WITNESS “PREPARATION” IN A CIVIL CONTEXT: HOW DO WE HELP THE UNDERDOG WHILST WORKING ON A SHOESTRING?

The controversy surrounding the new guidelines by the CPS for the preparation of witnesses in serious cases has led me to consider the rules and principles relating to witness preparation in the context of civil litigation. This is always a difficult area ethically. There is a fine (but clear) line between testing evidence; preparing a witness for the hearing and coaching a witness. What we are concerned with (or certainly what I am concerned with here) is assisting witnesses in the way in which they give their evidence whilst not, in any way, contaminating the content of that evidence). An equally important question is how this can be done at a proportionate cost.

WITNESS PREPARATION: NOT ANOTHER EXPENSE

One reason for resisting the very notion of “witness preparation” is that it represents another expense (which will rarely, if ever, be recoverable on a costs budget). It  could put the very wealthy litigant (who can afford such preparation) at a major advantage over the majority who cannot. (There is a certain irony that some of the main proponents of witness familiarisation point to the evidence of one of the wealthiest individuals in the country, in support of their case.)  As Richard Moorhead has observed:

“Most participants in the justice system, be they parties, victims, witnesses or defendants, do not have the resources necessary to get meaningful witness familiarisation. Victim support, in particular, is limited”

KEY POINTS

  • Witness “familiarisation” does assist witnesses in giving their evidence.
  • Extreme care has to be taken in preparing witnesses for trial; the evidence must not be “contaminated” by the process.
  • Most litigants do not have the resources to pay for familiarisation and litigators must look to other sources.
  • In most cases problems occur because of the way in which the statement is taken rather than caused by the witness themselves. Lawyers need more training in this area than witnesses.

DOES WITNESS PREPARATION HAVE ANY VALUE?

There are other reasons to be sceptical about the value of witness preparation Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd [2014] EWHC 3718 QB HH Judge Mackie QC observed:-

  1. All the witnesses of fact were clear, honest and straightforward. Some of Globe’s witnesses were hampered by the effects of some external ‘witness preparation training’ which their integrity and common sense fortunately enabled them to shake off as their cross-examination continued.

CICERO’S QUESTION: WHO BENEFITS?

Many of the foremost advocates of witness preparation are, unsurprisingly, those people who have a commercial interest in providing that preparation.

HOWEVER WITNESS FAMILIARISATION HAS SOME TANGIBLE BENEFITS

However independent academic research carried out by the University of Leeds and Liverpool  indication that some witness familiarisation had benefits. One major problem was the complex and multi-faceted way in which advocates ask question. The research found that:

  • Prepared witnesses were significantly more likely than the unprepared to provide correct responses to cross-examination questions.
  • Prepared witnesses were more likely to seek clarification during cross-examination.
  • Prepared witnesses were less likely to be confused or unduly influenced by the form of cross-examination questions.

So the fundamental question is how are working litigators going to ensure that witnesses are are given appropriate, and totally ethical, guidance which allows that witness to assist the court fully.

ETHICS FIRST: GUIDANCE FROM THE LAW SOCIETY AND THE BAR STANDARDS BOARD

There are major ethical issues in witness preparation that every litigator must understand and address:-

Law Society Guide to Professional Conduct – 21.10

A Solicitor “must not, of course, tamper with the evidence of a witness or attempt to suborn the witness into changing evidence”.

The Bar Standards Board

Have a lot of useful information as to the practical dangers of dealing with a witness.

6. Witnesses6.1.1 The rules which define and regulate the barrister’s functions in relation to the preparation of evidence and contact with witnesses are set out in paragraphs 704, 705, 706, 707 and 708 of the Code of Conduct.

6.1.2 There is no longer any rule which prevents a barrister from having contact with any witness.

6.1.3 In particular, there is no longer any rule in any case (including contested cases in the Crown Court) which prevents a barrister from having contact with a witness whom he may expect to call and examine in chief, with a view to introducing himself to the witness, explaining the court’s procedure (and in particular the procedure for giving evidence), and answering any questions on procedure which the witness may have.

6.1.4 It is a responsibility of a 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.

6.1.5 Unless otherwise directed by the Court or with the consent of the representative for the opposing side or of the Court, a barrister should not communicate directly or indirectly about the case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until it has been concluded.

6.2 Discussing the Evidence with Witnesses

6.2.1 Different considerations apply in relation to contact with witnesses for the purpose of interviewing them or discussing with them (either individually or together) the substance of their evidence or the evidence of other witnesses.

6.2.2 Although there is no longer any rule which prevents a barrister from having contact with witnesses for such purposes a barrister should exercise his discretion and consider very carefully whether and to what extent such contact is appropriate, bearing in mind in particular that it is not the barrister’s function (but that of his professional client) to investigate and collect evidence.

6.2.3 The guiding principle must be the obligation of counsel to promote and protect his lay client’s best interests so far as that is consistent with the law and with counsel’s overriding duty to the court (Code of Conduct paragraphs 302, 303)

6.2.4 A barrister 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, for example if he thereby becomes himself a witness in the case.  These dangers are most likely to occur if such discussion takes place:

(a) before the barrister has been supplied with a proof of the witness’s evidence; or

(b) in the absence of the barrister’s professional client or his representative.

A barrister should also be alert to the fact that, even in the absence of any wish or intention to do so, authority figures do subconsciously influence lay witnesses.  Discussion of the substance of the case may unwittingly contaminate the witness’s evidence.

6.2.5 There is particular danger where such discussions:

(a) take place in the presence of more than one witness of fact; or

(b) involve the disclosure to one witness of fact of the factual evidence of another witness.

These practices have been strongly deprecated by the courts as tending inevitably to encourage the rehearsal or coaching of witnesses and to increase the risk of fabrication or contamination of evidence: R v Arif (1993) May 26; Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1992] BCLC 1104, [1994] 1 /WLR 1271.

That is not to suggest that it is always inappropriate to disclose one witness’ evidence to another.  If the witness is one to be called by the other party, it is almost inevitable that a witness’ attention must be drawn to discrepancies between the two statements.  Discretion is, however, required, especially where the evidence of independent witnesses is involved.

6.2.6 Whilst there is no rule that any longer prevents a barrister from taking a witness statement in civil cases (for cases in the Crown Court see below), there is a distinction between the settling of a witness statement and taking a witness statement. It is not appropriate for a barrister who has taken witness statements, as opposed to settling witness statements prepared by others, to act as counsel unless he is a junior member of the team of Counsel and will not be examining the witness or there are exceptional circumstances, because it risks undermining the independence of the barrister as an advocate. Exceptional circumstances would include:

(a) the witness is a minor one;
(b) Counsel has no choice but to take a proof and this is the only practical course in the interests of justice – this would apply, for instance, where a witness appears unexpectedly at Court and there is no one else competent to take the statement.

The Cab-rank Rule does not require a barrister to agree to undertake the task of taking witness statements.

6.2.7 There is no rule which prevents a barrister from exchanging common courtesies with the other side’s witnesses.  However, a barrister should not discuss the substance of the case or any evidence with the other side’s witnesses except in rare and exceptional circumstances and then only with the prior knowledge of his opponent.

WITNESS PREPARATION: BAR STANDARDS BOARD GUIDELINES

The Bar Standards Board also provide useful Guidance on Witness preparation.

“The fundamental prohibition regarding the preparation of witness evidence is expressed in paragraph 705(a) of the Code: a barrister must not rehearse, practise or coach a witness in relation to his/her evidence. However, the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood.”

 WITNESS STATEMENTS

The Guidance note goes on to give specific evidence about the drafting of witness statements.

  1. Barristers in civil proceedings are typically involved in settling witness statements. However, the courts have emphasised that a witness statement must, so far as possible, be in the witness’s own words: see eg. Aquarius Financial Enterprises Inc. v Certain Underwriters at Lloyd’s [2001] 2 Ll.Rep. 542 at 547; Chancery Guide, Appendix 4, para. 1; Commercial Court Guide para. H1.1(i) and H1.2 and Technology and Construction Court Guide para. 6.10. When settling witness statements, great care must be taken to avoid any suggestion:

(1) that the evidence in the witness statement has been manufactured by the legal representatives; or

(2) that the witness had been influenced to alter the evidence which he or she would otherwise have given.

  1. Furthermore, the evidence in a witness statement must not be partial; it must contain the truth, the whole truth and nothing but the truth in respect of the matters on which the witness proposes to give evidence: see Chancery Guide, Appendix 4, para. 6 and Queen’s Bench Guide, para. 7.10.4(1). A barrister may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if he or she is put on enquiry as to their truth: see Chancery Guide, Appendix 4, para. 6. Moreover, if a party discovers that a witness statement which has been served is incorrect, it must inform the other parties immediately: see Chancery Guide, Appendix 4, para. 6 and Queen’s Bench Guide, para. 7.10.4(6). Barristers therefore have a duty to ensure that such notice is given if they become aware that a witness statement contains material which is incorrect.

 CASE LAW

The dangers of witness familiarisation training was clearly recognised by the Court of Appeal in R -v- Momodon [2005] EWCA Crim 177

 Witness training (coaching)

Bond Solon

  1. 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. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See Richardson [1971] CAR 244; Arif, unreported, 22nd June 1993; Skinner [1994] 99 CAR 212; and Shaw [2002] EWCA Crim 3004.) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.
  2. This principle does not preclude pre-trial arrangements to familiarise witness 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. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.
  3. In the context of an anticipated criminal trial, if arrangements are made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed. In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation. If appropriate after obtaining police input, the Crown Prosecution Service should be invited to comment in advance on the proposals. If relevant information comes to the police, the police should inform the Crown Prosecution Service. The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations. If, having examined them, the Crown Prosecution Service suggests that the programme may be breaching the permitted limits, it should be amended. If the defence engages in the process, it would in our judgment be extremely wise for counsel’s advice to be sought, again in advance, and again with written information about the nature and extent of the training. In any event, it is in our judgment a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised by the defence using outside agencies, and it will follow that the Crown Prosecution Service will be made aware of what has happened.
  4. This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. 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. As already indicated, the document quoted in paragraph 41, if used, would have been utterly flawed. If discussion of the instant criminal proceedings begins, as it almost inevitably will, it must be stopped. And advice given about precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted. Note should be made if and when any such warning is given.
  5. All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed.
  6. On the facts apparently established, alternatively on the factual assumptions made at trial, so far as these appellants were concerned this guidance was not complied with in relation to two witnesses, Wakefield and Burns. As already indicated, their names were among those provided to the defence as having attended for training.
  7. We have closely examined the relevant material. We have already noted the facts agreed by the Crown at trial and the judge’s directions. The fact of and the arrangements for the training programme organised by Group 4 with Bond Solon reflected adversely not on the defence but on the Crown. Legitimate and powerful forensic criticism of the facts was made by the defence: the Crown conceded its justification: the judge unequivocally endorsed it. In Wakefield’s case, his contemporaneous notes of the incident were made on the following day. If his evidence drifted away from those notes, there was ample scope for cross-examination. In Burns’ case, her evidence was not wholly critical of Limani. In any event, the way in which the “training” issue was left to the jury meant that it was damaging to the creditworthiness of every witnesses who received it. In the result, looking at the evidence overall, the arrangements for training for Burns and Wakefield do not undermine the safety of the conviction.”

 WHAT CAN BE DONE IN PRACTICAL TERMS (AT PROPORTIONATE COSTS)?

Practitioners may face a minor difficulty in persuading local judges that the costs of “witness preparation” can reasonably appear on their costs budgets.    However there is other guidance  that can be given to a prospective witness.

 THE HOME OFFICE GUIDE TO GIVING EVIDENCE IN COURT

I particularly recommend the practical points set out in the Home Office guide Giving Evidence in Court. A copy of this, or a link to this, could be useful for most people giving evidence in court.  Among other things it explains the purpose of giving evidence. At the very least a prudent litigator should ensure that witnesses have access to this guide.

“To help the jury or magistrate reach a decision, you must explain, as clearly and concisely
as possible, what you have:
 seen
 heard
 recorded, and
you must do this:
 honestly
 impartially, and
 without embellishment.
As a general principle, all you are required to do is to give evidence as honestly and clearly
as possible.
You are not a professional witness or a performer, and are not expected to demonstrate any
special evidence giving skills. But, the courts are entitled to expect to hear the true facts, as
you know them, presented competently

The Guide also recommends:

  • Taking a pre-trial visit to the Court and courtroom.
  • Appropriate steps for refreshing your memory.
  • Take care with your appearance and demeanour.
  • Be straightforward.
  • Be objective.
  • Listen carefully to the questions you are asked and think before you answer.
  • If you do not understand a vague, complex or poorly phrased question, say so and ask politely, for clarification.
  • “As a general rule, the more rude and outrageous the questioner, the more cool, calm and collected you must be, the person who remains reasonable and composed will gain more respect and credibility”.

 OTHER GUIDANCE

There are already plenty of guidance notes which give advice on giving evidence.

 OTHER ARTICLES ON THE SUBJECT

 ULTIMATELY, HOWEVER, IN MOST CIVIL CASES IT IS THE PEOPLE TAKING THE STATEMENTS THAT NEED THE TRAINING NOT THE WITNESSES

This is a theme I will develop shortly. There is virtually no training or instruction on the training of witness statements.  Most people I ask have never been on a course. Most have not read the rules or any of the guidelines, let alone any of the specialist texts or guidelines.  I would hazard a guess that most of the “problems” with witnesses in civil cases arise from the way in which the statements are taken and presented by the lawyer, rather than the witnesses themselves.

 

 

 

 

 

 

 

 

 

 

 

 

 

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