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Advocacy and the Vulnerable training sessions

16 August 2018

The Law Society is running more Advocacy and the Vulnerable training sessions throughout the autumn designed to help solicitor advocates practise more effectively in relation to vulnerable witnesses. Andrew Morris, a solicitor advocate at ITN Solicitors and one of the course trainers, explains what attendees can expect to learn.

What can attendees expect from the vulnerable witness training?

The Law Society, in conjunction with the Bar Council, have jointly produced a case study of a Crown Court trial. The case study introduces delegates to the practice and procedure of ground rules hearings and the use of written questions for vulnerable witnesses in the Crown Court. This procedure is almost identical to that used in the magistrates court and Youth Court, and so is of importance to all advocacy practitioners.

The face-to-face training is three hours’ long and split into three stages. Delegates will first be asked to discuss some of the 20 principles of questioning, and how they may be applied to the case study.

There is then a peer review of delegates’ questions and a chance to redraft and discuss other prepared written questions. All participants complete an informal advocacy exercise at the end of the session, which will enable delegates to put into practice the 20 principles of questioning.

Delegates must complete all three stages of the training to satisfy the criteria.

Is there anything I need to do to prepare?

Delegates will be asked to provide their written questions at least one week in advance of the training. This is an extremely important part of the course, as it correctly mirrors the demands of ground rules hearings in court, when written questions would need to be served on all parties in advance of any hearing.

Delegates will also need to ensure they have spent enough time considering the case study to have a good understanding of any factual or tactical issues that may arise within the training.

To consider the case study and prepare written questions, delegates will need to set aside ideally between six to eight hours.

How will it help me practise more effectively in relation to vulnerable witnesses?

The vulnerable witness training course is designed to ensure that delegates critically analyse their own written questions and those of others, and to pick up on the different styles of questioning of their peers. Through open discussion and feedback, the course will enable delegates to approach effectively the professional task of preparing written questions and allow them to critically analyse their own work.

Delegates will learn practical methods of cross-examination in the best interest of their clients, to elicit the correct facts whilst at the same time complying with agreed standards. It is the critical reflection of one’s own work which enable the delegate to develop their advocacy skills.

How has the legal landscape changed in relation to vulnerable witnesses over the last 18 months?

The Court of Appeal (Criminal Division) handed down amendment no 5 to the 2015 Criminal Practice Directions in July 2017 ([2017] EWCA Crim 1076).

Within this amendment, the court opined that there had to be a ‘different and fresh approach to the cross-examination of, in particular, children of tender years, and witnesses who are vulnerable as a result of mental incapacity’.

It went on to consider the importance of the ability for an advocate to formulate questions which enable them to ensure that young or vulnerable witnesses are able to give their best evidence. The defendant’s right to a fair trial must remain undiminished, but a balance should be struck between fairness to all parties, including witnesses.

In R v Janhelle and others [2017] EWCA Crim 1228, the Court of Appeal, in refusing application for leave to appeal against convictions for murder, considered the law around the participation of young persons in the trial process.

The court reaffirmed the progress that had been made in the adapting of court proceedings for young and vulnerable witnesses, including the provision of intermediaries and ground rules hearings. Reference was made in particular to R v Wills [2011] EWCA Crim 1938 and R v Lubemba [2015] 1 WLR 1579, which both give guidance as to the proper course to be taken with vulnerable witnesses, including defendants.

Is there anything to look out for in the rest of 2018?

On 1 October 2018, amendment no 7 to the Criminal Practice Directions 2015 will come into force. It contains amendments relevant to defendants (rule 3F.12) and the use of intermediaries for defendants. Amendment no 7 makes it clear that the court will rarely use its powers to grant the defendant an intermediary, but it has the power to order the defendant to be accompanied by a support worker or another companion who is able to provide assistance.

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Preventing undue stress for your most vulnerable clients whilst advancing their cases, is an essential skill of an advocacy practitioner.