Episode 31: 'I swear to tell the whole truth’ - PART 5

Author: Eoghan Colgan @eoghan_colgan
Special Guests: Sheriff Andrew Cubie, Dr David Parratt QC, Moira Orr (Procurator Fiscal)

10/04/19


Listen

Podcast _ courts5.png

Guest Bios

SHERIFF ANDREW CUBIE

Sheriff Andrew Cubie graduated with a First Class Honours degree from the University of Glasgow. He was a solicitor in private practice in Glasgow from 1987, specialising in civil court work, with emphasis on family law. He was appointed as a Temporary sheriff from 1997-1999. He was admitted as a Solicitor Advocate with rights of audience in the Court of Session in 2001. During his time in private practice he taught civil procedure at Strathclyde University and the Glasgow Graduate School of Law. He devised and taught an in-house course for the Scottish Legal Aid Board.

Sheriff Cubie was appointed as a permanent Sheriff from 2003. Initially an all- Scotland Floating Sheriff, he was a resident Sheriff at Stirling from December 2004 to June 2010 when he moved to be one of the resident Sheriffs at Glasgow Sheriff Court. He has contributed regularly to judicial training and has lectured to, amongst others, local faculties, reporters to the children’s panel and medical professionals. He sits on the council of the Sheriffs’ Association and on the UK Judicial Pensions Committee. He has contributed articles to a number of publications including Scots Law Times, Scottish Criminal Law and Benchmark, the newsletter of the Judiciary of England and Wales. He contributed to MacPhail on Sheriff Court Practice in 2006. InSeptember 2010 his textbook on “Scots Criminal Law” was published.

Dr David Parratt QC

d-parrat.png

David has a wide ranging practice covering many different aspects of civil law. He is particularly strong in the areas of land law construction, trust work, general commercial work and contract.

He has a keen interest in international commercial arbitration and has practical experience of various forms of alternative dispute resolution including arbitration, adjudication and mediation. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), holds Chartered Status and is a Board Member of the Faculty's Dispute Resolution Service.

He has lectured in Arbitration in the Universities of Dundee, Dubai and Aberdeen and is peer appointed as an arbitrator onto many international panels.

David has prosecuted in the High Court of Justiciary, appeared in Outer House and led as counsel in the Inner House. He has also appeared before the Sheriff Courts, before the sheriffs principal, the Scottish Land Court and the Scottish Lands Tribunal.

David also has rights of audience in other jurisdictions having called to the English Bar (Lincoln's Inn) in 2009 where he is a member of Crown Office Chambers as well as the Bar of Northern Ireland in 2016.

Since 2012, he has held the position of Director of Training and Education, being responsible for the training of intrants on the Faculty's 9 month training programme.

Moira Orr

Procurator Fiscal, Glasgow


Show Notes

This is the fifth and final episode in a multi-part series on the interface between healthcare and the legal system. We aim to cover all the main essentials including:

  1. the structure of the legal system

  2. how to provide statements and prepare for court

  3. conduct within court (and what to expect)

We have 3 incredible guests giving expert advice for health professionals called to court.

This episode covers the giving of testimony in court - who will ask questions, what they will ask (and how they will ask it) and how to conduct yourself appropriately.


Take Home Points

Giving testimony

  • Whoever has called you as a witness will ask questions first - typically the Prosecution

    • you will be guided logically and carefully through your involvement with the case

    • you will be asked to clarify or explain any medical terms for the jury

  • The Defence will then put propositions to you that are consistent with the clients position (alternative explanations etc)

    • you can agree, disagree or state you are unable to answer if you do not know

    • If more than 1 accused then each legal representative can ask questions (can be lengthy)

  • Re-examination - the party that called you has two opportunities to speak

    • this is limited to matters raised curing the defences cross-examination only

  • You are likely to be asked to provide some opinion which should be within your means:

    • is the injury consistent with the mechanism described? etc

    • but if you do not feel comfortable or experience to answer then don’t

Type of questioning

  • Examination in Chief:

    • Typically ‘open questions’ - e.g. “what, where, why, when, describe for me, ca you remember?”

    • You cannot be led or shaped in any way, they are simply defining your testimony

  • Cross-Examination:

    • your credibility and reliability are being tested

    • typically ‘closed leading questions with a tag’ - e.g:

      • “your name is _____, isn’t it?”

      • “you’re wearing a red tie, aren’t you?”

    • However this is changing

  • Beware of Leading Questions e.g. “would you agree that……”

    • be very careful that you agree in full with the proposition

    • if not then you can disagree with the

Understanding the Question

  • be sure that you understand the questions being asked of you - they can be poorly worded or ambiguous

    • you need to be sure of the evidence being sought from you before you answer

  • take time to refer to the notes if you need to

    • ask the sheriff or judge to give you time to look at them if you require it

Advice on Answering Questions by David Parratt

  1. Listen carefully to the questions

    • if you don’t understand then seek clarification - turn to judge and say that you don’t understand

      • Or ask for clarification if the question is ambiguous

    • you will never be expected to answer a question you don’t understand

  2. Take your time

    • don’t feel compelled to answer quickly

    • take 1 or 2 seconds to consider your answer: this looks thoughtful and considerate

  3. Speak slowly and have appropriate pauses

    • aids assimilation and allows everyone to digest what you say

    • appears thoughtful and considerate

  4. Don’t ramble on

  5. Beware of the ‘Power of Silence’

    • a technique used by lawyers

    • using silence and non-verbal communication to get you to continue speaking

    • if you have finished then stop and use power of silence back at them

  6. Don’t feel in any way bad about saying you don’t feel comfortable answering a question

    • they may even flatter you and entice you to answer but don’t fall into trap

Credibility and Reliability

  • Credibility - the assessment of whether you are telling the truth or not

    • highly unlikely to be challenged from a professional witness

  • Reliability - the assessment of how much you can remember

    • more likely to be tested as we all naturally forget

    • be comfortable making a concession on what you can and can’t remember

    • better to be honest - “ I can’t fully remember but my recollection is…”

Other Tips and Pearls

  • MOIRA:

    • feel free to refer to notes at any time and take as much time as you need

    • never feel pressured to answer a question you don’t feel comfortable answering

    • never feel pressured to agree to something that you don’t feel is accurate

  • ANDREW:

    • Try not to be ‘smart’ - answer honestly and appropriately

    • remember that there can be family members present so be sensitive when answering questions

  • DAVID:

    • avoid medical jargon - try to explain for the benefit of the non-medical people there

conclusion of your testimony

  • The Procurator Fiscal (prosecution team) will indicate they have no further questions in re-examination or don’t intend to re-examine

  • The Judge will then indicate that you are excused

  • The Barr Officer will show you to the door and indicate where you should go

  • They can also stamp your citation to prove you were in court

  • You are free to go

EXPENSES

  • All witnesses are entitled to expenses

  • There is a flat ‘Professional’ rate for professional witnesses

  • Additional expenses can also be added to this such as travel costs, locum cover etc

  • The expenses form is usually sent with your citation form (Barr Officer or Macer will stamp it to prove you were at court)

  • Can then ne handed in to local Procurator Fiscal Office or mailed to the address on the form


Hannah BellComment