Friday Law Report: Guidance on Witness Familiarisation in Criminal Trials ; 11 February 2005 Regina V Momodou and Another ([2005] EWCA Crim 177) Court of Appeal, Criminal Division (Lord Justice Judge, Mrs Justice Dobbs and Sir Michael Wright) 2 February 2005

Article excerpt

GUIDANCE ON the use of witness familiarisation in criminal trials was given by the Court of Appeal.

The Court of Appeal dimissed the appeals of Henry Momodou and Beher Limani against their convictions of violent disorder.

Their convictions had arisen out of a well-publicised, major and notorious disturbance at the Yarl's Wood Immigration Detention Centre in February 2002, some three months after the centre was opened.

On the appeal, an issue arose as to the effect on the safety of the conviction of the training techniques received by some of the witnesses.

Joel Bennathan (Registrar of Criminal Appeals) for the first defendant; Jollyon Robertson and Scott Ivill (Registrar of Criminal Appeals) for the second defendant; Nigel Rumfitt QC and Susannah Johnson (Crown Prosecution Service) for the Crown.

Lord Justice Judge said that there was a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) was not permitted.

The rule reduced any possibility that one witness might tailor his evidence in the light of what anyone else said, and equally, avoided any unfounded perception that he might have done so.

If arrangements were made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed.

In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation, and invited to comment in advance on the proposals.

The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations.

If the defence engaged in the process, it would be extremely wise for counsel's advice to be sought, again in advance, and again with written information about the nature and extent of the training. …