Holly examines how questions in advance can help legal professionals and their clients.
At the vast majority of Ground Rules Hearings, both in criminal and family cases, Communicourt intermediaries request questions in advance. This practice involves all advocates submitting their intended questions for the respondent, intervenor, witness or defendant to the intermediary in advance of the service user’s evidence.
There are some common objections to the practice, which include the time demands it places upon advocates and concerns regarding the confidentiality of questions. However, in many cases, this measure (which ensures all questions remain strictly confidential) has a considerable positive impact upon service users’ ability to give their best evidence.
In this post, we’ll be taking a closer look at questions in advance, exploring how the process works and why it often assists individuals with communication difficulties.
What are questions in advance?
Questions in advance are frequently raised by intermediaries at Ground Rules Hearings. This measure is widely discussed in guidance and practice directions regarding vulnerable witnesses. Section 5.5 of the Family Practice Directions (3AA), for example, states, “The court must consider whether to direct that […] questions or topics to be put in cross-examination should be agreed prior to the hearing”.
Section 3 of The Advocate’s Gateway: Toolkit 1: Ground Rules Hearings and the Fair Treatment of Vulnerable People in Court, provides helpful information regarding questions in advance. This resource writes, “It is reasonable for judges to ask advocates to write out their proposed questions for the vulnerable witness and share them with the judge and the intermediary (where there is one): ‘So as to avoid any unfortunate misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance.’ (R v Lubemba; R v JP  EWCA Crim 2064, para 42)”.
The Advocate’s Gateway goes on to list a number of clear rules which should apply to this special measure, including:
- questions provided to the intermediary are strictly confidential and not to be shared or “telegraphed” to any other professional, party or the service user
- the provision of questions in advance is a matter for the judge who will consider whether approving this measure is in the interests of justice
- the judge has ultimate responsibility for determining the appropriateness of a question, but may be assisted by information from an advocate or intermediary in doing so
How do questions in advance work?
When questions in advance are agreed at a Ground Rules Hearing, a Communicourt intermediary will typically request that they are provided no later than 48 hours in advance of the service user’s evidence. This will allow sufficient time for the intermediary to review questions and provide feedback to all advocates. Questions are generally requested from all advocates who plan to question the service user.
Once received, the intermediary will review questions, drawing from the service user’s intermediary report (which will include recommendations regarding question style), their experience of the service user (who the intermediary may have spent considerable time with during proceedings), case notes written by previous Communicourt intermediaries and any other information which may be available (e.g. cognitive assessments).
The intermediary will augment each set of questions, providing suggestions for rephrasing, alongside a rationale for any changes. The following fictitious example with Ms X may provide an insight into this stage of the process:
On Sunday evening 8th June 2018 you all had dinner together?
This question is phrased as a statement which is advised against in the intermediary report. It contains time concepts , which may prove challenging for Ms X. This could be rephrased as:
On the day Child A went missing, did you all have dinner together?
Then the children had a bath, then Child B FaceTimed her mum, Is that right?
This is a tag question appended to a multiple part assertion. These question types are advised against in the intermediary report. This could be rephrased as follows:
What happened after dinner?
When did Child B FaceTime her mum?
Was it before or after the children had a bath?
The intermediary may add comments including suggestions regarding how to assist communication when:
- asking a question containing time and date concepts
- referring the service user to written information
- the service user has expressive communication difficulties
- the service user has difficulties with attention
Rephrasing question types the service user may not understand or may have difficulty responding to with clarity, including:
- tag questions
- interrogative statements
- questions containing negatives
- multiple part questions
- lengthy questions
- questions preceded by preamble
Or they may suggest simplification of questions containing vocabulary the service user may not understand.
The reviewed questions will then be returned to the relevant advocate. If any queries arise upon receipt of suggested rephrasing, the intermediary will be happy to assist advocates for all parties, as their role is neutral and simply to facilitate best practice communication with the service user.
Reviewed and, in some cases, simplified questions can then be put to the service user during their evidence. During evidence, additional questions may arise. In this situation, advocates can apply feedback from the reviewed questions or the intermediary can monitor new questions as they are put to the service user and intervene if they may be too complex.
The advantages of questions in advance
The key advantage of implementing this practice is that it reduces the risk that questions which may pose difficulty to the service user will be put to them. Although an intermediary can intervene when potentially problematic questions are asked, this approach can disrupt the flow of evidence and requires the service user to process the original complex question, the intervention and the new, simplified question – thus increasing the cognitive demands upon them.
It is often challenging for an intermediary to intervene rapidly enough to prevent a service user answering a complex question which they may not have fully understood or may have difficulty answering clearly. This means the service user may need to answer both the original question and the simplification, which can ultimately increase confusion and impact the clarity of their evidence. It can also increase anxiety for the service user if the intermediary has to intervene after a question, they may assume they have made a mistake and find it harder to continue with the process.
The provision of questions in advance often markedly reduces the need for intermediary intervention during evidence and helps to ensure that questions are put to services users in their simplest form on the first occasion, assisting them to give their best evidence in a clear, smooth and timely manner.
Common objections to questions in advance
While many judges and barristers are very happy to order questions in advance and provide these to an intermediary, a few common queries and objections arise:
- Will questions be shared with the service user?
The intermediary’s duty is inherently to the court. All questions received from all parties are kept strictly confidential and are not to be seen by any other party, including the service user or their legal team. The intermediary will not notify the service user of any questions, topics, themes or areas of questioning which may arise, and will not in any way ‘prepare’ them to answer questions.
- Counsel are experienced and are familiar with the Advocate’s Gateway
Although many advocates are highly skilled at questioning individuals with communication difficulties, the demands of examining a witness while also carefully monitoring each question for complex syntax, features and vocabulary are considerable. The practice of writing questions in advance to undergo intermediary review can assist all advocates.
- The demand upon counsel’s time is too great
Requiring counsel to provide questions in advance certainly adds to advocates’ already considerable workloads. However, by minimising the need for intermediary intervention and the risk of difficulties arising during a service user’s evidence, an overall time-saving stands to be made by the court. If advocates have limited time to provide questions in advance, it may be helpful to agree for a smaller selection of sample questions to be provided. This will ensure there is opportunity for the intermediary to provide feedback on the structure and framing of questions, while reducing the demands placed on counsel.
- Will topics in advance suffice?
At some ground rules hearings, topics in advance are suggested as an alternative to questions in advance. Although a list of topics in advance may assist service users with attention difficulties (who may benefit from resources such as ‘topic cards’ to remain focussed), they do not allow the intermediary to provide feedback on the structure of questions or the vocabulary they contain. Rather than topics in advance, a small selection of sample questions (as above) is often a more helpful alternative.
The question of whether to order questions in advance can be a challenging one for judges keen to strike a balance between making realistic demands of busy advocates, while assisting service users to give their best evidence. From an intermediary perspective, the practice is almost always worthwhile, resulting in smoother evidence which allows service users the best opportunity to attend to, process and respond clearly to questions in the first instance, thus saving the court time overall.