As a criminal barrister, I well know the feeling of trying to advise on the significance of a problematic piece of evidence to a client. Especially to a client who won’t listen to your advice. Who is wilfully blind to the disastrous effect that this particular piece of evidence is going to have on their case. Or who doesn’t want to hear how introducing that piece of evidence themselves is going to sink their case without trace. The client who persists in insisting that this piece of evidence is going to be the magic bullet in the case.
You, as the barrister, know this is only going to end one way. Disastrously. But if your client ignores your advice and insists on pressing on regardless, all you can do (apart from banging your head repeatedly on the nearest wall) is stand back, wait for the inevitable car crash and then say, “Sorry, but I did warn you.”
Unfortunately, it seems that the Great And Good of the CPS are no different to that recalcitrant client.
The CPS, bastion of the Big Idea. Thinking about continuing to prosecute a dead person, anyone (see link to the Janner case here – no one said it better than Joshua Rozenberg)? Getting rid of large numbers of your in-house lawyers with hefty redundancy payments, then having to re-hire (guess!) a load of lawyers a couple of years later (see my previous blog Crystal Balls! here)? And now, with great fanfare, the CPS have announced that a New Big Idea, the programme named Speaking To Witnesses At Court, is to be rolled out nationally. Oh, and it’s going to be compulsory.
Now, notwithstanding my well known psychic powers when it comes to the criminal justice system, I can’t be the only barrister out there who has identified some fundamental difficulties with this scheme. The fact that I am even having to write this down is a matter of some astonishment to me. Even the famously circumspect Mark Fenhalls, leader of the Criminal Bar Association, has expressed the view that “I hope I am wrong but I fear that this is going to be a bumpy process”. I prefer to suggest that it is going to be a dog’s breakfast of the first order.
There are extremely good and obvious reasons why, if you are prosecuting counsel, you should avoid engaging in detailed conversation of any kind with the complainant or any prosecution witness in the case in which you are prosecuting. And that is because (i) you will probably find that that the complainant will start thinking that you are ‘their’ barrister, when you are not, and (ii) you will probably find that the witness speaking to you will very quickly want to turn to the topic of the evidence – not just theirs but other people’s – which you should not be discussing with them and should be refusing to do so.
How this ludicrous mandate will work in practice is anyone’s guess. Here’s mine.
- We are told that advocates should “inform defence representatives in advance of their intention to speak to witnesses and of the topics to be discussed”. Well, when are prosecution advocates expected to have time to speak at length to the witnesses? And when is this information to be shared with defence counsel? In advance of the day of trial (which is the day the prosecution witnesses will be at court, obviously)? Or two minutes before the trial starts? What if the defence representatives object to a particular proposed topic of conversation?
- Advocates “should never speak to witnesses unless a CPS official is also present”. By this, we must assume that a CPS paralegal or case worker is what is meant, since the idea of a CPS lawyer being available to speak to witnesses at court in the company of counsel is risible: you can rarely even get hold of a lawyer on the phone to obtain critical instructions about the progress of a case. The CPS are so short-staffed so far as caseworkers at court are concerned, the likelihood of finding one available at court to go to speak to witnesses with you is about as likely as finding Elvis sitting outside court 1. Or sitting on the bench inside it. Especially if you wanted to have your meeting at, say, 9am for a 10am trial. What if there are no available CPS representatives? Is the trial to be held up until one becomes available to accompany counsel to the witness room? Imagine the scenario at, say, Snaresbrook Crown Court, where there are 20 courtrooms running across two different buildings, and probably one caseworker per five courtrooms?
- Advocates should “keep a full contemporaneous note of conversations with witnesses”. As we’re all singing and dancing digital these days, presumably that’s on your computer, is it? The one with all your other confidential papers on it? Is the note to be countersigned? Surely the most sensible idea, and the one providing the most protection for counsel having to keep this note, would be to record it, like a police interview, and then there could be no dispute about what was said by whom. Only problem is, you can’t record the conversation since you’d be in the court precincts, in which the use of recording devices is prohibited under s9 of the Contempt Of Court Act 1981. Spiffing!
- Advocates “should be aware that the disclosure provisions of the CPIA will apply to such conversations”. Too right it will. And every defence lawyer will be demanding full disclosure about any such conversations. This is bound to increase the number of s8 applications, for starters. Which takes up more court time. The state of disclosure from the CPS is dire enough as it is at present, without the additional burden of considering notes of multiple conversations with multiple witnesses.
- “Please bear in mind that failure to adhere to the rules may lead to cases being compromised and you ending up as a witness not an advocate.” No shit, Sherlock. So, that would mean counsel would have to withdraw, a trial adjourned, justice delayed for everyone.
- “The prosecutor is responsible for covering the following matters with the witness before they give their evidence…” There then follows an exposition about the purpose of cross-examination and how it’s unfair for prosecution witnesses not to be warned about the type of cross-examination they will face. There’s a good reason for prosecution witnesses not to be warned: it’s so that, when they are asked those questions in front of the jury, or on a recording, their immediate reaction to the questions can be seen and assessed by the jury as part of their central function. This is all about the fact that it’s the prosecution who bring the case and the prosecution who have to prove the case – a fundamental tenet which seems increasingly to get forgotten in the race to pander to media hysterics.
- “It is important that prosecutors should not provide the detail of, discuss or speculate upon the specific questions a witness is likely to face or discuss with them how to answer the questions.” Important? It’s absolutely vital if you want to avoid being accused of witness coaching, or worse still, perverting the course of justice! This could be a very awkward conversation. What’s the betting just about every witness is going to ask, “So, what questions am I going to get?” as soon as prosecution counsel walks in? What if they have a tantrum when you can’t and won’t tell them?
- “However, to enable witnesses to give their best evidence prosecutors should ensure that they are informed of the matters set out below: the witness must be told that the purpose of doing so is to provide information to assist them and not to elicit information from them. They should be discouraged from giving a response. Should the witness make any comment which is relevant to the issues in the case then it should be recorded and disclosed, if it may undermine the prosecution case or assist the defence case. Advocates in the Crown Court should ensure that, during these conversations, they are accompanied by a CPS member of staff (paralegal) based at court to assist with recording the meeting and conversation.” So, if you can’t find any available CPS member of staff, what are you to do? Ask the judge for the case to be adjourned, since speaking to your witness is a mandatory requirement of your instructions and you cannot speak to the witness without a CPS member of staff being present? I can see that going down a bundle at court when the judge has a jury waiting and is eager to crack on. What if the judge refuses to adjourn, potentially placing you in breach of your instructions?
- “If it is possible to do so, vulnerable and intimidated witnesses should be provided with this information in advance of the trial date. This could ideally be done at the same time as a special measures meeting.” Do prosecuting counsel go to a special measures meeting? It’s rare to even get a proper case conference when prosecuting these days, let alone have counsel attend a special measures meeting on top? And how would such pre-trial attendance be remunerated? Or is this something else we’d now be expected to do pro bono?
- “In the case of others, the best time to give this information is when the witness is being referred to his / her witness statement and being reminded that they should tell the truth. They should then additionally be informed that nothing they are told should affect what they say but that they are permitted to be informed of the following information to assist them…” And here comes the stink bomb!
- “The general nature of the defence case where it is known (for example, mistaken identification, consent, self-defence, lack of intent). The prosecutor must not, however, enter into any discussion of the factual basis of the defence case.” How is that going to be avoided, when you’re telling the witness the nature of the defence? Pretty soon, once the witness knows the basis on which they will be challenged, they will be rehearsing their answers, potentially altering their testimony to ‘deal’ with the defence… All the things which AREN’T SUPPOSED TO HAPPEN. Even having such a conversation will give the witness time to prepare particular answers in a particular way – isn’t that indirect coaching under another name?
- “Where leave has been given for a particular witness to be cross-examined about an aspect of their bad character under section 100 Criminal Justice Act 2003 or their sexual history under section 41 Youth Justice and Criminal Evidence Act 1999, then that particular witness should be informed that such leave has been given.
Witnesses should be reassured that you can object to intrusive/irrelevant cross- examination and, if you do so, the Magistrates/Judge will decide whether the questions need be answered. The witness should be advised that the Magistrates/Judge’s decision must be followed.” So, the spectre is raised of witnesses turning to the judge, when they’re being subjected to some perfectly proper but, for them, uncomfortable cross-examination, and questioning it in front of the jury. “I wasn’t told by the prosecutor that the defence would be allowed to ask me that question…” Etc etc.
- “A note of the fact that the prosecutor has spoken to the witness should be made by the prosecutor or CPS paralegal. If the witness makes any comment that is disclosable to the defence under the CPIA, then a note of the comment must be made immediately and the note disclosed accordingly.” As Mark Fenhalls observed, the CPS is making “strenuous efforts to have more case workers at court, but how they are going to find the resources to deal with witnesses in this way in busy court centres I simply do not know”.
So, looking at this from the outside, how can the defence be sure that any note taken by any party to the opposing side will accurately reflect what actually happened at the meeting?
If you are prosecuting counsel and such discussions are now mandatory, how can you ensure that your position is protected, so that you don’t turn from being counsel to potential witness in one fell swoop? I can just imagine the scene: you’re prosecuting, say, a serious sex case. You’ve spoken to the complainant shortly before they gave evidence. You’ve had to tell them that that their sexual history may be the subject of questions. The defence start asking those questions. The complainant stands up, points to you and says: “But you told me that they weren’t allowed to do that!” You know this to be totally false. The witness is therefore lying on oath. Your witness. And the only witness to the false statement on oath is… you! Even a lay person could see how this would get very, very messy. I predict a slew of such cases aborting trials left, right and centre.
Should the CPS be asked to confirm that, as these instructions are mandatory, counsel are also instructed to decline to call any witness until they have been spoken to? After all, surely non-compliance with these mandatory instructions would lead to removal from the CPS list or, worse, the possibility of being reported for disciplinary proceedings?
The new PTPH form suggests that witnesses’ attendance at court should be staggered, to avoid them having to wait for long periods before being called. What if witness 2 arrives at court only once you are on your feet dealing with witness 1? If your only chance to speak to witness 2 will be by having a half-hour break after witness 1, we can anticipate a lot of restless juries and apoplectic judges. What if the witness turns up at lunchtime, when all the CPS staff are on their lunch break?
There will be Mexican standoffs in court rooms across the country. The inevitable result will be delays and interruptions to trials, when witnesses do not arrive on time so as to enable you to speak to them, or when bad character applications are granted mid trial. If granted once the witness is in the witness box in the middle of giving evidence, then of course counsel would not be allowed to speak to the witness at all. What about your feckin’ mandatory instructions then?
Of course, many of these issues have already been addressed, by greater minds than mine, in the CBA’s response to the ‘consultation’ (see link here). Unfortunately, the response appears to have been completely ignored by the Powers That Be. So when trials are routinely grinding to a halt, don’t come complaining to counsel.
Amid all this, one important factor appears to have been completely overlooked: there is already a perfectly good system in place for witnesses to be put at their ease and have the general court procedure (not the specifics of the case) explained to them. The witness support service has already been carrying out tasks such as this for years. Why we would want to go further than this, risking the integrity of the trial process, is beyond me. This dangerous new mandate is wholly unnecessary. As the CPS were told, in terms, by the representative body of the very people who will have to carry out the mandate.
As a client once replied to the prosecutor in our trial, after the Crown’s case was put to him in cross-examination: “You’re chattin’ shit, bruv.”
(The parts in quote marks at paras 1-13 above are taken from the CBA Monday Message of 16.5.16.)