The permissible bounds of witness training in criminal litigation and the duty to disclose

An analysis of the legal and ethical issues which arise and practical advice on how to avoid bear traps along the way.

By Christopher Coltart KC

On the night of 14 February 2002, a major disturbance broke out at Yarl’s Wood Immigration Detention Centre, resulting in several individuals being charged with public order offences.  Before the trial began, it came to light that prison officers due to give evidence for the prosecution had received witness training.  This included the use of a mock exercise which bore disarming similarity to the facts of the actual case.  At trial, the jury were informed of this fact and directed that the training had been inappropriate.  Some of the defendants were convicted nonetheless, including one Henry Momodou.

On his appeal, which was unsuccessful, the Court of Appeal expressed in trenchant terms its disapproval of the type of training which had been conducted in this case (R v Momodou [2005] 1 WLR 3442).  In doing so, it gave guidance on the permissible limits of any form of witness training, which has subsequently been amplified in a note issued by the Ethics Committee of the Bar Council (see here).  The combined effect of this guidance is that whilst the coaching of witnesses (ie suggesting to them what their evidence should be) is always prohibited, witness training is allowed, provided that various conditions are met.  These conditions are as follows:

1. the training is undertaken by a reputable body with no knowledge of the case in question;
2. the materials used bear no resemblance to the facts of that case;
3. trial counsel has reviewed the material in advance of the training session and is satisfied that it falls within acceptable bounds;
4. during the training, there is no discussion of the evidence which the witness will give in court;
5. mock cross examination must be avoided (or alternatively stopped) if the trainer is concerned that it will lend a ‘specious’ quality to the witness’ evidence (ie. it may assist them in sounding plausible even though their evidence is incorrect); and;
6. a record is kept of who attended the training and what materials were used.

In addition, the guidance states, whether the training is undertaken by the prosecution or defence, there is a professional duty on counsel to disclose the fact of the training (and the materials used) to the other side and to the court.

This final requirement is troubling, especially from a defence perspective.  The duties of disclosure on a defendant in criminal proceedings are closely circumscribed.  There is no statutory basis for requiring the defence to disclose the fact of any witness training and there is nothing in the BSB Code of Conduct or the Criminal Procedure Rules which would compel that outcome either.  As for the guidance note from the Bar Council, this is not ‘guidance’ for the purposes of the BSB Handbook (as conceded in the note itself) and is designed merely to ‘assist’ advocates with their ethical duties.  Elevating that to a professional obligation is something of a stretch.

Still, on the basis that it would take a brave (perhaps foolish) advocate to ignore the clearly expressed wishes of the Court of Appeal and the Bar Council, disclosure of the fact of the training may be inevitable.  As this puts the defendant in peril of being cross examined about the training in front of the jury, with all the prejudice that involves, steps should be taken to minimise the risk of this outcome. 

One solution would be as follows:

1. have trial counsel approve the training materials in advance;
2. obtain a statement from the trainer, confirming that the training has taken place and that it will not, in their view, assist the witnesses in giving specious evidence at trial;
3. disclose the statement, the fact of the training and the materials used to the prosecution and to the court; and,
4. seek a pre trial ruling that, on the basis that the Momodou guidance has been observed, the training is irrelevant and should not be referred to in front of the jury.

It’s a bit clunky and one does wonder what useful purpose is served by having to jump through these hoops.  Still, adopting this approach should ensure (a) that no one gets into ethical hot water and (b) that the defendant is not unfairly prejudiced in front of the jury.  Unless or until the guidance is updated (and it could do with a makeover), this may be the safest route to adopt.

Christopher Coltart KC is Head of the Business Crime team at 2 Hare Court and undertakes white collar crime and professional disciplinary cases.  For full details of his practice, click here.