If witnesses are provided, in advance of a trial, with the level of detail being proposed, it is difficult to imagine how their evidence would not be affected.
The director of public prosecutions’ announcement that victims and witnesses should be warned if they are to face questions about their sexual history or bad character is likely to cause defence practitioners concern that this will be a further attempt to shift the ‘balance’ of a fair trial too far in favour of the prosecution. And her article in the Law Society Gazette on 10 February 2015 is unlikely to provide any reassurance to the contrary.
The rule against coaching witnesses applies to both the defence and the prosecution and was explained by the Court of Appeal in R v Momodou & Limani (2005) EWCA Crim 177; (2005) 2 All ER 571; (2005) 2 CR App R 6:
‘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… . 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.’
The DPP has issued the Crown Prosecution Service with guidance that encourages a ‘relationship’ between the witness and the prosecutor. This could include pre-trial special measures meetings, or other meetings at which the prosecutor could disclose to the witness the nature of the defence case, confirm what, if any, third-party material has been provided to the defence, and whether they are to be cross-examined as to their sexual history or bad character. The guidance suggests that where possible, that information should be provided in advance of the trial.
Witnesses are obviously vital to the trial process and particularly to the success or otherwise of a prosecution. Currently, witnesses receive support in many forms, including the option to give evidence from behind a screen or through a TV link, visiting the court before the trial and assistance from Victim Support, witness care services or intermediaries. There are very strict rules. The issue of guilt is decided by the jury when they have heard the evidence and seen how it is presented.
If witnesses are provided, in advance of the trial, with the level of detail being suggested, it is difficult to imagine how their evidence would not be affected. The guidance does stipulate that prosecutors should not provide the detail of, or discuss or speculate upon specific questions a witness is likely to face, or to discuss with them how to answer the question.
But in reality, how would this work when the prosecutor is encouraged to achieve the best evidence and instil confidence in the witness? The guidance goes on to state that the witness should be discouraged from giving a response when being provided with all of this information and detail, but should the witness make any comment that is ‘relevant’ to the issues in the case then the comments should be recorded and disclosed ‘if appropriate’!
There is no detail within the guidance as to how this procedure would work in practice, what training the prosecutors would be given, nor how, if at all, it could be policed. The principles that a defendant is innocent until proven otherwise and that justice must be seen to be done are being eroded by attempts to provide the victims and witnesses of crimes with the support they need.
Suggesting it is necessary to disclose the defence case and expecting this to have no impact on the witness’s evidence is dangerous
There is no doubt that this may be an impossible balancing act.
The criminal justice system relies upon victims and witnesses to be courageous and attend court, having been through what will frequently be very harrowing experiences. It is only right that a witness sees the room where they will be giving their account, and is fully advised that they can ask for a question to be repeated or rephrased. They should be introduced to the people who will be speaking to them and made aware of each person’s role. Perhaps most importantly, witnesses must be treated with dignity and respect.
The suggestion, however, that it is necessary to disclose the defence case to a witness in advance of a trial and expecting it to have no impact at all upon the credibility of a witness’s evidence when it is given in court is a dangerous one.
Those tasked with determining the guilt or innocence of a defendant will be asked to judge on the performance of the prosecution witness who will have had time to prepare their answers. They will be judging a defendant who may not have committed the alleged offence, may have no experience of court procedures and may be vulnerable, or have mental health or learning difficulties.
The strength of the prosecution evidence should be tested in the presence of those who will decide on the issue of guilt. It should not hinge upon a rehearsed performance by a witness who has prior knowledge of the extent of information currently suggested.
The consultation on the guidance is open for eight weeks.
Caroline Dunne of IBB solicitors