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Witness familiarisation and its limits

by Ann Mulligan

In the recent case of R v Momodou and Limani [2005] EWCA Crim 177 the Court of Appeal gave detailed guidance on the limits of permissible witness familiarisation in the context of a criminal trial. In order to ensure the integrity of any such process a number of safeguards were identified. The distinction between coaching/training of witnesses and witness familiarisation was emphasised and the absolute prohibition on the former was reiterated. Lord Justice Judge said:

"There is a dramatic distinction between witness training or coaching and familiarisation. Training or coaching for witnesses in criminal proceedings is not permitted…..This principle 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…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."

The appeal was brought by two asylum seekers, convicted of violent disorder, for their part in a riot in February 2002 at the Yarl’s Wood detention centre run by Group 4. One of the grounds of appeal was that some of the Group 4 prosecution witnesses had been coached prior to giving their evidence. Training for the Group 4 officers appearing as prosecution witnesses, had been undertaken on behalf of Group 4, by a legal training consultancy, Bond Solon. A case study prepared by them, for training purposes, contained similarities with the events at Yarl’s Wood. The training process included a mock cross-examination.

Lord Justice Judge, sitting with Mrs Justice Dobbs and Sir Michael Wright expressed strong disapproval of the witness training that had been undertaken. Of particular concern to the court, was the fact that the training may have taken place in a context similar to that of the forthcoming trial. Lord Justice Judge observed, in relation to the case study concerned, that during the training sessions, “the focus would inevitably move to evidence to be given by witnesses for the prosecution in what was then the shortly forthcoming trial.” It followed that the case study would have been an “entirely inappropriate basis for any training in the present case.”

During the original trial it was an agreed fact between the prosecution and the defence that the Bond Solon training had been “wholly inappropriate and improper.” The evidence on the issue may have been incomplete and there was available, at the trial, a letter from Group 4 containing a denial, that the inappropriate case study had, in the event, been used during training sessions. There was however, available at the trial, no record of the training programme or of the actual training received by individual witnesses.

Whatever the true position in relation to the use of the offending case study in the Group 4 training process, Lord Justice Judge, took the opportunity to lay down, detailed guidelines in relation to witness familiarisation, to avoid such problems arising in future cases. The guidelines were given in relation to familiarisation by outside agencies, not for example, that routinely performed by the Witness Service. The guidelines can be summarised as follows:

Prosecution Witnesses

1. The CPS must be informed in advance of any proposal for familiarisation
2. The proposals must be reduced to writing and the CPS invited to comment on them in advance
3. In the event that the CPS suggest the programme breaches the permitted limits then it should be amended

Defence Witnesses

1. If the defence engage in the process Counsel’s advice should be sought
2. The proposal must be reduced to writing
3. The trial Judge must be informed
4. The CPS must be informed

The familiarisation process itself

1. The process should be supervised or conducted by a solicitor or barrister and preferably by an organisation accredited for the purpose by the Bar Council and Law Society
2. No-one involved should have any personal knowledge of the matters in issue
3. All written materials, notes made etc should be retained
4. None of the material should bear any similarity to the issues involved in the forthcoming trial
5. A record should be kept of those individuals in attendance
6. Items retained pursuant to (iii) and (v) above, should be provided, if relevant to prosecution witnesses, to the CPS and if relevant to defence witnesses, to the court
7. No records should be destroyed
8. In the event ofdiscussion arising in relation to the forthcoming case it must be stopped immediately and a warning given
9. Where a warning as envisaged in (viii) above is given, a note should be made of the fact it was given and when it was given

In practice, the dividing line between coaching and familiarisation is likely to be very thin indeed. Great care should always be taken to scrutinise closely the proposed familiarisation process and to strictly adhere to the safeguards identified by the Court of Appeal.

In essence, to avoid the risk of alleged coaching of witnesses, any such familiarisation process must be wholly transparent and accountable. Of fundamental importance is the fact that such familiarisation should not be arranged in the context of, nor be related in any way to, the forthcoming trial.

As to the appropriateness of mock cross-examinations, it is likely that the judgment will be interpreted in different ways. One thing is certain, in future any mock cross-examinations carried out as part of a witness familiarisation programme, should be handled with extreme caution and scrutinised in advance with great care.

17 May 2005

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