Advocacy and the Vulnerable Training

In the years since I completed my pupillage, I have not only endeavoured to keep my CPD training up to date with areas of law that would complement my practice area, but I have also looked for novel subject material that would hold my interest, whilst the former has always been possible sadly the latter has not always been so easy to find.

In late 2016, I had the good fortune of defending in a trial with Master Bernard Richmond, then the Chair of the Education & Training Committee. Little did I know that our chance meeting would lead to my small part in the Inn’s Education Department’s facilitation and training for Advocacy and the Vulnerable. 

At that time, I had developed a reasonably strong criminal practice which often involved vulnerable witnesses but despite my many years of experience of such cases I, like many at the criminal Bar, did not feel that I really possessed all the requisite skills to undertake the task properly, by which I mean the skills necessary for the effective examination of witnesses with specific vulnerabilities. 

There was the Advocates’ Gateway website which is, of course, an incomparable and powerful resource offering guidance and toolkits designed to assist the busy practitioner but, aside from such ad hoc learning,there did not seem to be a single course designed to facilitate and enable advocates to develop their skill set in this area of the law. This was a clear impediment to the bar and to the courts but, perhaps more importantly, it was a positive disadvantage for those we represent whether they are victims, witnesses, or defendants who, as we all know, have wide ranging needs and disabilities many of which are unseen. 

Therefore, when I discovered that the Inns of Court College of Advocacy (ICCA) had developed a course I applied to undertake the course run by the Middle Temple. 

It was Master Richmond who ‘persuaded’ me to undertake the lead facilitator’s course in 2017 with a view to being part of Middle Temple’s wider roll out of the course. For those that do not know, he can be very persuasive and, despite a degree of hesitation on my part, I agreed. Once I had completed the course I joined a small but dedicated group of like-minded practitioners who from early 2018 and over the next few years would give up several evenings per year to preach these new methods to the unwilling and unconverted.

Joking aside, one of the pleasures of facilitation for this course has been the vast range of experience and enthusiasm the participants bring with them. Participants have included those undertaking pupillage to experienced Queen’s Counsel and all in between, and whilst I jest there are still a fair few who arrive for the course with pre-determined notions that attendance was just ticking a box, they are the challenge. However after the introductory and first group sessions, those notions soon disappear and, I am pleased to say, that the vast majority of those who fall into this category leave the course having taken the positives and a greater appreciation and understanding of what will be expected in their future cases.

I try to make it clear to groups I have taken that the course is not teaching but facilitation through a series of exercises designed to make the practitioner more aware of the elements of good practice and importantly where not to go. That said, what I do not tell them is that I am constantly learning from them. I am often greatly impressed by the standard of written work submitted in advance across the board and to that end the course for me is truly collaborative and the reason I continue take part.

The course at Middle Temple begins with a lively plenary session usually chaired by Master Richmond who, in his inimitable and self-deprecating style, explains that the reason the participants are there is because of him and his exploits in R v Barker [2010] EWCA Crim 4. When the laughter subsides the work begins with participants undertaking a rapid round of formulating of one point questions which, though not strictly part of the course, focusses the mind for the group work sessions which follow.

For those unfamiliar with the construction of this course it centres around the fictitious case of Regina v. George Graham. In the exercise Mr Graham (aged 72 years) is alleged to have committed a range of sexual offences against young females each of whom require special measures as each has been assessed by a registered intermediary as being vulnerable to varying degrees and for different reasons. 

Each participant in the course is supplied with a full set of papers (a brief, extracts of witness ABE interviews, agreed facts, proof of evidence, a copy of the trial judge’s rulings at the ground rules hearing and extracts of the registered intermediary reports for each witness). 

From this, each participant is required to prepare and submit appropriate written cross examination of; a young child complainant (Rebecca Jones – aged six); an adult complainant with mild learning difficulties (Fay Graham now aged 37 years); a teenage complainant with ADHD and Asperger Syndrome (Caroline Lloyd aged 15 years), and; a male teenager who does not require an intermediary (Daniel Jones aged 13 years). 

It is immediately evident from the advanced written submissions who has read the brief and prepared well and, in the group sessions I very often utilise those participants to assist with the understanding of those who either have misunderstood the brief or to cajole those who do not really want to be there. The small group nature of the course aids the facilitator to identify such participants and it enables focussed attention on their work so that it is always possible to encourage and impart the course ethos. 

The first session centres around proper question construction and an analysis of the written work prepared for Fay Graham. Participants are encouraged to criticise their own and each other’s work, identifying the questions from within their submitted work and, by reference to the 20 Principles of Questioning (POQ), the group reflect on those questions they feel might offend the POQ i.e., the incorrect use of pro-nouns, or leading/tagged or compound questions as well as unnecessary questions where the information sought is more properly elicited from another source (i.e. agreed facts etc). By this process the group begin to re-formulate their work and together they find solutions to the issues and produce an agreed and more effective set of questions.

By the second and third sessions most of the naysayers have been cured of their preconceptions and work begins on the re-drafting of their written submissions for the witnesses Caroline and Rebecca. The focus remains on the 20 POQ however this time there is a brutal reflection on their original work to strip it of repetition or questions which deal with material available from other sources. Re-drafting also looks at techniques such as the proper signposting of questions and, once complete, there is a further consideration of all the proposed questions which, notwithstanding their proper construction, are tested again for relevance. This session, which is conducted in pairs, always sparks the most lively debate and questions from participants and, in the final analysis and discussion of the questions with the wider group this session provokes considered and insightful questions from the participants, who as individuals and as group begin to demonstrate (if they had not already) a real appreciation of the purpose of the course, which is of course to understand the key principles behind the approach to questioning of vulnerable people within the justice system. 

In the fourth and final session the group, having restructured the questions for Rebecca, take part in a role play of her cross examination and whilst I find that this is a reasonably artificial exercise (i.e. lawyers with varying degrees of acting skills role playing a six year old girl!) the process also introduces the group to techniques such as the correct use of props, pace of questioning and the proper use of chronology. The group by this stage are more than prepared to interject, which they are always encouraged to do, especially when they spot an irrelevant or inappropriate question that did not make the cut in the redrafting exercise. 

Importantly by the end of the evening the group participants begin to see that the exercise has a purpose beyond CPD and that the methods we facilitate are a beginning not an end. The clear value in the course for participants is the promotion of good practice and it facilitates an awareness in those advocates to adapt appropriately to what is in front of them, to be mindful of the witness and hopefully to achieve the outcome they seek in a fair and effective way.

In terms of delivery of the course when I first started the Inn agreed to provide external training to the Thames Valley Bar Mess and since then I have lost count of the groups that I have worked with at the Middle Temple, but it is fair to say that the Inn have provided training for a huge number of advocates and extended this to include solicitor advocates. 

Whilst the training by its nature lends itself more obviously to in person group participation, in my view one of the great achievements of the Inn during the pandemic has been to adapt the course for online learning and, during the covid lockdown, the Inn delivered several training sessions remotely thanks to the dedicated staff in the Education Department (Jessica Masai and Christa Richmond). As we emerge from this current crisis I look forward to seeing more participants on the course at the Inn and face more challenges in the case of George Graham.

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