Monday Message 16.05.16
Mark Fenhalls QC
Topics this week – CPS panel update and new compulsory “speaking to witnesses” programme; a top-tip for DCS and catering at courts.
CPS Panels Update
The CPS clarified one aspect of the application process in an announcement last week.
The criteria for invitation to the 2016 Panel will be waived where Panel Members can demonstrate that they could not have met the criteria because of any of the following:
- maternity or paternity leave;
- family, caring or personal reason; or
- any other materially significant absence from practice over the relevant period.
Panel members seeking the criteria to be waived for this reason should write to CPS at [email protected], providing as much information as possible about why they are seeking a waiver, including relevant dates.
Some have queried the lack of receipt when sending in their acceptances. I have asked the CPS and been told:
“If advocates have sent emails to CPS and they have not bounced back as being undelivered they can expect them to have arrived. If there is any later dispute we will accept the evidence of sending. We intend to start publishing details of the new Panel in June (alongside the existing Panel), so advocates will be able to check they are on the new list.”
Speaking to Witnesses at Court –
national roll out
Some of you may recall me writing about this when the Director published a proposal back in the autumn of last year.
A number of us raised objections about the detail and practicalities. However since then there has been a pilot and several hundred cases reviewed and the CPS has decided that this programme is going to be rolled out across the country. I understand that this will apply in parts of the south east from 27th June.
Please make enquiries in your part of the country and establish when this is coming to you. Implementation is mandatory. I hope I am wrong but I fear that this is going to be a bumpy process.
The most potentially problematic parts for prosecution counsel are cut and pasted from a CPS document and appear in italics below. But in short the CBA recommends that:
- advocates should inform defence representatives in advance of their intention to speak to witnesses and of the topics to be discussed;
- they should never speak to witnesses unless a CPS official is also present;
- they should keep a full contemporaneous note of conversations with witnesses;
- they should be aware that the disclosure provisions of the CPIA will apply to such conversations.
Please bear in mind that failure to adhere to the rules may lead to cases being compromised and you ending up as a witness not an advocate.
“The prosecutor is responsible for covering the following matters with the witness before they give their evidence:
- cross examination within the adversarial system is usually designed to cast doubt on the version of events being provided by either the witness or the defendant. This can put pressure on individual witnesses, especially where their character is attacked in order to reduce their credibility. Questioning may also address deeply personal aspects of the witness’s life, for example in sexual offence cases involving young, vulnerable victims who have been subject to sexual exploitation;
- although some witnesses will have no problem anticipating the type of cross- examination they will face, others, and particularly those who are vulnerable due to lack of maturity, mental health issues or learning disability, may have little or no idea what to expect. Relying on witnesses to ‘work it out for themselves’ is unfair and unrealistic. To justify this on the basis that giving such information is ‘coaching’ is unhelpful and inaccurate;
- it is important that prosecutors should not provide the detail of, discuss or speculate upon the specific questions a witness is likely to face or discuss with them how to answer the questions. However, to enable witnesses to give their best evidence prosecutors should ensure that they are informed of the matters set out below;
- the witness must be told that the purpose of doing so is to provide information to assist them and not to elicit information from them. They should be discouraged from giving a response. Should the witness make any comment which is relevant to the issues in the case then it should be recorded and disclosed, if it may undermine the prosecution case or assist the defence case. Advocates in the Crown Court should ensure that, during these conversations, they are accompanied by a CPS member of staff (paralegal) based at court to assist with recording the meeting and conversation.
- if it is possible to do so, vulnerable and intimidated witnesses should be provided with this information in advance of the trial date. This could ideally be done at the same time as a special measures meeting;
- in the case of others, the best time to give this information is when the witness is being referred to his / her witness statement and being reminded that they should tell the truth. They should then additionally be informed that nothing they are told should affect what they say but that they are permitted to be informed of the following information to assist them:
- The general nature of the defence case where it is known (for example mistaken identification, consent, self-defence, lack of intent). The prosecutor must not, however, enter into any discussion of the factual basis of the defence case.
- Where third party material about a particular witness has been disclosed to the defence as being capable of undermining the prosecution’s case or assisting the defence case (such as social services, medical or counselling records) then that particular witness should be informed of the fact of such disclosure. The witness may, in any event, have already consented to the disclosure of some sensitive and / or confidential material that relates to them such as their medical records but even if you believe this to be so, you should check and remind them. The details and the impact on the defence cross-examination should be not be discussed.
- Where leave has been given for a particular witness to be cross-examined about an aspect of their bad character under section 100 Criminal Justice Act 2003 or their sexual history under section 41 Youth Justice and Criminal Evidence Act 1999, then that particular witness should be informed that such leave has been given.
- witnesses should be reassured that you can object to intrusive/irrelevant cross- examination and, if you do so, the Magistrates/Judge will decide whether the questions need be answered. The witness should be advised that the Magistrates/Judge’s decision must be followed.
- a note of the fact that the prosecutor has spoken to the witness should be made by the prosecutor or CPS paralegal. If the witness makes any comment that is disclosable to the defence under the CPIA, then a note of the comment must be made immediately and the note disclosed accordingly.”
The CPS is making strenuous efforts to have more case workers at court, but how they are going to find the resources to deal with witnesses in this way in busy court centres I simply do not know.
If there is a case worker there will his or her note accord with what you think happened? Is it realistic to think that a witness will sit there mute while you cover the required ground? Defence counsel will rightly want to know what you have said and what reply has been received… how far up in the air did the witness’ eyebrow go when you explained? And what is going to happen in that case where the reluctant complainant in a domestic violence case has worked out (with her ex who is custody) that there is a pretty simple way now available to de-rail the trial?
Should you record your conversation to protect yourself? Would it be better to agree a written precis in advance to be handed over to the witness so as to reduce risk? I fear that these arrangements are bound to lead to delay and interruptions to trials when witnesses do not arrive according to schedule and, for example, when bad character applications are granted mid trial. In the trial I am prosecuting at the moment two witnesses are in custody…
I hope my fears are unfounded. Whether I am right or not, these are now our instructions…
BCM and delays in court with the DCS
I am very grateful to the Crown Court Judge who took the trouble to write as follows last Tuesday:
“Yesterday’s example in Mark Fenhalls’ CBA Monday Message (from a PTPH Ipswich) … I am baffled why everyone stopped working while that PTPH form was waiting for the system to save it. There is nothing to stop any number of DCS windows being opened and worked upon. I have each PTPH case open in different tabs and click on them when the case is called on (one can even drag and drop the new tab onto an extended desktop screen). Often I have a dozen PTPHs in my tabs. There’s no need for the previous one to have been saved while opening the next tab.”
So for any of you who did not know, you do now. Make sure all the Judges do too.
Keeping us all fed and watered…
About 18 months or so ago someone at the MoJ decided that there would be no more subsidies for canteens at court. Thus began a series of closures that have made life more difficult for everyone, Judges, witnesses, court staff, and yes the advocates…
Resident Judges in some areas have fought long and hard to retain facilities, particularly where courts are in areas where there are simply no local alternatives in the south east Woolwich and Wood Green are obvious examples. But where these facilities exist, for goodness sake use them. Without your patronage they will disappear.
And if you are cross about the absence of a café (or anything really) at your local court, please do not think that there is a central solution. Some of the best surviving (or new) cafes are run as extensions of thriving local businesses. So if you don’t like what is going on, please join your local court user group or bar mess and lobby for change.
The CBA Dinner on Friday
Aaron tells me there are a few spaces left. Please do come along. The evening will be memorable and speeches will be brief!