The only way is ethics

Nicholas Goodwin QC outlines the updated witness preparation guidance from the Bar Council’s Ethics Committee, which confronts head on the ethical lines to be drawn and distills lessons for all practice areas

The Bar Council Ethics helpline receives frequent enquiries about the handling of witnesses – witnesses who divulge new information, who ask for advice about cross-examination, who disclose that they have been on a witness-training programme and, finally, who merrily say they have discussed the case with another witness. Similar, although less immediate, issues arise outside of the court arena when drafting statements and discussing the case with a client in conference.

Revised guidance

In August 2017 the Bar Council Ethics Committee published a revised guidance document on witness preparation. In practice, unheralded issues relating to witnesses are, we have found, more likely to arise in criminal or family cases. However, the document is divided into three sections – civil, crime and family – to make it more readily accessible by all practitioners facing ethical dilemmas at court.

This new guidance confronts head on the ethical line drawn between, on one hand, the need to provide support to one’s client before giving evidence and, on the other, the need to ensure that their evidence remains, uninfluenced, their own. All counsel will seek to put their client at ease in advance of a case, particularly at the door of the court. Some witnesses will be vulnerable, have a learning difficulty, be victims of a crime or will be participating in proceedings in a foreign court in a foreign language. Some will be just plain nervous. There are, of course, no difficulties with seeking to reassure and inform such witnesses about their likely experience in court.

Staying the right side of the line

Conduct that falls the right side of the line is, principally, emotional support and encouragement designed to help the witness give their best evidence. The ethics become more complex when the witness seeks guidance in advance about cross-examination. The main rule governing counsel’s conduct is Rule C9.4 in the BSB Handbook: ‘you must not rehearse, practise with or coach a witness in respect of their evidence’. This is a subset of Core Duty 3 – the duty to act with honesty and integrity. Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination. The guidance is not, of course, intended to operate as a restriction on counsel exploring in conference with a client all aspects of the case in detail, including his/her response to assertions made by other parties that may well be put in cross-examination. There is an important difference between exploration and rehearsal.

There are other rules referred to in the document which, in combination, set out the framework under which these ethical decisions should be made. For example, under Rule C9.3 counsel is prohibited from encouraging a witness to give evidence which is misleading or untruthful. Under Rule C9.2(d) counsel cannot draft any statement or affidavit containing a statement of fact other than the evidence which one reasonably believes the witness would give in oral evidence.

Momodou: coaching v familiarisation

The guidance considers again the criminal case of Momodou [2005] EWCA Crim 177, in which the Court of Appeal emphasised that witness coaching is impermissible. Witness familiarisation is, however, a slightly different beast – encompassing showing a witness the layout of the court, telling them about the likely sequence of events and giving a balanced appraisal of the participants’ different responsibilities. Although there is no specific authority on these matters in civil or family proceedings, it would be wise to apply the guidance in Momodou to all litigation and to all witnesses, whether lay or expert. There are also separate sections on expert evidence in each field of law.

In Momodou, the Court of Appeal also dealt directly with witness familiarisation and expert training programmes offered by outside agencies. Where such a programme has been organised by one side or another in the litigation, the trial judge will need to be informed and all legal representatives will be under a professional duty to ensure the Court of Appeal guidance is followed. Any ‘mock’ cross-examinations should not be based on the facts of a pending or current trial where any participant is likely to be a witness. Whilst in the field of family law I have encountered counsel being asked to provide generic training to social workers who have never given evidence before, I have not seen, in the last 22 years, any training programme specific to a case. As such, Momodou will be fairly unfamiliar territory for many family practitioners and may remain so.

Civil focus: witness statements

One focus of the civil section of the document is the proper approach to the settling of witness statements with which counsel is often instructed to assist. The courts have repeatedly emphasised that statements must, as far as possible, be in the witness’ own words – see Aquarius Financial Enterprises Inc v Certain Underwriters at Lloyds [2001] 2 Lloyd’s Rep 542 – and, in turn, the Chancery, Commercial and Admiralty and Technology and Construction Court Guides.

The Chancery Guide 2016, para 19.6 notes that ‘a professional adviser may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if you are put on enquiry as to their truth’. What should counsel do if another witness’ evidence contradicts that of the witness whose statement one is drafting? First, ‘it is not for you to decide whether your client’s case is to be believed’ (see gC6 in the BSB Handbook). Second, gC7 provides that you may draw to a witness’ attention other conflicting evidence and may point out that the court might find a particular piece of evidence difficult to accept. If the witness confirms his/her own evidence is true then you will not be misleading the court if you include it. Indeed, you might well fall the wrong side of the line if you do not include it.

Family cases: disclosure

Every family practitioner will have experience of their witness disclosing new and relevant information at court. Here the guidance helps counsel to decide on an ethical and proportionate approach. A small piece of information merely supplementing a topic covered in a witness statement can be disclosed to one’s opponents outside court. A more major or more controversial disclosure should be set out in a further written statement, filed with the permission of the judge. There is nothing unethical about counsel drafting a witness statement in these circumstances provided the guidance is followed.

Further consideration is given to expert evidence and intermediaries in family cases. There should be no discussion about the substance of the case with a jointly instructed expert in the absence of all the other parties, including any litigants in person. Any such discussions should be fully noted and a summary provided to the judge. Any suggestion that two experts should speak together outside court must be approved by the court, even if all advocates agree. As to intermediaries, great care is needed to ensure that the intermediary does not rehearse the witness’ evidence and does not prompt them to give the ‘right’ answer outside court.

For many practitioners this new guidance document should help address some of the more frequent and immediate ethical issues that arise at court. If in doubt, the Bar Council helpline (020 7611 1307) is always at hand, although of course individual practitioners will make their own decisions in accordance with the applicable rules.

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Nicholas Goodwin QC

Nicholas is a member of Harcourt Chambers and took silk in 2014.