Bar Council issues witness familiarisation guidance

The Bar Council has issued guidance for witness preparation, following concerns over the line between familiarisation and coaching. Mark Solon, a solicitor and director of legal training consultancy Bond Solon and Penny Cooper, Associate Dean of the Inns of Court School of Law, City University, discuss their views with Grania Langdon-Down...

The Bar Council has issued guidance for barristers involved in witness preparation after the Court of Appeal raised concerns over the dividing line between coaching, which is prohibited, and familiarisation programmes, which are allowed. Mark Solon, a solicitor and director of legal training consultancy Bond Solon, welcomes the guidance’s clear statement that familiarisation programmes are ‘not only permissible but also to be welcomed’, while Penny Cooper, Associate Dean of the Inns of Court School of Law, City University, praises its "clear and detailed" advice.

The Bar’s professional standards committee has drawn up the guidance to help 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]. The guidance can be seen on http://www.barcouncil.org.uk/documents/GuidanceOnWitnessPreparation_Oct05.doc.

The guidance stresses that barristers must not ‘rehearse, practise or coach’ a witness in relation to his/her evidence, adding that ‘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’.

Solon says: "Witnesses are often petrified of giving evidence. Now we have some guidance from the professional standards committee that reflects our existing comprehensive guidelines on how witnesses can be prepared for the witness box experience. It is clear witness familiarisation is welcomed and can avoid undue waste of the court's time through a witness not understanding the process.

"Mock questioning is expressly permitted to give a witness greater familiarity with and confidence in the process of giving oral evidence, provided the exercise is not based on facts which are the same as, or similar to those of any current or impending trial. The existing rule of not rehearsing or coaching a witness stands."

Solon says his company prepares tens of thousands of witnesses every year from numerous fields including police, customs, banks, experts, local authorities, regulatory bodies and individuals. ‘We will continue to do so and will follow the new guidance."

Cooper says the guidance highlights that there is currently no authority on witness familiarisation in civil proceedings and that it would be ‘prudent’ to proceed on the basis that the general principles set out in Momodou also apply to those cases. She says: "This is what people involved in witness preparation were thinking but it needs to be said formally so I am pleased to see it in the guidance."

However, she would have liked the guidance to have included the suggestion of the High Court judge in Ultraframe that witnesses should not be allowed to choose their own subject matter for exercises during familiarisation programmes. "I think that point is important. I think witness preparation providers should take make sure they provide fictional case studies for the witnesses."

(26/10/2005)

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Case annotations in other services:-
R v Momodou [2005] EWCA Crim 177 [2005] 2 All ER 571, [2005] 2 Cr App Rep 85, 169 JP 186, [2005] Crim LR 588, Times, 9 February, [2005] All ER (D) 35 (Feb); Ultraframe (UK) Ltd v Fielding; Northstar Systems Ltd v Fielding [2005] EWHC 1638 (Ch), [2005] All ER (D) 397 (Jul)