Advocacy and the vulnerable training

Justice in criminal proceedings relies on advocates being able to extract testimony from witnesses, but when those witnesses are vulnerable the rules of engagement need to be clear. In 2014 Judge Peter Rook QC was asked to look at how training could be developed to ensure all advocates apply best practice when dealing with vulnerable witnesses.

As a member of the working group it was clear to me that we needed to amass expertise from across different strands of the profession so advocates could be fully trained to deal with vulnerable witnesses. The advocacy and the vulnerable training programme arose out of this collaborative process.

This robust training was developed by a cross-professional working group which comprised experienced members of the legal profession including; the Law Society, the Solicitors’ Association of Higher Courts Advocates (SAHCA), and with immense help from the Advocacy Training Council.

The scheme was designed to help solicitor-advocates and members of the bar strike the balance between putting forward a client’s case effectively in court, but also ensuring that vulnerable witnesses are not subjected to undue stress or unnecessarily lengthy questioning, particularly in multi-handed cases.

As Law Society president Robert Bourns has pointed out, victims and witnesses who feel secure in the courtroom are more likely to communicate vital evidence effectively.

So if you are a solicitor-advocate why should you undertake this training? Well, the reasons I suggest are obvious. Firstly, it will make you a better advocate. Secondly, it will help you to advance your client’s case more effectively. Thirdly, it will ensure high standards in the quality and consistency of advocacy by all advocates involved in these cases. Lastly, but perhaps by no means least, the probability that in due course the Ministry of Justice will make a decision that advocates who have not undergone this training will not be paid for work done in the courtroom when they are cross-examining vulnerable witnesses.

At the moment it is likely that the MoJ will concentrate on ‘the more serious cases in the Crown court’. Quite how the ministry will define the more serious cases is at the present time a matter of conjecture. However, what I am clear about is that there is a sea change taking place within the field of advocacy. There is a far greater recognition of the need to protect the vulnerable witness, and in due course I expect this sea change to encompass magistrates’, Crown and youth court hearings.

I would commend this training to all who practise advocacy. If we are to be taken seriously as a profession, we have to demonstrate the need to face up to our responsibilities. Have no doubt that the bar will be taking on this programme of training and will be delivering it to all concerned.

The training is thought-provoking, and provides access a variety of perspectives. It is not a programme that concludes with a pass or fail mark but it is intended to improve you as an advocate.

The advocacy and the vulnerable training has to be delivered to practitioners by the end of 2018 and is expected to become mandatory for all publicly funded advocates who are instructed in serious sexual offence cases involving vulnerable witnesses. The training also provides techniques used to question defendants, many of whom may well be vulnerable. I underwent training to become one of the lead facilitators for the Law Society and I found the process immensely helpful. I am sure it has improved me as an advocate.

It is worth bearing in mind that you do not know at the outset of proceedings whether the case will involve a vulnerable witness. But if you have done the training you will be well placed.

Training courses are being organised around the country in various regions and if anyone has any doubts about where they can attend a training course, the cost of it and the practicalities, they should speak to Sunita Dhawan or Victoria Bayliss in the Law Society events team.

We need to show as a cadre of advocates that we can match the bar both in delivery and receipt of training. How many times have we heard from the bar side that solicitor-advocates do not take advocacy seriously?

Now is the chance for the profession to stand up and show that that is a myth. I would urge everyone who is reading this article who is an advocate to take part in this training. You will find it of immense benefit.

Ian Kelcey is a Law Society criminal law committee member and council member. He is a Higher Courts Advocate and senior partner at Kelcey and Hall solicitors. He specialises in fraud, regulatory and complex crime