Civil and criminal proceedings: witness handling

Key points

• What is permissible and expected in civil and criminal proceedings can be very different when it comes to handling witnesses.
• Particular care is needed around any form of witness familiarisation.
• The restrictions upon interacting with witnesses imposed by a criminal investigation may prevent proper preparation for a civil trial.

It is usual in a civil case in England and Wales for lawyers representing each party to meet with the witnesses, get their accounts of events and prepare a witness statement for them. The position in criminal proceedings is rather different and the investigating authorities often view contact with witnesses as creating a risk of interference. So how should a company proceed when it is faced with a civil claim relating to events that are also the subject of a criminal investigation?

There are a number of key practical differences in the way in which civil and criminal witnesses are handled: 

Civil witness handling

• witnesses are permitted to hear evidence of other witnesses unless court excludes them
• witness statements stand as evidence-in-chief
• witness statements are usually drafted by lawyers
• statements may contain comment on the evidence of another witness, and
• there are less strict rules on interviewing an opponent’s witness.

Criminal witness handling

• witnesses are not allowed in the courtroom whilst waiting to give evidence
• no witness statements may be taken into the witness box
• witnesses are not told what other witnesses have said on the same issues
• witnesses must not discuss their evidence, and
• it is contempt to disclose to a witness what has taken place in the trial before they give their evidence.

Witness familiarisation

Witnesses cannot be coached as to how to give their evidence in England and Wales, though the practice is normal and expected in most of the USA. However, a witness can receive assistance in preparing for trial through the process of familiarisation with the court process, what to expect and how to handle cross-examination. The leading judicial authority on what is, and is not, permissible when preparing a witness for a criminal trial is R v Momodou. The case provides guidance on the line between witness familiarisation, and witness coaching. Key points to note are:

• Witness familiarisation should be supervised by a barrister or solicitor.
• In any practice cross-examination there should be no similarity to the issues in the case. Nothing should be done to play on or trigger the witnesses’ recollection of events.
• Careful records should be kept of the programme.

It is not clear whether these principles should be applied to witness handling in a civil context. In Ultraframe (UK) Ltd v Fielding, the court recognised the significant differences between civil and criminal procedure. However, the judge emphasised that “the principle that a witness’ evidence should be his honest and independent recollection, expressed in his own words, remains at the heart of civil litigation too.” The judge did not go so far as to clarify whether the principles in Momodou apply to civil litigation. The Bar Council has since issued guidance which suggests that it would be prudent to proceed on the basis that the general principles in Momodou apply in civil proceedings.

Whilst the Bar Council’s position may be prudent, it is clear from recent cases (in particular, the 2012 case of Berezovsky v Abramovich) that the court is willing to accept that a significant amount of training, and even discussion between witnesses in civil cases, does not amount to collusion, provided each witness “had given their own personal evidence and recollection”.

Proceed with caution

Where criminal and civil proceedings are ongoing, care must be taken to ensure that interaction with a witness which may be permissible in a civil case does not prejudice the ongoing proceedings in the criminal case. However, the application of the criminal standard of witness handling could potentially be prejudicial in civil proceedings, preventing a company from properly preparing its case. It may be possible through dialogue with the investigating authority to come up with a timetable for interviews of witnesses that facilitates the preparation of witness statements in the civil proceedings. If this is not possible, the only remaining solution is to apply to stay the civil proceedings until a charging decision has been made, but the threshold for such an application is high. See our article “Staying proceedings” in this series for more on this.