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Ian Kelcey explains why all criminal solicitor advocates should undertake the Bar Council / Law Society’s vulnerable witness training for their own personal development, and to keep pace with their counterparts at the bar.
It is a joint initiative of the Bar Council and the Law Society, in response to the 2015 report of the Vulnerable Witnesses & Children Working Group, chaired by HHJ Peter Rook QC. As advocates, we need to become a lot more aware of the needs of vulnerable witnesses in court, and that they are not subjected to lengthy or unnecessary questioning.
In three court centres – Kingston, Leeds and Liverpool – the courts have tested the section 28 procedure, whereby the examination-in-chief of the witness is held and recorded before trial, and played to the jury subsequently. These tests have shown that where the advocates have got the papers and do their preparation concisely, it cuts down the length of cross-examination drastically by up to 30 minutes. This still enables the defence advocate to put their case, but means that the witness is not subject to the harrowing experience of being in the witness box or in a connected video room for hours.
There has been a tendency among some advocates – sometimes the more experienced ones – to almost bully a witness. We have moved on from that, but we need to be a lot more careful as to how we deal with vulnerable witnesses. Sometimes it is counterproductive to be very firm with a witness, because it can evoke sympathy with the jury or court rather than effectively doing your client’s case justice. The press has picked up examples of very harsh witness questioning, but they have tended to be in the most dramatic cases, and I think that there are instances where lengthy cross-examination is necessary in the furtherance of the case. But such cases are few and far between.
The training sets a specimen case. Trainees are expected to formulate in writing and submit to trainers beforehand how they would set out their cross-examination. It’s not a pass or fail test, rather a means of enhancing how to do the job properly. On the day of the training, the trainers will take trainees through their cross-examination submissions, and explain what they can do to enhance their client’s case, or where there may be unnecessary questioning. The training is designed to ensure the best outcome for the defendant as well as the witness.
I found it very useful. It was good speaking to other advocates, QCs and senior juniors on my course. We realised that what we were seeking to achieve was what the training is hoping to put in place. It also gave me a greater insight into honing my cross-examination technique and thinking it through carefully. There has been a tendency over the years for advocates to adapt their cross-examination approach as the evidence evolves.
I urge all solicitor advocates to undertake this training, and do it early, so we are shown to be taking this initiative seriously to improve the quality of advocacy amongst the profession.
The bar is rolling this training out to its members, and as solicitor advocates we must be working at the same level. Remember that you never know when you are going to face a case which involves a vulnerable witness – it may be in the magistrates’ court, Crown Court or Youth Court. What are you going to do, for example, if you haven’t undergone this training, and two weeks before trial the prosecution rolls out another witness?
Not yet, but I think in due course the MoJ will specify that unless advocates have undergone this training, they will not be paid for publicly-funded work. Unfortunately, I don’t think the training will be rolled out across the board, and I think it really needs to be. Advocates representing those people who are not publicly funded or who paying for their own defence should have to behave in court in exactly the same way as those who have done this training when it comes to handling vulnerable witnesses. The training will improve their perception of how to go about the cross-examination.
For further information and to book a place, please visit: www.lawsociety.org.uk/advocacy-training