EFFECTIVE ADVOCACY―SECOND LECTURE
Janice Brennan

I. BENEFITS OF PRE-TRIAL CONFERENCES
Alas we are often constrained by a lack of time and a lack of financial resources.Nevertheless,if
at all possible, whether you prosecute or defend,hold a pre-trial conference.Inevitably questions will
come to mind as you read the statements of the potential witnesses or read the response of the
Defendant.To perform well at trial you need to have as many of those questions answered as you canachieve, because those answers may well change your case strategy.
Police officers are very good investigators of crime,but they are not lawyers and not advocates.An
early case conference can help them by pointing them in the right direction to fill a gap in the evidence,for example,you might need a further statement from the victim.If the interviews with the Defendant
are not yet concluded,a case conference can guide the police as to a particular line of questioning forthe suspect.
When defending,an early pre-trial conference enables you to advise the client of his/her prospectsof success if pleading not guilty,what further evidence should be obtained to assist the Defendant,for
example,medical evidence to establish the likely causation of certain injuries,psychiatric evidence toshow a mental disorder, evidence of alibi and so on.
Early preparation and advice saves time and saves money.It is in no-oneʼ
s interest to have a trial
adjourned or delayed because something that could have been done in advance has not been done. It
is unfair to the witnesses and unfair to the Defendant,especially if the Defendant is in prison pending
trial.
I am an absolute supporter of effective teamwork.When I prosecute I consider myself to be part ofa team together with the police officer in charge of this particular investigation and with the Crown
Prosecution Service.When I defend,I am part of a team together with my Instructing Solicitor and myclient.No single one of us has a monopoly on wisdom.Whilst ultimately at the trial I have sole controlof the conduct of the case, nevertheless each of us may contribute a helpful idea or suggestion.

II. THE IM PORTANCE OF PROPER DISCLOSURE
Of course we all like to win our cases,but there is no real satisfaction to be gained if you have tocheat to gain that success. To cheat is also to risk a gross injustice and nobody benefits at all if an
innocent or possibly innocent person is convicted.The State wields enormous power over its citizens.
Without democracy and the Rule of Law,there can be no justice.In England,nobody is above the law,nobody.The Judiciary is wholly independent of the Government.We call it The Separation of Powers.
The Government can be sued in the civil courts and prosecuted in the criminal courts when it has done
wrong.
The right to a fair trial is a fundamental principle of English law.We did not always have this right,
but we have learned lessons from our mistakes centuries ago. As part of Europe we also have rights
under the European Convention on Human Rights.Few rights can be more important than the right toa fair trial.

Barrister, BarristersʼChambers, United Kingdom.

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Full and proper disclosure must be made of all material in the possession of the Prosecution which
may assist a Defendant in the presentation of his/her defence at trial.For example,a Defendant may
be charged with a serious assault. At interview he says:“It was not me, I was not there.”The police
have a statement taken from a passer-by who saw the assault.That witness says that the attacker was
6 feet tall,aged about 25 and completely bald.The Defendant is aged 36,5 foot 2 inches tall and withlong hair.To withhold that statement from the Defence and,therefore,from the Court is simply wrong.
It is unfair, it is cheating. It risks the conviction of an innocent man.
That is,of course,an obvious example of material that must be disclosed to the Defence.M ost cases
are not so straightforward. Since 1996 Defendants in England have been required by law to set out ina document given to the Prosecution and to the Court the essence of the defence case.It is designed to
identify in advance of the trial what the real issue in the case is.For example,on a charge of rape,theDefendant may say:“
I did not have sexual intercourse with this woman at all.”Or he may say:“We
did have sexual intercourse, but she consented throughout and I had no reasonable grounds forbelieving that she did not consent.”
This document helps the Prosecution to identify what material it possesses that ought to bedisclosed to the Defence. The test applied is as follows:all material in the Prosecutionʼ
s possession,
which is capable of undermining the Prosecutionʼ
s case or which is capable of assisting the Defendantin his defence,must be disclosed.I will not pretend that prosecutors in England have always got it right.
There have been some disgraceful cases where the Court of Appeal years later has quashed convictions
because material which ought to have been disclosed was wrongfully withheld either deliberately or
negligently. Some Defendants have spent many, many years in prison for crimes they did not commit
because of errors in disclosure by the Police or the Crown Prosecution Service or the Prosecuting
Advocate.We must never fail to take our duty to make proper disclosure seriously.It is no excuse to
say that we believed that the Defendant was guilty and we simply wanted to make sure that he/she did
not get away with the crime.We are not the Judge or the Jury.Ifa Defendant is guilty,then let us proveit by admissible evidence, without cheating. Only then do we earn the conviction. I want to sleep
soundly each night in the knowledge that I have behaved correctly.

III. VULNERABLE DEFENDANTS ― THE DECISION TO PROSECUTE
Not every person who commits a crime has to be prosecuted at Court.Some crimes are simply too
trivial;other times a Defendant may be too vulnerable for it to be in the public interest to prosecute.
Age, health and especially mental health are all factors that fall to be considered when deciding
whether to prosecute at all.
English law has not always been a matter for pride. In the 18th and 19th centuries, tiny children
faced the full weight of the criminal law merely because they stole a bit of food to eat. They were
imprisoned for years with adult prisoners in dreadful,inhumane conditions.We treated the mentally ill
in the most despicable way.We were shameful.Those dark days,thank goodness,are now well behindus.
If a child is arrested,a parent or guardian or other suitable adult has to be informed and that person
accompanies the child when interviewed at the police station, in addition to any lawyer. If the crime
is not serious and the child admits the commission of the crime,then instead of going to Court,the childreceives what is called a police Caution. It is a formal reprimand by a senior police officer and isdesigned to show the child the seriousness of the matter and to encourage good behaviour in the future.
We all know that children can make mistakes and this course is intended to keep the child if at all
possible out of the criminal justice system. If the crime is serious or if the child does not admit thecommission of the crime, then any trial and punishment is dealt with in specially designed Youth
Courts.
If a crime is serious,but the Defendant has severe mental illness so as to be unfit for trial,then there
are benign ways of dealing with those cases too.We are,in short,much more civilised in our approach
now.

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IV. VULNERABLE WITNESSES
I suspect that you are more interested to hear how we in England deal with vulnerable witnesses.
Again we have learned from the mistakes we made in earlier years.In the old days,and by that I mean
as recent as the 1980ʼ
s,we paid very little attention,if any,to the needs of witnesses.They were simply
there at Court when the trial started, we called them into the witness box to give their evidence andthen they went home.They were no more than a commodity for us.We did not think about their needs,
their concerns, their welfare, the effect on them of giving evidence ― we did not think about them atall.
Sometimes they would sit in the corridor outside the Courtroom for days and days until we wanted
them to go into the witness box. When they finished their evidence they were dismissed without somuch as a thank you or a goodbye.Child witnesses were treated no differently to adult witnesses.The
physically or mentally disabled were also treated no differently.
I have vivid memories of the time when I started my career in 1980. A rape victim would have to
sit in the corridor outside the Courtroom, sometimes within feet of the very Defendant she said had
raped her, while we all waited for the trial to start. Or a child witness would have to balance on top
of two or three cushions in order to see and be seen from the witness box and would then be sooverawed by the sight of so many strangers,adults,some in weird legal wigs and robes,that the childwould be unable to give evidence or even speak at all because of complete and utter fear. Or a casewhere the Defendant would not be prosecuted purely because the victim had a learning disability or
mental illness and was, therefore, presumed not to be capable of telling the truth or giving reliable
evidence.
I am delighted to tell you that we are much more civilised,sensible and considerate these days. We
now have in every criminal court what we call the Witness Service.It is staffed mainly by volunteers,
young and old. The Witness Service is provided with the details of all witnesses for the prosecution.
If the Defence request it,they will also look after defence witnesses,but I will focus my address to you
on prosecution witnesses.
The Witness Service arranges a pre-trial visit to Court for all witnesses in order to familiarise themwith the process of a trial. The witness will be shown a courtroom, told who sits where, what theirfunctions are and so on.It is designed to make the witness feel more at ease.What the Witness Service
does not do,and must not do,is discuss the evidence with the witness.The Witness Service staff haveto remain entirely neutral and impartial. They provide a private room where the witnesses can wait,
often with a cup of tea or coffee, until required to give evidence in the Courtroom.
Those of us who appear in Court every working day can easily forget just how daunting anexperience giving evidence can be. Many people in their normal day to day lives will never have to
speak in public,watched by strangers.If the witness is the victim of a particularly dreadful crime,for
example, rape, they are often terrified of the Defendant and cannot bear to see him. In such circumstances it can be very much harder to give evidence.
As a result,the law in England since 1999 now permits the use of what we call “Special M easures”.
These are measures designed to make it easier for witnesses to give evidence and, consequently, toimprove the quality of their evidence.

V. SPECIAL MEASURES
M y preferred Special Measure,and the most common one for adult witnesses,is the use of a screenby the witness box which shields the witness from both the Defendant and the public gallery. The
witness remains in the sight of the Judge, the Jury and the Advocates. The Defendant and anyone in
the public gallery can hear, but not see the witness.
Another Special Measure is where the witness does not enter the Courtroom, but instead gives
evidence from another room,either in the same building or elsewhere,over a television or video link.

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The witness can see only the advocates and the Judge, whichever is speaking at that point to thewitness. Everyone in the Courtroom on the other hand can both see and hear the witness.
Child witnesses receive particular assistance from the outset. First of all, instead of making awritten witness statement to the police as adult witnesses do, children are questioned by speciallytrained interviewers and that conversation is recorded on a DVD. There are very strict rules on how
to question a child because children are very susceptible to suggestion.Instead the child is encouraged
simply to tell the interviewer all that the child can remember. The questioner will probe a little but
must be extremely careful not to put words or ideas into the head of the child. The DVD recording
becomes the initial evidence of the child at the trial.
One of the most important advantages of recording the evidence of a child in this way is that it
captures the childʼs evidence at a time when a childʼs abilityto remember an event is at its best,becausea childʼ
s memory fades very much more quickly than that of an adult.If I witness a crime in 2014 andI give evidence about that crime at a trial in 2015,that gap of one year is a mere 1/56th of my life.Now
consider a child who is aged five and is questioned a week after the incident.That childʼs recollection
is likely to be very good.But if the trial does not take place until the child is aged 6,that delay of one
year is a substantial 1/6th of the childʼs entire life.
The advantages of this method of recording evidence are obvious,but there are disadvantages too.
The most important is that in my experience juries become much more engaged with a witness whenthat witness is actually present,flesh and blood,in the witness box in the Courtroom.Sometimes I fearthat when they watch a DVD recording of a witness,juries forget that it is a real person because it islike watching a programme on television or in the cinema.
Sometimes the questioning by the interviewer is not good or the child witness gives a confused ordifficult to follow account. There have been occasions, admittedly not frequent, where I have abandoned the DVD recording because it had little value and instead I have called the witness in the
traditional manner.
The problem which we face in England at the moment is what to do about cross-examination of achild witness.At present that is still done at the trial,but instead of the child sitting in the witness box,
the child is in a separate room in the Court building, together with a member of the Court staff, andthe child is spoken to over the television link.The advantage of this procedure is that the child is notoverawed by the sight of strangers in a large Courtroom or frightened by the sight of the Defendantor intimidated by people in the public gallery. But the problem of delay remains and quite often thechild has little recollection of the event because of the lapse of time.
Initially it was thought that the problem could be overcome by pre-recording the cross-examination
too. Superficially that sounded like a perfect solution, but it is not. When I defend I am only able to
finalise my case strategy for the trial once I have received all of the evidence from the Prosecution andall of the other material that falls to be disclosed.Then,and only then,am I able to work out how best
to cross-examine each witness. So if my cross-examination of a child witness is to be pre-recorded,
when can that be done?What if after I have done that cross-examination,some other material comesto light that calls for further cross-examination?How do I know perhaps months in advance that I willbe the person who actually conducts the trial?As you can see the matter is far from straightforward.
I very much welcome your thoughts and ideas on the best way to deal with such a problem.
The use of what we call “intermediaries”is another special measure available to us.An intermediary is a specially trained person, often a psychologist or similar professional, who can assist with
communication with a witness who has a learning disabilityor a mental health problem.The intermediary meets the witness in advance,determines what the precise needs of the witness are and then advises
the Judge on how best to handle the witness. The intermediary will sit in the witness box with thewitness and intervene where necessary.
For example,a witness maybe severelyautistic.As you will know,those with autism often interpret
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it is “raining cats and dogs.”A person with autism,who hears that phrase,will look up to the sky andexpect to see cats and dogs falling down from the sky with the rain. So the intermediary will advise
the Judge that, when the witness is questioned, the advocates must use simple, direct language.

VI. THE TIMING AND DURATION OF EVIDENCE
Those who prosecute, but also to a lesser degree, those who defend, need to plan well before thestart of the trial which witnesses to call, in which order, on which day and when. We simply cannot
expect witnesses to put their normal lives on hold onlyto sit for hours,or worse,days in a waiting roomat Court. It is unkind and it is unnecessary. We need to decide as part of our case strategy the orderin which we want to present our evidence to the Jury so as to maximise its effect. We need to assessroughly how long each witness will take to give the evidence and be cross-examined.Of course we may
be wrong in our estimate. A witness may suddenly cry and need to have a break or the crossexamination may last much longer than I anticipated,but I can at least make an attempt to gauge when
I shall require my next witness. That way, if there is a delay, the witness who is kept waiting canunderstand what the cause of the problem is and can appreciate the fact that we have tried not toinconvenience him/her any more than was absolutely necessary.
It may be that a particular child witness or adult with a learning disability has a very shortattention span and will need a break after every 15 minutes of questioning. Young witnesses usually
perform better in the morning when they are at their freshest.These are all factors to consider when
you plan how to conduct your case.
One problem which we have yet to solve in England is what to do with a vulnerable witness in a trial
with many defendants.Usually each defendant has a separate advocate entitled to cross-examine each
witness. But if the witness is, for example, a young child, should there be a limit on the nature andduration of the cross-examination?Thus far,English Judges have been reluctant to intervene unless thequestioning was wholly improper, but as a consequence we have had some disgraceful trials where achild victim of sexual trafficking by gangs of men has had to endure many, many days of hostile,
aggressive cross-examination by 10 or more defence advocates until the child is reduced to tears. Of
course each defendant has an absolute right to a fair trial, which includes the right to test and probe
the evidence of any witness, but do the witnesses not have rights too? In fact my view is that an
aggressive cross-examination of a child is not good or effective advocacy at all and is merely likely toengender sympathy from the Jury for the witness and hostility against the Defendant;in other words,
it is counterproductive.
Some people have suggested that, in such cases, the Judge should conduct the cross-examination
instead, but how can that work?The Judge has to remain impartial between the prosecution and thedefence. The Judge does not get to talk privately with the Defendant to obtain his/her account of theincident.How can the Judge avoid appearing to express an opinion as to the credibility of the witness?

VII. ADVOCACY TECHNIQUES WITH VULNERABLE WITNESSES
Advocacy is never easy, but it is, as you will all know, very much harder with children and withthose with mental health problems or learning difficulties. Then more than ever it is necessary toconsider in advance your strategy.Short,clear questions are essential.Simple language has to be used.
Your pace has to be measured, not only in the speed at which you speak, but also in allowing thewitness as much time as he/she needs to answer.Ask only what you absolutely have to and not a single
question more. And donʼt forget to smile. A scared witness is unlikely to be a useful one.
English advocates wear wigs,gowns and bands in Court.To me it is simply my normal uniform andI am barely conscious of it any more. But to a vulnerable witness it can be a distraction or make melook frightening. You may wish to ask the Judge temporarily to dispense with such clothes.
If you want the witness to look at a plan or a map or other document, is it in a form that a childwitness can understand? You might need to have available a much simpler version. Never mock avulnerable witness for not understanding something as not only is that extremely rude,but it will also

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turn the Jury against you and is, therefore, completely unproductive. Try not to call a young witness
a liar as this can upset a child deeply.Far better to suggest that they are wrong or mistaken.The Jurywill not only understand, but will also like you for your decency and thoughtfulness.
Sometimes it is necessary to create a novel way to help a particular witness overcome a personaldifficulty in giving evidence.I was once asked to prosecute a rape case where the victim had come to
England for an arranged marriage only to discover that her husband was abusive and violent to her.
She had come from a very small village in Pakistan and spoke little English.When her husband began
to threaten to harm their young baby if she resisted his demands for ever more violent sex,she foundthe courage to call the police.The problem was that for cultural reasons she was unable to talk about
any intimate matter such as sex to any male or even in front of any male.Alas not only was the Judgemale,but so too was the Defence advocate and because jurors are selected at random in England,it wasinevitable that some of the Jury would also be male. She refused to give evidence. I had to find asolution.
The solution was first of all to put this particularly vulnerable victim in another room at the Court
which had a camera fixed on her and a television screen for her to look at.She would give her evidence
from that room in her own language.We in the Courtroom could both see and hear her.She,however,
could neither see nor hear any of us. A female interpreter stood in the witness box in the Courtroom
with a camera fixed on her. The victim on her television screen could only see and hear that femaleinterpreter. The sound in the victimʼ
s room was switched off whenever anyone other than the interpreter was speaking.In that way the victim neither saw nor heard any male and although in her heart
she knew that some men were in the Courtroom, she was able to block that thought from her mind
because she could not see or hear them and accordingly she was able to give her evidence.Justice wasdone. It just required some extra thought and preparation by those of us on the prosecution team.

VIII. VULNERABLE DEFENDANTS
The vast majority of Defendants in England are adults and many of those are repeat offenders who
are well able to handle the stresses and strains of a trial.Some have almost as much experience of the
Courts as I do!In recent years we have had to learn to show more compassion for those Defendants who
are young or who have a mental health problem or learning disability.
Just like young witnesses,defendants who are still children have a short attention span.It is simply
not sensible or fair,therefore,to sit the usual long Court hours.When children get bored,they cannot
sit still, their attention wanders, they start to play with anything they can find and they begin tomisbehave.Child defendants are no different.We have had to adapt our court procedure accordingly.
We may take a break after only half an hour of evidence or speeches. We may work only in themorning.We do not wear our wigs and gowns.We may require any police officer in the courtroom not
to wear uniform if it is likely to frighten the child.All language must of course be kept simple.It is allcommon sense.

IX. CONCLUSION
It is not just we advocates who need to think about these matters.English Judges have far greater
powers of case management than ever before and can make orders about the treatment of individual
witnesses, when the Court will sit, how often breaks will be taken, how questions are worded and soon.There has not been and there must never be any reduction in the right of a Defendant to a fair trial.
Justice requires that only the guilty are convicted of the crimes they have committed. The innocent
must be protected. But all that can be achieved without any injustice or unfairness to the witnesses.
English law and procedure are not perfect, far from it, but we are taking steps in the right direction.
We can all learn from each otherʼs experiences and ideas.Please share yours with us so that together
we can build an improved criminal justice system suitable for the next century.

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