Witness Preparation - Momodou and LImani

1. This guidance has been prepared by the Professional Standards Committee of the Bar Council to provide assistance to barristers on the difficult issues that arise in respect of witness coaching in the light of the recent decision of the Court of Appeal in R v Momodou [2005] EWCA Crim 177.  This guidance applies simply to the issues surrounding witness preparation and should be read in conjunction with the relevant provisions of the Code of Conduct (notably paragraph 705) and the Written Standards for the Conduct of Professional Work (notably Section 6 on Witnesses).  The guidance is not intended to affect the barrister’s ability to discuss the merits of the case with his lay client.

 

2. Barristers play a significant role in the preparation and presentation of witness evidence.  They have a duty to ensure that the evidence in support of their client’s case is presented to best effect.  It is also the responsibility of a barrister to ensure that those facing unfamiliar court procedures are put at ease as much as possible, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct: see the Bar Council’s Written Standards for the Conduct of Professional Work (para. 6.1.4).  Barristers are being asked to prepare witnesses or potential witnesses for the experience of giving oral evidence in criminal and civil proceedings.  The purpose of this guidance is to clarify what is and what is not permissible by way of witness preparation, in whatever form it is conducted.

 

3. The rules which define and regulate the barrister's functions in relation to the preparation of evidence and contact with witnesses are set out in paragraphs 704-708 of the Code of Conduct.  The fundamental prohibition regarding the preparation of witness evidence is expressed in paragraph 705(a) of the Code: a barrister must not rehearse, practise or coach a witness in relation to his/her evidence.  However, the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood.     

Criminal Cases

 

4. The Court of Appeal has recently considered this question in connection with witness training courses in the criminal case of R v Momodou [2005] EWCA Crim 177: see paras. 61-65 of the Judgment.  The Court of Appeal emphasised that witness coaching is not permitted.  However, the Court drew a distinction between witness coaching (which is prohibited) and 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 (“witness familiarisation”). Such arrangements prevent witnesses from being disadvantaged by ignorance of the process or taken by surprise at the way in which it which it works, and so assist witnesses to give of their best at the trial or hearing in question without any risk that their evidence may become anything other than the witnesses’ own uncontaminated evidence.  As such, witness familiarisation arrangements are not only permissible; they are to be welcomed. 

 

5. Although the Court of Appeal did not expressly address the point in Momodou, it is also appropriate, as part of a witness familiarisation process, for barristers to advise witnesses as to the basic requirements for giving evidence, eg. the need to listen to and answer the question put, to speak clearly and slowly in order to ensure that the Court hears what the witness is saying, and to avoid irrelevant comments.  This is consistent with a barrister’s duty to the Court to ensure that the client’s case is presented clearly and without undue waste of the Court’s time.

 

6. The Court of Appeal in Momodou further stated that it is permissible to provide guidance to expert witnesses and witnesses who are to give evidence of a technical nature (eg. crime-scene officers and officers with responsibility for the operation of observation or detection equipment) on giving comprehensive and comprehensible evidence of a specialist kind to a jury, and resisting the pressure to go further in evidence than matters covered by the witnesses' specific expertise.  Again, this would not diminish the authenticity or credibility of the evidence which is given by such witnesses at trial.

 

7. In relation to witness familiarisation or expert training programmes offered by outside agencies, the Court of Appeal provided the following broad guidance:

 

(1) General requirements:

 

(a) The witness familiarisation or expert training programme should normally be supervised or conducted by a solicitor or barrister with experience of the criminal justice process, and preferably and if possible by an organisation accredited for the purpose by the Bar Council and Law Society.  

 

(b) None of those involved should have any personal knowledge of the matters in issue in the trial or hearing in question.

 

(c) Records should be maintained of all those present and the identity of those responsible for the programme, whenever it takes place.   

 

(d) The programme should be retained, together with all the written material (or appropriate copies) used during the sessions.

 

(e) None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events.

 

(f) If discussion of the instant criminal proceedings begins, it must be stopped, and advice must be given as to precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted.  Note should be made if and when any such warning is given.

 

(2) Prosecution witnesses:

 

(a) The CPS should be informed in advance of any proposal for a witness familiarisation course for prosecution witnesses.

 

(b) The proposals for the intended familiarisation course should be reduced into writing, rather than left to informal conversations. 

 

(c) If appropriate after obtaining police input, the CPS should be invited to comment in advance on the proposals.

 

(d) If relevant information comes to the police, the police should inform the CPS.

 

(e) If, having examined them, the CPS suggests that the course may be breaching the permitted limits, it should be amended.

 

(3) Defence witnesses:

 

(a) Counsel’s advice should be sought in advance, with written information about the nature and extent of the familiarisation course for defence witnesses.

 

(b) The proposals for the intended familiarisation course should be reduced into writing.

 

(c) Counsel has a duty to ensure that the trial Judge and the CPS are informed of any familiarisation process organised by the defence using outside agencies.

 

8. Two points arise from the Court of Appeal’s guidance in relation to courses offered by outside agencies:

 

(1) First, the advice referred to in paragraph 7(3)(a) should be sought from defence counsel or independent counsel with no involvement in the proposed witness familiarisation course.  Such advice should be provided in writing.

 

(2) Second, in view of the Court of Appeal’s warning that none of the course materials should bear any similarity to the issues in the relevant criminal proceedings, it would be good practice for both the party subscribing to the familiarisation course and the participants to provide signed written confirmation that the course materials do not have similarities with any current or forthcoming case in which the participants are or may be involved as witnesses.

 

9. As part of a familiarisation process, barristers may be asked to take witnesses through a mock examination-in-chief, cross-examination or re-examination.  The following points must be borne in mind when advising on, preparing or conducting any such exercise:

 

(1) Subject to sub-paragraphs (2)-(4) below, a mock examination-in-chief, cross-examination or re-examination may be permissible if, and only if, its purpose is simply to give a witness greater familiarity with and confidence in the process of giving oral evidence. 

 

(2) If, however, there is any risk that it might enable a witness to add a specious quality to his or her evidence, a barrister should refuse to approve or take part in it. 

 

(3) A barrister who is asked to approve or participate in a mock examination-in-chief, cross-examination or re-examination should take all necessary steps to satisfy himself or herself that the exercise is not based on facts which are the same as or similar to those of any current or impending trial, hearing or proceedings at which a participant is or is likely to be a witness.  If it appears that such an exercise may not satisfy these requirements, the barrister should not approve or take part in it.

 

(4) In conducting any such mock exercises, barristers are reminded that they must not rehearse, practise or coach a witness in relation to his/her evidence: see para.705(a) of the Code.  Where there is any reason to suspect that a mock examination-in-chief, cross-examination or re-examination would or might involve a breach of the Code, a barrister should not approve or take part in it.

 

 

10. Civil proceedings differ from criminal proceedings in the form of witness evidence and the process of its preparation.  The Civil Procedure Rules provide that witness evidence is to be adduced by way of witness statements and expert reports exchanged before trial, which are to stand as the evidence-in-chief of the witness in question unless the court orders otherwise: CPR Part 32.4(2) and 32.5.   

 

11. The principles set out in Momodou apply in criminal proceedings.  However, there is currently no authority on these matters in relation to civil proceedings.  Until such authority emerges, it would be prudent to proceed on the basis that the general principles set out in Momodou also apply to civil proceedings.  Thus while witness coaching is prohibited, a process of witness familiarisation is permissible in order to prevent witnesses from being disadvantaged by ignorance of the process or taken by surprise at the way it which it works. 

 

 

12. The following guidance should be observed in relation to any witness familiarisation process for the purpose of civil proceedings:

 

(1) Any witness familiarisation process should normally be supervised or conducted by a solicitor or barrister. 

 

(2) In any discussions with witnesses regarding the process of giving evidence, great care must be taken not to do or say anything which could be interpreted as suggesting what the witness should say, or how he or she should express himself or herself in the witness box – that would be coaching. 

 

(3) If a witness familiarisation course is conducted by an outside agency:

 

(a) It should, if possible, be an organisation accredited for the purpose by the Bar Council and Law Society; 

 

(b) Records should be maintained of all those present and the identity of those responsible for the programme, whenever it takes place.

 

(c) The programme should be retained, together with all the written material (or appropriate copies) used during the sessions.

 

(d) None of the material used should bear any similarity whatever to the issues in the current or forthcoming civil proceedings in which the participants are or are likely to be witnesses.

 

(e) If discussion of the civil proceedings in question begins, it should be stopped.

 

(4) Barristers should only approve or take part in a mock examination-in-chief, cross-examination or re-examination of witnesses who are to give oral evidence in the proceedings in question if, and only if:

 

(a) its purpose is simply to give a witness greater familiarity with and confidence in the process of giving oral evidence; and

 

(b) there is no risk that it might enable a witness to add a specious quality to his or her evidence; and

 

(c) the barrister who is asked to approve or participate in a mock examination-in-chief, cross-examination or re-examination has taken all necessary steps to satisfy himself or herself that the exercise is not based on facts which are the same as or similar to those of any current or impending trial, hearing or proceedings at which a participant is or is likely to be a witness; and

 

(d) In conducting any such mock exercises, the barrister does not rehearse, practise or coach a witness in relation to his/her evidence: see para.705(a) of the Code.  Where there is any reason to suspect that a mock examination-in-chief, cross-examination or re-examination would or might involve a breach of the Code, a barrister should not approve or take part in it.

 

See paragraph 9 above.

 

 

13. Barristers in civil proceedings are typically involved in settling witness statements.  However, the courts have emphasised that a witness statement must, so far as possible, be in the witness’s own words: see eg.  Aquarius Financial Enterprises Inc. v Certain Underwriters at Lloyd’s [2001] 2 Ll.Rep. 542 at 547; Chancery Guide, Appendix 4, para. 1; Commercial Court Guide para. H1.1(i) and H1.2 and Technology and Construction Court Guide para. 6.10.  When settling witness statements, great care must be taken to avoid any suggestion:

 

(1) that the evidence in the witness statement has been manufactured by the legal representatives; or

 

(2) that the witness had been influenced to alter the evidence which he or she would otherwise have given.

 

14. Furthermore, the evidence in a witness statement must not be partial; it must contain the truth, the whole truth and nothing but the truth in respect of the matters on which the witness proposes to give evidence: see Chancery Guide, Appendix 4, para. 6 and Queen’s Bench Guide, para. 7.10.4(1).  A barrister may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if he or she is put on enquiry as to their truth: see Chancery Guide, Appendix 4, para. 6.  Moreover, if a party discovers that a witness statement which has been served is incorrect, it must inform the other parties immediately: see Chancery Guide, Appendix 4, para. 6 and Queen’s Bench Guide, para. 7.10.4(6).  Barristers therefore have a duty to ensure that such notice is given if they become aware that a witness statement contains material which is incorrect.

 

 

15. It is standard practice in civil cases for barristers to be involved in discussions with experts and to consider drafts of the expert’s report prior to service of the report on the other side.  In this connection, barristers have a proper and important role in advising experts as to:
 
(1) the issues which they should address in their report;

 

(2) the form of the report and any matters which are required by the rules of court to be included in it; and

 

(3) any opinions and comments which should not be included as a matter of law (eg. because they are irrelevant or usurp the function of the court or go beyond the expert’s experience and expertise).

 

Beyond this, however, the courts have repeatedly emphasised that expert reports should be, and should be seen to be, the independent product of the expert in question: see The Ikarian Reefer [1993] 2 Ll.Rep. 68 at 81; Practice Direction – Experts and Assessors, para. 1.2; Commercial Court Guide, Appendix 11, para. 1.  Therefore, a barrister should not seek to draft any part of an expert’s report.  His or her involvement may, however, include discussing or annotating on a draft report observations and questions for the expert to consider in any revisions to the draft.

 

16. A barrister may, however, familiarise experts with the process of giving oral evidence, including:
 
(1) explaining the layout of the Court and the procedure of the trial, and

 

(2) providing guidance on giving comprehensive and comprehensible specialist evidence to the Court, and resisting the pressure to go further in evidence than matters covered by his or her specific expertise.

 

See paragraph 6 above.  However, great care must be taken not to do or say anything which could be interpreted as manufacturing or in any way influencing the content of the evidence that the expert is to give in the witness box.

Professional Standards Committee