Why lawyers can't coach witnesses
If lawyers are preparing David Cameron for his appearance before Lord Justice Leveson, they are on perilous ground
Richard Moorhead
guardian.co.uk, Tuesday 8 May 2012 15.40 BST
David Cameron is reportedly receiving legal tutoring from a "small group of leading lawyers" as he prepares to give evidence to the Leveson inquiry. Described by the Independent as "legal briefings", such sessions raise the interesting question of what lawyers can and can't do to prepare witnesses in the giving of evidence.
In the US, professional rules typically permit coaching because it 'invites' the witness to provide truthful evidence favourable to the lawyer's client. The rules in England and Wales are tougher. The conventional line is that lawyers may "familiarise" their witness with the process of giving evidence, but not coach them on the content of it. An interesting question is whether and when preparation of the prime minister, if that is what the small group of leading lawyers is engaged in, might stray into coaching rather than familiarisation.For barristers, the Bar's Code of Conduct is pretty clear (para. 705): "A barrister must not... ...rehearse practise
or coach a witness in relation to his evidence." The Solicitors' Code of Conduct is considerably less clear; witness
coaching may amount to attempting to influence a witness and so misleading of a court but it is not clearly prohibited.
Even so, case law may bind both professions. As Lord Justice Judge (now Lord Chief Justice) pointed out in R v Momodou [2005] EWCA Crim 177, prohibition of coaching does not simply protect against mendacious clients with over-zealous lawyers. The risks of innocent contamination of witnesses are significant:
"The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any
possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids
any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the
training takes place one-to-one with someone completely remote from the facts of the case itself, the witness
may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent
with what others are saying, or indeed not quite what is required of him. An honest witness may alter the
emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better
remembered perception of events."
Judge LJ's opinion applies to criminal cases, but the Bar has suggested in its guidance that his prescriptions also apply to civil cases. Permissible witness familiarisation is limited. It includes familiarising witnesses with court layout; the likely sequence of events; the roles of each participant; and the nature of cross-examination. The aim is to avoid witnesses being taken advantage of by the process and not being able to give their best evidence at the hearing. Similarly, witnesses can be advised to listen carefully to the questions and to be brief and clear in their evidence.
It is a little difficult to see the needs of a prime minister being very acute here. He may need to have the Leveson inquiry's procedures explained to him (he may well be too busy to have been watching proceedings online,
but a couple of downloads would soon fix that). More pertinently, simulations, including cross-examination, can be conducted but only to familiarise a witness with the process of cross examination. Importantly, none of the material used in any cross-examination should bear any similarity whatever to the issues that the witness is required to give evidence on. In other words his tutoring team can practice cross-examination but not Leveson evidence.
Whether an experienced politician needs such practice is debatable. What is clear, however, is that the form of this practice must be carefully managed. It should not be used to rehearse, practise or coach a witness in relation to his (or her) evidence. To this end, the witness is to be prohibited from discussing the content of their actual evidence. If the witness tries to discuss it then they are to be warned and such warnings noted. Interestingly, also, those involved in the training should not have any personal knowledge of the matters in issue in the hearing. This poses a rather interesting problem for the trainers in this case. It would be difficult to argue they did not have knowledge of at least some of the evidence in the Leveson proceedings. How then can they participate in training without risking that knowledge contaminating their approach to training or the prime minister's approach to giving evidence? This, coupled with his limited need to become accustomed to the nature of the proceedings, might suggest any lawyers contemplating such training might have been wiser not to participate.
It is not known, of course, what form the 'legal tutoring' is actually taking. If his legal team apply the guidance applicable to the Bar in civil and criminal cases, they should disclose any process of witness familiarisation to Lord Justice Leveson and other core participants. His team should also keep records of those present at the training sessions as well as documentation of the programme itself. This should include copies of case studies, for instance.
Most participants in the justice system, be they parties, victims, witnesses or defendants, do not have the resources necessary to get meaningful witness familiarisation. Victim support, in particular, is limited. The public has a legitimate interest in knowing how long Cameron has spent on this process, who has paid for it and the nature of the tuition. Perhaps the participants should have been warier of their involvement in sessions that could have crossed the line between witness familiarisation and coaching, even if unconsciously.
http://themurdochempireanditsnestofvipers.blogspot.com.es/2012/05/leveson-brooks-worried-cameron.htmlhttp://www.guardian.co.uk/law/2012/may/08/cameron-tutored-for-leveson
If lawyers are preparing David Cameron for his appearance before Lord Justice Leveson, they are on perilous ground
Richard Moorhead
guardian.co.uk, Tuesday 8 May 2012 15.40 BST
David Cameron is reportedly receiving legal tutoring from a "small group of leading lawyers" as he prepares to give evidence to the Leveson inquiry. Described by the Independent as "legal briefings", such sessions raise the interesting question of what lawyers can and can't do to prepare witnesses in the giving of evidence.
In the US, professional rules typically permit coaching because it 'invites' the witness to provide truthful evidence favourable to the lawyer's client. The rules in England and Wales are tougher. The conventional line is that lawyers may "familiarise" their witness with the process of giving evidence, but not coach them on the content of it. An interesting question is whether and when preparation of the prime minister, if that is what the small group of leading lawyers is engaged in, might stray into coaching rather than familiarisation.For barristers, the Bar's Code of Conduct is pretty clear (para. 705): "A barrister must not... ...rehearse practise
or coach a witness in relation to his evidence." The Solicitors' Code of Conduct is considerably less clear; witness
coaching may amount to attempting to influence a witness and so misleading of a court but it is not clearly prohibited.
Even so, case law may bind both professions. As Lord Justice Judge (now Lord Chief Justice) pointed out in R v Momodou [2005] EWCA Crim 177, prohibition of coaching does not simply protect against mendacious clients with over-zealous lawyers. The risks of innocent contamination of witnesses are significant:
"The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any
possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids
any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the
training takes place one-to-one with someone completely remote from the facts of the case itself, the witness
may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent
with what others are saying, or indeed not quite what is required of him. An honest witness may alter the
emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better
remembered perception of events."
Judge LJ's opinion applies to criminal cases, but the Bar has suggested in its guidance that his prescriptions also apply to civil cases. Permissible witness familiarisation is limited. It includes familiarising witnesses with court layout; the likely sequence of events; the roles of each participant; and the nature of cross-examination. The aim is to avoid witnesses being taken advantage of by the process and not being able to give their best evidence at the hearing. Similarly, witnesses can be advised to listen carefully to the questions and to be brief and clear in their evidence.
It is a little difficult to see the needs of a prime minister being very acute here. He may need to have the Leveson inquiry's procedures explained to him (he may well be too busy to have been watching proceedings online,
but a couple of downloads would soon fix that). More pertinently, simulations, including cross-examination, can be conducted but only to familiarise a witness with the process of cross examination. Importantly, none of the material used in any cross-examination should bear any similarity whatever to the issues that the witness is required to give evidence on. In other words his tutoring team can practice cross-examination but not Leveson evidence.
Whether an experienced politician needs such practice is debatable. What is clear, however, is that the form of this practice must be carefully managed. It should not be used to rehearse, practise or coach a witness in relation to his (or her) evidence. To this end, the witness is to be prohibited from discussing the content of their actual evidence. If the witness tries to discuss it then they are to be warned and such warnings noted. Interestingly, also, those involved in the training should not have any personal knowledge of the matters in issue in the hearing. This poses a rather interesting problem for the trainers in this case. It would be difficult to argue they did not have knowledge of at least some of the evidence in the Leveson proceedings. How then can they participate in training without risking that knowledge contaminating their approach to training or the prime minister's approach to giving evidence? This, coupled with his limited need to become accustomed to the nature of the proceedings, might suggest any lawyers contemplating such training might have been wiser not to participate.
It is not known, of course, what form the 'legal tutoring' is actually taking. If his legal team apply the guidance applicable to the Bar in civil and criminal cases, they should disclose any process of witness familiarisation to Lord Justice Leveson and other core participants. His team should also keep records of those present at the training sessions as well as documentation of the programme itself. This should include copies of case studies, for instance.
Most participants in the justice system, be they parties, victims, witnesses or defendants, do not have the resources necessary to get meaningful witness familiarisation. Victim support, in particular, is limited. The public has a legitimate interest in knowing how long Cameron has spent on this process, who has paid for it and the nature of the tuition. Perhaps the participants should have been warier of their involvement in sessions that could have crossed the line between witness familiarisation and coaching, even if unconsciously.
http://themurdochempireanditsnestofvipers.blogspot.com.es/2012/05/leveson-brooks-worried-cameron.htmlhttp://www.guardian.co.uk/law/2012/may/08/cameron-tutored-for-leveson
