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Tracy Ayling QC, an Inner Temple Advocacy Trainer, explains the new and necessary way of cross-examining vulnerable witnesses and the training available to advocates to help them to follow the rules.
It is true that there are some excellent and informative CPD courses at the end of every year. It is possible to collect your points whilst trying to assimilate rafts of cases and notes, delivered to you by experts in the field. How much of it you retain may be open for debate.
In an unprecedented and innovative course however, the Inner Temple ran an Advocacy Training Day for Barristers Working with Vulnerable Witnesses on 23 November 2013 where the training was interactive and participatory.
The treatment of “vulnerable witnesses” during the court process has relatively recently become a topic which has attracted considerable – adverse – media comment, most of it directed towards the nature and style of cross-examination.
In April 2011 the Advocacy Training Council published Raising the Bar, which called for ‘a system by which only advocates certified or “ticketed”’ after compulsory training would take cases involving vulnerable witnesses. While this has not come about, the ATC funded and actively promoted “The Advocate’s Gateway” which was launched in April 2013 and which the Criminal Procedure Rules now say ‘represent best practice’ (www.theadvocatesgateway.org/toolkits), and the CBA produced a DVD (“A Question of Practice” - also on the Advocate’s Gateway website). In cases involving a child or young witness, advocates have always been aware of the need to simplify questions. The use of intermediaries for both child and adult witnesses, including defendants, has become a regular feature in trials, primarily criminal ones. Witnesses to violent and /or traumatic events, who have no communication issues but have been severely affected by this experience, may be deemed vulnerable for the purposes of a trial. It should be emphasised that such witnesses are not confined to criminal cases; family, employment and catastrophic injury cases - particularly after a painful event such as an accident followed by hospitalisation - all involve vulnerable people. This is no longer a specialist area but one which pervades the court system.
Most barristers cross-examine by saying for example “You like John, don’t you?”
Examples of the change are the avoidance of leading or “tag” questions where the witness would have difficulty in dealing with them. Moreover, the requirement to “put the case” to certain categories of vulnerable witnesses such as young children is not just deemed unnecessary but in some trials (upheld by the Court of Appeal) positively forbidden.
Most barristers cross-examine by saying for example “You like John, don’t you?” It is the addition of “don’t you?” which makes it a tag question. More confusing: “You went upstairs, didn’t you?” Again, it is the words “didn’t you?” which makes the question confusing for the vulnerable. Why is it confusing? Because it is powerfully suggestive and linguistically complex.
Since this type of question has been the mainstay of cross-examination for centuries, it is difficult to re-learn. Learning the theory of how to cross-examine a vulnerable witness is one thing. At Inner Temple participants put the theory into effect by cross-examining a vulnerable witness (played by a professional actor) and receiving feedback on their skills from the Inn’s experienced advocacy trainers.
Members of the Bar had written a mock trial problem, including statements, admissions and instructions. The object was to rethink the usual tenets of cross-examination, such as putting the case and tag questions, and follow the new rules. No leading questions, no tag questions.
In small groups, participants were required to cross-examine the professional actor for 15 minutes, using the case materials provided. The actor had been briefed to behave in the way a witnesses suffering from ADHD would react to cross-examination. The advocate was then assessed by trainers using the Hampel method of advocacy training. Pupils and new practitioners are familiar with this sort of critique. Experienced practitioners are not. The first effort, by most, was littered with the tag question. It is not easy. By the end of the day, the majority of the advocates had mastered this approach and were keen to repeat their efforts. The actors were extraordinarily convincing. One actor reduced a skilled and experienced trainer close to tears.
If you doubt the method, Lady Justice Hallett and Maura McGowan QC spoke to delegates at the Inner Temple Training Day before the training, endorsing and supporting the approach taken by the course.
Lady Justice Hallett, (now Vice President of the CACD and Head of the Judicial College and in the past an extremely experienced criminal advocate), stated that she did not understand where the need to call a complainant a liar had come from. It was, in most cases, unnecessary. Simple and short questions were required. Putting the case may be achieved in other ways. As has been pointed out elsewhere, before 1836 counsel were only able to cross-examine witnesses on behalf of a defendant; since 1836 they can also make a closing speech.
Patricia Lynch QC (18 Red Lion Court), another experienced advocate in the field, provided practical advice and demonstrated, with Sarah Clarke (Serjeants’ Inn), how cross-examination should and should not be done. In addition to participants, observers were present from Barnados and the Jeffrey Review of the Provision of Independent Criminal Advocacy. In the words of one delegate:
“I found this to be a most valuable seminar. It was stimulating and provoking. I will use the technique, the Advocate’s Gateway material and my notes for cross-examination in all cases where vulnerable witnesses appear.”
It is important to note that the objective of such a change in cross-examination technique is not to alter in any way the burden and standard of proof. It is designed to deal properly with witnesses who are truly vulnerable. We support what was said by Lord Judge in his Bar Council Annual Law Reform Lecture on 21 November 2013, “The Evidence of Child Victims: the Next Stage”:
“The objective of the criminal trial is that justice should be done, that the innocent should be acquitted, and that so far as possible evidence proving that the guilty defendant is indeed guilty should be produced to enable the guilty defendant to consider his plea, and if he persists in his denial, available to prove his guilt. Our system is adversarial. It depends on the proposition that the results of the adversarial system will produce justice. But we have to face the reality that if the adversarial system does not produce justice, that is justice to everyone involved in the process, it will have to be reexamined, and it should be re-examined. If it fails to do justice then the system requires to be changed.”
The Inner Temple will be running further courses in the future.
Tracy, 2, Bedford Row, was Called in 1983 and took Silk in 2006. Tracy’s defence work ranges from corporate fraud to representing those charged with gang-related violence and sexual offences. She recently defended in the Operation Bullfinch “9 Oxford Men” child sex exploitation case at the Central Criminal Court. Tracy is a member of the Advocacy Training Council and sits on the Rook Working Group for the Development of Advocacy Training for Cases Involving Sex and Vulnerable Witnesses/Defendants.
In an unprecedented and innovative course however, the Inner Temple ran an Advocacy Training Day for Barristers Working with Vulnerable Witnesses on 23 November 2013 where the training was interactive and participatory.
The treatment of “vulnerable witnesses” during the court process has relatively recently become a topic which has attracted considerable – adverse – media comment, most of it directed towards the nature and style of cross-examination.
In April 2011 the Advocacy Training Council published Raising the Bar, which called for ‘a system by which only advocates certified or “ticketed”’ after compulsory training would take cases involving vulnerable witnesses. While this has not come about, the ATC funded and actively promoted “The Advocate’s Gateway” which was launched in April 2013 and which the Criminal Procedure Rules now say ‘represent best practice’ (www.theadvocatesgateway.org/toolkits), and the CBA produced a DVD (“A Question of Practice” - also on the Advocate’s Gateway website). In cases involving a child or young witness, advocates have always been aware of the need to simplify questions. The use of intermediaries for both child and adult witnesses, including defendants, has become a regular feature in trials, primarily criminal ones. Witnesses to violent and /or traumatic events, who have no communication issues but have been severely affected by this experience, may be deemed vulnerable for the purposes of a trial. It should be emphasised that such witnesses are not confined to criminal cases; family, employment and catastrophic injury cases - particularly after a painful event such as an accident followed by hospitalisation - all involve vulnerable people. This is no longer a specialist area but one which pervades the court system.
Most barristers cross-examine by saying for example “You like John, don’t you?”
Examples of the change are the avoidance of leading or “tag” questions where the witness would have difficulty in dealing with them. Moreover, the requirement to “put the case” to certain categories of vulnerable witnesses such as young children is not just deemed unnecessary but in some trials (upheld by the Court of Appeal) positively forbidden.
Most barristers cross-examine by saying for example “You like John, don’t you?” It is the addition of “don’t you?” which makes it a tag question. More confusing: “You went upstairs, didn’t you?” Again, it is the words “didn’t you?” which makes the question confusing for the vulnerable. Why is it confusing? Because it is powerfully suggestive and linguistically complex.
Since this type of question has been the mainstay of cross-examination for centuries, it is difficult to re-learn. Learning the theory of how to cross-examine a vulnerable witness is one thing. At Inner Temple participants put the theory into effect by cross-examining a vulnerable witness (played by a professional actor) and receiving feedback on their skills from the Inn’s experienced advocacy trainers.
Members of the Bar had written a mock trial problem, including statements, admissions and instructions. The object was to rethink the usual tenets of cross-examination, such as putting the case and tag questions, and follow the new rules. No leading questions, no tag questions.
In small groups, participants were required to cross-examine the professional actor for 15 minutes, using the case materials provided. The actor had been briefed to behave in the way a witnesses suffering from ADHD would react to cross-examination. The advocate was then assessed by trainers using the Hampel method of advocacy training. Pupils and new practitioners are familiar with this sort of critique. Experienced practitioners are not. The first effort, by most, was littered with the tag question. It is not easy. By the end of the day, the majority of the advocates had mastered this approach and were keen to repeat their efforts. The actors were extraordinarily convincing. One actor reduced a skilled and experienced trainer close to tears.
If you doubt the method, Lady Justice Hallett and Maura McGowan QC spoke to delegates at the Inner Temple Training Day before the training, endorsing and supporting the approach taken by the course.
Lady Justice Hallett, (now Vice President of the CACD and Head of the Judicial College and in the past an extremely experienced criminal advocate), stated that she did not understand where the need to call a complainant a liar had come from. It was, in most cases, unnecessary. Simple and short questions were required. Putting the case may be achieved in other ways. As has been pointed out elsewhere, before 1836 counsel were only able to cross-examine witnesses on behalf of a defendant; since 1836 they can also make a closing speech.
Patricia Lynch QC (18 Red Lion Court), another experienced advocate in the field, provided practical advice and demonstrated, with Sarah Clarke (Serjeants’ Inn), how cross-examination should and should not be done. In addition to participants, observers were present from Barnados and the Jeffrey Review of the Provision of Independent Criminal Advocacy. In the words of one delegate:
“I found this to be a most valuable seminar. It was stimulating and provoking. I will use the technique, the Advocate’s Gateway material and my notes for cross-examination in all cases where vulnerable witnesses appear.”
It is important to note that the objective of such a change in cross-examination technique is not to alter in any way the burden and standard of proof. It is designed to deal properly with witnesses who are truly vulnerable. We support what was said by Lord Judge in his Bar Council Annual Law Reform Lecture on 21 November 2013, “The Evidence of Child Victims: the Next Stage”:
“The objective of the criminal trial is that justice should be done, that the innocent should be acquitted, and that so far as possible evidence proving that the guilty defendant is indeed guilty should be produced to enable the guilty defendant to consider his plea, and if he persists in his denial, available to prove his guilt. Our system is adversarial. It depends on the proposition that the results of the adversarial system will produce justice. But we have to face the reality that if the adversarial system does not produce justice, that is justice to everyone involved in the process, it will have to be reexamined, and it should be re-examined. If it fails to do justice then the system requires to be changed.”
The Inner Temple will be running further courses in the future.
Tracy Ayling QC, an Inner Temple Advocacy Trainer, explains the new and necessary way of cross-examining vulnerable witnesses and the training available to advocates to help them to follow the rules.
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