Tilting the scales? Key aspects of the defence case may soon be disclosed to prosecution witnesses

22 January 2015

The CPS is currently consulting on its newly published draft guidance on the treatment of, and information to be given to, witnesses and purported victims prior to and during trial. Whilst this guidance seems to be specifically targeted at vulnerable witnesses, it is not limited to such and could be applied in respect of all prosecution witnesses and purported victims.

The guidance deals with the provision of assistance to witnesses who are due to give evidence in court. While the principle of providing better support to witnesses may be sound, aspects of the guidance give cause for concern.

There is no doubt that giving evidence at trial, particularly a Crown Court trial in front of a jury, is a daunting experience. As well as the scrutiny of the jury, a witness must frequently face determined and, on occasion, aggressive cross-examination. Judges and prosecutors are however able to intervene and voice their objections to irrelevant or inappropriate questioning.

The guidelines seek to reassure witnesses that they will be treated sensitively and with care. There are five key areas which are addressed in the guidance namely: establishing rapport with witnesses, providing assistance about procedure, providing assistance about giving evidence, providing assistance for cross- examination and updating witnesses on progress made. 

It seems fair enough (and somewhat self-evident) that witnesses should be introduced to the prosecutor, be treated with respect and dignity, be informed of delays, and “be told that they should not be afraid to ask for a break if they genuinely need one such as when they feel tired, are losing concentration of if they want to compose themselves emotionally”.

Other provisions relate to practical and procedural information about the courtroom process, such as oath taking and the order in which questions are asked by the advocates. Witnesses however already get invaluable support and guidance from independent charities, such as Victim Support and the witness support services at court, which provide impartial and unbiased guidance on the complexities of the court process.

There is however a distinction between supporting witnesses and aiding them. The CPS justifies the new guidance by stating that “cross-examination within the adversarial system is designed to cast doubt on the prosecution’s versions of events (…) and can put pressure on individual witnesses”. There is no doubt that cross-examination is often undermining; its purpose is to test the veracity of the witnesses’ account and challenge disputed evidence. It is also essential- because not all witnesses tell the truth. All defence lawyers are acutely aware of this, yet the CPS seem to have  ignored this issue- and in the process proposed a course that is capable of undermining the integrity of the adversarial system.

The guidance states that witnesses will be permitted to be informed of the following information to “assist” them:

(i) The general nature of the defence case (for example identification, consent, self-defence, lack of intent). The prosecutor must however avoid any discussion as to the factual basis of the defence case.

(ii) The disclosure of third party material (for example social services, counselling or medical records) concerning that particular witness.

(iii) Whether leave has successfully been granted for the witness to be cross examined on bad character or their sexual history.

Effectively, the witnesses are being given advance notice of some of the most difficult areas of questioning they may face. In the process they are being given the opportunity to rehearse answers to these questions. Witnesses are given direct insight into the defence case and can prepare prior to giving their evidence in the courtroom.

The guidance does warn about the risk of hearing rehearsed evidence and reminds prosecutors that the coaching and training of witnesses is not permitted. It is however difficult to fathom how it will be possible to provide the “support” referred to in the guidance without overstepping the fine line of coaching. Some witnesses will no doubt seek to get as much information possible not only about the court process but also about their cases. It is likely that the role of the CPS (which should have the public interest at the forefront) will become blurred by the rapport that may be created with witness and purported victims with the provision of such support.

Disclosure issues will inevitably arise regarding these meetings and about what exactly a witness was told by the prosecution immediately before giving evidence. The guidance makes it clear that “should the witness make any comment which is relevant to the issues in the case then it should be recorded and disclosed, if appropriate”. There is the real possibility that witnesses will make significant disclosures in such discussions and the defence should be pre-warned of these in line with the CPS’ on-going disclosure obligations. 

The intentions of this proposed guidance are commendable. What is not clear is whether it is necessary, nor whether the risks created do not outweigh the possible advantages. 

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