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A skill that can be taught: Bar now sets standard of excellence in efforts to improve the questioning of the vulnerable. By Lynda Gibbs, Kama Melly QC and HHJ Simon Drew QC
The profession has engaged with crucial self-education over the last 18 months in relation to how vulnerable witnesses are treated in court, particularly the way in which counsel and judges deal with cross-examination where serious deficiencies have been identified.
A national training programme for advocates is now setting the standard for excellence and, after a painful gestation, it has produced real and significant improvements. It is fair to say that, in the history of the profession, there has never been such a joined up and concerted effort to drive forward change in the questioning of children and the vulnerable. The 2018 Judicial Perceptions report on the quality of criminal advocacy acknowledges progress:
‘One area of practice that is recognised to be largely improving, is advocates’ ability to deal with young and vulnerable witnesses. The training provided to advocates about vulnerable witnesses and defendants, and the adaptations to court practice for vulnerable court users, now more routinely embedded in court procedures, are thought to have benefitted advocates.’
The Pigot Report in 1989 led to important procedural changes under the Youth Justice and Criminal Evidence Act (YJCEA 1999) and transformed the way that vulnerable witnesses are dealt with in court – but cross-examination was not specifically addressed.
Twenty-two years on, Joyce Plotnikoff and Dr Richard Woolfson concluded inYoung Witnesses in Criminal Proceedings: A Progress report on Measuring Up that there was still much to do (2011). They called for a checklist or code for questioning young and other vulnerable people at court to be developed, suitably endorsed and widely distributed for use in training and to inform ground rules discussions at court. In the same year, the Advocacy Training Council (ATC) published Raising the Bar, a 20-month research project into the type of training that might be appropriate for advocates working with children and vulnerable witnesses.
Important appellate court cases followed, such as R v Barker [2010] EWCA Crim 4 and R v Wills [2011] EWCA Crim 1938 where the Court of Appeal started to address this deficiency in advocacy by suggesting that control needed to be placed on cross-examination.
The Advocates Gateway (TAG) toolkits and the Criminal Practice Directions then provided useful guidance to counsel and judges. In 2013 and 2014 pilot schemes were established in relation to s 28 hearings as a result of which further limitations on cross-examination were developed in relation to some cases.
The real game changer was the judgment of Hallett VP in R v Lubemba [2014] EWCA Crim 2064. In that conjoined appeal the sole issue was the way in which the judges had limited, or prevented, counsel’s cross-examination of the complainant. The observations of the court at paras 38-46 made it clear that there had to be a dramatic change in the way that all vulnerable witness were to be treated in court, particularly in the way that counsel and judges dealt with cross-examination.
The Bar Council recognised that there needed to be specific training of advocates and there were indications from government in 2014 that advocates would not be allowed to undertake cross-examination of vulnerable witnesses unless they had undergone that training. In 2016 the ICCA (Inns of Court College of Advocacy, formerly Advocacy Training College), with the support of the Bar Council and Criminal Bar Association, established an interdisciplinary, pan-profession working group under the Chairmanship of HHJ Peter Rook QC to design and build what is now recognised as the national ‘Advocacy and the Vulnerable’ (A&V) course.
By September 2015, the Rook Working Group had the makings of a course with a realistic case study involving historical sexual abuse; a collection of films and podcasts explaining why this training was so important and combining expert information about child development and current awareness. The course that has ultimately made its way to delivery was the result of an iterative process involving s 28 pilot judges, senior criminal advocates, leading criminal QCs, Treasury Counsel, senior Inns’ advocacy trainers and experts in child and vulnerable witness questioning.
Initially, the plans for delivery involved very small groups with several face-to-face sessions dedicated to advocacy. It became apparent when working through the logistics that it could take up to a decade to train 14,000 advocates and the design of the course had to be tailored to what was realistic and achievable.
The ICCA hosts the materials and created the training pack which complemented existing materials created by the Rook Working Group. The ‘20 Principles’ is a framework designed to help advocates reconsider their approach to cross-examination of children and vulnerable witnesses. Putting the case has been a particularly taxing part of the training and advocates should be aware that the pivotal case of Lubemba was revisited in R v RK [2018] EWCA Crim 603, in which Hallett VP firmly refuted the practice of advocates declining to ‘put the case’ to young children:
‘Although this court has in the past doubted the right to put every aspect of the defence case to a vulnerable witness, whatever the circumstances, it has not questioned the general duty to ensure the defence case is put fully and fairly and witnesses challenged, where that is possible.’ (para 27)
Alongside the core materials, a tiered system of training advocates has been established. A cadre of six senior trainers has trained over 60 lead facilitators who, in turn, have trained over 250 facilitators. A high level of competence had to be demonstrated and some were asked to re-train or to reflect on whether this training role was for them. A number of pilot courses improved the training to achieve the most effective learning outcomes.
The course requires all advocates to draft three sets of questions for the vulnerable complainants:
Stage two is a 3-hour face-to-face session looking at question construction, signposting and specialist advocacy techniques involving the 6-year-old child. The third and final stage is consolidation involving the viewing of four films demonstrating good practice and a specially commissioned film with a registered intermediary.
There is an emphasis that this is ‘step one’ of every practitioner’s responsibility to improve and refine their approach, through continued CPD and practice. The ICCA will regularly update training materials in line with relevant developments. All advocates should be aware that:
‘questioning that ignores the principles designed to obtain accurate information from a witness and exploits his or her developmental limitations is not only wholly inconsistent with a fair trial but also contravenes the advocate’s Code of Conduct.’ (‘Advocacy and the Vulnerable’, HHJ Peter Rook QC, Angela Rafferty QC and Angela Ward, Sexual Offences, Law and Practice 5th edn, Sweet & Maxwell)'
Equally important is the guidance on the course that every case is unique and every witness is different.
In an unprecedented step it was agreed that the Judicial College should use much of the ICCA training material. This has meant that both judges and advocates adopt a similar approach to this highly sensitive area of practice and procedure. The 20 Principles are central to judges’ consideration of draft cross-examination submitted by counsel. It is hoped that this consistency in training and approach will be expanded into other areas of training in the future.
A systematic plan was put into place to train up to 14,000 advocates including barristers, solicitors, crown prosecutors and a number of smaller organisations. Those initial estimates have been rounded down now that the actual number of criminal advocates engaged in this work has become clearer. The Bar in particular has been successful in training large numbers of criminal advocates across the county via the Inns, Circuits and individual sets of chambers. Delivery has been completed on three of the six Circuits, all overseen by senior trainers with strict rules on refusing attendance if draft questions are not submitted on time or if there is a demonstrable lack of engagement with the materials. The CPS has trained all of its crown advocates using the same course materials and films and the Law Society has embarked on a schedule of training for its membership.
"It is fair to say that, in the history of the profession, there has never been such a joined up and concerted effort to drive forward change in the questioning of children and the vulnerable"
On quality assurance (QA), the Bar Council continues to host and meet regularly with an implementation working group to disseminate good practice, and monitor levels of training. They oversee a QA programme which has been adopted by all signatories to the working group. The QA Panel has the authority to require training to be disregarded if it does not meet the required standards of excellence. Andrew Walker QC, Chair of the Bar Council has said:
‘Our duty to the court and to justice is at the heart of all we do. This training is a great example of our commitment to that duty, to improving our skills, and to ensuring fairness and justice in every case involving the vulnerable; not least by ‘The 366’ who have given so much of their time, for free, to deliver the course to the Criminal Bar across the country.’
The Ministry of Justice’s new Victims Strategy pays tribute to the way in which the profession has engaged with advocacy training and exceeded expectations:
‘The [A&V] course helps advocates develop appropriate language when they are cross-examining witnesses and ensures advocates have a broad understanding of current case law, special measures and the use of intermediaries, so vulnerable witnesses can participate fully in the trial process. Training is both recognised and highly valued by relevant experts who work to support victims’ rights and with organisations such as the NSPCC. The training programme delivers the manifesto commitment: “Publicly funded advocates will have specialist training in handling victims before taking on serious sexual offences” and goes beyond that commitment. Training is available to all advocates, not just those working on publicly funded cases.’
Most agree that the training has been well-received if not initially welcomed amongst advocates. For some, it has brought about great change to their entire approach to practice. For others, the deficiencies in technique exposed on a course were difficult to manage and they have found this to be a trying period of adjustment. The ICCA is about to evaluate the impact of the training but there is a plethora of anecdotal evidence to support the contention that it has been a force for good with added unintended bonuses.
The NSPCC has commissioned a Measuring Up update from Plotnikoff and Woolfson (not yet published) and the authors note:
‘As recently as 2010, barristers rejected the need for further training in respect of dealing with children, so the ICCA course represents a dramatic shift towards best practice. Full credit must be given to those responsible for training that is free and delivered pro bono by the Bar. Our forthcoming report will show that most judges, lawyers and intermediaries surveyed for the study thought that the tailoring of cross-examination to the understanding of individual young witnesses had improved in the last year. However, there is still a long way to go. The gap between the best and poorest advocacy is wider than it has ever been: the best is superb but some advocates still seem unwilling or unable to test a vulnerable witness’s evidence in ways that the witness understands’.
Jan Jones, former Chair of Intermediaries for Justice has said:
‘Many intermediaries report that there has been a positive change, sometimes considerably so, in the way that questions are put to children and vulnerable witnesses and the way that procedure is followed at court. Experienced registered intermediaries and those newly trained are aware of the guidance in the 20 Principles of Questioning and consider them when suggesting amendments to cross examination questions in the context of what they have found on assessment of a witness’.
Overall there has been a very significant reduction in the number of questions in cross-examination counsel seek to ask and the length, complexity and tone of those questions has changed immeasurably. The A&V course has been a successful and worthwhile undertaking. Its contribution to improving the quality of our criminal justice system has been a beacon of light at a time when elsewhere in the system the lights are in danger of being switched off.
Lynda Gibbs, Kama Melly QC and HHJ Simon Drew QC
Lynda is a barrister and Director of Programmes at the ICCA with responsibility for the Advocacy and the Vulnerable materials.
Kama is the Bar’s representative for s 28 and is one of six senior trainers for the Advocacy and the Vulnerable programme.
Simon was the Judicial College Course Director with overall responsibility for training the judiciary in dealing with vulnerable witnesses and defendants.
Leeds was a pilot s 28 court and saw a cultural change brought about by a spirit of cooperation and strong leadership from the local judiciary and senior advocates. Pauline McCullough, District Crown Prosecutor for Yorkshire and Humberside reports that there has been a distinct improvement in victim ‘satisfaction rates’. Where witnesses attended court expecting to face an ordeal, both they and their families have been at pains to stress that their experiences were far more bearable. Advocates adopted a softer and kinder approach; questions were shorter and fewer in number and victims were not kept waiting at court for hours, enduring lengthy cross-examinations by multiple advocates. Judges on the Northern Circuit endorse the training and the need for change. They are robust and not afraid to take a red pen to draft questions. There has not been any change to conviction or acquittal rates in this area.
Lynda, a barrister and experienced legal educator, is now Programme Director at the Inns of Court College of Advocacy where she has co-authored the national ‘Advocacy and the Vulnerable’ course. Previously, Lynda designed and created materials for the BPTC and led the Kaplan course.
Simon is the Judicial College Director of Circuit Training and author of the section 28 Judicial College training materials.
Kama Melly KC is Chair of the North Eastern Circuit Women’s Forum and Deputy Head of Chambers at Park Square Barristers.
The profession has engaged with crucial self-education over the last 18 months in relation to how vulnerable witnesses are treated in court, particularly the way in which counsel and judges deal with cross-examination where serious deficiencies have been identified.
A national training programme for advocates is now setting the standard for excellence and, after a painful gestation, it has produced real and significant improvements. It is fair to say that, in the history of the profession, there has never been such a joined up and concerted effort to drive forward change in the questioning of children and the vulnerable. The 2018 Judicial Perceptions report on the quality of criminal advocacy acknowledges progress:
‘One area of practice that is recognised to be largely improving, is advocates’ ability to deal with young and vulnerable witnesses. The training provided to advocates about vulnerable witnesses and defendants, and the adaptations to court practice for vulnerable court users, now more routinely embedded in court procedures, are thought to have benefitted advocates.’
The Pigot Report in 1989 led to important procedural changes under the Youth Justice and Criminal Evidence Act (YJCEA 1999) and transformed the way that vulnerable witnesses are dealt with in court – but cross-examination was not specifically addressed.
Twenty-two years on, Joyce Plotnikoff and Dr Richard Woolfson concluded inYoung Witnesses in Criminal Proceedings: A Progress report on Measuring Up that there was still much to do (2011). They called for a checklist or code for questioning young and other vulnerable people at court to be developed, suitably endorsed and widely distributed for use in training and to inform ground rules discussions at court. In the same year, the Advocacy Training Council (ATC) published Raising the Bar, a 20-month research project into the type of training that might be appropriate for advocates working with children and vulnerable witnesses.
Important appellate court cases followed, such as R v Barker [2010] EWCA Crim 4 and R v Wills [2011] EWCA Crim 1938 where the Court of Appeal started to address this deficiency in advocacy by suggesting that control needed to be placed on cross-examination.
The Advocates Gateway (TAG) toolkits and the Criminal Practice Directions then provided useful guidance to counsel and judges. In 2013 and 2014 pilot schemes were established in relation to s 28 hearings as a result of which further limitations on cross-examination were developed in relation to some cases.
The real game changer was the judgment of Hallett VP in R v Lubemba [2014] EWCA Crim 2064. In that conjoined appeal the sole issue was the way in which the judges had limited, or prevented, counsel’s cross-examination of the complainant. The observations of the court at paras 38-46 made it clear that there had to be a dramatic change in the way that all vulnerable witness were to be treated in court, particularly in the way that counsel and judges dealt with cross-examination.
The Bar Council recognised that there needed to be specific training of advocates and there were indications from government in 2014 that advocates would not be allowed to undertake cross-examination of vulnerable witnesses unless they had undergone that training. In 2016 the ICCA (Inns of Court College of Advocacy, formerly Advocacy Training College), with the support of the Bar Council and Criminal Bar Association, established an interdisciplinary, pan-profession working group under the Chairmanship of HHJ Peter Rook QC to design and build what is now recognised as the national ‘Advocacy and the Vulnerable’ (A&V) course.
By September 2015, the Rook Working Group had the makings of a course with a realistic case study involving historical sexual abuse; a collection of films and podcasts explaining why this training was so important and combining expert information about child development and current awareness. The course that has ultimately made its way to delivery was the result of an iterative process involving s 28 pilot judges, senior criminal advocates, leading criminal QCs, Treasury Counsel, senior Inns’ advocacy trainers and experts in child and vulnerable witness questioning.
Initially, the plans for delivery involved very small groups with several face-to-face sessions dedicated to advocacy. It became apparent when working through the logistics that it could take up to a decade to train 14,000 advocates and the design of the course had to be tailored to what was realistic and achievable.
The ICCA hosts the materials and created the training pack which complemented existing materials created by the Rook Working Group. The ‘20 Principles’ is a framework designed to help advocates reconsider their approach to cross-examination of children and vulnerable witnesses. Putting the case has been a particularly taxing part of the training and advocates should be aware that the pivotal case of Lubemba was revisited in R v RK [2018] EWCA Crim 603, in which Hallett VP firmly refuted the practice of advocates declining to ‘put the case’ to young children:
‘Although this court has in the past doubted the right to put every aspect of the defence case to a vulnerable witness, whatever the circumstances, it has not questioned the general duty to ensure the defence case is put fully and fairly and witnesses challenged, where that is possible.’ (para 27)
Alongside the core materials, a tiered system of training advocates has been established. A cadre of six senior trainers has trained over 60 lead facilitators who, in turn, have trained over 250 facilitators. A high level of competence had to be demonstrated and some were asked to re-train or to reflect on whether this training role was for them. A number of pilot courses improved the training to achieve the most effective learning outcomes.
The course requires all advocates to draft three sets of questions for the vulnerable complainants:
Stage two is a 3-hour face-to-face session looking at question construction, signposting and specialist advocacy techniques involving the 6-year-old child. The third and final stage is consolidation involving the viewing of four films demonstrating good practice and a specially commissioned film with a registered intermediary.
There is an emphasis that this is ‘step one’ of every practitioner’s responsibility to improve and refine their approach, through continued CPD and practice. The ICCA will regularly update training materials in line with relevant developments. All advocates should be aware that:
‘questioning that ignores the principles designed to obtain accurate information from a witness and exploits his or her developmental limitations is not only wholly inconsistent with a fair trial but also contravenes the advocate’s Code of Conduct.’ (‘Advocacy and the Vulnerable’, HHJ Peter Rook QC, Angela Rafferty QC and Angela Ward, Sexual Offences, Law and Practice 5th edn, Sweet & Maxwell)'
Equally important is the guidance on the course that every case is unique and every witness is different.
In an unprecedented step it was agreed that the Judicial College should use much of the ICCA training material. This has meant that both judges and advocates adopt a similar approach to this highly sensitive area of practice and procedure. The 20 Principles are central to judges’ consideration of draft cross-examination submitted by counsel. It is hoped that this consistency in training and approach will be expanded into other areas of training in the future.
A systematic plan was put into place to train up to 14,000 advocates including barristers, solicitors, crown prosecutors and a number of smaller organisations. Those initial estimates have been rounded down now that the actual number of criminal advocates engaged in this work has become clearer. The Bar in particular has been successful in training large numbers of criminal advocates across the county via the Inns, Circuits and individual sets of chambers. Delivery has been completed on three of the six Circuits, all overseen by senior trainers with strict rules on refusing attendance if draft questions are not submitted on time or if there is a demonstrable lack of engagement with the materials. The CPS has trained all of its crown advocates using the same course materials and films and the Law Society has embarked on a schedule of training for its membership.
"It is fair to say that, in the history of the profession, there has never been such a joined up and concerted effort to drive forward change in the questioning of children and the vulnerable"
On quality assurance (QA), the Bar Council continues to host and meet regularly with an implementation working group to disseminate good practice, and monitor levels of training. They oversee a QA programme which has been adopted by all signatories to the working group. The QA Panel has the authority to require training to be disregarded if it does not meet the required standards of excellence. Andrew Walker QC, Chair of the Bar Council has said:
‘Our duty to the court and to justice is at the heart of all we do. This training is a great example of our commitment to that duty, to improving our skills, and to ensuring fairness and justice in every case involving the vulnerable; not least by ‘The 366’ who have given so much of their time, for free, to deliver the course to the Criminal Bar across the country.’
The Ministry of Justice’s new Victims Strategy pays tribute to the way in which the profession has engaged with advocacy training and exceeded expectations:
‘The [A&V] course helps advocates develop appropriate language when they are cross-examining witnesses and ensures advocates have a broad understanding of current case law, special measures and the use of intermediaries, so vulnerable witnesses can participate fully in the trial process. Training is both recognised and highly valued by relevant experts who work to support victims’ rights and with organisations such as the NSPCC. The training programme delivers the manifesto commitment: “Publicly funded advocates will have specialist training in handling victims before taking on serious sexual offences” and goes beyond that commitment. Training is available to all advocates, not just those working on publicly funded cases.’
Most agree that the training has been well-received if not initially welcomed amongst advocates. For some, it has brought about great change to their entire approach to practice. For others, the deficiencies in technique exposed on a course were difficult to manage and they have found this to be a trying period of adjustment. The ICCA is about to evaluate the impact of the training but there is a plethora of anecdotal evidence to support the contention that it has been a force for good with added unintended bonuses.
The NSPCC has commissioned a Measuring Up update from Plotnikoff and Woolfson (not yet published) and the authors note:
‘As recently as 2010, barristers rejected the need for further training in respect of dealing with children, so the ICCA course represents a dramatic shift towards best practice. Full credit must be given to those responsible for training that is free and delivered pro bono by the Bar. Our forthcoming report will show that most judges, lawyers and intermediaries surveyed for the study thought that the tailoring of cross-examination to the understanding of individual young witnesses had improved in the last year. However, there is still a long way to go. The gap between the best and poorest advocacy is wider than it has ever been: the best is superb but some advocates still seem unwilling or unable to test a vulnerable witness’s evidence in ways that the witness understands’.
Jan Jones, former Chair of Intermediaries for Justice has said:
‘Many intermediaries report that there has been a positive change, sometimes considerably so, in the way that questions are put to children and vulnerable witnesses and the way that procedure is followed at court. Experienced registered intermediaries and those newly trained are aware of the guidance in the 20 Principles of Questioning and consider them when suggesting amendments to cross examination questions in the context of what they have found on assessment of a witness’.
Overall there has been a very significant reduction in the number of questions in cross-examination counsel seek to ask and the length, complexity and tone of those questions has changed immeasurably. The A&V course has been a successful and worthwhile undertaking. Its contribution to improving the quality of our criminal justice system has been a beacon of light at a time when elsewhere in the system the lights are in danger of being switched off.
Lynda Gibbs, Kama Melly QC and HHJ Simon Drew QC
Lynda is a barrister and Director of Programmes at the ICCA with responsibility for the Advocacy and the Vulnerable materials.
Kama is the Bar’s representative for s 28 and is one of six senior trainers for the Advocacy and the Vulnerable programme.
Simon was the Judicial College Course Director with overall responsibility for training the judiciary in dealing with vulnerable witnesses and defendants.
Leeds was a pilot s 28 court and saw a cultural change brought about by a spirit of cooperation and strong leadership from the local judiciary and senior advocates. Pauline McCullough, District Crown Prosecutor for Yorkshire and Humberside reports that there has been a distinct improvement in victim ‘satisfaction rates’. Where witnesses attended court expecting to face an ordeal, both they and their families have been at pains to stress that their experiences were far more bearable. Advocates adopted a softer and kinder approach; questions were shorter and fewer in number and victims were not kept waiting at court for hours, enduring lengthy cross-examinations by multiple advocates. Judges on the Northern Circuit endorse the training and the need for change. They are robust and not afraid to take a red pen to draft questions. There has not been any change to conviction or acquittal rates in this area.
A skill that can be taught: Bar now sets standard of excellence in efforts to improve the questioning of the vulnerable. By Lynda Gibbs, Kama Melly QC and HHJ Simon Drew QC
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