Witness familiarisation and special measures come of age

The starting point for the best evidence from witnesses is witness preparation, or witness familiarisation as it is also known. Litigators used to fight shy of this for fear that they might cross the ethical divide and end up coaching their witnesses. All this changed after R v Momodou [2005] EWCA Crim 177, where the Court of Appeal distinguished between preparation from coaching or training. Though a criminal case, the guidelines from it are also applicable to civil matters.

In Momodou a proposed witness training case study came to light that bore a striking similarity to the events in question. At the trial it became an agreed fact between the prosecution and the defence that the training offered was “’wholly inappropriate and improper’. The [trial] judge took a particularly robust view of what had happened and unusually directed that he should there and then be expressly associated with that agreed fact.”

The Court of Appeal took the opportunity to confirm that witness training or coaching is not allowed but the effect of the judgment was also to give the green light to preparation so long as it is done properly: “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… The [pre-trial familiarisation] 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.”

Taking control

In his book, Preparing Witnesses: A Practical Guide for Lawyers and Their Clients, Boston attorney and former Harvard lecturer Dan Small says the purpose of witness preparation is: “(1) to level the playing field and (2) to allow the witness to take control…despite all appearances of the questioner being in control, the whole point of the exercise is to get the witnesses’ testimony.”

In criminal cases Victim Support runs the witness service which can provide information about what to expect at court, can arrange a pre-trial court familiarisation visit and can even be in court while the witness gives evidence. There is no civil or family court equivalent of the witness service so it falls to the lawyers to prepare witnesses and many lawyers engage the services of a witness preparation provider. This has the advantage that someone unconnected with the case, who does not know the evidence in the case, can not only familiarise the witness with court procedures but can also give them a taste of cross-examination using an unconnected case study. What is done must be ethical; dress rehearsals are strictly off-limits as are any suggestions as to what the witness should say in evidence

Research has concluded that “in general, therefore, findings lend initial support to those who assert that witness preparation is essential for the improvement of witness evidence in court”. (see Wheatcroft & Woods (2010), ‘Effectiveness of witness preparation and cross-examination non-directive and directive leading question styles on witness accuracy’, IJEP). It is not surprising then that many experienced litigators have come to regard witness preparation as essential in the run up to a trial.

The aim of proper preparation is to ensure that witnesses are freed from debilitating nerves and not disadvantaged by lack of knowledge about the court process.

However, some witnesses require more than this; it is sometimes necessary to adapt the traditional court process to meet a witness’s special communication needs.

Preparation plus

In order to create a fairer process, sections 23 to 30 of the Youth Justice and Criminal Evidence Act 1999 provide a range of ‘special measures’ for vulnerable witnesses (though not the defendant). In essence vulnerable witnesses are children and adults with physical disabilities or mental disorders affecting their communication. Special measures are: screening the witness from the accused, evidence by live link, evidence given in private (i.e. excluding people from the court), removal of wigs and gowns, video recorded evidence in chief, video recorded cross-examination or re-examination (but this is not yet in force), examination of a witness through intermediary and the use of aids to communication.

Intermediaries are the most innovative and least understood of these special measures. Intermediaries are experts (not expert witnesses) in communication. Many but not all are speech and language therapists with relevant specialist experience working for instance with those with autism, Alzheimer’s, mental illness or communication impairments caused by brain injury or damage.

Already in thousands of criminal cases, intermediaries have advised police interviewers, lawyers and judges on how best to communicate with vulnerable witnesses. They do this by carrying out an assessment of the witness’s communication needs and capabilities, writing a report and assisting the court to set and apply ground rules for the handling of the witness’s evidence. Intermediaries will also intervene at trial if the ground rules are broken or if communication becomes incoherent, inaccurate or incomplete. If a witness is vulnerable, the need to set and stick to ground rules, whether an intermediary is involved or not, is part and parcel of good case management.

The lack of a statutory framework covering defendants in criminal cases has not prevented the growing number of occasions where judges have allowed defendants to be assisted by an intermediary, the order being based on the court’s inherent jurisdiction to ensure that the defendant has a fair trial under article 6 of the European Convention on Human Rights.

The first such case pre-dated the legislative scheme of special measures (R v H [2003] EWCA Crim 1208) but, following the Divisional Court ruling in C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), judges have often used the inherent jurisdiction to permit intermediaries for defendants.

Civil cases

It is easy to see that special measures, including the use of intermediaries and other modifications to procedures for witnesses, should have a place in civil cases. This would not represent a radical leap; it is in keeping with the spirit of Lord Woolf’s Access to Justice report of 1996 which of course heralded the Civil Procedure Rules of 1999 and the use of written statements standing as evidence in chief unless the court directs otherwise (CPR 32.5 (2)). In addition the courts can, and from time to time do, utilise the provision of CPR 32.3 which states that the court “may allow a witness to give evidence through a video link or by other means”. In appropriate circumstances a witness overseas may give evidence via a TV link (see Polanski v Conde Nast Publications [2005] UKHL 10); however, the wording “or by other means” in CPR 32.3 is broad enough to cover a range of possibilities, the scope of which has not yet been defined in civil case law.

It is easy to think of possible applications for intermediaries, communication aids, pre-recorded evidence in chief and cross-examination and TV links: the child witness in a family case, the learning disabled witness in an employment tribunal, the stroke victim in the commercial dispute, the brain injured patient in the personal injury claim. The important thing is that the questions to the witness are fairly put and that the risks of miscommunication or confusing questions and answers are minimised.

Realistically the civil courts are not well equipped because special measures are not things that they are used to applying. Practical obstacles exist; for example, how would the court get access to a court TV link or facilities for pre-recording cross-examination? Who would find and fund an intermediary? Until there is a legislative scheme of special arrangements for vulnerable witnesses in civil cases each witness must be considered afresh for ad hoc arrangements. Since currently there is no legislation, applications for the granting of special measures will, for now, rely on the judge’s inherent jurisdiction and a good following wind for the logistics.

The family courts are already aware of the potential for intermediary use to enable complete, accurate and coherent communication. Re X (A child) [2011] EWHC 3401 (Fam) considered the use of an intermediary for a teenager with Asperger syndrome. 2011 Family Justice Council Guidelines in relation to children giving evidence in family proceedings encourage practitioners to consider the use of intermediaries at the earliest opportunity even though there is no family court legislative scheme for this as yet.

Gradual change and here for good

Northern Irish civil courts might just steal a march on their counterparts in England and Wales. The Northern Ireland Law Commission consulted and discovered that those who responded “were virtually unanimous in supporting the commission’s view that special measures should be extended to civil proceedings”. Its report Vulnerable Witnesses in Civil Proceedings (2011) recommends legislation for the use of special measures in the civil courts for children, or people who are living with mental illness, learning disability or personality disorder, or physical disability or disorder, as well as for witnesses who suffer fear and distress in connection with giving evidence.

Witness familiarisation and special measures might appear to be overnight sensations but they have been years in the making. Legal culture, just like any other, is slow to change; our traditional way of handling witnesses is rooted in the late 1700s when lawyers began to capture control in the courtroom. Now they are surrendering control, just a little, in the interests of better witness testimony. Change, though slow in coming, is here to stay and prudent practitioners must carefully consider each and every witness and ask ‘what is the best way to prepare this witness?’ and ‘should I be applying to the court for special measures in order that this witness can give their best evidence?’

Penny Cooper is a barrister at 39 Essex Chambers and an honorary visiting professor at City Law School, City University London, and at the University of Roehampton