Quis provides some advice on ‘court craft’.

The sum of £54,000 of public money for legal advice. That might not seem too extreme. This was the figure paid by the civil service in Scotland for “external preparation” for the Salmond inquiry, despite there being 139 lawyers employed in the Scottish government’s legal service. There are, of course, instances in which external advice is not only desirable, but necessary. What follows is not of that nature.

The background to this is as follows. The Civil Service Management Code (s.12) provides that any civil servant who is to be giving evidence (and, in this case, the evidence was to the Salmond inquiry) is entitled to legal advice. About what? The code does not say, but that legal advice should not, in our view, be about the content of the evidence, but rather about how to give evidence and perhaps about court procedure.

To “tutor” a witness on the content of evidence is an attempt to pervert the course of justice, which is a crime, and that is because if a witness is tutored on the content of the evidence, it is not his or her evidence. It is as simple as that and the evidence is worthless. You might as well have evidence produced by a “committee” of those who saw or heard anything. That point was made in the English Court of Appeal in R v Momodou (2005).

The members of Quis have experience of asking questions of witnesses, seeing their demeanour in court and having to assess their credibility and reliability. We have never told them what to say. That is a “no-no” and would be regarded as professional misconduct.

If the advice is properly restricted to what could be described as “court craft”, we offer the following suggestions, and if the civil service wish to include it as an amendment to the code, that is fine by us. All we would wish is an acknowledgment, which is considerably less than £54,000.

Before setting out this advice, we are not saying that is it something which is exclusively within our domain. Anyone with a reasonable experience of court work could make the same points. And so, even if the “external preparation” was restricted to “court craft”, it could have been, and indeed should have been, provided in-house and at not at a cost to the public of £54,000. Unless, of course, none of the 139 lawyers in government service has any experience of court work. We could try, via a freedom of information request, to ascertain the precise nature of the advice provided, but would probably be met with “data protection” or “confidentiality”. Those excuses are specious because we would not be asking for the identity of anyone who gave the advice, or of the person or persons receiving it. All we would want to know was whether the advice was restricted to “court craft” or amounted to tutoring.

Our advice on “court craft” is this:

1. When you are called to give evidence, you will be asked if you wish to take the oath, or affirm. In Scotland, you repeat the words after the judge.
2. When giving evidence:
   1. (if applicable) refresh your memory of any prior notes you took, e.g. at meetings. You might be asked why your recollection is so good and you can say that you refreshed your memory. That will convey the message that you did some preparation before giving evidence;
   2. this is obvious: speak clearly and project your voice if, for example, there is a jury on the other side of the room from the witness stand, or the inquiry panel are some distance away in what may be a large room;
   3. when answering questions, look at the judge, chair or jury, not at the questioner;
   4. if you are using technical terms, there are two approaches. Use laymen’s terms first and then explain the technical term or vice versa. You must decide what will be easier, say for a jury to understand;
   5. answer questions as briefly as you can. Leave it to the questioner to ask any further questions; or
   6. you may give a brief answer and wish to expand. You could ask to do that;
   7. if you can’t remember, say so, and don’t speculate on what might have been said or done;
   8. tell the truth, as lying is perjury and being evasive might be regarded as prevarication which is also punishable.

Does one need long experience as a court lawyer to produce these hints? No. Are they profound? No. Are they common sense? Pretty much so. Would they justify £54,000? If we deduct VAT, the figure is about £44,000. In the report of the committee on the Salmond inquiry, nine witnesses are listed as civil servants, one of these being the Crown Agent who would not need any advice about how to give evidence and so it seems that £44,000 was spent on “external preparation” for eight people, i.e. £5,500 per person.

We estimate that our hints on court craft would take less than an hour to impart (even allowing for questions), but less us say two hours. That looks like an hourly rate of £2,750. That seems highly improbable. Partners in large firms will probably charge their time out at about £500 per hour, and a sensible client would ask for details of the work involved. Did this “external preparation” work go out to tender? We are left asking whether the advice went beyond our handy hints. If not, it is time the solicitors’ accounts were taxed, or maybe, no one thought to ask why the hourly rate was so high.

If it indeed the “external preparation” was restricted to our handy hints, the advice was unnecessary because the Citizens’ Advice Bureau has information in “Going to Court as a Witness”, the Scottish Courts & Tribunal Service has “Being a witness”, and there is a body called “Victim Support” which is for witnesses in court proceedings. For possibly a modest fee, they might be persuaded to give advice to those who may be cited to give evidence to an inquiry.

There is a song, Where have all the flowers gone?. Our song is Where has all the 54K gone?—perhaps like the novel, it has Gone with the Wind.

Quis is a group of the following senior lawyers: Douglas Cusine, Kevin Drummond QC, Alistair Bonnington and Douglas Mill