Salisbury, R v [2005] EWCA Crim 3107

[2005] EWCA Crim 3107

Case No 2004/04118/D4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CHESTER CROWN COURT

MR JUSTICE PITCHFORD

T 20037200

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 November 2005

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

MRS JUSTICE RAFFERTY

MR JUSTICE MACKAY

Between

RRespondent

SalisburyAppellant

P V Birkett QC & E Edhem for Appellant

R Spencer QC & A Thomas for Respondent

Hearing Hearing dates : 8 November 2005

Judgment

Lord Phillips :

[1]On 18 June 2004 in the Crown Court at Chester before Mr Justice Pitchford and a jury this Appellant was convicted of two counts of attempted murder and found not guilty on two other counts which charged her with the same offence.

[2]On Count 1 she was acquitted of attempting to murder James Byrne on 18 May 1999. On Count 2 she was acquitted of attempting to murder Reuben Thompson on 14 March 2002. On Count 3 she was convicted by a 10 to 2 majority of attempting to murder Frances May Taylor on 21 March 2002. On Count 4 she was convicted unanimously of attempting to murder Frank Owen on 31 March 2002. On Count 2 the case against her was that she caused the patient to be nursed lying flat on his back, which would have led to congestion in the heart and lungs. In the other counts the allegation was that she administered diamorphine with intent to kill.

[3]The Appellant was a nursing sister of nearly 30 years standing and worked at Leighton Hospital, Crewe on a gastroenterology/general medical ward. She had the care of a number of terminally ill elderly patients. The case against her was that she had deliberately attempted to hasten the end of the natural life of some of them. In Counts 1, 3 and 4 the allegation was that she had used diamorphine inappropriately and to that end. She did not dispute that she had administered diamorphine to May Taylor and Frank Owen shortly before their respective deaths. Her case was that this was done lawfully and in the best interests of each patient. Diamorphine is a painkilling drug which may be used to provide dying patients with relief from pain and stress, though it carries the unwanted consequence of depressing the functions of the heart and lung. It has therefore to be prescribed by a qualified doctor. He or she makes the decision to prescribe it on the basis of or in conjunction with the reports and observations of the patient by the nurses who had care of the patient.

[4]There were three grounds in the Appellant’s perfected grounds of appeal:(a) That the Judge wrongly rejected a submission of no case to answer on Count 3.

(b) That the prejudice of using Count 3 to lend support to Count 4 on the issue of intent “cannot be ruled out as rendering the verdict on both counts unsafe”.

[5]The appellant was granted leave by the Full Court. The first ground now includes the assertion that the submission of no case on Count 4 should also have been allowed. Ground 2 alleges in the alternative that if one count only should have been removed from the jury on the basis of no case to answer, the verdict on the other is unsafe having regard to the direction the jury was given that an adverse finding on one count could support the Crown case on the other. Ground 3 remains, and includes issues related to the training of witnesses for the Crown and disclosure of the fact of their training. No case to answer

[6]The jurisdiction of the Court is familiar. In R v Galbraith

(1981) 73 Cr. App. R. 124

this Court expressed it as follows: “…..where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or because it is inconsistent with other evidence(a) Where the Judge concludes that the Crown evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.

(b) Where however the Crown evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury”.

[7]Helpful and detailed schedules have been put before this Court in which the points for and against the Crown case have been summarised under headings entitled “plums” and “duff”. These words echo the case of R v Shippey

[1988] CLR 767

in which Turner J held that the requirement to take the Crown evidence at its highest did not mean “picking out all the plums and leaving the duff behind”. This much- cited case has been put in its context by this Court in the recent decision of Pryer

[2004] EWCA (Crim) 1163

in which Hooper LJ deprecated what he called resort to the “plums and duff principle”. He pointed out that Shippey itself was a case which depended almost entirely on the evidence of a single complainant whose evidence suffered from internal contradictions and inconsistencies. He treated it as “no more than another case on the facts” and not a case which laid down any principle of law. To be fair to Mr Birkett QC, who presented this appeal, he made no explicit reference to it at all.

[8]The key issue for the jury to consider was whether the Crown had proved that the Appellant had the necessary intent to kill any of these patients. As the Judge was to direct the jury, in a very clear summing up which has not been and could not be criticised,:- “If you are sure … that a deliberate attempt was made to bring forward or to hasten the end of a natural life, the offence of attempted murder was committed. You must be sure both of an attempt and an intention to kill ….You may convict Mrs Salisbury of attempted murder if, but only if, you are sure her real or primary intention was not to provide relief from pain or distress but to hasten death. If you were to conclude that her real or primary purpose may have been to relieve her patient from pain then you could not convict her of attempted murder even if she knew that the effects of what she did might include the hastening of death.” Count 3 - May Taylor

[9]This elderly lady was admitted to Leighton Hospital at around midnight on 17 March 2002 in an unconscious state having suffered her second stroke. Her prognosis was poor. She was 88 years old and her family agreed that she was not to be resuscitated in the event of a cardio-respiratory event. She died on 23 March, just under six days later. Two days before she died the Appellant had set up a device known as a Graseby pump to administer diamorphine.

[10]There were two fundamental bases of the Crown case on this Count. The first was that the Appellant had engineered the prescription of diamorphine by a doctor, which was an essential precondition for its use, by means of providing him with information to the effect that the patient was in pain, which was false to her knowledge. The second basis was that she caused the administration of diamorphine two days later when she knew it was not clinically indicated, and in the face of objections from nursing colleagues. The thrust of the no case submission was that there was insufficient evidence on both these issues, alternatively that such evidence as there was was so discredited or tenuous as to require the Judge to direct the jury to acquit.

[11]As to the first basis of the case against the Appellant, this was said to provide, if proved, strong evidence of intent. It required an examination of the nurses’ observations of the patient between admission on 17March and a ward round by Dr.McKay at 0930 on the 19March, when he wrote the prescription for diamorphine via the Graseby pump. During this period the patient was unconscious and turned by nurses about every 2 hours. The expert evidence called by the Crown was to the effect that with a stroke victim such as Mrs Taylor pain on moving the head or agitation on being turned could be a sign of cerebral irritation. Professor Forrest added that if such a patient showed these signs on one occasion she would be expected to do so on later occasions.

[12]Mrs Taylor was seen on admission by Nurse Collinson in the assessment unit, who tested her for pain and found none. Mrs Taylor’s daughter-in-law visited her the next day and on all following days and her lay view was that she was in no pain. She was admitted to Ward 4 that evening where Nurse Brundrit, on duty overnight, did not note any pain and said if she had thought she needed assistance for it she would have made a note.

[13]On the morning of the 19March the Appellant came on duty and gave the patient a bed bath with the assistance of Nurse Dale, a senior support nurse. This procedure involved the handling and moving of the patient for something up to half an hour and would have been an occasion on which, had she been experiencing the painful effects of her stroke, Mrs Taylor might have been expected to show some sign of pain or discomfort. Dale’s evidence was that she “didn’t make any sound and didn’t seem in any distress at all”. At 0930 the Consultant Dr McKay made his ward round, attended by the Appellant. His House Officer made the notes for him, and wrote “Agitated when turning. Keep comfortable”. Dr. McKay said this would have been based on information coming from the nursing staff, and the Appellant agreed that it would have come from her, though she had made no note of her own to that effect. Dr McKay proceeded to prescribe diamorphine through a Graseby, and said he would not have done this unless he had heard a report of pain or discomfort. Mr Birkett realistically conceded that there was evidence that the Appellant’s assertion was influential at the very least in the doctor’s decision to write the prescription. Equally, he argues, there were other factors in the doctor’s mind, including the apparent nature of the stroke and its likely sequelae.

[14]In the event the Appellant did not take any steps to set up the device immediately, as might have been expected if she thought the patient was in pain. As it was she asked Nurse Gillam, who worked the following shift, to do it for her, saying she had not had time to do it herself. Gillam did not do so, as she saw no signs of discomfort during her shift. At 2115 on 19 March she made a note of her decision, saying it was “ … due to no obvious signs of pain or discomfort”. She told Nurse Darby, the nurse who took over from her; she for her part also formed the view that the patient appeared to be comfortable and did not therefore set up the pump.

[15]The following day, March 20, Nurse Pearson was on the early shift and gave the patient a full bed bath, recording that she seemed comfortable and pain free though frail and poorly. She too did not set up the Graseby. The Appellant was on duty for that shift and took no steps herself to set it up. On the late shift Nurse Gillam again noted that Mrs Taylor’s condition remained the same and Nurse Hassall countersigned the note to that effect. Hassall said that if they had observed pain when turning her at 1800 she would have noted it. Nurse Darby on the night shift made a note “Appears to be comfortable”.

[16]By the morning of the 21 March, therefore, the position reached was that on nine occasions nurses had positively noted an absence of pain, and the only member of the nursing staff to have claimed to have observed any problem to the contrary was the Appellant in her oral report on 19March to the doctor. Furthermore, having obtained the prescription on the basis of that report, she did not act on it herself for the next 48 hours, and other nurses positively rejected the notion of setting up the pump.

[17]On the early shift on the 21 March the Appellant asked Nurse Acton, a bank nurse, to set up the Graseby. She and Nurse Martin went and withdrew the diamorphine from the drugs cupboard to set the Graseby up. They returned to the room where the patient was and discussed with Nurse Dale whether it was right to proceed given Mrs Taylor’s apparent comfortable state. Dale had by now bed-bathed her twice without seeing signs of pain. The three nurses, all sceptical of the need for this strong drug, then tested the patient by turning her to see if this evoked any painful response; it did not. Martin, the senior of the three, was not prepared to set it up and went to tell Sister Pountney as much. The Appellant was there and intervened saying words to the effect of “I’ll do it then”. Pountney described her as “quite adamant that the patient did need it” and said she supported the Appellant as being the senior nurse on duty, whereas she herself had no experience of nursing this patient. She recalled the Appellant as explaining her action by saying “Why prevent the inevitable?” but “not in a malicious type of way”. The Crown portrayed this answer, which was not challenged in cross examination by the Appellant’s counsel, but was denied later by the Appellant herself as not being something she did say or would have said, as capable of being very incriminating evidence against her, evincing at the least a callous indifference towards the life of the patient.

[18]The Appellant went to the side room, where by now Acton was alone with the patient, and asked her if she was happy with what was proposed, meaning the setting up of the pump. Acton agreed, saying in evidence that the doctors would not have prescribed it and a senior sister would not have asked her to do it if it had not been the case that the patient was suffering from some pain. She had not read the previous notes. The Appellant said “She’s not going anywhere”. When the line was inserted in her upper thigh Mrs Taylor flinched and the Appellant indicated that this showed she was in some pain. The nursing expert witness Bowey said that a flinch would not justify diamorphine. The only other event of significance on the 21 March was that in the morning Dr London carried out a ward round, saw the patient and made no note of her being in any distress.

[19]When she gave evidence the Appellant claimed that the need for the diamorphine to be set up was triggered by the fact that the patient required re-catheterisation. The Crown’s nursing expert said this was not a painful procedure for a woman and claimed that it would not require analgesia of any sort, let alone diamorphine. At all events the Graseby was set up at 1135 on 21 March and was re-primed at 2300 on 22March. Mrs Taylor died at 0115 on the 23 March. After setting up the pump the Appellant had played no further part in the care of Mrs Taylor.

[20]Based on this evidence the points made by the appellant are these, with the answers of the Crown to them.

[21]First it is stressed that the prescription for diamorphine was made by an experienced Consultant who had the patient in front of him and must have exercised his professional judgment. But Dr Mackay was asked whether he would have done so had there not been a report to him of discomfort, and said he would not. There was no question but that such a report came from the Appellant. No doctor in this case ever saw discomfort for himself. Mr Birkett’s concession recorded above at paragraph 13 above comes close to disposing of this point.

[22]The absence of a note by the Appellant recording her finding of agitation is not sinister, and may be explained by the fact, as emerged in evidence, that busy nurses do not always have time to make such entries. In fairness the Judge directed the jury not to attach too much weight to this failure. The Crown, however, relied on the positive evidence of notes made by the witnesses to the effect that there was no pain, as well as their recollections of this particular patient which were to the same effect. The jury might also be impressed by the lay evidence of the daughter-in-law who knew the patient well.

[23]None of the other nurses who were in charge of the patient saw fit to remove the Graseby as being unnecessary. Of these Darby gave positive reasons for her failure to do so even after she had noticed the laboured breathing of the patient at the last.

[24]Other nurses, it is said, did not take steps to prevent the hastening of the end Mrs Taylor’s life, if that is what it was. But the narrative above shows that some did; on both the 19th and 21st. Martin maintained her refusal to put the Graseby up and only the junior nurse Acton was prevailed upon, believing that Dr London on his recent ward round must have sanctioned it.

[25]The remark about not preventing the inevitable was said in terms by Pountney, who heard it said, not to have been “malicious”, merely as underlining her certainty that the drug was needed. But Pountney had no day to day responsibility for the patient, had to rely on the ward sister, and “the inevitable” can only have meant death. It was for the jury to construe this remark in context. Pountney had also used this word in the context of remarks made by the Appellant about Frank Owen, and this may have helped them put a sensible construction on it.

[26]The drug was prescribed in a low dose (15mg.); if the Appellant had an intent to kill she would surely have exaggerated her report of pain so as to procure a higher prescription. But Dr McKay did describe even this low dose as having the potential to shorten life by “a day or two”. Diamorphine is a powerful and dangerous drug, and if she had the intent alleged the Appellant might have anticipated that her false report of agitation only as opposed to worse pain might only have been met with a prescription for a less powerful analgesic.

[27]The delay in setting up the Graseby is inconsistent with an intent to kill, as is the failure to “boost” the supply of the drug. It was the case that the Appellant in practice encountered opposition from other nurses, which she may not have anticipated, say the Crown.

[28]Observation of pain in an unconscious patient is a subjective assessment and very difficult. Pain is not necessarily continuous. But the majority of those who noted the absence of pain were nurses of long experience, and all were making a point of looking out for it. The stroke expert Hendre said that if this stroke had been such as to cause pain it would have been continuous and very uncomfortable. He would have expected agitation if displayed to be repeated on subsequent occasions, though the condition can fluctuate quite markedly. Though Dr McKay said that a right parietal stroke was the most serious and painful type, the expert said that pain resulted in a relatively small percentage of cases.

[29]In argument before us Mr Birkett summed the matter up in this way: that the medical evidence supported the proposition that pain was likely to have been manifested as the patient moved from the acute to the rehabilitation stage; this would have coincided with the Appellant’s claim of agitation observed on the morning of the 19March; haemorrhagic stroke does cause cerebral irritation which would be evident especially if the neck was flexed and the head moved. This he says totally supports the “real possibility” that this patient was agitated on turning. These signs are subtle and may require an experienced eye to detect.

[30]In a case such as this it is necessary to stand back, as the Judge did, and form a view as to the overall picture at the end of the Crown case. The impression the Judge said he had formed was that the defence submissions had raised questions of fact for the jury to decide, but the Crown had established a case to answer. We agree with this assessment. It was not necessary at the close of the Crown case for the Judge to consider whether the evidence so far disclosed was such that there was only one inference the jury could properly draw from it. Whether there is only one inference is for the jury and not the judge to decide – see Jamieson

[2003] EWCA Crim 3755

at paras.46-49. In our judgment there was sufficient evidence from which such an inference could have been drawn, it could not be described as either tenuous, discredited or at all weak, and the judge was right to rule as he did. Count 4

[31]The issue for the jury was summarised by Pitchford J as:

“Did the Defendant when she administered either or both diamorphine injections to Frank Owen on 31st March 2002 attempt to hasten his death with intent to hasten his death?”

[32]Frank Owen, born in 1909, had been admitted to the appellant’s ward on 3 January 2002, and had suffered a stroke. He developed infections whilst on the ward, and had difficulties with eating and drinking, but had been relatively pain-free. In the first two and a half months of his stay, he only occasionally required co-codamol (an over-the-counter analgesic) and from mid-March consistently refused it. The Crown’s case was that the appellant became increasingly frustrated with his presence on the ward, pressing unrealistically for his discharge to a nursing home, despite his requiring intravenous feeding.

[33]During the night of 23/24 March he became dehydrated and Dr Shakshir directed that fluids be recommenced. When Nurse McNally explained this on hand-over next morning the Appellant said “He’s 91 for God’s sake, he’s not going to make it anyway”

[34]On the night of 28/29 March, he was given two injections of diamorphine, the “As Required” prescription written up by Dr Akinsoji permitting nursing staff to administer the drug when the patient showed obvious pain. Mr Owen was not seen again by a doctor after the prescription was given. The nursing notes for that night recorded that he had been in pain when being moved, and a small sacral sore was observed.

[35]The Akinsoji prescription did not in itself justify the Appellant’s administering diamorphine 2 days later. Rather, the issue for the jury was whether such a need existed in the morning of 31 March. The Crown relied upon evidence from the nurses who attended him over the last 3 days of his life.

[36]By the evening of 29March, the notes record Mr Owen as “settled and comfortable” and during the night of 29/30March as “settled and pain free”.

[37]On the morning of 30 March he was noted as seeming “comfortable and pain free on movement”. For the next shift Nurse Colclough confirmed that he had been pain-free.

[38]The night nurse Nurse Thompson on 30/31 March wrote “no changes to report overnight”.

[39]On Easter Sunday, 31 March 2002 after a period of sickness the Appellant came on duty for an early shift to find him still on the ward occupying a side room.

[40]To Nurse Thompson she said “What’s he still doing here?” and to Nurse Graham “I can’t believe he’s still here” the suggestion being that she was surprised and annoyed. At the handover, when Nurse Thompson told the Appellant that Mr Owen had been pain-free overnight and had not required analgesia the Appellant replied “I’ll make sure he gets something this morning”.

[41]Mr Owen was conscious when at about 8.00am he was given a bed bath by Student Nurse Wendy Graham and HCA Nicky Harding, a procedure which involves turning the patient several times and is a well recognised opportunity to identify pain. Neither saw any sign of pain or discomfort. During it the Appellant came in and told them “Lie him down flat and with any luck his lungs will fill with fluid and he will die”, adding “He’s going stiff already”. They did not obey. In evidence the Appellant denied saying those words.

[42]Wendy Graham had been so shocked that, unaware that Mr Owen had died, the same day she wrote an account of the events, thus: “Today I witnessed something I hope I will never encounter again.It involves a lovely man whom I have looked after since the beginning of my placement. Today Sister Salisbury was in charge. Just as myself and Nicky were to commence bed bathing the gentleman, Sister Salisbury came into the room and said: ‘Why is this man still being nursed sat up? When you have finished bed bathing him, lie him down flat. With any luck his lungs will fill with fluid and he’ll die’. Nicky and I looked at each other in disgust and disbelief at what we had heard. We said nothing at that time. We made the gentleman comfy and placed two pillows under his head. We did not lie him flat. My emotions at the moment are mixed. Why somebody of Sister Salisbury’s status could even contemplate speaking like that. I have seen the gentleman lying there since it happened this morning. I know he was for TLC, and up to that point had received excellent care. I couldn’t stop thinking the last thing to go is a person’s hearing. Did he hear her? Please say he didn’t”.

[43]Harold Owen was with his father from late morning onwards and his father did not seem to him to be in any pain.

[44]At 0850 the appellant accompanied by Nurse Brundritt gave Mr Owen an injection of 2.5mg diamorphine. The Crown’s case was that since there was no clinical need for it and in the light of her comments, it was given for the purpose of hastening his death. She made what was alleged to be a false entry in the nursing notes timed at 0850 to explain the injection, writing “Full wash given, patient in pain on moving”.

[45]After his death, it was discovered that the intravenous drip had not been changed that morning and that it had inexplicably been switched off. The inference suggested was that the Appellant had abandoned the fluids knowing that she had set death in train with the injection.

[46]The second injection of 2.5 mg diamorphine at 1250 was preceded by a further comment by the Appellant to Nurse Brundritt: “You know that Lizzie won’t give him any”, a reference to Nurse Crabtree, who was coming on duty in the afternoon. The evidence was that Mr Owen had not been in any distress or discomfort prior to this injection. There was no sign of any pain, discomfort or agitation when the Appellant and Nurse Brundritt went to give the second injection and by now Nurse Brundritt was troubled, telling the jury “I wasn’t happy about it. I just didn’t think that it was needed.” but did not feel able to challenge the authority of the Appellant whom she described as unapproachable and intimidating. Mr Owen died at 3.15 pm

[47]Apart from the Appellant, the only witness to suggest that there might have been some discomfort was Nurse Brundritt, She said that Mr Owen had seemed “in quite an agitated state” when they entered the room for the first 0850 injection, so that she did not challenge its propriety. A few minutes earlier Mr Owen had been conscious when the Appellant had suggested he be laid flat in the hope that he would die, so that when she returned soon afterwards with a hypodermic syringe his agitation was unsurprising. By that stage, however, the Appellant had already decided to give the injection, unaware of the state in which she would find him.

[48]A few days later Sister Pountney had a conversation with the Appellant about whether Mr Owen had died comfortably. The Appellant said “Yes. Thanks to me. When the night staff went off duty he deteriorated but they hadn’t given him anything. So I gave him something. I saw who was on a late duty and knew he would get nothing else, so I gave him another dose and that did the trick. He died at 3 o’clock.” Sister Pountney was to stress the absence of “malicious intent”. The Appellant told the jury:

“I wouldn’t have said the words quite like that. I wouldn’t have said: ‘It did the trick’. I would have said: ‘He died pain-free and with dignity’.”

[49]The sequence of events on 31 March coupled with the Appellant’s comments at the time and subsequently, provided compelling evidence from which the jury could infer that her real purpose and intent that day was to end Frank Owen’s life.

[50]Grounds of Appeal now advance the proposition that the judge should have withdrawn from the jury Count 4 as lacking the sole inference that the appellant’s intention was to hasten death and that she succeeded, in the same way as has been urged as to Count 3. As we have made plain in respect of Count 3 and for the same reasons we reject that argument.

[51]A number of witnesses spoke of the adverse effects of diamorphine, particularly in frail patients whose breathing is already compromised.

[52]Professor Forrest, an expert, confirmed that a 2.5 mg dose of diamorphine would, on the balance of probabilities, have hastened Mr Owen’s death. The Appellant herself knew the effect which diamorphine would have if administered inappropriately.

[53]If the Appellant did use the words recalled by Sister Pountney - including the reference to seeing who was on a late duty and knowing that no diamorphine would be given - it was important evidence of the Appellant’s true wish to hasten Frank Owen’s death.The conviction on Count 4, like the conviction on Count 3, could only be unsafe if there were no sufficient evidence to justify the inference of an intent to hasten death. The circumstantial evidence was powerful. The contemporaneous written note of Student Nurse Wendy Graham was compelling. The comments made by the Appellant to nursing colleagues before, at the time, and after the event were evidence upon which the jury was entitled to rely as proving the Appellant’s state of mind at the time the diamorphine was administered. It was entitled to reject the Appellant’s own account and to prefer the mutually corroborative accounts of the various witnesses.

[54]The judge was correct to reject the submission at the conclusion of the case for the Crown, the jury was entitled to return a verdict of guilty and the conviction is not unsafe. The Training Course

[55]That certain witnesses were to attend and subsequently attended a training course on the giving of evidence was not until Day 1 of the trial disclosed to the defence. In hindsight, as the judge clearly concluded in his ruling, such limited information as the Crown possessed should have been disclosed.

[56]The defence applied to have the evidence of all witnesses who attended the training course ruled inadmissible under PACE s. 78, alternatively for the proceedings to be stayed on the grounds of abuse of process.

[57]The Court heard on the voir dire oral evidence from inter alia Sally Hatfield (counsel specialising in medical law and clinical negligence, who conducted the course), and Detective Sergeant Alan Segrott (Officer in the Case).

[58]The judge gave a lengthy and fully reasoned ruling entirely in accordance with the principles subsequently confirmed by the Court of Appeal in R v. Momodu and Limani

[2005] 2 Cr.App.R. 6

. and in the unreported case of Ultraframe v Fielding

(2003) EWCA Crim 3755

[59]The sole point upon which Mr Birkett QC sought to rely was the non- disclosure. It is thus unnecessary to consider in detail the content of the course. In brief, it was as the judge concluded an exercise more accurately entitled “witness familiarisation”. It became clear during the limited cross-examination of witnesses who had attended the course that nothing untoward had taken place and that a warning in the most forceful and appropriate terms was sounded about the impropriety of discussing evidence. There was no question of any witness having a copy of his or her witness statement to study or pass around before the trial. Stringent arrangements were made for witnesses to read their statements a day or two before they came to court, in controlled conditions.

[60]There is no challenge to the learned Judge’s ruling on the issue following the voir dire. A model of clarity and balance, it included the following comments: “24. In my view, the attendance of Crown witnesses upon a witness training course, whatever its title, was without question a matter for disclosure to the defence well before the trial. … I agree that the defence would have been entitled to raise their anxiety before me at one of the pre-trial hearings held in February and March 2004. It is unfortunate that such limited disclosure as could be made was not made at a much earlier stage in these proceedings. I am quite satisfied, however, that no-one on the Crown side sought to take advantage of the defendant. … 25. If, however the defence had been in a position to raise that anxiety, my power to intervene would have been limited. I could only have expressed a strong view whether the course content was suitable. I could not have prevented the witnesses’ employers providing such training to their employees. At trial my task would have been, as it now is, to judge whether the evidence of those witnesses should be excluded under section 78.26. The question I now have to resolve in considering both of Mr Birkett’s submissions is whether an unfair advantage has been obtained by the Crown or an unfair prejudice suffered by the defendant. In my view, it manifestly has not. As soon as the Crown were alive to the ramifications, full disclosure was made and the matter aired in the voir dire. It transpires that the course was designed to avoid the risk of an accusation of witness coaching.

27. There is, in my view, a difference of substance between the process of familiarisation with the task of giving evidence coherently and the orchestration of evidence to be given. The second is objectionable and the first is not.

28. The course was delivered by a member of the Bar I judge to have been well aware of the implications. She took pains to ensure that any witnesses who attended her courses knew of the possible consequences of collusion and she forbade it. No attempt was made to indulge in application of the facts of this case, or anything remotely resembling them. True it is that witnesses would have undergone a process of familiarisation with the pitfalls of giving evidence and were instructed how best to prepare for the ordeal. This, it seems to me, was an exercise any witness would be entitled to enjoy were it available. What was taking place was no more than preparation for the exercise of giving evidence. No-one engaged in special pleading with a view to gaining any expertise beyond the application of sound common sense.

29. I do not accept that this training, if that is the correct description, was capable of converting a lying but incompetent witness into a lying but impressive witness. Having considered the course content in some detail it seems to me the witnesses can have gained only a rudimentary understanding of what was to come and received no coaching in how to lend a specious quality to their evidence. What they would have received was knowledge of the process involved. It was lack of knowledge and understanding which created demand for support in the first place. Acquisition of knowledge and understanding has probably prepared them better for the experience of giving evidence. They will be better able to give a sequential and coherent account. None of this gives them an unfair advantage over any other witness. Although ease of manner or confidence in the witness box, if it exists, may be a matter for consideration by a jury, it does not seem to me that the ultimate judgment whether the witness is credible or reliable will depend upon such considerations. In so far as they may, Mr Birkett now has available all the material he needs to warn the jury against complacency. In my judgment, the process of the trial itself will deal satisfactorily with any disadvantage to which the defendant has been put. “

[61]In R v Momodou and Limani (supra)

Judge LJ held as follows:

“48. There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for Crown or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See Richardson [1971] CAR 244; Arif, unreported, 22nd June 1993; Skinner [1994] 99 CAR 212; and Shaw [2002] EWCA Crim 3004.) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”

. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited. 49. This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. … The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.”

[62]We have considered whether, having regard to this guidance, the witness training that took place in the present case was open to objection. We have concluded that it was not. There is in our judgment no force in the complaint that non-disclosure contributes to the convictions upon these two counts being unsafe.

[63]For the reasons that we have given, this appeal is dismissed.