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The Advocate ’ s Gateway

The Advocate ’ s Gateway. Penny Cooper & Leslie Cuthbert iIIRG 6 th Annual Conference, Maastricht 4 th July 2013. 40 minutes.

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The Advocate ’ s Gateway

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  1. The Advocate’s Gateway Penny Cooper & Leslie Cuthbert iIIRG 6th Annual Conference, Maastricht 4th July 2013

  2. 40 minutes • iIIRG obviously knew that there were 2 lawyers talking to you and knowing how lawyers never stick to time we have been given 40 minutes instead of the usual 20!

  3. Professor Penny Cooper • Professor Penny Cooper from Kingston University is chair of the Management Committee of: • The Advocate’s Gateway

  4. This is me

  5. What is it?

  6. What’s the purpose? • Research based best practice guidance on questioning vulnerable witnesses and defendants • It’s not just for advocates - academics, researchers, police officers, intermediaries, judges etc. • Leslie will take you on a tour shortly – we launched it on 26th April 2013 but first Penny will explain how it all began…

  7. Once upon a time in 2002 • The government decided that it would implement section 29 of the Youth Justice and Criminal Evidence Act 1999 for witnesses (not the accused, see Cooper & Wurtzel, 2013) • The Intermediary: to communicate to the vulnerable witness, 'questions put to the witness, and to any persons asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question‘ • Under 18/physical or mental disorder/ significant impairment of intelligence and social functioning/ physical disability or disorder

  8. 2002 • The Home Office found a former practising barrister with a specialism in child abuse cases, witness preparation, expert witness evidence and designing courses who worked at a University (Penny) • ‘Can you design a program to train intermediaries’? ‘We will recruit communication experts and we want you to teach them about the criminal justice system. If they pass we will call them Registered Intermediaries and supply them with cases.’

  9. What happened next? • 2003 The first cohort ‘graduated’ • 2007 The scheme was rolled out nationally (evaluated by Plotnikoff & Woolfson, 2007) • 2009 First survey of intermediaries (Cooper, 2010) – no ground rules in half of their cases • 2010 Intermediaries started to get mentioned in CA and SC • 2011 The Advocacy Training Council ‘s ‘Raising The Bar’ report said advocates need better training and advice

  10. We already knew some questioning was a disaster • Many studies of lawyers’ questioning (e.g. Bull, Plotnikoff & Woolfson…) • Intermediaries were sharing their experiences including anonymously on their secure on line forum • At development days they shared case studies • In published articles (O’Mahony etc) • We knew the Lord Chief Justice of England and Wales got it – and he also told people on the other side of the world in a speech in Australia in 2011, but what about the advocates…

  11. Real example from Triangle • Cross-examination of a seven year-old who had given an account of the rape of her five year-old sister on the bottom bunk bed while she was on the top bunk: •  Q: ‘When you say you saw this happening, it was night-time, wasn’t it?’ [tagged question; rephrase requested by the RI; judge agreed] • Q: ‘Was it daytime or night time?’ • A: ‘A little bit day a little bit night’ • Q: ‘Well was it light or dark outside?’ • A: 'Dark' • Q: ‘Was there a light on in the room?’ • A: ‘No’ • Q: ‘I put it to you that because of the absence of light in the room, it was not possible for you to have seen what you say you saw, was it?’ [long and complex question; rephrase requested; judge agreed] • Q: ‘I put it to you that you did not see X doing any of those things, did you?’ [negative and tagged question; rephrase requested; judge agreed]

  12. Continued… • Q: ‘Did you see X doing those things?’ • A: ‘X was doing those things. I did know’ • Q: ‘But if as you say it was dark outside, and if as you say there was no light on in the room, it would not have been possible for you to see what was happening on the bottom bunk, would it?’ [judge tells the advocate to ask one question at a time] • Q: ‘If it was dark, you could not see what X was doing, could you?’ [negative tagged question, rephrase requested, judge agreed] • Q: ‘How did you know what X was doing?’ • A: ‘Well, X was doing the willy in the private thing to her, so the bunk beds were going like this’ [child shows with hands, up and down and side to side]. Jigging’ • Q: ‘Jiggling?’ • A: ‘Jigging. Her bed was jigging so my bed was jigging’.

  13. Why do we still get that sort of questioning by advocates? • Most vulnerable witnesses and defendants do not get an intermediary • Not a requirement that advocates are trained for questioning vulnerable witnesses • ‘Only ask leading questions’, ‘Never allow the witness to explain’ (Hampel, Brimer and Kune, 2012, Advocacy Manual)

  14. Cooper, Plotnikoff and Woolfson got tired of this, so in 2012… • Writing materials for a prototype site hosted by my former University (was City now Kingston) • Launching it in front of top judges and barristers at The Nuffield Foundation • Creating an inclusive committee (‘hearts and minds’), Cooper chairing • Getting to know and partnering with The Advocacy Training Council who then funded the building of a proper website • Getting founding sponsors • Getting grant funding • Writing about it (peer-reviewed and practitioner)

  15. 2013 • Launched by the Attorney General on 26th April • In June 2013 • Cited in the Home Affairs Select Committee report on child grooming • Advised as a reference source for CPS prosecutors • Grant funding confirmed last week for more ‘toolkits’ - Leslie leading on ‘mental disability’

  16. theadvocatesgateway.org • Best way to convince you is to go there and show you.

  17. What next • Four new ‘toolkits’ • Deafness • Mental disability/disorder • Remote live-link • Screening for ‘hidden’ disability • Updating existing toolkits • Looking for research partners • Funders (more bidding to be done) • More sponsorship • p.cooper@kingston.ac.uk • Leslie.cuthbert@iiiltd.com

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