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Too Much Too Little Too Late? Draft CPS Guidance on Speaking to Witnesses

Neil Baki and Jennifer Agate (Barrister, 25 Bedford Row; Associate, Farrer & Co LLP)

Date: 2015

Subject Area: Crime


This article examines the issues raised by the recent consultation on Draft CPS Guidance on Speaking to Witnesses at Court and highlighting key differences between the civil and criminal regimes.

Summary

The recent Consultation on Draft CPS Guidance on Speaking to Witnesses at Court aimed to ensure that:

  • the victims of crime are properly assisted for the criminal process; and

  • witnesses are able to give the best possible evidence.

The draft guidance, the authors argue, is "too much, too little, too late", potentially giving witnesses information which could prejudice a fair trial, while at the same time coming too late in the day to properly prepare individuals for the criminal process.

Background—the consultation

On January 19, 2015. the Director of Public Prosecutions launched a "Consultation on Draft CPS Guidance on Speaking to Witnesses at Court”, giving a response date of March 16. The draft guidance aimed to set out not only what is “permissible”, but what is “expected”. The overall aim was to ensure victims are properly assisted at trial to ensure that they are able to give the best possible evidence.

The draft guidance included advice on the following areas:

  • Meeting a witness at court;

  • Providing assistance about procedure;

  • Providing assistance about giving evidence;

  • Providing assistance for cross-examination;

  • Updating witnesses on progress;

  • Communicating with the witness after they have given; and

  • Clarification of the law on witness coaching.

The consultation and draft guidance followed high profile cases in which the treatment of witnesses had been called into question. The suicides of Tracy Shelvey and Frances Andrade, both victims in rape trials, placed a sharp focus on the support available for the victims of sexual offences. The prosecution of the Grillo sisters for fraud highlighted the reputational fallout that can arise from giving evidence in court, with Nigella Lawson describing her experience of giving evidence as a witness as “deeply disturbing”.

Too much—risk to a fair trial

The proposed CPS guidance is designed to give clarity to prosecutors dealing with criminal cases, whether those advocates are employed by the Crown Prosecution Service or those who practice at the independent Bar.

It would be difficult to argue against the core principle that witnesses giving evidence within a criminal trial should be afforded sufficient support and assistance to enable them to achieve their best possible evidence. At present, no such guidance is given to advocates or solicitors within a civil context to the same degree, save what one might wish to glean from R. v Momodou (a criminal case)1 and what is contained in the code of conduct for barristers and solicitors alike. It is important that witnesses should be familiarised with the court process and procedures, including support from other agencies such as witness services. Initiatives that assist to improve the giving of evidence already exist in the form of special measures for those that are vulnerable, including pre-recorded evidence in child sexual abuse cases.

However, it is the view of the authors that the draft guidance goes too far in some important respects. Paragraph (d) Providing Assistance for Cross-Examination states that Prosecutors should inform the witness of the following:

  • The general nature of the defence case where it is known (mistaken identification, consent, self-defence, lack of intent for example). The prosecutor must, however, void any discussion of the factual basis of the defence case;

  • Where third party material about a particular witness has been disclosed to the defence as being capable of undermining the prosecution’s case or assisting the defence case (such as social services, medical or counselling records), then that particular witness should be informed of the fact of the disclosure; and

  • Where leave has been given for a particular witness to be cross-examined about an aspect of their bad character under Criminal Justice Act 2003 s.100 or their sexual history under Youth Justice and Criminal Evidence Act 1999 s.41, then that particular witness should be informed that such leave has been given.

Given the approach in Momodou, the consultation, neither offers clarity for the prosecution advocate or assists in the careful balance of fairness and justice that all parties must expect. However, it does increase the partiality of counsel. The proposal under para.(d) goes well beyond witness reassurance and familiarisation with court processes and procedures. It is clearly a trespass on advising upon the factual aspects of the defence case and runs the obvious risk of tainted or coached evidence.

The guidance as proposed demonstrates a fundamental misunderstanding of Momodou to support the contention that whilst witness training and coaching is prohibited, so long as any factual discussion avoids a rehearsal of the evidence, then disclosing potential defences for example, does not run the risk of coaching occurring.

Judge LJ went on to say:

" 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. "

Even in a simple case it is all too easy to imagine the unintended consequences of a witness who, for example, having been informed that the defence case might be one of mistaken identity, tailors their evidence to sure up their recollections in the knowledge that there might be a perceived weakness in the Prosecution case. An honest witness might do this subconsciously, but a dishonest witness might take full advantage.

His Lordship went on:

" 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. "

It seems to the authors that informing a witness of the defendants defence encroaches on this principle. Furthermore, what is the poor prosecutor to do in a multi-handed case where different defences are advanced or where defendants embark on “cut-throat” defences? What is the approach to be in “technical” defences or cases where there is no immediate complainant? How is the Prosecution advocate to inform the witness or witnesses of such complex interplay?

As Momodou states, whilst witness familiarisation is entirely permitted, such as pre-court visits to reduce nerves and providing witness services support, “Nevertheless the evidence remains the witness’s own uncontaminated evidence”. Tipping-off a particular witness about what may be in dispute, runs the real risk of contaminating that witness’ evidence.

Further complicating issues arise from prosecuting advocates directly engaging a witness. Issues as to what was disclosed to a witness may become relevant and how that will have affected their evidence. This is turn may damage the quality of the evidence. The guidance conflates providing support for witnesses who may be vulnerable and nervous about giving evidence with measures designed to give that witness an advantage in cross-examination, concerning the issues in the case.

Prosecution witness evidence as to what might have been seen or heard, ought to have nothing to do with how a defendant seeks to advance his defence, unless the Crown is actively seeking to gain an advantage by warning witnesses in advance of what might be in issue. In order to reduce the potential for contamination, which seems to be inevitable by entering into the arena of warning witnesses of the factual matters which might be in dispute, would be to strictly police the circumstances of how this information is disseminated. As Momodou suggests in relation to expert witnesses:

" 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, 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. "

" 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. "

Thus, should the Prosecutor reduce into writing the defences that may be advanced or redacted from the Defence Statements as drafted by Counsel and handed to the witness along with their witness statement? When such a discussion takes place between the Crown advocate and prosecution witness will the defence solicitor be present? It appears to the authors that Momodou stresses at great length the need not to encroach upon the factual basis of a witness’ evidence in order to guard against contamination. To inform a prosecution witness of the very defence that may be advanced runs the very risk of what is warned against.

An important aspect inherent in the giving of evidence and judging its reliability, credibility, accuracy and overall quality is the witness’s reaction to certain parts of the defence case as they are revealed. This aspect of the trial process will be lost should witness’s be forewarned of the defence case prior to giving evidence. The Director of Public Prosecution in an article published in Counsel Magazine in March 2015 suggested that:

" … cross-examination is not about ambush and I am not alone in saying this; The Court of Appeal has made it clear that treating the criminal justice system as a game is not acceptable. No one - prosecution, defence or the public more generally—benefits from a situation which is unfairly stacked against a victim. "

The authors do not agree that the current system in place is unfairly stacked against the complainant. As this article has explored and acknowledged, there is and should be support and assistance to all witnesses who give evidence. This principle ought to apply every bit as much to defence witnesses. However, there are a raft of statutory and judicial checks to ensure that witnesses achieve their best evidence, whether they are provided with special measures in court, giving evidence via a video link or pre-recorded evidence and support services outside of the court room. Providing a witness with knowledge of the defence case or multiple defence cases is unnecessary and may not achieve the objective of reassuring a witness. However, it may adversely affect the fairness of the proceedings.

Indeed, the Bar Council has given advocates assistance on the issue of witness familiarisation. It is appropriate for a barrister to advise witnesses as to “basic requirements” for giving evidence, such as the need to listen carefully and speak clearly and slowly and also to “avoid irrelevant comments”.

The approach adopted in the consultation is too simplistic and lacks clarity. The nature of the English criminal trial is unlike that of civil disputes. The Prosecuting advocate is not the advocate of the victim. Certainly, they should be courteous and helpful towards witnesses and complainants, but ultimately they are to be impartial and the Prosecution is brought on behalf of the Crown. This is in marked contrast to the advocate employed by an individual or corporate entity to bring a claim against another individual or corporation.

Too little

While going too far in some ways, the draft guidelines fail to address the issue of the additional support that can be made available for victims.

The availability of counselling to vulnerable victims was an issue highlighted by Coroner Richard Travers at the inquest into the death of Frances Andrade. Mrs Andrade committed suicide during the trial of Michael Brewer, on trial for sexually abusing her. Although Mr Brewer was subsequently convicted of a number of assaults and sentenced to six months, Mrs Andrade took a fatal overdose the day after the judge had ordered the jury to make a finding of not guilty on some counts because of a point of law. Mrs Andrade had apparently been advised by the police that she should not seek counselling before the trial in case it affected her evidence.

The coroner wrote to the DPP, requesting clarification of the advice about the psychiatric counselling of vulnerable victims. He also stated that the failure to explain why the not-guilty verdicts had been ordered was wrong and wrote to the DPP to ask that such situations did not arise in the future.

While keeping victims updated on progress does appear in the guidelines, the topic of counselling has not been addressed in the consultation.

Too late

Setting aside the issues set out above, for the victims of crime, any advice given to them by the prosecutor at trial comes far too late if they have not been properly advised at the start of proceedings. It is at the time of first giving evidence that they need to understand the process to which they are exposing themselves.

Control

As a victim giving evidence in a criminal investigation you are placing the conduct of the matter in the hands of the police, and ultimately the CPS. Once the first statement has been given, the victim loses control over the matter and whilst they can withdraw their statement, this does not mean they are no longer compellable to give evidence. The CPS can apply to the court for a witness summons in relation to an individual that demonstrates an unwillingness to attend court if their evidence is important. If it transpires that the witness has given a false statement or withdraws from a case that leads to its collapse without justification, this could potentially lead to contempt proceedings, a third party wasted costs application or indeed a prosecution for wasting police time or perverting the course of public justice. This is an important distinction between civil and criminal proceedings and one which many who find themselves within the process may not appreciate (as recently exemplified in the television series Broadchurch, where the victim’s family were portrayed as choosing the prosecutor).

The police, no matter how sympathetic to the victim (and this can vary), must adopt a position of neutrality in the investigation. This factor, together with stretched resources, means that where the victim has instructed lawyers to act in tandem to the police investigation, the police can appear obstructive. So for example in a harassment action, the victim might want to instruct civil lawyers to deal with the potential backlash (and therefore reputational harm) resulting from an arrest. For instance, by obtaining a civil injunction which can be used to remove content from social media. Being kept updated on the criminal investigation will allow the civil team to be prepared, but the extent of co-operation possible will depend on the individual police force.

Anonymity

In sensitive proceedings anonymity will often be a key concern for the victim, but another factor which will be out of their control. While minors and the victims of sexual assault are generally protected by statutory anonymity, examples such as the contempt prosecutions following the Ched Evans trial have shown that these provisions are not infallible.

For the victims of blackmail, anonymity is fundamental, particularly where the blackmail threat pertains to the disclosure of sensitive information. Criminal proceedings risk the disclosure of such information in open court, the exact event which the victim wishes to avoid.

CPS guidance on Witness Protection and Anonymity states that in cases of blackmail it has become standard to withhold the name of a witness from the public domain. However, in a recent case study known to the authors, a serious blackmail attempt necessitated both a criminal complaint and applying for a civil injunction to prevent the immediate spread of private information. Despite the granting of anonymity in the civil proceedings, in which an injunction was granted, the police were unable to guarantee that similar anonymity applications would be made in the criminal proceedings. This left the victim in an impossible dilemma. While it is likely that the CPS barrister would have made such applications, without a guarantee the victim had to balance the risk of identification against the risk of further blackmail attempts if the criminal investigation was not pursued. In this case, the support offered to the victim appeared to be sadly lacking.

Reputational exposure

Witnesses also need to be aware of the reputational fallout that can arise from giving evidence. Court proceedings, both civil and criminal, are ordinarily held in public. In the absence of statutory or narrowly available bespoke reporting restrictions, they are reportable by the press.

The trial of the Grillo sisters for fraud in 2013, in which the sisters were acquitted, put the reputational risks of trial into sharp focus. It was the marriage of Nigella Lawson and Charles Saatchi that took centre stage, with the former being forced to address allegations of drug taking in open court, the revelations being widely reported by the world’s press. As well as the reputational fallout, Ms Lawson suffered temporary barring from the United States as a direct result of the statements made in court.

Ms Lawson was a witness in the proceedings; however both the defendant and victim can find themselves similarly exposed. At the trial stage, there is little that can be done to prevent reputational damage, save for seeking to counter the negative press with a positive public relations message.

Comment

In light of the above risks, the authors believe that those engaged in the criminal process, whether as a victim or witness, will need to consider the following five points, particularly if the victim of a crime is also involved in tandem civil proceedings:

  • Legal advice: the need for appropriate legal advice as to the consequences prior to making a criminal complaint is perhaps the most vital point. This is absolutely essential as our blackmail case study illustrates. Here, the victim of a serious criminal offence felt unable to engage in the criminal process without appropriate legal advice, support and importantly, how this might impact on the civil claim;

  • Special measures: consider what special measures are available to protect witnesses within the criminal trial? There are a whole range of procedures that can be deployed that may satisfy a witness and understanding the risks of what can be utilised may be a very important factor in being a witness in a criminal trial;

  • Private prosecutions: often claimants in civil disputes, where they have discovered criminal wrongdoing, can use this towards their own tactical advantage by instituting a private criminal prosecution. In so doing, the claimant and victim can retain greater control over the process and comparatively, the cost is not as prohibitive as might otherwise be thought;

  • Costs: should a private prosecution be deployed as part of the arsenal available to a claimant, costs can be recovered if successful; and

  • Trial process: the victim and potential claimant to a criminal prosecution will need to consider the rigours of the trial process. The criminal trial is often extremely stressful and the is usually very little room for “settlement” as one might understand in the civil context.

Without this early preparation, whatever approach the prosecutor takes at trial, it may be too late.


1. R. v Momodou (Henry) [2005] EWCA Crim 177.