Court and Legal Skills by Penny Cooper

Author:Penny Cooper [Cooper, Penny]
Language: eng
Format: epub
Tags: Children, Family Law, Social Science, Social Work, Law, General
ISBN: 9781137361578
Google: nj6ICgAAQBAJ
Goodreads: 22561173
Publisher: Palgrave Macmillan
Published: 2014-10-24T07:48:56+00:00

The ruling in R v D(R) is not binding on other courts and until Parliament or a higher court (the Court of Appeal or the Supreme Court) sets down guidance it is uncertain how a court would respond to a request from a witness, including from a social worker, to give evidence in a niqaab. If the issue is raised with the court in advance it is hoped that suitable adjustments would be made. In Re S (Practice: Muslim Women Giving Evidence) [2007] the witness was a 21-year-old woman who was seeking to have her marriage annulled on the basis that she had been forced into it. She had concerns about removing her full face veil in order to give evidence but the court wanted to see her face to assess whether she was telling the truth or not. The judge was female but one of the lawyers was male. The hearing went ahead with the witness removing her face veil because the entrance into the court was monitored to ensure that any man entering would be stopped and the male lawyer was screened from seeing the witness without her face veil by means of ‘a large umbrella’.

It is normal to feel anxious about the prospect of giving evidence. In 1949 Lord Denning, one of the most famous English judges ever, wrote: ‘When cross-examination is properly conducted, it is not only not unfair to the witness, but it is a most valuable instrument in ascertaining the truth.’ Alex McBride said in his book about life as a criminal barrister (2011) that barristers agree that: ‘[Cross-examination] is beyond doubt the greatest legal engine ever invented for the discovery of the truth.’

Cross-examination is when the court can evaluate how the witness responds when their evidence is challenged. Does the witness remain certain? Does he change his mind? Does she say that she can no longer remember that well? Does he get defensive? No judge expects a witness to have a perfect memory of events that took place a long time ago, in fact they might think it suspicious if a witness claimed a perfect memory.

In Ultraframe (UK) Ltd v Fielding (2005) the judge noted that witnesses were:

being asked to remember events that had taken place up to seven years previously. It did not surprise me that some of the witnesses had only vague recollections of meetings, and some had no real grasp of dates. [20]

A judge might not look so kindly upon a social worker who in their professional role should be making records of relevant events. When faced with the prospect of giving evidence a social worker must prepare thoroughly for court. Preparation starts with a thorough review of the case notes and making the statement using those records. Uncertainty about service user details or vagueness about what happened when might mean the judge or jury decides not to place any or much weight on what you say.

Scientists are beginning to challenge the theory that cross-examination is a great tool for getting to the truth.

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