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| Witness
training, February 2005 |
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Witness
training is in the dock
The
Times by
Grania Langdon-Down, 15 February 2005 |
A
familiarisation course is one
thing, but testing evidence in
a mock cross-examination is a
different matter
THE
coaching of witnesses is under
scrutiny again after the Court
of Appeal made clear that it is
prohibited in criminal trials
and set down guidelines on what
kind of preparation is allowed.
Lord Justice Judge, the Deputy
Chief Justice, strongly condemned
the witness training in the case
before the court as "wholly
inappropriate and improper".
There was a "dramatic distinction",
he said, between helping witnesses
to familiarise themselves with
the trial process, which was generally
to be welcomed, and coaching on
the evidence of a particular case,
which was not permitted.
Training
organisations welcome the guidance
and the endorsement of familiarisation
programmes. But they strenuously
deny that their training courses
involve coaching witnesses on
their evidence.
So when does witness training
become unacceptable coaching?
The judges' comments came during
the unsuccessful appeal by two
asylum-seekers (R v Momodou and
R v Limani) against convictions
for their part in the 2002 riot
at the Yarl's Wood detention centre,
run by Group 4.
Imran Khan, the defence solicitor
who represented Henry Momodou,
welcomes the guidelines but says
they do not go far enough in giving
parity to the defence. "I
have issues over disclosure and
the inequality in funding, which
would make it difficult for the
defence to put their witnesses
through a course. There is also
a thin line between familiarisation
and coaching, and how do you police
that?"
Training for the Group 4 officers
who were prosecution witnesses
in the Yarl's Wood trial was given
by Bond Solon, a legal training
consultancy. The judge dismissed
the case against one defendant,
where the evidence was largely
from witnesses who had been trained,
but allowed the case against the
others to continue, though he
told the jury: "There is
no place for witness training
in our country. We do not do it.
It is unlawful."
At the appeal, Lord Justice Judge,
sitting with Mrs Justice Dobbs
and Sir Michael Wright, said that
the witness training arranged
by Group 4 had, at the trial,
reflected adversely on the prosecution,
and the safety of the convictions
had not been undermined. But he
made clear that the Crown Prosecution
Service (CPS) should be informed
of any proposal for familiarisation
training for prosecution witnesses,
and said that the defence should
seek counsel's advice in advance
and inform the trial judge and
the CPS of any training using
agencies outside the Witness Service.
The process should also be carried
out by an organisation accredited
by the Bar Council and Law Society
of England and Wales, and none
of the material used should bear
any similarity to forthcoming
proceedings. |
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Sensible
preparation for the experience
of giving evidence, to help to
reduce witnesses' "nervous
tension" and improve the
way in which they give evidence,
was permissible. The guidelines
also do not prohibit the training
of expert witnesses in techniques
of giving evidence. But Lord Justice
Judge made clear that "the
critical feature of training of
this kind is that it should not
be arranged in the context of,
nor related to, any forthcoming
trial". In training the Group
4 officers, Bond Solon had prepared
- but not used - a case study
for a mock cross- examination
that required the officers to
imagine that they had been on
duty during disturbances at "Butlins
detention centre".
Mark Solon, a solicitor and director
of Bond Solon, welcomes the guidance
but says that the judgment does
not make clear the difference
between training and coaching.
"Training has been understood
by lawyers for many years and
they know the limits as defined
in their codes of conduct."
But he points out that the company
was not asked to give evidence
to the trial so the court drew
its own conclusions about the
training. "We have never,
and would never, coach a witness,
" he says. "We put the
Group 4 witnesses through a mock
cross-examination about an unrelated
fight. It is important to give
people an idea of what it is like
to be cross-examined and better
to do it on some event in which
they have been involved rather
than a fictitious case study.
If, however, we do a mock cross-examination,
we will always use a completely
neutral subject."
Last summer, the trial of Barbara
Salisbury, a nurse convicted of
trying to murder two patients,
was halted for four days while
the defence argued that prosecution
witnesses had been trained in
giving evidence. But the judge,
Mr Justice Pitchford, said that
training, provided it helped only
to prepare witnesses for the ordeal
of giving evidence and did not
involve discussion of the case,
was "an exercise any witness
should be entitled to enjoy".
The witnesses had been prepared
by InPractice, a consultancy that
provides legal training to the
healthcare sector. Joanne Haswell,
a director of the firm and a barrister,
says that witness preparation
should not relate to a particular
trial. She believes that mock
cross-examinations will be acceptable
if it is unrelated to a case and
details are disclosed to the court.
The Inns of Court School of Law,
City University, also runs witness
preparation courses. Penny Cooper,
director of professional development,
says: "We haven't done any
training of witnesses in criminal
trials but if we did we now wouldn't
do mock cross-examinations."
She does not believe that the
case will discourage the preparation
of witnesses. "It is a useful
litigation tool in a civil case
to find out if a witness is going
to make a good impression or not,
which may affect a decision on
whether to settle or go to trial." |
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| salisbury
case, june 2004 |
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Passing
the hardest exam
The
Scotsman by
John Robertson, 31 August 2004 |
COURT
CASES turn not only on what witnesses
say, but also on how it is said.
Body language plays a vital part
in whether a judge or jury decides
to accept testimony as, first,
truthful and, second, reliable.
Two witnesses may give the same
verbal response to a question
by simply stating, "No."
However, the one who does it while
sheepishly looking down at the
floor is less likely to find favour
than the one who stares the interrogator
in the eyes and confidently gives
the answer.
One of the clearest examples of
the importance of a witness’s
demeanour came in the Lockerbie
trial. It was an absolutely crucial
part of the prosecution’s
case that clothing packed into
a suitcase containing the bomb
had been purchased by the accused
Libyan, Abdelbaset Ali Mohmed
al-Megrahi, in a shop in Sliema,
Malta.
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Shopkeeper Tony Gauci picked out
Megrahi at an identification parade
and in court as strongly resembling
the buyer, and stuck to his position
through intense questioning. The
trial judges said: "From
his general demeanour and his
approach to the difficult question
of identification, we did regard
him as a careful witness. We are
satisfied his identification was
reliable and should be treated
as a highly important element
in this case."
Of course, not everyone who is
called to give evidence has the
mental fortitude to withstand
the onslaught of cross-examination.
Enter the burgeoning legal phenomenon
that is witness training.
"We like to level out the
playing field," says Joanne
Haswell, one of those involved
in helping people prepare for
the ordeal of giving evidence.
Three years ago, Miss Kerr, 28,
helped set up InPractice, a legal
training consultancy based in
London which offers training throughout
Britain. A non-practising barrister,
she joined forces with a solicitor
who handles health litigation,
and the company operates exclusively
in the health sector.
"We felt there was a need
for more specialised, tailored
training for health professionals
because they are increasingly
finding themselves involved in
the legal process. More and more
negligence claims are being made
and the professionals are being
called on more and more to be
witnesses," said Miss Kerr.
"A court is a frightening
place.
The lawyers are trained to work
in that environment, but the people
who stand up in the witness box
are usually given only very brief
information about what is going
to happen to them. That can lead,
we believe, to them not giving
their evidence properly, which
is not in the interests of justice.
You hear all kinds of horror stories
about people in tears, collapsing,
having to be taken out of the
courtroom. They have a story to
tell but not the opportunity to
tell it. They do not have the
confidence or the expertise to
put it across."
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A
pool of practising lawyers from
either side of the Border will
train people on the experience
of appearing as witnesses. The
difference in Scotland tends to
centre on the terminology used
in Scottish courts. Miss Kerr
said: "Often it is very much
commonsense, just to give people
more confidence about what to
expect; familiarisation with the
process of giving evidence. We
tell people about the lay-out
of the court, who is going to
speak to them first, go through
potential questioning techniques
and how they can possibly counteract
those, advise them on how to address
their evidence to the judge and
jury, if there is one.
"It is just to get them to
think a bit more about what they
are there to do, which is to assist
the court. We explain that they
have to realise the lawyers are
doing a job, to test the evidence,
and they are not to get into an
argument with the lawyers, not
to take it personally if somebody
is questioning their professionalism
or making accusations. They have
to remain calm and give their
evidence as clearly as they can.
"We have run hundreds of
these training courses and we
get very positive feedback, with
people saying it has allayed some
of their fears."
An obvious concern about the growth
of witness training is that people
may be instructed in what to say,
rather than simply be prepared
for saying it. The issue was raised
for the first time in Britain
earlier in the summer at the trial
of a nurse jailed for five years
at Chester Crown Court for attempting
to murder two elderly patients
in her care in a hospital.
Many of the witnesses had attended
InPractice courses and, throughout
the trial, the defence argued
in court that the training was
an abuse of process. The judge
allowed the case to proceed. He
said: "Witnesses would have
undergone a process of familiarisation
with the pitfalls of giving evidence
and were instructed how best to
prepare for the ordeal. This,
it seems to me, was an exercise
any witness would be entitled
to enjoy were it available."
Miss Kerr said: "There is
a vital difference between coaching
and training. The first you cannot
do, the second is fine. That is
why, when we train people, we
do not know anything about their
cases. Training is going to become
more common, and we think there
should be national guidance issued
to ensure it accords with the
landmark ruling in Chester."
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Blundering
hospitals 'kill 40,000 a year'
Times Online
by Nicola
Woolcock & Mark Henderson, 13 August
2004 |
One
in ten treated by NHS falls victim
to errors, officials admit
ONE in ten patients admitted to
NHS hospitals will fall victim
to medical errors, which have
now become Britain's fourth-biggest
killer. Medical accidents and
errors contribute to the deaths
of 72,000 people a year, and they
are directly blamed for 40,000.
They also cost the NHS £2
billion in increased hospital
stays alone.
However, fewer than a third of
an estimated 900,000 annual mistakes
are properly reported, an independent
audit reveals today.
The report by the healthcare research
group Dr Foster highlights both
the scale of medical error in
the NHS and the extent to which
the system for reporting them
is failing.
Roger Taylor, research director
of DR Foster, said: "Compared
with the transport industry, the
number of errors causing very
high levels of death is extraordinary."
Action Against Medical Accidents,
a charity which helps victims
of medical negligence, said: "The
research confirms our experience
of an alarming rate of errors
occurring in our NHS. The figures
do not even include errors occurring
in primary care, such as in GPs'
surgeries, and are likely to be
significantly less than the actual
rate as they are only based on
reported errors.
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"Our
experience is that all too often
the health provider does not even
recognise that a mistake has been
made. The vast majority of clinical
negligence claims which end up
being successful are robustly
defended by the NHS."
The DR Foster study, which is
published today in the British
Medical Journal, shows that the
number of mistakes to which NHS
hospitals openly admit is a small
fraction of the total accepted
by the Government's patient safety
watchdog.
It found that only 276,514 errors
were recorded each year by English
hospitals, even though the National
Patient Safety Agency (NSPA) puts
the true figure at closer to 900,000.
Approximately 25 per cent of errors
occur during surgery, and another
25 per cent in diagnosis or pre-care.
The other half of all mistakes
are made during treatment on the
ward. They can range from providing
patients with inadequate nutrition
to prescribing the wrong dose
of medication.
The figures do not include any
hospital-acquired infections or
complications of childbirth, and
almost 10 per cent of the trusts
surveyed claimed an unlikely error
rate of zero. |
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Judge
backs training courses for witnesses
Times
Online by
Frances Gibb, 13 July 2004 |
People
called to give evidence in a criminal
trial can be trained to prepare
them for the ordeal of cross-examination,
a judge has ruled. It means that
ordinary witnesses, as opposed
to experts, will be able to receive
instruction on every aspect of
giving evidence, from what to
wear to how to speak.
The ruling, the first of its kind,
was made by Mr Justice Pitchford.
It came in the trial of Barbara
Salisbury, the nurse found guilty
of attempting to murder two patients
in her care.
The trial had been halted for
four days after the defence counsel
protested that 60 potential witnesses
had been professionally trained
and that it was an abuse of process.
But in his written judgment the
judge said: “Witnesses would
have undergone a process of
familiarisation with the pitfalls
of giving evidence and were instructed
how best to prepare for the ordeal.
This, it seems to me, was an exercise
any witness would be entitled
to enjoy, were it available. I
do not accept that this training
was capable of converting a lying
but incompetent witness into a
lying but impressive witness.
What they would have received
was knowledge of the process involved.”
The trained witnesses, the judge
said,
would be better able to give a
“sequential and coherent
account. None of this gives them
an unfair advantage over another
witness.”
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The
witnesses in the trial had received
training at the request of the
Mid Cheshire Hospitals NHS Trust,
the employer of Salisbury, from
a private
training company called InPractice
Training. The company, part-owned
by the law firm RadcliffesLeBrasseur,
is run by two lawyers who have
trained nurses and other healthcare
staff to appear in court for more
than thirty trusts in England
and Wales.
Kate Hill, managing director of
InPractice, said that there needed
to be national guidelines issued
by ministers, perhaps through
a working party, to make clear
what was allowed in training and
what was not. The defence counsel
in the trial had wanted the “trained”
witnesses to be excluded, which
could have caused the trial to
collapse,
she said.
InPractice teaches witnesses about
what to expect in court, not about
the details of a particular case.
Hill said: “Our training
is to make people comfortable,
not nerve-struck — it’s
a familiarisation with the court
process.”
Mark Solon, who runs witness-support
seminars through Bond Solon, says:
“Often witnesses think that
giving evidence is like appearing
on a Japanese game show, that
they’re on trial and have
to beat the lawyer rather than
truthfully tell the court what
they recall. We tell them that
the lawyer is only doing his job,
that is acceptable to say ‘I
don’t know’, and never
to answer a question they don’t
understand.” |
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Brief
encounters
daily
telegraph
by
Joshua Rosenburg, 24 Jun 2004 |
Barbara
Salisbury, the nurse jailed for
five years on Friday for trying
to kill two elderly patients at
a Cheshire hospital, tried to
have her trial stopped last month
by arguing that prosecution witnesses
had received coaching in what
to say. It transpired that some
staff had indeed attended courses
run by a medico-legal training
company called InPractice, a subsidiary
of the law firm RadcliffesLeBrasseur.
In a judgment released yesterday,
Mr Justice Pitchford said that
the training should have been
disclosed to the defence earlier
in the proceedings.
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But there was a difference between
familiarising witnesses with the
task of giving evidence and orchestrating
the evidence to be given. A course
of this kind was not capable of
converting a lying but impressive
witness, the judge added. Relieved
directors of InPractice said yesterday
that it would be a good idea to
have an agreed approach to training
in future.# |
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| National
press archive |
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