CPS Consultation on speaking to witnesses at Court

CPS Consultation on speaking to witnesses at Court

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Introduction

Who would have thought a CPS consultation on procedure would become a news story? On 19th January 2015, news outlets were awash with reports of the latest CPS consultation. This time it is do with what should advocates say to complainants (or, as the CPS have it, ‘victims’) at Court.

There is new guidance which aim to “ensure victims are, for example, informed of the general nature of the defence case or if their own character is to be questioned in the witness box. In a rape case a complainant may be told if the likely defence was to be, for example, on the issue of consent or identity. The guidance makes clear that assisting witnesses in this way is not coaching or telling them what to say“,

The press release is here, and you can see the Consultation Response ‘hub’ here and the draft guidance here.

Summary of Guidance

The actual draft guidance is very short – only 7 pages, and is worth reading. Most of it is common sense and common decency, but parts are much more controversial.

Basically, the advocate is instructed to speak to the witness and provide assistance about, amongst other things, ‘Procedure’, ‘Giving Evidence’ and ‘Cross-Examination’. What was trailed was that complainants would be told what the defence was so that they would be forewarned.

There is a fine line between this and coaching witnesses (see the guidance in Momodou [2005] EWCA Crim 177) and it is likely that this aspect will be where the focus of most of the response will be.

 

How to respond?

There is a response form that you can download and fill in.

This is a controversial issue (although less controversial when you read the actual guidance). Make sure you have your say.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

14 COMMENTS

  1. ‘complainants would be told what the defence was so that they would be forewarned’

    This sounds dangerously like coaching to me.

    Furthermore, as for this passage: ‘The guidance makes clear that assisting witnesses in this way is not coaching or telling them what to say’… Well, this sounds rather like someone pointing at a pipe and saying, in a very forthright and authoritative manner, ‘this is NOT a pipe’.

    However, I am not a lawyer, and what is most interesting about this blog is that it is written by a lawyer, and as such effectively communicates the procedures of the law to laypeople.

    I’d therefore be most interested in the author’s personal view here. Is this indeed coaching?

  2. Of course it’s coaching – who are they kidding?

    In a case close to me an eight-year-old boy was seriously coached by the CPS, the police and his parents. It amounted to almost intolerable pressure on the youngster, as he regarded his alleged “groomer” as his best friend. Amazingly, he resisted the coaching and never made a single accusation of wrongdoing against the man. I have seen the trial transcription and it’s clear to those who understand language that this reprehensible coaching took place; so desperate were the authorities and the child’s parents (all with their own individual nefarious motives) to get the man convicted that the clearly evidenced truth – that this was in fact just a fond friendship as part of a wider friendship with the child’s family – went out of the window. Legal principles were ridden over roughshod.

    Unsurprisingly the man was convicted. The prosecutor deliberately misquoted a witness and misled the jury over the law and in other ways – not least by the use of logical fallacy not generally understood by lay jurors. Defence counsel let it happen, failing among many other things to bring in exculpatory evidence and wording his cross-examinations so that the answers would be unfavourable to the defendant. And the judge made his bias clear from the start of the proceedings: his inadequate and legally incorrect summing-up effectively excused the jury from thinking about the law, from considering the evidence, and from ensuring that their verdict was unanimous. Conviction was inevitable.

    So this latest revelation comes as no surprise. Sex convictions are political gold dust and politicians of all persuasions will collude with the authorities to secure and consolidate them by any means – regardless of guilt or innocence. This is just one more ‘means’: there will be more.

    • I’ve attended many trials where, after the complainant has given evidence, it has been remarked “she’s been coached. The words she used weren’t how she speaks, somebody has put words in her mouth, and she would have lost her temper early on in. She can’t help but swear every other word and here she is, like butter wouldn’t melt, playing the part of a sweet innocent angel”……

  3. The goal posts just keep moving, God help anyone who cant prove innocene or has a pre-con , they will be better pleading guilty under a deal, even if innocent or else.

  4. Why are men so defensive about this stuff, what is it you are all so afraid of. If you didn’t rape or sexually assault anyone you have nothing to fear. If you did then be afraid because the tide is turning and blind eyes are less so.

    • I’m not sure it’s that simple..! It’s not just men who are concerned about this, probably most lawyers. And there’s plenty of reasons for the innocent to be worried.

  5. That’s as maybe it seems men get the most edgy about things like this, why? Witnesses/victims go into court like lambs to the slaughter c/f the accused. I have spoken to one women who had 10 mins with CPS prosecution prior to taking the stand where her ex-hub was accused of rape. How can that be fair? Especially when if the accused is found not guilty the victim in rape cases is always accused of being/considered to be a liar or making a false allegation by men. If we are going to put victims on trial in everything but name then give them a defence counsel in everything but name or by name.

    • I don’t think men get more edgy, but that would be something it’s interesting to get evidence of.

      Anyway, things have moved on since your example. If it’s recent, then it’s an example of how having the procedures doesn’t help unless they are put in place. Things can be better, but the answer is to have a properly funded police (instead of cutting them) and witness support who can ensure that the complainant is cared for all the way through. This, though, takes money, and actually the government don’t give a shit about victims. They like to talk tough, but anything that costs money they won’t do.

      In London the CPS comply with 23% of Court orders. This leads to delay and more anguish to victims, and sometimes to cases being lost because of it. Even if that doesn’t happen, the underresourcing leads to more acquittals. I would be more impressed with initiatives such as this if they sorted that out first.

      Here endeth the rant.

      As to what an acquittal means, we need to get across that it doesn’t mean that the complainant lied, but I recognise it’s not as easy as that. The reactions to convictions and acquittals on social media is one of the reasons I’ve changed my mind about anonymity for accused and now (tentatively) support it. But that’s for another day.

      • The example I gave of 10 mins with the CPS for the victim in a rape case is recent took place around September/October 2014. She has written a blog about her experience I will try and find it for you.

        • Thanks – it is very sad if that did happen. Perhaps not a surprise due to the cuts of Court and CPS, but it shouldn’t happen.

          You will probably disagree with me, but it sort of proves my point. That shouldn’t happen now. The fact that policies are not followed is a reason to enforce those policies rather than getting new ones (which will probably not work either).

          • That’s horrible, I feel very sorry for her. As I said, there’s a lot that should be done for witnesses but I’d rather they sort the basics out first before launching a new policy that may only raise expectations and make the experience all the harder in the long run.

  6. The terminally and chronically offended pitch fork waving politically correct outraged leftards are running the show.

    They stand up for Charlie Hebdo and freedom of speech and press, but dare to have a contrasting opinion and the online petitions to shut you up will start.

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