Witness assistance and familiarisation in England and Wales
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
| DOI | http://doi.org/10.1177/1365712716674801 |
| Subject Matter | Articles |
Article
Witness assistance and
familiarisation in England
and Wales: The Right to Challenge
Jacqueline M. Wheatcroft
University of Liverpool, UK
Abstract
Since the 1700s, lawyers have controlled interactions with witnesses in court. In England and
Wales, witness familiarisation, endorsed in RvMomodou [2005],
1
aimed to demystify the
process and through practical guidance assist witnesses to give their best evidence in legal
proceedings, with the result that they are less likely to be confused, misled or unduly influenced
by the process of cross-examination. This paper outlines empirical research which indicates
that familiarisation can be helpful; though it argues that justice systems should develop best
practices for the elicitation of accurate evidence and not leave it to witnesses to combat the
system’s shortcomings. Given that this is particularly acute for vulnerable witnesses (and
familiarising witnesses to cross-examination is in its infancy), the paper draws attention to Rv
Lubemba [2014],
2
which suggests that there is no right to put a case to a witness in child cases.
The article also discusses witness approaches in the context of the right to challenge concept.
Keywords
England and Wales, evidence, right to challenge, witness familiarisation
Introduction
The Honourable Justice Green recently said that ‘how the courts treat those who are exposed and weak is
a barometer of our moral worth as a society’ (Wheatcroft, 2016: xiii). As such, serious reconsideration of
how justice systems treat vulnerable (and victim) witnesses in the criminal justice process has been a
subject which has been reflected upon in England and Wales for some considerable time.
Corresponding author:
Jacqueline M. Wheatcroft, University of Liverpool, Liverpool L69 3BX, UK.
E-mail: J.M.Wheatcroft@liverpool.ac.uk
1. RvMomodou [2005] 1 WLR 3442—in the subsequent case of RvSalisbury Lord Phillip similarly observed ‘There is, in my
view, a difference of substance between the process of familiarisation with the task of giving evidence coherently and the
orchestration of evidence to be given. The second is objectionable and the first is not’ [2005] EWCA Crim 3107, para. 27.
2. RvLubemba [2014] WLR(D) 472, [2014] EWCA Crim 206.
The International Journalof
Evidence & Proof
2017, Vol. 21(1-2) 158–168
ªThe Author(s) 2016
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DOI: 10.1177/1365712716674801
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