Touchline wisdom

James Morton looks at the contentious issue of witness coaching and asks: where should the line be drawn?


The Court of Appeal was a bit shirty recently on the vexed subject of coaching witnesses (see [2005] Gazette, 10 February, 5). Advising them to have haircuts and wear jackets and ties is one thing; schooling them is another.


And indeed, in my practising days, I always took the view that auntie in hat and gloves was always going to do more for my bail application than if she had come to court in a West Ham scarf. There was once a farmer who turned up in court in dungarees and with straw coming out of his hair, only to be asked by the judge why he wasn’t properly dressed.


The reply was splendid. ‘I milked the cows in what I’m wearing at 6.30 and then I went to mass. I thought of changing but then I thought if I was dressed good enough for God I was dressed good enough for court’.


But where does advice end and coaching begin? I always used to tell my clients that if they didn’t understand what was being asked of them they should say so and get the question repeated. If they didn’t know the answer to a question they should do the same and not invent some answer. I don’t think that fell into the forbidden category.


The trouble with witnesses is, I suspect, that schooled or not, you have no real idea what they are going to say. Very early in my career I defended a man accused of an assault on his wife after he had been drinking. The luncheon adjournment came and I implored him not to drink anything stronger than lemonade in the next hour but he tottered back reeking of stout.


I am still not sure if what happened next was my fault. Of course, the client denied he had touched his wife and I probably should never have asked him if he had even been drunk. Naturally, he denied that slur as well. The solicitor prosecuting was far more experienced than I. ‘What do you call being drunk, Mr Smith?’ he asked. ‘Falling down,’ was the helpful (to his wife) and fatal (to him and me) reply.


Nor did things get much better in a divorce case, in the days when all the dirty linen was washed on legal aid. My client was a devout, if excitable churchgoer, belonging to one of the more arcane sects of the Christian religion.


I don’t think I was coaching the client when I told him that whatever the provocation he must not lose his temper. It did no good. When questioned on behalf of his petitioning wife, he was asked what happened if, which seemed to be a regular occurrence, she was likely to be late for morning service. ‘I told the flaming whore to get out of her stinking pit’. Decree nisi.


On the subject of verbal abuse there was the Canadian witness who, asked if he had ever referred to his wife as ‘Mrs Arsehole’ , replied helpfully, ‘I never called her Mrs’. I also rather like the reply in an Albertan nullity case to the question, ‘And was the marriage consummated?’ ‘Not while I was there.’


There is a theory that the high- water mark of the defence case is the close of that of the prosecution, and – following the example of barrister Billy Rees-Davies, who never called a witness if there was the slightest option – I took to doing the same.


Naturally, from time to time I overreached myself. ‘Would you like to be convicted on the evidence you’ve heard from the prosecution?’ I foolishly asked one stipendiary magistrate. ‘I wouldn’t mind at all,’ he said.


And even when my tactics worked, they were often not appreciated by the client. After a successful submission of no case to answer, my client asked why I hadn’t called him. ‘I’d have told the court what really happened,’ he pronounced forcefully. ‘That is exactly what I wished to avoid,’ I sniffed.


I always found defending in the juvenile court something of a tribulation. Coached or not, the witnesses were completely unreliable and I took to running a sort of rolled up cross-examination, which left the defendant the option of suggesting an alibi, mistake, self-defence, drunkenness and, if he chose, temporary insanity, when he came to give evidence. Instead of taking him through his examination-in-chief I found it much simpler (and indeed quicker) to say: ‘Now Tommy, you’ve heard what the lady and gentleman have said about you, what’s your version?’


My regular embarrassment was nothing to that of one probation officer. One of my Tommies had been convicted and was to be put on probation. Asked if he agreed, the boy said: ‘Yes, but not to Mr Smith.’ ‘And why is that, Tommy?’ queried the chairman. ‘He makes me take my clothes off and dance in my boots on the table,’ was the reply. I never troubled to inquire whether my client was simply being malicious.