When I started at the bar, a barrister could not talk to a witness at all. Later it was acceptable to say hello, to ensure that the witness had a copy of their proof of evidence, to give some indication as to when they would be called, and if necessary to try to put the witness at ease with the court surroundings and people involved. But no more.
The current Barrister’s Rules in relation to witnesses state:-
68. A barrister must not:
(a) advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
(b) coach a witness by advising what answers the witness should give to questions which might be asked.
69. A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.
I have heard it argued that it is not contrary to Rules 68 and 69 for a barrister to spend considerable time with the witness, possibly even with role play, to:-
(1) iron out any propensity of the witness to be defensive, argumentative, questioning, irritable, sarcastic or aggressive – it is said that the witness must understand that if they display any such trait it will diminish the value of their evidence; and
(2) ensure that the witness understands the importance of listening to the question, making sure they understand the question, asking for clarification of the question if necessary, asking to be referred to a document if they are unsure, and then making sure they answer that question and no other question.
Such counselling if successful, will change the way the witness gives evidence. Whilst perhaps not strictly in breach of Rules 68 and 69, the problem is that in some circumstances it could get very close to “conduct which is prejudicial to the administration of justice” [a breach of Rule 12(b)]. See the examples below.
Example 1: helping a dishonest witness to mislead the court
Where the witness has not been counselled
Where the witness has been counselled
Q. You saw document 2 before you made your decision to dismiss Mr H?
A. Yes.
Q. But it was wrong to see it because it was a spent warning?
A. (Pause) Actually I only saw it after I made my decision.
Q. But a second ago you said you saw it before making your decision.
A. Sorry I misunderstood your question.
Q. There is a list of the documents that were given to you to make your decision and one of them is document 2?
A. That’s a mistake. That list was made up afterwards by the solicitors.
Court is put on enquiry as to whether:
(1) the document had been seen before the decision and the witness is trying to pretend otherwise; or
(2) the document had not been seen before the decision — the witness simply has a propensity to misunderstand the questions (something which is either already apparent, or is likely to become apparent as the cross examination proceeds).
Q. You saw document 2 before you made your decision to dismiss Mr H?
A. (Pause) No.
Q. There is a list of the documents that were given to you to make your decision and one of them is document 2?
A. That’s a mistake. That list was made up afterwards by the solicitors.
Here the witness has been counselled to listen carefully to the question and to think carefully before answering them. Whilst the evidence from the honest witness is better, the dishonest or unreliable witness is given a better opportunity to mislead the court.
Example 2: obscuring signs of unreliability
Witnesses who are uncomfortable with particular questions may prevaricate. Counselling could interfere with this important signal.
Where the witness has not been counselled
Where the witness has been counselled
Q. You saw document 2 before you made your decision to dismiss Mr H?
A. I considered all the evidence given to me.
Q. And did that evidence include document 2?
A. (Pause) Remind me, what is document 2?
Q. Document 2 is the document I have been asking about — it’s right in front of you.
A. I think I only saw this after I made the decision.
Q. There is a list of the documents that were given to you to make your decision and one of them is document 2?
A. I think that must be a mistake. If I had seen document 2 I am sure I would have completely disregarded it.
The Court may consider the witness’s prevarication weakens this evidence.
Q. You saw document 2 before you made your decision to dismiss Mr H?
A. (Pause) No.
Q. There is a list of the documents that were given to you to make your decision and one of them is document 2?
A. That’s a mistake. That list was made up afterwards by the solicitors.
The evidence is obscured. The witness’s natural tendency to prevaricate on this sensitive issue has been counselled out.
Example 3: obscuring natural tendency of witness
Where the witness has been counselled
Q. At the meeting you agreed to drop all your company’s claims against Mr Scott if he left the site and you never saw him again?
A. Yes, but I was upset. Mr Scott knows that I didn’t mean that. He knows I have a very short fuse. I stormed out of the meeting and I may have said something like that but I also said that I would see him in court.
Q. Saying that you would see him in court is not in your statement of evidence. I suggest you did not say that.
A. I did, I was shouting, I lost my cool completely. I was not dropping the claim at all. I made it clear my company would bring a claim.
Judge: With respect, you haven’t come over as having a short temper. You’ve given your evidence in a very controlled manner despite very robust questioning from counsel.
A. The barrister told me not to lose my temper. She warned me about what to expect and gave me techniques to make sure I remained calm.
The witness’s natural tendencies have been counselled out making establishing the truth more difficult.
Example 4: this begins to get messy
Where the witness has been counselled
Q. You agree that this is your signature on the variation document?
A. Yes, but the details weren’t filled in and the builder said that I had to sign it. I am not the questioning type, in fact my friends say that I am quite passive. So I didn’t question it.
Judge: With respect, you haven’t come over like that during your evidence. On several occasions you have asked counsel to clarify his questions and on two occasions you have refused to answer without checking the documentation first.
A. Well I was told to do this by the barrister. He said that otherwise my evidence would not come out properly.
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| (later)
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Judge (to counsel): One of the issues is whether the variation document was given to Mrs H for signature in blank. In turn this depends on whether she submitted to the builder’s demands as she says, or whether it is more likely that she would have questioned the document if it had been in blank. I think the only way I am going to resolve this issue is to hear from you as to the counselling or preparation that you gave to Mrs H (if any).
Counsel: Yes your honour, except that since this witness is one of my clients I will need to ask my clients whether they are prepared to waive legal professional privilege in this respect.
Other counsel: If my learned friend gives evidence about the extent of the counselling I would like an opportunity to cross examine him.
The above scenario is obviously highly embarrassing and will lengthen the hearing.
Another problem with counselling is that it may interfere with the level playing field if one side has counselled witnesses and the other has not, causing an imbalance between the two sides. There are many reasons why one side may not have counselled witnesses. The lawyers on that side may be against it in principle, or on a tight budget with the client, or they may be unaware that it can be done, or simply without time to do it. A further alternative is that the litigant on that side is self represented.
I can’t think of a single occasion when I considered that the court made an erroneous decision because a witness was defensive, argumentative, questioning, irritable, sarcastic or aggressive. Trying to get a witness to act in a way that is unnatural for them can seriously backfire if they are unable to keep up the pretence. It will then appear that they are changing the way they give evidence — the judge may think this is because they are uncomfortable with a particular line of questioning.
Whilst it is usually best if a witness does focus on the question and give a considered answer, it is probably far better for the judge to decide when the witness should be told to do this. This is because in some cases it is important to understand the natural tendencies of the witness as can be seen from the above examples.
Jeremy Gordon
Barrister at Law
