14 February 2005
"There's no place for witness training in our country. We don't do it. It's unlawful," Judge Roger Sanders told a Crown Court jury last year. The Appeal judges this month sent shockwaves through a burgeoning satellite industry when they backed Judge Sanders' unambiguous assertion of the law. They went on to say that there was a "dramatic" distinction between witness training or coaching, which is absolutely not allowed, and witness familiarisation, which is allowed, and indeed encouraged, when it rejected an appeal by two asylum seekers involved in the notorious Yarl's Wood detention centre riot. They had argued unsuccessfully that unlawful pre-trial "coaching" of prosecution witnesses had led to their wrongful conviction.
Just how clear that dramatic distinction is in practice remains a moot issue and will no doubt be argued back and forth between litigators and their trainers. There is also considerable confusion over the extent to which new Court of Appeal guidelines apply to civil litigation, where witness preparation is rife among the City firms.
But first to clarify what the courts do not want to be seeing anymore. The Appeal judges published the following case study, which was drafted for the Group 4 staff that run Yarl's Wood. "Butlins Detention Centre for Asylum Seekers opened in January 2001. The centre is designed to hold up to 200 asylum seekers at a time, including women and children. There is a 15ft-high fence topped by barbed wire around the centre, CCTV cameras, regular patrols by security officers and the detainees are unable to move around the site except under guard. The centre is run by Group 4. Detainees have alleged that the security staff are rude, racist and intimidating."
Training company Bond Solon was employed by Group 4 - which was running the £100m flagship immigration detention centre in Bedfordshire - to advise potential witnesses among its staff in the wake of the February 2002 riot, which reduced half the complex to smoking rubble. The private security company had instructed Norton Rose. In a striking show of agreement, both prosecution and defence agreed that the training offered by Bond Solon was "wholly inappropriate and improper".
Mark Solon, the solicitor-director of Bond Solon, insists that his training was neither. "We decided not to use the case study and I don't know why it ever came out [at trial]," he says. Solon adds that that there was no coaching "whatsoever on the facts, or anything relating to the facts".
He continues: "The training was entirely appropriate and proper and this is endorsed by the Court of Appeal decision, which dismissed the appeal on the basis that there had been no coaching on the facts of the case full stop."
Just to complicate matters, no record of the training programme, or the training of a particular individual, or the identity of the trainer, was available at the trial.
The rather ambiguous role that the Bond Solon training exercise played did not stop Lord Justice Judge, sitting with Mrs Justice Dobbs and Sir Michael Wright, applying their minds to the subject of witness training.
Penny Cooper, director of continuing professional development at the Inns of Court School of Law, was "shocked" by the nature of the case study. "It's a very stark example of what you shouldn't do in witness preparation," she says. Cooper used to work at Bond Solon before joining the Inns. "I found it very surprising that someone would actually draft a case study based on the facts of the case," she continues. "As far as I'm concerned, it's widely known among people that do the preparation that you can't do that." She adds that she hopes "the baby doesn't get thrown out with the bath water" and firms understand that there is still a role of witness familiarisation.
Judge LJ restated the well-established principles that the witness should give their evidence "so far as is practicable, uninfluenced by what anyone else has said, whether in formal discussions or informal conversations". Risk was "inherent" in witness training, he argued. However, familiarising witnesses "with the layout of the court, the likely sequence of events when the witness is giving evidence and a balanced appraisal of the different responsibilities of the various participants" was a different matter. "Indeed, such arrangementsÃ¢Â€Â¦ are generally to be welcomed," he added.
While the present case concerned a criminal appeal, Stefan Paciorek, a partner in the dispute resolution and litigation group at Pinsent Masons, believes witness training in the civil courts is "an accident waiting to happen". Whereas US lawyers have no worries about coaching their witnesses, he warns that the practice needs to be adopted with great caution on this side of the Atlantic. "I think that a trial is going to happen sooner or later where counsel on one side is going to be asked whether the witnesses were prepared and how they were prepared, and that's going to open a whole list of questions," he says. "A witness of fact is there to tell the truth, and what the court is keen to ensure is that that matter has not been tampered with in any way. The difficulty we have now is we have a very advanced civil litigation market in London - there are experienced practitioners who obviously want to ensure witnesses are ready to go into the box and there are the professional organisations like Bond Solon - but there isn't the guidance on a professional level."
Civil litigators are already taking notice of this month's ruling. "The critical feature here is that training can't be arranged in the context or relating to a forthcoming trial," says Matthew Saunders, a litigation partner at DLA Piper Rudnick Gray Cary. "If that applies in civil proceedings - and I can't see why it wouldn't - it means that the only basis upon which training can be conducted is as part of a general educational training exercise." Saunders is concerned that the Appeal judgment leaves trainers little room to add anything meaningful to the process.
Solon believes that "only about 1 per cent" of Bond Solon's turnover is concerned with preparing witnesses for criminal trials. He points out that it train "tens of thousands of police officers, customs officers and investigators every year" as part of career development. The distinction is between proactive and reactive witness preparation, he says. "Reactive training is where there is a trial coming up and witnesses have concerns about giving evidence in court. The Court of Appeal has made it absolutely clear that there are no problems with familiarising witnesses with the court layout etc; the only issue is whether witnesses can be given the experience of being cross-examined prior to a trial. The Court of Appeal has reiterated the longstanding view that there can be no witness coaching, which we entirely support." Solon believes it is appropriate for witnesses to have some sort of cross-examination, but says "it must have nothing to do with the facts of the case".