This is Part 2 of a series that looks at witness preparation practices in different jurisdictions. The US approach was considered in Part 1, Practising the Dark Art of Witness Coaching?

In the UK there is a clear distinction between form and content: familiarisation with the process of giving evidence and the actual evidence of the witness.

The first is encouraged and the second forbidden.[i]

Under the code of conduct for barristers, the ethical rule to act with honesty and integrity specifically includes not rehearsing, practising or coaching a witness in respect of their evidence[ii] . Without a doubt, this rule rules out most, if not all, of the methods that US trial attorney use to prepare witness testimony.

What is perhaps less clear on the face of the rule is how far witnesses in the UK can be prepared for the experience itself of giving evidence.  This issue came to a head in 2005, with a trilogy of cases that shone a welcome spotlight on the bounds of witness preparation in the UK.

Momodou

The key decision was R v Momodou & Limani [iii]

The defendants in Momodou had been charged for violent disorder arising from a notorious disturbance at an immigration centre in 2002. The centre was run by Group 4 who arranged group counselling and witness training for their employees. At trial it was incorrectly contended that the scenarios used in mock cross examination exercises were markedly similar to the circumstances of the case. This misapprehension caused the trial Judge to be critical of the training, although not to the extent of finding that any miscarriage of justice had ensued. The defendants were convicted and, on appeal, argued that the witness training (together with trauma debriefing and cognitive therapy) was an abuse of process. While the appeal was unsuccessful, the English & Wales Court of Appeal took the opportunity to review the bounds and propriety of witness preparation sessions.

The Risk of Evidence Contammination

The Court first restated the rule against rehearsing or coaching witnesses about their evidence, explaining why the rule was so important:[iv]

Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the 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. These risks are inherent in witness training.

The Court of Appeal considered whether outsourcing the rehearsal to external parties might reduce the inherent risk, but was unconvinced:

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.

But … Not All Witness Prep is Bad

Importantly, the Court of Appeal found there to be a “dramatic distinction” between impermissible coaching and witness familiarisation that is not concerned with the content of the witness’ evidence.  It said:[v]

The principle [that coaching is prohibited] does not preclude pre-trial arrangements to familiarise witnesses 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 …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 by the way it works…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 process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process…

The Court of Appeal did warn of a fine line which, if crossed, could influence witnesses to change their evidence. It set out some steps to mitigate against this risk:[vi]

  • Crown prosecutors should be informed of and pre-approve any sessions involving prosecution witnesses
  • Familiarisation sessions should be supervised or conducted by independent lawyers who have no personal knowledge of the matters in issue
  • The course materials should not be similar to issues in the proceedings that the witness to the evidence the witness is to give nor should it “play on or trigger the witness’ recollection of events”
  • Any discussion about live issues or actual evidence should be stopped, and warnings/advice given as to why it is impermissible,
  • Records should be kept of all those participating and facilitating, of the written material that is used and any warnings given.
  • Crown prosecutors and defence counsel had duties to disclose whenever witness familiarisation services had been used.

R v Salisbury: Permissible Witness Familiarisation Training

Later that same year, the Court of Appeal applied the Momodou test in another criminal appeal. R v Salisbury was a case involving a nurse charged with unlawfully hastening the death of several elderly patients. The prosecution relied on a number of witnesses as to S’s behaviour who had attended a Bond Solon witness familiarisation before the trial. The Court carefully considered evidence about the training before being satisfied that the way the witness familiarisation had been conducted was proper. It said:

The course was delivered by a member of the Bar [who] took pains to ensure that any witnesses who attended her courses knew of the possible consequences of collusion and she forbade it. No attempt was made to indulge in application of the facts of this case, or anything remotely resembling them.

True it is that witnesses would have undergone a process of familiarisation with the pitfalls of giving evidence and were instructed how best to prepare for the ordeal. This, it seems to me, was an exercise any witness would be entitled to enjoy were it available. What was taking place was no more than preparation for the exercise of giving evidence. No-one engaged in special pleading with a view to gaining any expertise beyond the application of sound common sense.

I do not accept that this training, if that is the correct description, was capable of converting a lying but incompetent witness into a lying but impressive witness.

Ultraframe and Civil Cases

Soon after the Momodou decision, the issue of witness training arose in a civil case[vii] The Court did not go as far as ruling that the principles which applied to criminal proceedings applied equally to civil cases. But the Judge did observe that he did not find anything objectionable in witness familiarisation sessions which give “…an introduction to the theory, practice and procedure of giving evidence” nor in mock cross examination sessions provided that any case study used for the purpose of the exercise was “sufficiently far removed from the issues in [the] case as not to give rise to any inference of coaching.”

In a Witness Preparation Information Sheet, the UK Bar Council recommends that, as far as possible, witness preparation in civil cases also follow the Momodou guidelines.

[i] Mark Solon, “Say No to American Style Witness Prep, The Times 5 April 2016 https://www.linkedin.com/pulse/times-publishes-mark-solon-article-differences-witness-mark-solon/

[ii] Rule C.9.4 of the Bar Standards Board Handbook https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/

[iii] R v Momodou & Limani [2005] EWCA Crim 177 (Momodou)

[iv] Momodou (above) at [61]

[v] Momodou (above) at [62]

[vi] Momodou (above) at [64]

[vii] Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch D)

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