclosed?
The issue of disclosure in civil cases is not addressed in the sources. In our experience, it is not common practice to disclose to the other side that the witnesses have undergone witness familiarisation and it is certainly arguable that no such disclosure needs to be made. It is a matter for the solicitors to decide on the particular case whether to disclose the fact that a witness familiarisation session has taken place along with disclosing the standard written material; of course, if there is disclosure, then any unnecessary argument would be flushed out before the witness goes into the box. If a video of the mock cross-examination is made, this would be a “document” prepared in contemplation of litigation and so would be covered by litigation privilege.

In criminal cases, the Guidance sets out in detail what needs to be done. If prosecution witnesses are to be involved in a Witness Familiarisation programme, the CPS must be kept informed and may comment on the proposed programme. For defence witnesses, counsel’s advice should be sought in advance on the nature and extent of the familiarisation course and the trial judge and the CPS must be informed of any familiarisation process.

10. Can the costs of the witness familiarisation session(s) be recovered?
In civil cases, this would be at the discretion of the costs judge on assessment. It could be argued on assessment that the witness familiarisation session leads to a more efficient use of the court’s time and therefore the costs should be recovered on the standard basis. In criminal cases, this is at the discretion of a court official.

The Guidance is to be welcomed as it brings greater certainty to an area which had begun to cause controversy. It will be interesting to see whether the Guide to Professional Conduct, which is currently being updated, will reflect the Guidance.

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