Witness assistance and familiarisation in England and Wales

Abstract

Since the 1700s, lawyers have controlled interactions with witnesses in court. In England and Wales, witness familiarisation, endorsed in R v Momodou [2005], 1 aimed to demystify the process and through practical guidance assist witnesses to give their best evidence in legal proceedings, with the result that they are less likely to be confused, misled or unduly influenced by the process of cross-examination. This paper outlines empirical research which indicates that familiarisation can be helpful; though it argues that justice systems should develop best practices for the elicitation of accurate evidence and not leave it to witnesses to combat the system’s shortcomings. Given that this is particularly acute for vulnerable witnesses (and familiarising witnesses to cross-examination is in its infancy), the paper draws attention to R v Lubemba [2014], 2 which suggests that there is no right to put a case to a witness in child cases. The article also discusses witness approaches in the context of the right to challenge concept.