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if well educated and articulate,108 but for those who have little education, who
are scared, nervous and unable to express themselves in the kind of language
they believe is expected in court, the handicap can be crippling, particularly if
they wish to deny the o¬ence or to plead mitigating circumstances.
. . . When the unrepresented defendant ¬rst appears in court, she is in several
ways at a disadvantage. The proceedings may be bewildering and unintelligible
to her to an extent the court can hardly appreciate. One remanded girl, when
asked by the interviewer whether she had asked for bail in court, replied ˜What
is bail? Is it the same as legal aid?™ Many others, even by the time they were inter-


107
H. Genn, B. Lever and L. Gray with N. Balmer (DCA Research Series 1/2006) Ch. 7. Footnote
70 cites other previous studies in which the value of advice and representation were discussed:
J. Baldwin et al, Judging Social Security (Clarendon, 1992); L. Dickens, Dismissed (Oxford,
1985); J. Gregory, Trial by Ordeal (Stationery O¬ce, 1989); R. Sainsbury, Medical Appeal
Tribunals (Department of Social Security, 1992); R. Berthoud and A. Bryson, ˜Social Security
Appeals: What Do Claimants Want?™, 4(1) Journal of Social Security Law, 1997, pp. 17“41.
108
Not many women in the sample fell into that category, but an example was a professional
woman who was arrested with others at a political demonstration. She appeared in court with
the others, unrepresented, and was remanded in custody untried. When asked by the
interviewer why bail had not been allowed, she said she did not know. She knew the police
had opposed it, but said that all she heard was a policeman saying that the reason was ˜the
same as before™. It had not occurred to her to ask in court what bail meant.
406 The trial process


viewed, were confused about the correct meaning of terms like ˜remand™ and
˜bail™. This kind of ignorance was not restricted to ¬rst o¬enders, although for
them the position is particularly di¬cult; they do not know what to expect, how
to behave, when to speak, and when to be silent. As one girl put it, ˜I kept being
told to get up and sit down™. It is not easy in such circumstances to do justice to
one™s own defence.
Frequently, the women said that they had not been able to catch what was
being said: a typical comment was ˜the Judge mumbles away, and you don™t
know whether or not he™s supposed to be speaking to you™. Many remanded
women said they had left the court room without realising what the magistrate
had decided: and it was then the police who had had to explain to them that they
could not go home, as they had been remanded to Holloway. One ¬rst o¬ender
who caught the words ˜two weeks™ thought she was being put on probation for
that period, until the police disabused her in the cells . . . The impossibility of
expressing themselves in court weighed heavily on many women; not infre-
quently those who had given the interviewer full accounts of the background to
their o¬ences, said that the court had not known of the mitigating circum-
stances, as they had found themselves tongue-tied and silent at the appropriate
moment . . . A few women complained that they never had a chance to explain
themselves in court; this, no doubt, re¬‚ected their failure to understand the pro-
cedure, since they had probably been interrupted when trying to speak at the
wrong moment, but the most common situation among the unrepresented was
that when invited to do so, they failed to give the court any explanation of their
behaviour. When asked ˜what have you to say?™ they seemed to think that the
response expected was a short stereotype like ˜I™m sorry™ and they felt it impos-
sible and inappropriate in the formality of the atmosphere to talk about the
background to their o¬ence. One woman described her feelings when she was
invited to speak in court and failed to respond, much as she wished to: ˜I was too
over-awed and frightened “ I didn™t want to make a fool of myself “ I would only
have cried™.
A similar impression of the situation of the defendant in the magistrates™ court
was given in a book based on observation in magistrates™ courts “ P. Carlen,
Magistrates™ Justice (1976). See especially pp. 83“5.
A study of litigants in person in the High Court and the county court pub-
lished by the DCA in 2005109 said that unrepresented litigants were almost
always victims of an imbalance of expertise. A signi¬cant minority of unrepre-
sented litigants in family cases had speci¬c indications of some vulnerability


109
R. Moorhead and M. Sefton, Litigants in person: unrepresented litigants in ¬rst instance
proceedings (DCA Research Series 2/2005) available at “
www.dca.gov.uk/research/2005/2_2005.pdf. Moorhead wrote about the study in ˜Litigants in
Person: Ghosts in the Machine™, Legal Action, November 2005, pp. 8“9 from which the quotes
above are taken. The study considered litigants in person in civil and family cases in the High
Court and the county court excluding small claims cases. It was based on 2,432 case records,
748 case ¬les where there were unrepresented litigants and interviews with litigants, lawyers
and judges. See also his article ˜A Challenge for Judgecraft™, 156 New Law Journal, 5 May 2006,
p. 742.
407 Handicaps of the unrepresented


such as being victims of violence, or having depression, or a problem with
alcohol/drug use, or having a mental illness or being extremely young parents.
When the unrepresented party was active, they were less likely to defend than
represented defendants. (˜Activity on cases was often led by the represented
party, not the unrepresented party, who participated sporadically and made
more errors™.) Another important ¬nding was that the bulk of unrepresented
party participation took place via the court o¬ce rather than the courtroom.
Unrepresented litigants were far from keen on their day in court and much
more likely to deal with court sta¬ than judges. Complexity, jargon and lack of
time all rendered courts (and court o¬ces) places unsympathetic to litigants in
person. Courts were not con¬dent at guiding unrepresented litigants to alter-
native sources of help. Sta¬ were uncertain about what services were provided
in the locality and tended to rely on very general referral to an unnamed
Citizens™ Advice Bureau or a haphazardly suggested solicitor.

In tribunals
The 1957 Franks Committee on Administrative Tribunals said (p. 9) that tri-
bunals had certain characteristics which distinguished them from courts “
cheapness, accessibility, freedom from technicality and expert knowledge of the
tribunal members. It identi¬ed three main objectives for the system: namely,
openness, fairness and impartiality, but as Genn and Genn pointed out, the
Franks Committee did not acknowledge that, to an extent, there is a con¬‚ict
between the two sets of objectives.110 Cheapness and informality may be in con-
¬‚ict with fairness and impartiality.
They found that tribunals were decidedly ˜more informal and procedurally
more ¬‚exible than courts™ (p. 112), but the price was paid in quality of decision-
making, since much of the law dealt with in tribunals is di¬cult and to present
a coherent case on fact and law is not easy. The notion that tribunal cases were
straightforward and that therefore there was no great need for a representative
was unrealistic (ibid, Ch. 4):
The experience of unrepresented appellants and applicants is overwhelmingly
of feeling ill-equipped to present their case e¬ectively at their hearing. They are
intimidated, confused by the language and often surprised at the formality of the
proceedings. Those who are subjected to cross-examination ¬nd the experience
stressful, and feel unable to conduct cross-examination themselves. It is di¬cult
to convey the degree of incomprehension common among appellants and appli-
cants who appear unrepresented at tribunals, or the extent of the di¬culties
experienced by ordinary people trying to present their case in a legal forum.
Representatives perform a number of functions. They prepare the case, act as
a mouthpiece, and protect and support appellants and applicants. They act as a
physical bu¬er between the appellant and the tribunal, and between the appel-
lant and the opposing side. Most importantly, representation reduces the sense


110
The E¬ectiveness of Representation at Tribunals, LCD, 1989, p. 111.
408 The trial process


of being at a disadvantage experienced by unrepresented appellants. It increases
the likelihood that those who appear before tribunals will perceive the process
as fair (p. 241).


Litigants in person
A litigant always has the right to represent himself in any court. If he is not
legally represented but would like to be, he can ask the court to indicate to the
Legal Services Commission (LSC) that legal representation was necessary to
ensure a fair hearing. This would be to give expression to Article 6(1) of the
ECHR, but the court has no power to do more. It cannot grant legal aid nor can
it direct the LSC to grant legal aid “ though an indication that it was necessary
would probably result in a grant provided the applicant quali¬ed on the means
test.111
However, if he is not legally represented, can he come with some other kind
of person to assist him? In McKenzie v. McKenzie112 the Court of Appeal held
that the judge in a defended divorce case had been wrong to exclude an
Australian barrister who attended to assist the husband petitioner appearing in
person. He had been sitting beside the petitioner prompting and advising him.
The court cited the words of Chief Justice Tenterden in Collier v. Hicks:113
Any person, whether he be a professional man or not, may attend as a friend of
either party, may take notes, may quietly make suggestions, and give advice; but
no one can demand to take part in the proceedings as an advocate, contrary to
the regulations of the court as settled by the discretion of the justices.
. . . Mr Payne submitted, in my opinion rightly, that the judge ought not to
have excluded Mr Hanger from the court, or, rather, ought not to have prevented
Mr Hanger from assisting the husband in the way that he proposed to do. And,
goes the submission, justice was not seen to be done in those circumstances . . .
This decision led to the start of a new form of assistance in courts known as the
˜McKenzie man™. The ˜McKenzie man™ concept has gone through di¬erent
phases and has been the subject of con¬‚icting judicial decisions.114
In the 1990s it came up in the context of hearings for non-payment of com-
munity charge (poll tax). In R v. Leicester City Justices, ex p Barrow115 the Divisional
Court held that a party to court proceedings had no right to the assistance of a
˜McKenzie friend™. It was a matter for the judge or justices to decide whether or
not such assistance should be permitted as an exercise of discretion. On appeal the
Court of Appeal disagreed.116 It held that in civil proceedings to which the public
had a right of access, the court, as part of its duty to administer justice fairly
and openly, was under a duty to permit a litigant in person to have all reasonable

111
Perotti v. Collyer-Bristow [2003] EWCA Civ 1521, [2004] 2 All ER 189.
112 113
[1971] P 33, CA. (1831) 2 B & Ad 663 at 669.
114
For a review and critique of the decisions see R. Moorhead, ˜Access or Aggravation? Litigants
in Person, McKenzie Friends and Lay Representation™, 22 Civil Justice Quarterly, 2003,
115 116
pp. 133“55. [1991] 2 All ER 437. [1991] 3 All ER 935.
409 Handicaps of the unrepresented


facilities for exercising his right to be heard in his own defence. This included quiet
and unobtrusive advice from another member of the public accompanying him
as an assistant or adviser. A litigant did not need leave from the court for this, but
in the exercise of its inherent jurisdiction the court could restrict the assistance of
an adviser or even require him to leave the court if it became apparent that his
assistance was unreasonable or not bona ¬de and was harmful to the proper and
e¬cient administration of justice. There was no evidence that either the appli-
cants or the person who was helping them had any intention of disrupting the
court proceedings and the court should have allowed such assistance.117
In 1999 the Court of Appeal decided R v. Bow County Court, ex p Pelling.118
Dr Pelling was an experienced McKenzie friend who charged for his services. He
had been refused permission to attend to assist G in an application before the
senior civil judge. No explanation was given. Dr Pelling brought judicial review
proceedings challenging his exclusion. He failed, ¬rst, because he had no stand-
ing to bring such proceedings. The right to have a McKenzie friend was that of
the litigant not of the McKenzie friend. Ultimately, Lord Woolf said, the deci-
sion was a matter of discretion for the court, with stronger or weaker presump-
tions one way or the other depending on whether the hearing was in private. (A
hearing in chambers is sometimes in private and sometimes in public.)
Richard Moorhead (n. 109 above) summarised the e¬ect of the decision in
Pelling:
(1) If the proceedings are in public whether in court or in chambers, a litigant
in person should be allowed to have the assistance of a McKenzie friend unless
the judge is satis¬ed that the interests of justice do not require it.
(2) If the hearing is in private, the nature of the proceedings may make it
undesirable in the interests of justice for the litigant to have a McKenzie friend.119
(3) The judge should always give reasons for excluding the McKenzie friend.
Moorhead argued persuasively that the more open approach of the Court of
Appeal in Barrow was to be preferred to that of Lord Woolf in Pelling. (˜There
should be a strong presumption in all cases (whether taking place in chambers
and whether private or public) that a court should permit a litigant in person
to have the assistance of a McKenzie friend™.120) That applied especially to lay
assistance short of advocacy. Advocacy, especially when it was provided for
payment, was more problematic. Competition for the legal profession from lay
representatives who charged fees but did not have formal quali¬cations, or
insurance, or rules of conduct did pose issues, but Moorhead suggests that the
question for the courts should be providing help for needy litigants rather than
protecting the interests of the legal profession.121
117
For an account of this litigation see P.A. Thomas, ˜From McKenzie Friend to Leicester Assistant:
118
the Impact of the Poll Tax™, Public Law, 1992, pp. 208“20. [1999] 4 All ER 751.
119
In Re G (Chambers Proceedings: McKenzie Friend) [1999] 1 WLR 1828, the McKenzie friend, a
solicitor, was refused permission to attend a chambers wardship hearing in private unless he
120
was the solicitor on the record. The Court of Appeal declined to intervene. At p. 153.
121
151 New Law Journal, 5 October 2001, p. 216.
410 The trial process


In June 2005 the Court of Appeal struck a very positive note regarding the
McKenzie friend “ at least when he was unpaid. The court allowed three appeals
from fathers each of whom had been refused permission to use a McKenzie
friend in private proceedings regarding their children. Lord Justice Wall, giving
the judgment of the court, said that the President of the Family Division had
seen and approved a draft of the judgment.
The three cases, he said, demonstrated the advantages of the presence of a
McKenzie friend. The purpose of allowing a person the assistance of a McKenzie
friend was to further the interests of justice by achieving a level playing ¬eld and
ensuring a fair hearing. The presumption in favour of allowing a person such assis-
tance was very strong and such a request should be refused only for compelling
reasons. Furthermore, a judge should identify such reasons, he should explain
them carefully and fully to both the litigant in person and the would-be McKenzie
friend. Where the litigant in person wanted the McKenzie friend in private family
law proceedings related to children, the sooner that wish was made known to the
court the better and the sooner the court™s agreement was obtained the better. In
the same way that judicial continuity was important, the McKenzie friend would
be most useful to the litigant in person if he could advise the litigant throughout.
It was not good practice to exclude the proposed McKenzie friend from the court-
room or the chambers while the application by the litigant was being made since
the litigant would require his assistance in making the application.
It was also desirable that any concerns about the McKenzie friend were aired
in his presence so that the judge could satisfy himself that the McKenzie friend
fully understood his role.
It was understandable that a partner would be wary about allowing a stranger
who was not legally quali¬ed to assist his or her estranged partner in a private
hearing involving intimate matters and con¬dential court documents, but, the
court said, there were several powerful factors which properly outweighed reliance
on such reluctance. The ¬rst was Article 6 of the ECHR. In each of the three cases
the other side was represented by solicitors and counsel. Even if the litigant in
person was unrepresented by choice, the Article 6 argument was powerful.
Proceedings remained con¬dential. The court should require an assurance
from both the litigant in person and from the McKenzie friend that the court
documents would only be used for the purpose of the proceedings. The
McKenzie friend would need to understand that improper disclosure of court
documents would be contempt of court.

The Otton Working Party on litigants in person in the Royal Courts
In June 1995 a committee under the chairmanship of Lord Justice Otton estab-
lished by the Judges™ Council reported on the problem of litigants in person in
the Royal Courts of Justice. It said there had been a signi¬cant increase in the
number of such litigants in the Royal Courts of Justice. The largest number and
proportion were in the civil division of the Court of Appeal. In 1993“4, litigants
in person were one in three of applicants for leave to appeal though only 10 per
411 Establishing the facts: the unreliability of human testimony


cent of actual appellants. The litigant in person was ultimately successful in only
4 per cent of cases “ a much lower rate than litigants who had representation.
One reason was that some simply had no case at law. Others were prejudiced by
the complexity of the proceedings, their lack of knowledge of procedure and the
non-availability of low cost or free legal advice and assistance. Court sta¬ gave
as much assistance as they could but they could not become legal advisers
without prejudicing the independence of the court.
The Working Party referred to the excellent work done for litigants in person
by the Citizens™ Advice Bureau in the Royal Courts of Justice “ as to which see
www.bushywood.com/citizens_advice_bureau.htm. The Bureau handles some
18,000 queries a year. It has the voluntary assistance of lawyers from some sixty
¬rms of solicitors.

Moorhead and Sefton report
The report on litigants in person by Moorhead and Sefton122 drew attention to
the fact that not only was non-representation common, it was frequently asso-
ciated with total non-participation. Litigants in person were what they called
˜the ghosts in the machine™. This was especially so in county court cases,
including housing possession cases, where over half of all individual defen-
dants did not participate in their cases. Even in High Court cases, over one in
¬ve individual defendants did not participate in any way apparent from the
court ¬le. More than one in six business defendants in the High Court and
over one in four in the county courts did not appear to participate in their
cases. Even in family cases, there was a signi¬cant minority of unrepresented
litigants who did not participate in any way apparent from the court ¬le.
The unrepresented were less likely to defend, less likely to ¬le formal docu-
ments or make applications and less likely to attend hearings. Unsurprisingly,
they were also more likely to make mistakes.


4. Establishing the facts: the unreliability of human testimony
The majority of both civil and criminal trials involve issues of fact rather than
problems of law. One of the di¬culties faced by the courts is the danger of
perjury by those giving evidence.


Perjury
This is an area where little is known “ though most of those connected with
the justice business are probably aware that perjury is quite common. The
number of prosecutions is tiny “ usually 200“300 cases a year.123 These

122
Note 109 above.
123
A spectacular example of a perjury prosecution was the case brought against former Tory
Cabinet Minister Jonathan Aitken arising out of his failed libel proceedings against The
Guardian and Granada™s World in Action programme. Aitken pleaded guilty and was
412 The trial process


obviously represent only the tip of the iceberg. An attempt to get some kind of
line on the problem was reported by a practising barrister in 1986.124 David
Wolchover had been at the Bar for ¬fteen years. His aim was to discover how
much perjury was committed by police o¬cers. His method was to inquire of
his fellow barristers. He accepted that it was far from ideal as a basis for an
assessment, but said he thought that there was none better and that it might not
be wildly wrong.
He considered that having practised for many years he ˜had su¬cient expe-
rience and acumen to be capable of making a reasonably con¬dent judgment
from the details of facts and circumstances in a given case whether police
o¬cers were committing perjury™. It had become apparent to him that ˜police
perjury occurs with great frequency in London™ where he practised. His belief
that this was so ˜was reinforced by hearing, in chambers, in the robing room and
Bar mess, the casual and matter of fact way in which the Bar tends to refer to
police perjury. It was regarded as commonplace™. Over a two-year period he
conducted an informal and statistically haphazard poll of fellow barristers to
ask how many shared that view. In the large majority it was shared. For most, it
had been between ¬ve and twenty years since being called to the Bar and they
took part in prosecution and defence work in about equal proportions.
In Mr Wolchover™s estimation, perjury took place in as many as three out of
every ten criminal trials both summary and on indictment. Forty-one of the
¬fty-¬ve barristers (75 per cent) he asked thought that this was ˜a reasonable
estimate with which they could readily concur™. Eight thought it occurred in
only one or two out of ten. Four thought its frequency was less than one in ten.
Two thought it happened in as many as 50 per cent of their cases (one of these
did more prosecution than defence work). Averaged out roughly, this would
mean that police perjury was thought to occur in a little over a quarter of all
trials.
Mr Wolchover observed that this ¬gure related only to perceptible lying
under oath. There would be many other cases where the police o¬cers lied in
ways that were not perceptible to the barristers in the case or where the issue of
police perjury never became relevant because the defendant pleaded guilty.
There would almost certainly be cases where innocent defendants pleaded
guilty to trumped-up charges (see p. 322 above) or where some of the prosecu-
tion evidence was invented “ the gilding of the lily.
For an examination of the sentences given for perjury see S.S.M. Edwards,
˜Perjury and Perverting the Course of Justice Considered™, Criminal Law
Review, 2003, pp. 525“40. For a study of o¬enders convicted of perjury see K.
Soothill and B. Francis, ˜Perjury and False Statements: A Criminal Pro¬le of
Persons Convicted 1979“2001™, Criminal Law Review, 2004, pp. 926“35.

Footnote 123 (cont.)
sentenced in June 1999 to eighteen months™ imprisonment. (For an absorbing account of the
story see L. Harding, D. Leigh and D. Palliser, The Liar: The Fall of Jonathan Aitken (Penguin,
124
1997).) 136 New Law Journal, 28 February 1986, p. 181.
413 Establishing the facts: the unreliability of human testimony


Human fallibility
However, the problem of perjury in the courts is probably minor by compari-
son with the problem created by the fallibility of honest witnesses. There is now
a mass of evidence based on experiments conducted by psychologists and others
showing how distressingly inaccurate human beings are in their powers of
observation, recall and reporting.125
In the ¬rst study listed below in n. 125, the author wrote:
On the whole, it seems, psychological theory in the ¬eld of perception is fairly
well advanced. It is now generally recognised that there is an important distinc-
tion between ˜actual™ and ˜perceived™ characteristics of the environment. In other
words, ˜we all live in a world of our own psychological reality, a world of personal
experience separated from the real world (whatever we choose to mean by that)
and from the psychological world of others by a complex neuro-physiological
process . . . This process selects, organises and transforms objective information
according to conditions existing in the observer at the time™. In short, what a
witness recognises perceptually is not necessarily an exact reproduction of the
data presented and for legal purposes at any rate the most important ¬nding in
this area is that there can be a very considerable discrepancy between the two.
Many of the causes of this discrepancy are already well known, e.g. the adverse
e¬ect on accuracy of testimony of poor lighting, long distance, short duration
of exposure, etc. Less well-known factors in¬‚uencing perception include
emotion, interest, bias, prejudice, or expectancy, on the part of the perceiver.
Take, for instance, the e¬ect of ˜expectancy™ or ˜set™. It is a well-documented fact
that we frequently perceive what we expect to perceive. If we expect to see an
individual performing a particular action we are more likely than not to inter-
pret a stimulus which is in fact ambiguous as evidence that the person is per-
forming the expected action.
One example of this is provided by a Canadian case where a hunter was mis-
taken for a deer and shot by his companions. The hunters, who were eagerly
scanning the landscape for deer, perceived the moving object (the victim) as a
deer. Before the trial, the police recreated the scene under the same conditions,
using another man in the place of the deceased. They reported at the trial that
the object was clearly visible as a man, but the important psychological di¬erence
between the ¬rst and second ˜shooting™ was that the hunters, expecting to see a
deer, ˜saw™ a deer; the police expected to see a man and therefore ˜saw™ a man.
More recently, a psychologist was called in by the defence in an English case
where two men were charged with having committed an act of gross indecency in a
public convenience. Complaints had been made to the police that the convenience
125
See in particular D.S. Greer, ˜Anything But the Truth? “ The Reliability of Testimony in
Criminal Trials™, 11 British Journal of Criminology, 1971, p. 13; Dr E. Slater, ˜The Judicial
Process and the Ascertainment of Truth™, 24 Modern Law Review, 1961, p. 721; Dr L.R.C.
Haward, ˜Some Psychological Aspects of Oral Evidence™, 3 British Journal of Criminology,
1962“3, p. 342; Dr L.R.C. Haward, ˜A Psychologist™s Contribution to Legal Procedure™, 27
Modern Law Review, 1964, p. 656; D. Farrington, K. Hawkins and S. Lloyd-Bostock,
Psychology, Law and Legal Processes (Macmillan, 1979) especially Part IV; and D. Yamey, The
Psychology of Eye-Witness Testimony (Free Press, 1979).
414 The trial process


was being used for indecent purposes and the accused were apprehended by two
policemen who were keeping the convenience under secret observation. The
defendants denied that any criminal acts had taken place. The psychologist repro-
duced the defence version of the facts (i.e. no criminal act) in a series of pho-
tographs and he showed these to twelve adults under di¬erent conditions of light,
for varying lengths of time, and with reference to three di¬erent questions: in A
they were merely asked to say what they saw in the pictures; in B they were asked
if they could see any crime being committed in any of the pictures; in C they were
told that some of the pictures actually portrayed criminal acts being committed
and they were asked to identify the pictures concerned.
The result was that the number of errors increased considerably from A to B
to C. In other words, the witnesses most frequently erred in asserting that a
crime was being committed when they were led to expect to see this criminal
behaviour. The police, therefore, expecting to see an indecent act being com-
mitted might well have put an erroneous interpretation on innocent facts. In the
event, the accused were acquitted.

A cautionary tale about being a witness was written in 1973 by New Society™s
then legal correspondent (later a distinguished Queen™s Counsel and Master of
an Oxford College):

˜Diogenes™, New Society, 31 August 1973
Just over two years ago, I witnessed a minor accident. It happened in this way. I
was riding in a bus which had new automatic doors at its exit. On reaching the
bus stop where I wanted to get o¬, I found myself behind an old lady who was
stepping onto the pavement with some caution. The bus driver evidently had his
view of the exit in the mirror blocked because, before she had completed her
manoeuvre, he started the bus up. Her arm was caught in the closing doors.
Fortunately, my shouts caused the bus driver to stop and the old lady was saved
from nothing worse than slight shock, bruises to her arm, and a cut on her shin.
At the time, with a barrister™s instinct for a possible civil claim by the old lady
against the city bus company, I gave her my name (as a witness, not an advo-
cate), and on my return to my parents™ house, some ten minutes later, I wrote
out a statement of what I had seen. I was, in other words, the perfect witness. I
was on the spot. I had appreciated at once the need for an accurate account of
what had happened. I was trained to understand what was and what was not rel-
evant to a claim for negligent driving. And I made a statement within minutes.
Yet, even within that short space of time I found myself forgetting certain
details. Had I been directly behind the old lady, or were there other passengers
between us? Where had her arm been when it was trapped? How fast was the bus
going before it stopped? I argued several points with my wife, who had been with
me, and, later that evening, when I furnished another statement to the police, I
found myself making minor modi¬cations to my account.
A magistrates™ court hearing followed a few months later. I gave my evidence
as well as I could; but, by that time, I could not honestly say that I remembered
more than the bare outlines of the event, and would have been lost without an
ability to refer to my contemporary record “ something admissible in evidence
415 The principle of orality


like the policeman™s notebook. The driver was, however, convicted, in my view
quite properly. I felt sorry for the defence solicitor.
I have not been summoned to give evidence in civil proceedings. Nowadays,
once a driver has a conviction in respect of an accident, the fact of which can be
adduced in evidence, his chances of defending a civil claim are slim indeed. And,
I assume, the claim has been settled by the city bus company™s insurers.
But, in the ordinary run of things, a trial of a personal injury claim two years
after the event would be nothing unusual; slow for a county court, but average
for the High Court. And, if I am called on as a witness at this length of time,
what do I really retain except a memory of the kind of accident that it was and
a feeling that it was the driver™s fault?
The point of this reminiscence? Only that every day witnesses purport to give
truthful accounts, in the box, of accidents that occurred in split-second circum-
stances, and in which they were often themselves involved; and that thousands
of pounds, indeed an individual™s future, may depend on the outcome of the case.
Research has been done on both sides of the Atlantic to discover whether
di¬erent groups of people are aware of the factors that in¬‚uence the accuracy
of eye witness evidence. To an alarming extent they do not. Even police o¬cers
have little appreciation of the relevant factors “ and length of service, rank or
nature of employment (in uniform or CID) seem not to a¬ect the matter one
way or the other.126
For the instructive (and entertaining) re¬‚ections of an experienced judge on
the problems of ¬nding the facts in civil cases, see T. Bingham (later to become,
in turn, Master of the Rolls, Lord Chief Justice and senior Law Lord), ˜The Judge
as Juror™, Current Legal Problems, 1985, p. 1.


5. The principle of orality
One of the fundamental features of an English trial is the oral examination of
witnesses in court. The principle of orality has always been at the heart of the
English trial, partly because of the dominant role played for centuries by the
jury, though, as will be seen, its importance is gradually being somewhat
eroded, especially in civil cases.
One such exception is evidence given on a¬davit, a procedure that is
common, for instance, in the Chancery Division. The evidence in interlocutory
injunction cases is normally taken on a¬davit, e.g. in trade union disputes. So
too is the evidence on the basis of which the Administrative Court decides
applications for judicial review of administrative action, formerly under RSC
Order 53, now under CPR Part 54. In theory, the person whose evidence is being
read to the court (the deponent) can be asked to come to court to be cross-
examined but that rarely happens. The procedure is therefore not well adapted
to dealing with disputes as to the facts.

126
P. Bennett and F. Gibling, ˜Can We Trust Our Eyes?™ 5 Policing, Winter 1989, pp. 313
and 320.
416 The trial process


A major development in the use of written evidence came in the Practice
Directions issued in 1995 for the Queen™s Bench Division, the Chancery
Division and the Family Division which stated that ˜unless otherwise ordered,
every witness statement or a¬davit shall stand as the evidence-in-chief of the
witness concerned™.127 The CPR restated this principle: ˜where a witness is called
to give oral evidence under para. (1), his witness statement shall stand as his
evidence-in-chief unless the court otherwise orders™.128
Another inroad into orality is the rule for fast track cases that expert evidence
must normally be given in writing. ˜The court will not make a direction giving
permission for an expert to give oral evidence unless it believes it is necessary in
the interests of justice to do so™ (CPR, PD 28, 7.2(4)(b)).
Another exception is when hearsay evidence is given in the form of a witness
statement when the witness is not called at all. Under the Civil Evidence Act
1995 the evidence can be given in this form provided notice has been given to
the other side and no request has been made for the witness to be brought to
court.129
Nearly all divorces are obtained through the ˜special procedure™, which is vir-
tually divorce by post. The court simply looks at the petition and the support-
ing a¬davits and, if they are in order, pronounces the divorce. Normally there
is no one present from either side.
Another exception to the general principle that evidence must be given orally
in open court is in relation to criminal cases. The Magistrates™ Courts Act 1980,
ss. 6 and 102 provided for the committal stage to be drastically shortened by the
acceptance as evidence of written statements of witnesses, providing that they
were signed, that they had been sent in advance to the other side and that the
other side did not object. Even if the other side did object, the court retained an
overriding discretion to call a witness whose statement had been produced as
evidence, but in practice this was rarely exercised. As has been seen, the
Criminal Procedure and Investigations Act 1996, ss. 4, 45 and Sch. 1 took this
development further by eliminating oral evidence in committal proceedings
altogether “ before committal proceedings themselves are abolished.
Section 9 of the Criminal Justice Act 1967 had an even wider provision since
it related to any criminal case, whether tried summarily or on indictment. It
permitted the admission as evidence of a written statement subject to the same
conditions as applied to committal proceedings under the Magistrates™ Courts
Act 1980.
See generally C. Glasser, ˜Civil Procedure and the Lawyers “ the Adversary
System and the Decline of the Orality Principle™, 56 Modern Law Review, 1993,
pp. 307“24. For the argument that commitment to the orality principle seri-
ously weakens the special measures available to protect vulnerable witnesses
under the Youth Justice and Criminal Evidence Act 1999 (pp. 431“33 below) see

127 128
[1995] 1 All ER 385, para. 3, [1995] 1 All ER 586, para. 3. CPR, r. 32.5(2).
129
CPR, r. 33.2.
417 The taking of evidence


L. Ellison, The Adversarial Process and the Vulnerable Witness (OUP, 2001).130
The book is a critique of the traditional model of oral, adversary trial and its
partial reform by the 1999 Act.


6. The taking of evidence
Opening speech In a civil case the case starts with an opening speech for the
claimant (formerly ˜plainti¬™). In a criminal case tried in the Crown Court
the case opens with a speech from the prosecution. (In the magistrates™ court
the prosecution will not necessarily make an opening speech beyond a state-
ment as to the nature of their case.) The purpose of the opening speech is to set
out that side™s case and what the witnesses will establish. In Scotland, by con-
trast, the case starts right away with the ¬rst witness “ no opening speech is per-
mitted. The danger of the English system is that when there is a jury, it will be
prejudiced against the accused by counsel™s address and the more so because the
prosecution may not actually succeed in proving what counsel™s opening speech
foreshadowed.
The Runciman Royal Commission on Criminal Justice proposed that unless
the judge gave leave, the prosecutor™s opening speech should not be longer than
¬fteen minutes and that opening speeches should be limited to an explanation
of the issues at trial.131 They should refer to the evidence to be called only if that
was essential to the jury™s understanding of the case. The prosecution should
not seek to suggest that particular matters would be proved by the prosecu-
tion.132
The Royal Commission also proposed that the defence should have the
option of making its opening speech immediately after the prosecution™s
opening.133 This is occasionally done.
Examination-in-chief The next stage is ˜examination-in-chief ™ when the
claimant (formerly ˜plainti¬™) or prosecutor calls and examines his witnesses. In
civil cases, as has already been seen, this stage is nowadays normally skipped as
the witness™ statement is treated as his evidence-in-chief unless the court other-
wise orders. The CPR state that a party may amplify his witness statement or
testify in relation to anything new that has happened since the witness statement
was served (CPR, r. 32.5(3)).
In a criminal case, however, the witnesses are still normally examined in chief
by each side. The prosecution goes ¬rst. Examination-in-chief consists of taking


130
See also M. Burton, R. Evans and A. Sanders, ˜Vulnerable and Intimidated Witnesses and the
Adversarial Process in England and Wales™, 11 International Journal of Evidence and Proof,
2007, pp. 1“23.
131
The longest opening speech in British legal history is believed to be 119 days “ by counsel for
the Bank of England defending an £850 million claim by creditors of the collapsed bank
BCCI. The previous record was eighty days by his opponent in the case appearing for the
132
BCCI liquidators (The Guardian, 25 May 2005). Runciman, p. 120, paras. 8 and 9.
133
Runciman, p. 121, para. 10.
418 The trial process


the witness through his story stage by stage. The advocate will base his exami-
nation of the witness on the information supplied by his instructing solicitors
based on their meetings with the witness, which they have reduced to his state-
ment (or ˜proof ™).
In order to minimise the danger of ˜coaching of the witness™, the rule in
England has been that prosecutors were not permitted to speak about the evi-
dence to their own witnesses prior to the trial. The only general exceptions were
the client and an expert witness.134 In civil cases there is no longer a rule that pro-
hibits a barrister from seeing witnesses but the Code of Conduct states that a bar-
rister should not appear as advocate in a case if he has ˜taken™ a witness statement
“ as distinguished from ˜settling™ a witness statement taken by someone else.135
However, the Damilola Taylor case136 in 2002 led to a reconsideration of this
important rule for criminal cases. On 1 May 2003, the CPS issued a consulta-
tion paper inviting views as to whether the prosecutor should in future be per-
mitted to interview key witnesses in order to assess their credibility.137 In 2004
the consultation led to a change in the rules. A prosecutor may now interview
his witnesses where it is necessary to con¬rm the reliability of the witness™ evi-
dence or to clarify the evidence which the witness can give.138
What is not allowed is any form of ˜coaching™. This traditional rule was
restated in the clearest terms by the Court of Appeal in Momodou and Liman.139
To familiarise the witness ahead of time with the process, with the layout of the
court and even to expose him to a mock cross-examination is permitted, but
preparation must not be in the context of the actual case in which the witness
is to give evidence. Where an outside agency is employed to conduct witness
familiarisation, the CPS should be asked to comment in advance on the pro-
posed format. In the case of the defence, counsel should be asked to advise. The
process should normally be supervised by a practitioner.
Examination-in-chief should not generally include ˜leading questions™. A
leading question is one that suggests the answer (˜Did you see the accused at that
point raise his arm in a threatening way?™ as opposed to ˜What did you see then?™).
Leading questions are, however, permitted for a matter that is wholly uncontro-
versial (˜Is your name John Smith and do you live at . . . ?™). They are also allowed
when the purpose is to elicit a denial from the witness (˜Did you kill the deceased?™).

134
See the Code of Conduct of the Bar of England and Wales (8th edn, 2004), Written Standards
for the Conduct of Professional Work, paras. 6.1.3, 6.1.4 and 6.3.1 “ www.barcouncil.org.uk.
Someone must interview witnesses, since there is obviously no equivalent rule for solicitors “
see the Law Society™s Guide to Professional Conduct, para. 21.10.
135
Code of Conduct of the Bar of England and Wales, n. 132 above, para. 6.2.6.
136
In April 2002 the trial of four boys for the murder of ten-year-old Damilola ended in a blaze
of publicity with all four being acquitted after the fourteen-year-old chief prosecution witness
had been shown to be a completely unreliable witness. On 9 August 2006 two other boys were
convicted of the killing.
137
See Pre-trial Interviews by Prosecutors “ www.cps.gov.uk. The consultation paper included an
appendix showing the position in other countries.
138
Attorney General, Pre-trial Witness Interviews by Prosecutors Report, 2004.
139
[2005] EWCA Crim 177, [2005] 2 All ER 571, [2005] Crim LR 588.
419 The taking of evidence


Cross-examination At the end of the examination-in-chief, the witness is
o¬ered to the other side for cross-examination. Cross-examination is the
attempt to show that the witness was lying or mistaken, or that he is not a person
who can be relied on to tell the truth. It may also be used to establish evidence
favourable to the cross-examiner™s side. Leading questions are permitted. The
witness can be cross-examined about his previous convictions, his bias and his
reputation for untruthfulness, but the Bar™s Code of Conduct says that a barris-
ter must not suggest that a witness or other person is guilty of crime, fraud or
misconduct or attribute the crime to someone else unless such allegations go to
a matter in issue (including the credibility of the witness) which is material to
the lay client™s case ˜and which appear to him to be supported by reasonable
grounds™.140 Also a barrister must not make statements or ask questions which
˜are merely scandalous or intended or calculated only to vilify, insult or annoy
either a witness or some other person™.141
As will be seen (see p. 468 below) in rape cases the defendant™s representative
is restricted as to the questions that can properly be put to the complainant
regarding her sexual experience with other persons.
New rules introduced in the Youth Justice and Criminal Evidence Act 1999,
ss. 34 and 35 also state that someone charged with a sexual o¬ence if acting in
person (i.e. without legal representation) may not cross-examine either the
victim (˜the complainant™) or a child witness or any other witness if the court
so orders. In such a case the court must invite the defendant to arrange for a
legal representative to act for him for the purpose of cross-examination, failing
which it may appoint a representative for the purpose (s. 38). The rules were
introduced because of public outrage at a small number of cases in which a
defendant accused of rape subjected the victim to the ordeal of lengthy and
humiliating direct cross-examination.142
In May 1998 the Lord Chief Justice issued new guidelines to judges to take a
more interventionist approach in such cases and either halt questioning, if it
sought to humiliate, or order the installation of a screen so that at least the
victim did not have to see and be seen by the defendant.143 The Lord Chief
Justice thought that the judges were capable of dealing with the problem
without legislation, but the Government decided that legislation would be
better.
The general rule is that evidence is not admissible to contradict answers given
in answering questions put in cross-examination. The reason is to con¬ne the
scope of the case within reasonable limits, but if the witness has made a prior

140
Code of Conduct of the Bar of England and Wales, n. 134 above, para. 5.10(h).
141
Ibid, para. 5.10(e).
142
In 1997, Ralston Edwards, wearing the same clothes as he wore during his sixteen-hour attack
on her at her home, spent six days cross-examining his victim in his rape trial at the Old
Bailey. In another case, in November 1997, the defendant, Brown, sacked his defence team
and subjected his victim to merciless cross-examination. (Both men were convicted by the
143
jury.) The Times, 7 May 1998.
420 The trial process


statement which is inconsistent with his evidence he can be cross-examined
about it.
Occasionally, e¬ective cross-examination can be based simply on what the
witness has said by pointing out inconsistencies or improbabilities; usually,
however, it requires other material based on work done by those responsible for
preparation of the case. Cross-examination is a di¬cult art and it is not very
often that it signi¬cantly dents the witness™s evidence.
One of the duties of the cross-examiner is to ˜put his client™s case™. This is
because of the technical rule that one cannot call evidence to contradict the
opponent™s case unless one has challenged the disputed evidence in cross-
examination. That is why one so frequently hears counsel say to the witness: ˜I
put it to you that . . .™ “ to which the usual reply is some variation on ˜no, that
is not so™. Nothing much is achieved by such exchanges other than ful¬lment of
the requirement that the case be ˜put™ to the witness.144
Re-examination At the close of cross-examination, the witness is o¬ered back
to the opponent for re-examination. The purpose of re-examination is not to
go over the same ground again, but to clarify or to explain evidence that has
emerged during cross-examination. Thus, if in cross-examination reference has
been made to part of a conversation favourable to the cross-examiner, questions
could be put to draw out other parts of the conversation which put a di¬erent
and less attractive gloss on the matter.
This process of examination-in-chief, cross-examination and re-examination
is repeated for each witness in turn. When that process is complete, each party
makes a closing speech save that in a criminal case, if the defendant is unrepre-
sented, the prosecution does not make a closing speech.145 If both sides make a
closing speech, the defence in a criminal case has the last word. In a civil case it
is the claimant/plainti¬ who goes last.
Victim personal statement Since October 2001 the rules have permitted the
victim to make a personal written statement.146 The victim personal statement
and any evidence in support ˜should be considered and taken into account by
the court prior to passing sentence™,147 but the sentencer may not make assump-
tions unsupported by evidence as to the e¬ect of an o¬ence on the victim. The
court should pay no attention to any opinions expressed by the victim.
The statement must be in proper form and must be served prior to sentence
on the defendant™s solicitor or, if he is not represented, on the defendant.148

144
For an assessment of the rules on cross-examination of police witnesses by the defence so as to
bring out past discreditable incidents see D. Wolchover, ˜Attacking Confessions with Past
Police Embarrassments™, Criminal Law Review, 1988, p. 573.
145
That has been the rule “ see Baggott (1927) 20 Cr App R 92 and Mondon (1968) 52 Cr App R
695, but in Stovell [2006] EWCA Crim 27, [2006] Crim LR 760 the Court of Appeal said that
it would not always necessarily be inappropriate for the prosecution to make a second speech
where the defendant was unrepresented.
146 147
Consolidated Criminal Practice Direction, section III.28. Section III.28(a).
148
See generally I. Edwards, ˜The Place of Victims™ Preferences in the Sentencing of “Their”
O¬enders™, Criminal Law Review, 2002, pp. 689“702. See also generally J. Doak, ˜Victims™
421 The taking of evidence


Statement by victim™s advocate In April 2006 a pilot of a new concept “ volun-
tary victim™s advocate “ started in ¬ve criminal courts.149 The scheme applied
only in murder and manslaughter cases. The purpose was to put before the
court, after conviction and before sentence, ˜the e¬ect of the murder or
manslaughter on the family of the victim™.150 The family was to be free, ˜within
the normal requirements of court procedure™, to choose how best to express its
views “ i.e. whether the statement was to be written only, oral testimony by the
maker or read to the court by a CPS prosecutor, an independent advocate or a
lay friend.
Families should be encouraged to speak through one representative, ˜but
more than one member may wish to speak™. Any issue between family members
as to the making of a statement would be resolved by the judge. The defendant
should be made aware of the contents of the statement in advance.
The family would have the assistance of the CPS prosecutor or of an inde-
pendent advocate to prepare the statement. Where the family decided to present
the statement in the form of an oral statement by one of them, the independent
advocate should assist as if the family member were a witness with the statement
being his or her evidence-in-chief.
The details would be sorted out with the judge at the pre-trial plea and case
management hearing (PCMH). The CPS would serve the statement on the
court and the defendant prior to the PCMH.
The independent advocate would be paid for out of public funds. If the family
wished to pay for their own choice of lawyer, they could do so with the permis-
sion of the court.151
Time limits on advocacy Historically the courts have allowed counsel to take
as long as they need to present their case, but increasingly this relaxed attitude
is giving way to a new concern to see that trials do not take more time than is
necessary. Thus, the Practice Directions issued in 1995 for proceedings in the
Queen™s Bench Division and the Chancery Division and for the Family Division
stated that the court would increasingly exercise its discretion to limit the length
of opening and closing oral submissions, the time allowed for the examination
and cross-examination of witnesses, the issues on which it wished to be
addressed and reading aloud from documents and authorities.152 Courts have
increasingly used counsel™s time estimates as a way of trying to control the
length of the case. In A-G v. Scriven,153 a civil case, Lord Justice Simon Brown

Rights in Criminal Trials: Prospects for Participation™, 32 (2) Journal of Law and Society, 2005,
pp. 294“316.
149
The Central Criminal Court and Crown Courts in Birmingham, Cardi¬, Manchester and
Winchester.
150
Protocol on the procedure to be followed in the victims™ advocate pilot areas. Issued by the
President of the Queen™s Bench Division, 3 May 2006 “
www.judiciary.gov.uk/docs/victims_advocate_protocol_030506.pdf.
151
For a discussion of the pros and cons of this initiative see J. Robins, ˜Finding a Voice™, Law
152
Society™s Gazette, 29 September 2005, p. 20. [1995] 1 All ER 385, para. 2.
153
4 February 2000, unreported, CA.
422 The trial process


said: ˜The courts are not required to listen to litigants, whether represented or
not, for as long as they like. It is for the court to control its own process, and it
is well entitled to bring arguments to a close when it concludes that its process
is being abused and that nothing of value will be lost by ending it™. The same
applies to criminal cases. In Butt154 the trial judge, having listened to lengthy and
repetitious cross-examination and having repeatedly tried to get counsel to
close, ¬nally gave her a time limit of ten more minutes to ¬nish. Dismissing the
appeal, the Court of Appeal said that judges could impose time limits. Here it
was fully justi¬ed. Counsel had had ample time.155
The decision The ¬nal stage is the process of actual decision. In a case with a
jury, the judge sums up on the facts and the law (see pp. 521“24 below) and the
jury then decides. In a criminal trial with a jury the question of sentence is solely
for the judge. Juries, as will be seen, are very rare in civil cases. Usually, there-
fore, it is simply a matter of the court reaching and announcing its decision.
Reasons for the decision In the High Court, but not always in the county or
magistrates™ court, the court will normally also give a reasoned judgment. There
is growing pressure generated by the Human Rights Act for judicial decisions to
be properly reasoned but the requirements in the lowest courts are as yet not
very demanding.156 In the Crown Court, the jury does not give reasons (for dis-
cussion of which see pp. 529“30 below). Nor does the judge since it is the jury
rather than the judge that gives the decision. The exception is sentencing which
is done by the court. The Criminal Justice Act 2003, s. 174 imposes on the court
a general statutory duty to give reasons for, and to explain the e¬ect of, the
sentence passed.157
On the conduct of trials generally see for instance R. du Cann, The Art of the
Advocate (Penguin, revised edition, 1993).


7. Justice should be conducted in public
It is an old adage that justice must not only be done but must be manifestly seen
to be done “ a phrase attributed to Lord Chief Justice Hewart in Sussex Justices,
ex p McCarthy.158 (˜Publicity is the very soul of justice. It is the keenest spur to

154
[2005] EWCA Crim 805, 155 New Law Journal, 8 July 2005, p. 1041.
155
For details of the time limits imposed on cross-examination in the monster case brought
unsuccessfully by BCCI against the Bank of England see S. Je¬rey and M. Ayers, ˜How Long in
the Box?™, 156 New Law Journal, 1 September 2006, p. 1307. Cross-examination of witness Q
was limited by the judge to seven weeks and of witness C to forty days. Both decisions were
upheld by the Court of Appeal. After twenty days of cross-examination of witness C, BCCI
abandoned its claim.
156
With regard to the duty to give reasons of magistrates see R (on the application of McGowan) v.
Brent Justices [2001] EWHC Admin 814, [2002] Crim LR 412 and commentary at 413; and R
v. Civil Service Appeal Board, ex p Cunningham [1992] ICR 816.
157
The Explanatory Notes to the Act state that, in doing so, ˜it seeks to bring together in a single
provision many of the obligations on a court to give reasons when passing sentence which are
currently scattered across sentencing legislation™ (para. 491).
158
[1924] 1 KB 256 at 259.
423 Justice should be conducted in public


exertion and the surest of all guards against improbity. It keeps the judge himself
while trying under trial™.159) It is therefore axiomatic that judicial business
should be transacted in public. This is a fundamental principle enshrined in
Article 6(1) of the European Convention on Human Rights.
There are various distinct issues involved in this phrase. One is physical access
to the hearing for the public, including the press. A second concern is access for
non-parties to the judgment and other court documents. A third is the special
position of the press and the right to publish an accurate account of the pro-
ceedings and of the judgment.

Physical access to court proceedings
Although the general principle is clear, there are situations where the basic
maxim gives way to other even more important considerations. An obvious
example is where a case is heard in camera because of national security consid-
erations160 and there are other situations where for one reason or another the
public and the press have no access to the proceedings. The list is long and seems
to be growing.
In Scott v. Scott161 the House of Lords held that although normally a court
must sit in public, it can sit in camera if this is necessary to achieve justice. The
rule has been applied, for instance, to protect a secret trade process, the a¬airs
of the mentally ill or to prevent tumult or disorder. Convenience, however, is
not su¬cient reason to sit in camera. In 1982 the Divisional Court ruled that
magistrates in Reigate had erred in going into camera for a hearing of charges
against a ˜supergrass™ who had committed his o¬ences after he had been given a
light sentence for informing. Both defence and prosecution asked for the matter
to be dealt with in camera but the Divisional Court said the decision to comply
was wrong.162
The protection of public decency is normally not a su¬cient basis for pro-
ceeding in private “ see Scott v. Scott above, but in R v. Malvern Justices, ex p
Evans163 the court held the magistrates in a criminal case had been entitled to
sit in camera to spare the defendant from giving embarrassing evidence about
her husband that could a¬ect her pending divorce case.164
The Civil Procedure Rules state that the general rule is that a hearing is to be
in public (CPR 39.2(1)). The court is not, however, required to ˜make special
arrangements to accommodate members of the public™ (CPR 39.2(2)).
According to the CPR 39.2(3) a hearing may be in private if (1) publicity would
defeat the object of the hearing; (2) it involves national security; (3) publicity

159
Bentham “ cited by Butler-Sloss in Clibbery v. Allan [2002] 1 All ER 865 at 872.
160
For a recent example see Re A [2006] EWCA Crim 4, [2006] 2 All ER 1.
161
[1913] AC 417.
162
R v. Reigate Justices, ex p Argus Newspapers (1983) 5 Cr App Rep (S) 181.
163
[1988] 1 All ER 371, Div Court.
164
See also A-G v. Leveller Magazines [1979] AC 440, HL and see generally J. Michael, ˜Open
Justice: Publicity and the Judicial Process™, 46 Current Legal Problems, 1993, pp. 190“203.
424 The trial process


would damage con¬dential information; (4) a private hearing is necessary to
protect the interests of a child or patient; (5) the hearing is one in the absence of
the other side (˜without notice™ “ formerly called ex parte) and it would be unjust
to the absent respondent to have it in public; (6) it concerns uncontentious
matters relating to the administration of trusts or of a deceased person™s estate;
or (7) the court considers it to be in the interests of justice.
The rules for family court proceedings are complicated and vary according to
the nature of the case and the level of court.165 In magistrates™ courts the public
are not admitted to family court proceedings. Those who can attend are the
parties, the legal advisers and witnesses. The media can also attend unless
speci¬cally excluded but reporting is not permitted and as a result they rarely
do. In the High Court and county courts contested divorces, judicial separation
and nullity cases are heard in open court, but these are a small fraction of the
cases heard. Most concern ¬nancial disputes and disputes over children. In such
proceedings the court has a discretion as to whether to allow the public and the
media in. Normally they are heard in private.
In November 2005 Baroness Ashton announced that the Government would
be consulting about greater openness and accountability in the family court
system.166 A consultation paper issued by the DCA in July 2006 proposed major
changes:
• The rules should be the same for all family proceedings in all the courts.
• The media should have a general right to attend unless excluded in the par-
ticular case.
• The public should have a right to apply to the court to be allowed to attend.
• The court should have the right to allow the public to attend of its own
motion.167

Are small claims hearings in public?
Small claims hearings in England used to be held in private, often in the judge™s
chambers rather than the courtroom. Typically, the parties were seated across
the table from each other, with the district judge at its head. The fact that the
hearing was in private was said to be one of its most attractive features for
people unfamiliar with court procedure. It was therefore surprising that the

165
The DCA Consultation Paper issued in July 2006, n. 167 below, had a 10-page appendix
setting out the rules.
166
155 New Law Journal, 4 November 2005, p. 1655. One of the factors in the Government™s
decision no doubt was the Report of the House of Commons Constitutional A¬airs
Committee, Family Justice: The Operation of the Family Court, HC 116, Fourth Report Session
of 2004“5, February 2005 “ see paras. 132“48. The Committee proposed that both the press
and the public should be permitted to attend family courts subject to the court™s discretion to
exclude the public and to impose reporting restrictions (para. 144).
167
Con¬dence and con¬dentiality: Improving transparency and privacy in family courts, DCA, July
2006, Cm. 6886. The courts a¬ected and the number of family law applications made to each
court in 2004 were the family proceedings magistrates™ courts (33,000), the county court
(370,000) and the High Court (500).
425 Justice should be conducted in public


Practice Direction accompanying the 1999 rules for small claims stated: ˜The
general rule is that a small claims hearing will be in public™ (PD 27, 4.1(1)). It
seems clear that this change was prompted by fear that a hearing in private
would run foul of Article 6(1) of the European Convention on Human Rights
that in the determination of his civil rights and obligations everyone is entitled
˜to a fair and public hearing™.168
The rules state that although the hearing will generally be held in public, the
judge can order a small claims case to be heard in private ˜if the parties agree or
there is some special reason for holding it in private™ (PD 27, 4.1(2)). In prac-
tice, the parties commonly agree and things go on much as before.
Moreover, ˜in public™ does not necessarily mean in the courtroom. It can be
˜in public™ even if it is in the judge™s private room. The small claims Practice
Direction (PD 27, 4.2) says: ˜a hearing . . . will generally be in the judge™s room
but it may take place in a courtroom™. A di¬erent Practice Direction not
restricted to small claims (PD 39, 1.10) says that unless there is a notice on the
door stating that the proceedings are private ˜members of the public will be
admitted where practicable™. If the hearing is in the judge™s room, the concept
of it being ˜in public™ is obviously more notional than real.

Special measures directions
The Youth Justice and Criminal Evidence Act 1999 (Part II, Ch. 1) added a
further dimension to the closed court issue in the form of a ˜special measures
direction™ under which (see p. 431 below) a court can seek to protect a vulner-
able witness, inter alia, by clearing the court of the public, including the press,
though one member of the press must be allowed to stay to represent the press
(s. 25(3)). Vulnerable witnesses for this purpose include anyone under seven-
teen, anyone su¬ering from a mental or physical disorder or disability or sig-
ni¬cant impairment of intelligence and social functioning and complainants in
sexual o¬ence cases.
In Richards169 the Court of Appeal dismissed an application for leave to
appeal based on Article 6 of the European Convention on Human Rights against
the trial judge™s decision to clear the court when a witness to a murder refused
to give evidence unless this was done. There was no suggestion that the
eighteen-year-old witness quali¬ed as ˜vulnerable™ but the court held that there
was a common law power to do what was required in the interests of justice.

Access to court documents and the judgment
So far as concerns access to the judgment, in Forbes v. Smith170 Justice Jacob said:
˜the concept of a secret judgment is one which I believe to be inherently abhor-
rent™. Only in cases where there was cause for secrecy such as in a trade secrets
case should the judgment be regarded as a secret document. A judgment given

168 169
See Scarth v. United Kingdom (1999) 27 EHRLR CD 37. [1999] Crim LR 764.
170
[1998] 1 All ER 973 at 974.
426 The trial process


in chambers was normally to be regarded as a public document unless it was
given in camera “ as in that particular case.
However, it is increasingly the case that courts make decisions on the basis of
material that has not been read out in open court.
Under the old RSC Order 63, r. 4 a member of the public could, for a fee,
inspect a copy of any writ or other originating process and any judgment or
court order. Strangely, the same did not apply in the county courts. CCR Order
50, r. 10(2) stated that someone who was not a party to the proceedings could
only obtain copies of documents from the court records with the leave of the
court.
The 1999 rules (as amended)171 provide for the keeping of a publicly accessi-
ble register of claims and of documents issued by the court. (To date the only
registers actually available were in the QBD™s Central O¬ce and Chancery
Chambers in the Royal Courts of Justice). Access to court documents depends
on whether one is a party to the proceedings.
Unless the court otherwise orders, a party is entitled to every document on
the ¬le. With permission of the court, a party is entitled to any other document
¬led by a party or communication between the court and a party and another
person.
A non-party was entitled without permission, unless the court otherwise
ordered, to a copy of the claim form that had been served and of a judgment
given in public.172 In October 2006 this was extended to cover the particulars of
claim, the defence, reply and any counterclaim.173 The new rule was stated to be
retrospective. The Law Society applied for permission to judicially review the
retrospective e¬ect of the new rule. On 5 October the High Court issued an
interim declaration stating that the new rule would only apply to proceedings
commenced after 2 October 2 2006 and the Court Service accepted this as
permanent.174
If a non-party wishes to inspect and copy any document not available to the
public, he must seek the leave of the court. (This does not yet apply however in
the county courts where the facilities for computer searching are not yet in place.)
The court has jurisdiction to grant an application even after the case is over.175
PD 39, 1.11 states that when a hearing takes place in public, members of the
public may obtain a transcript of any judgment. PD 39, 1.12 states that when a
judgment is given or an order is made in private, a member of the public must
get the leave of the judge to obtain a transcript.


171
CPR 5.4 and PD 5, para. 4 as amended in 2004. See 154 New Law Journal, 17 September 2004,
p. 1355; Law Society™s Gazette, 21 July 2005, p. 37.
172
CPR 5.4(2). See Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm) [2005] 1 All
ER 1074 and commentary I. Grainger, ˜Public Access to Court Files™, 24 Civil Justice Quarterly,
2005, pp. 304“08.
173
See G. Lewson, ˜Civil exposure™, 156 New Law Journal, 13 October 2006, p 1545.
174
See 156 New Law Journal, 8 December 2006, p. 1860 and www.hmcourts-service.gov.uk.
175
Re Guardian Newspapers Ltd [2004] EWHC 3092, Ch.
427 Justice should be conducted in public


Witness statements which stand as evidence (i.e. where the written statement
is taken as evidence) are open to inspection during the trial (but not thereafter)
unless the court otherwise orders (CPR 32.13).
See also Practice Statement [1998] 2 All ER 667 on access to judgments for the
press and law reporters.
Discovering what happened in chambers Open access to decisions given in
chambers was the subject of Hodgson v. Imperial Tobacco Ltd,176 an action by
cancer su¬erers against tobacco companies. The Court of Appeal held that what
happened during proceedings in chambers was private but not con¬dential or
secret. Information about such proceedings and the judgment or order could
and should be made available to the public when requested. Moreover, save in
the exceptional circumstances identi¬ed in the Administration of Justice Act
1960, s. 12(1) or where a court with power to do so ordered otherwise, it was
not contempt of court to reveal what occurred in chambers provided any
comment made did not substantially prejudice the administration of justice.
The judge had therefore been wrong to make a ˜gagging order™.
Wardship, guardianship and adoption cases are usually heard in chambers.
In undefended divorce cases no evidence is heard in open court. Ancillary pro-
ceedings concerning maintenance and custody of children are normally heard
in chambers. Domestic proceedings in magistrates™ courts are in private. In the
Family Division a commentator has observed that, since chambers™ hearings are
the rule and open court hearings the exception, ˜a situation has been created
which is causing concern even among some judges™. So little in the way of
reported decisions were emerging from this quarter that ˜lawyers specialising in
divorce related cases are faced with a virtual famine of modern day case law™.177
However, in Clibbery v. Allan178 the Court of Appeal held that although family
proceedings involving children or ancillary relief were protected from publica-
tion without the court™s permission, that did not apply to all family proceedings
heard in private. Whether they were protected would depend on the nature of
the proceedings and whether the administration of justice would be impeded
by publication.

Physical access to proceedings in chambers
A chambers hearing can be in the judge™s private room or it can be in the normal
courtroom with a notice stating that the court is sitting in chambers, but, even
when held in chambers, the proceedings are normally to be regarded as being
in public. This was recognised by Jacob J in Forbes v. Smith.179 (˜A chambers
hearing is in private, in the sense that members of the public are not given
admission as of right to the courtroom™.) Courts, the judge said, sat in cham-
bers or in open court generally only as a matter of administrative convenience.


176
[1998] 2 All ER 673.
177
R.P. Pearson, ˜Open Justice™, Solicitors™ Journal, 19“26 December 1986, p. 969.
178 179
[2002] 1 All ER 865. [1998] 1 All ER 973.
428 The trial process


Thus in the Chancery Division the normal practice was for urgent applications
for interlocutory injunctions to be made in open court, whereas in the Queen™s
Bench Division they were made in chambers. There was no logic or reason for
the di¬erence. It was abolished by the Civil Procedure Rules. The Commercial
Court sat in chambers but with its doors open. So normally did the Patent
Court. If there was an appeal from a chambers hearing to the Court of Appeal
it was heard in open court.180


Reporting of judicial proceedings
Normally judicial proceedings can be reported. The Contempt of Court Act
1981, s. 4 states: ˜subject to this section, a person is not guilty of contempt of
court under the strict liability rule in respect of a fair and accurate report of legal
proceedings held in public, published contemporaneously and in good faith™.
Section 4 of the 1981 Act gives the courts the power to direct that publication
be postponed ˜where it appears to be necessary for avoiding a substantial risk of
prejudice to the administration of justice™. Such orders must be formulated with
precision.181
Under s. 11 of the Contempt of Court Act 1981, a court, having power to do
so, may direct that a name or other material not be published if it appears to the
court to be necessary. Use of this power by the courts has proved very contro-
versial. Until 1988 there was no right of appeal against the exercise of the power
by the Crown Court or higher courts, but this was changed by s. 159 of the
Criminal Justice Act 1988. There have been a number of decisions, mainly by
the Divisional Court, on challenges to s. 11 orders made by magistrates. From
these it seems clear that the courts should not, for instance, prevent publication
of the name of a witness or party simply to protect them from embarrassment.
Thus in 1987 the Divisional Court held that justices in Malvern and Evesham
had been wrong to prohibit publication of a former Conservative MP™s name
and address when he appeared on a motoring charge. He had claimed that pub-
lication of the details would expose him to harassment by his wife. Lord Justice
Watkins said that s. 11 of the 1981 Act was not enacted ˜for the bene¬t of the
comfort and feelings of defendants™,182 but it would be legitimate to ban report-
ing of a witness™s name in a blackmail case.183

180
In Storer v. British Gas Plc [2000] 1 WLR 1237 the Court of Appeal quashed a decision of an
industrial tribunal because the room in which the hearing took place was in an area marked
˜Private. No admittance to the public beyond this point™, the door to which was ¬tted with a
push-button lock.
181
See Practice Direction (Contempt: Reporting Restrictions) [1982] 1 WLR 1475. On s. 4 orders
see especially R v. Horsham Justices, ex p Farquharson [1982] QB 762; R v. Leveller Magazines
Ltd [1979] AC 440, HL.
182
R v. Evesham Justices, ex p McDonagh [1988] 1 All ER 371. See to similar e¬ect Trustor AB v.
Smallbone [2000] 1 All ER 811. See also Scarth v. United Kingdom (1999) 27 EHRLR CD 37.
183
In September 2006 the media were barred from publishing the names of two immigration
judges who were central ¬gures in a sensational case involving video recordings of their sexual
429 Justice should be conducted in public


Even chambers hearings to which the public are not admitted are generally
capable of being reported. The Administration of Justice Act 1960, s. 12(1)184
states: ˜the publication of information relating to proceedings before any court
sitting in private shall not of itself be contempt of court except in the following
cases . . .™ The stated exceptions are proceedings that relate to the exercise of the
inherent jurisdiction of the High Court in relation to minors, or that are
brought under the Children Act 1989 or otherwise relate wholly or mainly to
the maintenance or upbringing of a minor. Subject to the exceptions, if
reporters can ¬nd out what happened in chambers, they can publish it. (The
exceptions do not apply where the communication is to a spouse or partner, a
close family member, a lawyer, a lay adviser or McKenzie friend, a health care
professional, mediator etc.185)
Section 97(2) of the Children Act 1989 with regard to Children™s Act pro-
ceedings makes it a criminal o¬ence to publish any material which is intended
or likely to identify any child involved in any proceedings before the High
Court, county court or magistrates™ court unless the court is satis¬ed that the
welfare of the child requires it. The section has been held to be compatible with
Article 6(1) of the ECHR which guarantees the right to a fair trial including the
right to a public hearing.186 However, contrary to what had previously been
assumed, the Court of Appeal ruled in June 2006 that it only applies while the
proceedings are actually live.187 At that point continuing restrictions on pub-
lishing information are based on the Administration of Justice Act 1960, s. 12
(above).
The Court of Appeal™s decision in Stanton v. Stanton in June 2006188 marked
an important shift in the courts™ attitude to publication of the details of cases.
The court unanimously lifted an injunction preventing a father from talking
and writing about his own case including identifying his ten-year-old daughter.
The court ruled that judges had to balance in each case whether anonymity
should outweigh the right to freedom of expression. Publicity would not be
allowed if it would cause distress to a child.
Reporters who attend the youth court in the magistrates™ courts (which as
seen above is not open to the public) can report the proceedings but must not
report anything which would lead to the child being identi¬ed unless the court
permits it.189 Photographs are equally prohibited. By contrast, by virtue of s. 39


relationship, the alleged use by one of them of cocaine and a charge of blackmail against an
attractive illegal immigrant whom they had both employed as a cleaner and with whom one
of them had had a sexual relationship. Commenting in The Guardian (25 September) Marcel
Berlins said that since the names of the judges were probably known to the entire
immigration judiciary, to many in the legal world, to the media covering the trial and to their
friends and families, the only people left ignorant would be those to whom the names meant
184
nothing. As amended by the Children Act 1989, s. 108(5) and Sch. 13, para. 14.
185
Family Proceedings (Amendment No 4) Rules 2005, SI 2005/1976.
186
P v. BW [2003] EWHC 1541 (Fam), [2003] 4 All ER 1074.
187 188
Stanton v. Stanton [2006] EWCA Civ 878. Ibid.
189
Children and Young Persons Act 1933, s. 49 (as amended).
430 The trial process


of the 1933 Act, in the Crown Court and the magistrates™ court the press can
identify a juvenile unless the court prohibits such publication. The adult court
can order the media not to publish information that would lead to the identi¬-
cation of a child but it cannot give directions as to what material it can or cannot
publish to give e¬ect to the order.190
See further G. Robertson and A. Nicol, Media Law (5th edn, forthcoming
2007).

Televising trials
Cameras are not permitted in court, so television of legal proceedings, now
commonplace in the USA,191 is not permitted. In March 2003 the Lord
Chancellor gave permission for an experiment with televising of appellate level
cases. The pilot allowed broadcasters to produce news bulletins, features and
documentary material but only for demonstration purposes. They could not be
broadcast.192
In November 2004 the DCA issued a consultation paper inviting views as to
whether the rules should be changed.193 It published the responses to the con-
sultation exercise in June 2005.194 The Government™s conclusion:
1. It is clear from the response to consultation that support for wide-
spread broadcasting is limited, and that there is grave concern about the
potential impact on participants, especially witnesses and jurors, and on the
trial process. On the other hand, many respondents did feel that broadcast-
ing could increase understanding of court processes and make courts more
accessible.
2. In light of the responses, we are exploring whether there are options which
might achieve these bene¬ts, without risking harm to participants or any nega-
tive impact on the administration of justice.195
Any proposals for change would be the subject of a further public consulta-
tion on the detail.196
Since then there has been no further word on the subject from the DCA.

190
R (Gazette Media Co Ltd) v. Teesside Crown Court [2005] EWCA Crim 1983, [2005] Crim LR
157 criticised in A. Gillespie and V. Bettinson, ˜Preventing Secondary Victimisation Through
Anonymity™, 70 Modern Law Review, 2007, pp. 114“27.
191
However, not in the US Supreme Court.
192
F. Gibb, ˜Irvine ready to allow TV cameras in Appeal Court™, The Times, 10 March 2003;
˜Camera in Court™, Counsel, February 2005, p. 13. See also R. Smith, ˜Let the Cameras In™,
Counsel, March 2005, p. 29.
193
Broadcasting Courts, consultation paper 28/2004, 15 November 2004.
194 195
CP (R) 28/04, 30 June 2005. At p. 42.
196
In July 2005 Sky News transmitted a live, verbatim transcript of the summing-up in the case
of a much publicised murder case. The latest technology allowed it to publish the text on a
split screen with a reporter outside the court providing commentary. It was said to be the ¬rst
live transmission of court stenography. A protocol had been agreed with the DCA allowing, at
the discretion of the trial judge, live transmission of stenography from the opening and
closing speeches, the summing-up and the verdict, as well as delayed transmission of the
evidence of witnesses (Law Society™s Gazette, 7 July 2005, p. 11).
431 Justice should be conducted in public


Protecting the witness
The principle that justice should be conducted in public is sometimes quali¬ed
where the witness requires special protection.
In exceptional circumstances the identity of witnesses such as members of the
security service can be concealed even from the other side. In June 1999 the
Divisional Court held that Lord Saville™s inquiry into the shootings in
Londonderry on ˜Bloody Sunday™ acted unreasonably in denying a claim for
anonymity of seventeen members of the parachute regiment. Knowing their
names was not vital for the inquiry to perform its task, while disclosing them
put their lives at risk.197 Ordering that the identity of the witness be concealed
is not a breach of the ECHR when it is necessary to protect the witness from the
threat of serious violence or death.198

Special measures directions for vulnerable witnesses199
In recent years e¬orts have been made to ease the process of giving evidence for
vulnerable witnesses and especially for children.
The chief issue has been whether children should be able to give evidence by
live video link or even by pre-recorded interview instead of in the actual court-
room.200 The ¬rst step taken in that direction was s. 32(1) of the Criminal Justice
Act 1988 which allowed children under fourteen in Crown Court cases of vio-
lence, sexual assault or cruelty to give evidence by live closed circuit television
with the permission of the court. The aim was to protect the child from having
to face the allegedly abusing adult.201
In 1989 the Pigot Committee reported.202 The Committee took the view that
a child should never be required to give evidence in public as a witness unless the

197
R v. Lord Saville of Newdigate, ex p A [1999] NLJR 965. The Court of Appeal upheld the ruling
[1999] NLJR 1201. In a trial in Belfast in June 1989 Lord Chief Justice Hutton held that in the
particular circumstances of the case such an order could be made, but in that instance the
defence raised no objection. The defendants were accused of taking part in the gruesome and
notorious murder of two British army corporals who had blundered into an IRA funeral. The
prosecution asked the court to rule that some twenty-seven media witnesses could give their
evidence without being identi¬ed and that they should not be seen by the accused, the public or
the press, but only by the court and the lawyers for each side. The judge held that the witnesses
could give their evidence behind a large curtain. See G. Marcus, ˜Secret Witnesses™, Public Law,
198
Summer 1990, p. 207. Davis and Ellis [2006] EWCA Crim 1155, [2007] Crim LR 70.
199
See A. Keane, The Modern Law of Evidence (6th edn, 2006) pp. 155“66.
200
For a summary of the developments in the law with extensive citation of the literature see D.
Cooper, ˜Pigot Unful¬lled: Video Recorded Cross-examination under Section 28 of the Youth
Justice and Criminal Evidence Act 1999™, Criminal Law Review, 2005, pp. 456“66.
201
For a description of how this procedure operates and of some of its problems see C.
Champness, ˜Children™s Evidence in Criminal Proceedings™, Law Society™s Gazette, 8 March
1989, p. 14.
202
Report of the Advisory Group on Video Recorded Evidence, Home O¬ce, December 1989. There
was also a report by the Scottish Law Commission (The Evidence of Children and Other
Potentially Vulnerable Witnesses, Discussion Paper No. 75, June 1988). For an evaluation of
this report in the light of English law and practice see J. McEwan, ˜Child Evidence: More
Proposals for Reform™, Criminal Law Review, 1988, p. 813.
432 The trial process


child himself expressed a wish to do so.203 It recommended that both a child™s
evidence-in-chief and cross-examination should be presented in the form of
pre-recorded video interviews. The entirety of a child™s evidence should be taken
at a pre-trial hearing. If the interview by the police had been videoed, it should
be shown at the pre-trial hearing with both sides able to ask further questions.
If the original police questioning had not been videoed, the child™s examination-
in-chief and cross-examination would take place at the pre-trial hearing. In
either case, the whole of the pre-trial hearing would be video recorded and
shown at the trial. At the time all of this was considered too controversial.204
The Criminal Justice Act 1991 represented a compromise approach. Section
205
54 permitted the Crown Court or a youth court at the trial of a case to which
s. 32 of the 1988 Act (above) applied to admit as evidence-in-chief a video
recording of an interview with a child unless: (1) the child was not available for
cross-examination; or (2) there had been a failure to comply with rules about
disclosing the circumstances in which the recording was made; or (3) it would
not be in the interests of justice to admit the recording. The child had to be
called and could be cross-examined in court, though not by the accused himself
(s. 55(7)).206 (This was widely referred to as ˜half-Pigot™.)

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