Response of the Law Society of England and Wales to draft CPS guidance for consultation on 'Speaking to Witnesses at Court'

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1 Response of the Law Society of England and Wales to draft CPS guidance for consultation on 'Speaking to Witnesses at Court' March 2015 The Law Society 2015 Page 1 of 7

2 Response of the Law Society of England and Wales to draft CPS guidance for consultation on 'Speaking to Witnesses at Court' Introduction The Law Society of England and Wales ('the Society') is the representative body for over 159,000 solicitors in England and Wales. It negotiates on behalf of the profession, and lobbies regulators, government and others. This response has been prepared on behalf of the Society by members of its specialist Criminal Law Committee. The Committee is drawn from a wide range of criminal law backgrounds, including prosecution and defence solicitors, a justices' clerk representative and an academic lawyer. The Society very much agrees that all witnesses who are required to attend court should be treated with dignity and respect, given that the experience is likely to be an unfamiliar, and in many cases, an unpleasant and traumatic experience, particularly where they are the victim of an offence. They should be supported by professional witness care staff and prosecutors at court; cases should be listed, as far as possible, to take into account their availability, convenience and any special needs; and they should be thanked for their time. The Society has on many occasions urged that trial listing practices should move away from the double and triple listing of cases in the interests of witnesses having the case dealt with as soon as possible. It can only add to their inconvenience and trauma if a witness has prepared to give evidence on a particular date, only to be told it has been deferred due to court unavailability. We therefore support most of the guidance to prosecutors, and agree that particular care and time needs to be taken to make sure witnesses understand what will happen in court. However, it is not only essential that the CPS is properly resourced to enable its in-house lawyers and independent advocates to explain court procedures and the roles of the various participants; they must also be able to ensure that court orders are complied with in a timely way, and that evidence that should be disclosed to the defence is disclosed to avoid ineffective trials and adjournments, which also cause unnecessary inconvenience and distress to witnesses. Many of the recommendations made by the President of the Queen's Bench Division in his recent review of the efficiency of criminal proceedings seek this outcome - in essence 'getting it right first time' - and are supported by the Society. Also essential is the need for effective support, appropriate to the needs of the particular complainant or witness, to be available at all stages of the investigation, and particularly at court, and for prosecutors to be aware of these services. The level and type of support will vary according to the seriousness and nature of the offence with which the witness is concerned and also local resources at a particular court. Indeed, such support should also be provided to relatives of victims and witnesses, for example, the mother of a child sexual assault victim. The availability of Independent Sexual Assault Advisors, and Independent Domestic Violence Advisors to assist sexual assault and domestic violence victims is welcomed, and we agree with the guidance that prosecutors should be familiar with these supporters' role and actively engage with them. Likewise, prosecutors should be familiar with and inform witnesses of the practical support and information that is offered by the Witness Service. Police Family Liaison Officers provide essential support to the families of homicide victims. The CPS must encourage its prosecutors to help witnesses access these services, so as to provide maximum support and assistance to help victims, witnesses and families through an unfamiliar, and often harrowing, experience at court. The Law Society 2015 Page 2 of 7

3 However, for reasons set out below, the Society does not agree that witnesses should be informed of the general nature of the defence case. While we agree that the criminal trial process is not a game, it is important to bear in mind that in England and Wales the process is adversarial, and is conducted orally with the witness (usually) present in court. This is because the responses, reactions and demeanour of a witness when giving evidence, particularly when challenged in cross-examination, should be seen by the jury or bench; it is in this way that the accuracy and veracity of the witness is assessed. If the witness is made aware of even the general nature of the defence case there is a significant risk that some witnesses will tailor or embellish their evidence to meet that case. There is a balance to be stuck between providing information to the witness that may improve their experience in giving evidence, on the one hand, and risking the fairness of the trial by alerting the witness in advance to those aspects of their evidence which are challenged, on the other. The Proposed Guidance Part 3 of the draft guidance includes an extract from CPS Guidance on the Care and Treatment of Victims and Witnesses, which the Society fully supports: witnesses should be treated with respect and sensitivity; prosecutors should introduce themselves; nervous or vulnerable witnesses should be put at ease; court procedures should be explained; they should be informed of delays; and they should be released as soon as possible after giving evidence. We agree that all the issues that are then explicitly set out in sections (a) Introductory Matters, (b) Providing Assistance about Procedure, and (c) Providing Assistance about Giving Evidence are permissible, and indeed sensible matters, for prosecutors to raise with the witness. They are all matters about which the witness, as a matter of common sense, should be informed. For example, it is simply common courtesy to introduce oneself, and there is no reason why doing so would affect the witness's evidence or the fairness of the trial. Likewise, explaining the court's procedure, oath taking, the order in which questions are asked, and that they can ask for a break are all likely to assist the witness to know what to expect and will not affect their evidence, nor the fairness of the trial. Indeed, many prosecutors proactively request the judge to allow the witness a break if it becomes apparent the witness is tiring or needs to compose themself emotionally. Perhaps most importantly, we agree that it is appropriate for the prosecutor to explain to the witness the role of the defence advocate; that it is their job to put their client's case and challenge the prosecution version of events, and to suggest the witness is mistaken or lying. We further agree that explaining why this may occur is permissible, that is, telling the witness that this is how the jury or magistrates will decide the issues in the case, by seeing and hearing their reaction when the opposing case is put. We would suggest that if such an explanation of the role of the defence advocate is provided the witness will then have sufficient understanding of the process of, and the reason for, cross-examination. There would then be no need to go further and inform the witness of the nature of the defence case, which creates the risk that the witness may tailor their evidence and thus imperil the fairness of the trial. We agree that the witness should be informed of all matters listed in (c): to listen to questions carefully, to ask for questions to be repeated or rephrased, to answer truthfully, The Law Society 2015 Page 3 of 7

4 and to say so if they're unable to answer a question. The ability to refresh their memory from their statement should also be explained. Section 3 (d) and (f) of the guidance on updating the witness, and when the witnesses has completed their evidence, are further sensible aspects of good practice that we agree should be encouraged. Providing Assistance for Cross-examination The first paragraph of section 3(d) provides a very clear explanation of the purpose of crossexamination within the adversarial system - to cast doubt, to put pressure on witnesses, to attack their character to reduce their credibility, and that it may address deeply personal aspects of the witness's life. We agree that some witnesses will be better than others at anticipating the type of cross-examination they will face, depending on the context of the case and on their intellectual capacity; other witness may be less capable or otherwise vulnerable. We do not, however, agree that this justifies departing from the general rule that advocates should not disclose even the general nature of the defence case to prosecution witnesses. There is considerable danger that if the victim is informed of the general nature of the defence case their instinctive reaction in the witness box when they are confronted with the defence case will be lost. This is a very telling part in assessing the witness's demeanour, and if they are warned in advance that element is likely to be lost. Moreover, it is not clear that the evidence of the witness would either be improved by knowing the nature of the defence, nor that it would increase their satisfaction and/or cause less distress. The first response of the witness to the defence case, which can often be quite physical, when it's put to the witness is very important in assessing the witness's veracity; this can only be ascertained by the jury or magistrates by observing their demeanour in court. If this element of surprise is removed by informing the witness beforehand is lost, it will allow the witness to 'dig in their heels' and to attempt not give an objective account of what they saw, heard etc. The quality of their evidence would be diminished as a result. Preventing the jury from seeing the spontaneous reaction of an honest witness may damage their credibility. This is a danger even where the witness is telling the truth; but if the witness is dishonest and lying, or embellishing the truth, knowing the nature of the defence may make it easier for the witness to maintain the falsehood or embellishment in the witness box. Informing such a witness of the nature of the defence, and depriving the jury of their initial reaction, may make it easier for the dishonest witness to lie. If the witness is in fact giving truthful testimony, it could undermine their credibility in the eyes of the jury were they to make known that they had been informed of the defence case; it may suggest that the witness's answers were rehearsed. Serious problems will arise if the witness were to say: I have tailored my evidence because I was told what the nature of the defence is. Where the witness is informed in advance that a particular defence is in issue, this could be seen as 'tipping off' the witness so that they could tailor, consciously or unconsciously, their evidence to rebut the defence. Informing the witness of even the general nature of the defence case - consent, identity, selfdefence - will create a risk that the witness will tailor their evidence to meet that case. If The Law Society 2015 Page 4 of 7

5 identity is in issue, the witness may attempt to appear more sure of the accuracy of their identification that they otherwise would have been; if its a question of self-defence, the witness may, either consciously or unconsciously, exaggerate or emphasise certain aspects of their evidence. We do not agree with the assertion in the guidance that this is not impermissible witness coaching, as considered by the Court of Appeal in Momodou and Limani. In paragraph 61 in discussing the rationale for the rule against witness coaching, the Court states that: '...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' (emphasis added). We acknowledge that the Momodou case concerned a situation in which prosecution witnesses were at risk of learning in detail what other prosecution witnesses would say, in the context of a serious detention centre disturbance. However, to inform a (prosecution) witness of even the general nature of the defence case makes it possible that the witness may be influenced by what someone else (i.e. the defendant) has said, and creates the possibility that the witness may tailor their evidence accordingly. Experienced defence lawyers know not to tell defence witnesses what the defendant is intending to say, because there is a danger that if the defence witness was told they may change or tailor their evidence, even sub-consciously, in order to help the defendant. In order to maximise their credibly as a witness, those called for the defence should not be informed of the defendant's case, but only asked to relate what it is they saw, heard or otherwise experienced which is relevant to the defence case. There is an equality of arms issue. The recorded police interview of the defendant will usually be before the jury, which will include the defendant's first reaction to the allegations. However, at that stage in the investigation the police will often withhold much of their case from the suspect. The accused's initial reaction to the allegation will thus be before the jury; whereas, if allowed, the witness will have been informed of the defence case in advance, and will be able to moderate their reaction. There is a wider risk that, by introducing this change, the adversarial system of criminal justice will move towards a more inquisitorial system. In English and Welsh criminal law it is a fundamental principle that the State brings the prosecution, with witnesses being called to support the prosecution case. Whilst it is of course important to make the giving of evidence as 'pain free' for witnesses as possible, care must be taken to ensure the case is not seen to be the witness or complainant's case. The evidence of the witness - of what they experienced, saw or heard - must be given dispassionately and objectively in order to prove the case against the accused. On a practical level, where the defendant exercised his right to silence and/or no Defence Statement has been served, it is likely to be difficult for prosecutors to know what the 'general nature' of the defence case is, and when asked inevitable follow-up questions by the witness, it will be difficult know what, if any, more detail could be given. To refuse to elaborate may confuse and distress the witness more than not informing them would do. We note the guidance states that 'it is important that prosecutors should not provide the detail of, The Law Society 2015 Page 5 of 7

6 discuss or speculate upon the specific question a witness is likely to face or discuss with them how to answer questions'; however, to refuse to give further details may cause the witness more anxiety than not raising the general nature of the defence would do. There are likely to be problems in working out the 'general nature' of the defence case in a multi-handed case where defences may differ between the accused; what is the 'general nature' in the event of a complex set of defences? In our view, if asked why the witness is having to attend court to give evidence, aside from explaining the role of the defence advocate and that they may or will challenge the prosecution case/evidence, the prosecutor should go no further than to tell the witnesses that the court requires you to give oral evidence. Third party material, bad character and evidence of sexual history In relation to section d(ii) and (iii) we consider that there is nothing objectionable in informing a witness that third party material about the witness has been disclosed to the defence, or that the court has granted leave for bad character or sexual history evidence to be adduced. However, great care will need to be taken by prosecutors in informing witnesses of these matters, as to do so will create a risk that the witness will feel worse and more upset about giving evidence. If such matters are to be disclosed in advance of the witness giving evidence, it must be done in a very sensitive and case-specific way, depending on the situation and the prosecutor's assessment of the particular witness in question. Training needs It may be that a wider training need will be identified arising from the introduction of the guidance; inexperienced prosecutors may blur the boundaries between appropriate witness support and impermissible coaching. The CPS currently instruct a significant number of newly qualified agents who, along with the self-employed bar, will presumably not receive CPS training on any new guidance. We suggest that this should be considered. Consultation questions 1. Does the guidance cover the key issues that impact upon the victim or witness's experience at court? If not, what other subject areas might be covered? It may be useful if the guidance was to provide information to witnesses about reclaiming a witness's out-of-pocket expenses, such as which agency is responsible and how they should make a claim. 2. Does the guidance strike the right balance between supporting the witness in advance of their appearance in court and ensuring that the trial is, and is seen to be, fair to the defendant? Most of the guidance will result in prosecution witnesses who are better supported and informed about the process of giving evidence and will not affect, nor be seen to affect, the right of a defendant to a fair trial. However, as set out above, the Society does not agree with the proposal that witnesses should be informed of the general nature of the defence case. The Law Society 2015 Page 6 of 7

7 3. Does the guidance set out clearly what a prosecutor should do when meeting a witness at court? Is there anything else that might be done? Yes, it does. We are unable to think of anything further that might be done. 4. Does the guidance give enough information regarding other support services at court? The final section on 'court supporters' appears to be comprehensive. This may be an appropriate place to remind the prosecutor to raise the issue of how the witness should go about reclaiming any witness expenses. It may be that the Witness Service will be best placed to provide further information about expense claims. The Law Society 2015 Page 7 of 7