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Can You Read Your Statement in Court

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Witness statements

OG Status: Partially open

  • What is a witness statement?
  • Types of witness statements
  • Compelled statements taken under department 20(ii)(j) HSWA
  • People who may be able to provide you with statements
  • Witnesses and self-incrimination
  • Victim personal statements
  • How should witness statements be taken?
  • Identification of suspects by witnesses
  • Who can be nowadays when you are taking a witness statement?
  • Particular categories of witnesses
  • Defense force questioning of witnesses
  • Releasing copies of witness statements
  • Witness interference and intimidation

What is a witness statement?

one. A witness argument is a document recording the evidence of a person, which is signed by that person to confirm that the contents of the argument are true.

ii. A statement should record what the witness saw, heard or felt. Notwithstanding, it is besides important to record annihilation that may open upward a new line of inquiry or assist in corroborating other dataone.

Types of witness statements

Statements provided voluntarily in compliance with section 9 of the Criminal Justice Deed 1967 (LP70s) - "s9 statements"

3. A s9 statement is taken from a person who has voluntarily given the argument. It does not rely on s20 (two) HSWA powers. S9 statements are recorded on form LP70.

4. Under s9 CJA the contents of a written argument will be admissible, without the witness attending court to give oral prove, if the post-obit weather are satisfied:

  • the statement purports to be signed by the maker;
  • the statement contains a declaration past the maker that information technology is true to the all-time of his/her knowledge and belief and that information technology was made knowing that, if it were tendered in evidence, the maker would be liable to prosecution if s/he wilfully stated in it anything which he knew to exist simulated or did not believe to be true (known equally a `perjury declaration');
  • a re-create of the statement is served on the other parties before the hearing where the statement is tendered in evidence; and
  • none of the other parties object to the statement being tendered in evidence.
  • Role 16 of the Criminal Process Rules should be likewise complied with2.

5. You besides demand to be enlightened of the post-obit other provisions of section 9 CJA:

  • If the statement is fabricated past a person under xviii, you must ensure that the age of the witness is included on the argument.
  • If the witness cannot read the statement, you lot should read the argument to them before they sign it and sign a declaration that you lot have done so.
  • If the witness statement refers to whatever certificate every bit an exhibit, a copy of the document should be served at the same fourth dimension equally the argument.

Compelled statements taken under section 20(2)(j) HSWA

6. Department xx(ii)(j) HSWA gives you the power to crave whatsoever person whom you accept reasonable cause to believe will exist able to provide information relevant to your examination or investigation, to answer such questions as you think fit to inquire and to sign a declaration of the truth of the answers.

seven. Data obtained using this power should be recorded in the grade of a statement using form LP7 and, if required, the continuation course LP8. The witness must sign the announcement of truth. You should only tape the information provided to you past the witness, ie the answers given. It is essential that you make it clear to the witness that yous are using your compulsory powers before asking whatever questions.

eight. Answers given by a person compelled to answer your questions are not admissible against that person or their spouse or civil partner (section 20(7) HSWA, as amended).

What type of statement should you take?

9. When you take a statement from a witness, yous should, wherever possible, take a statement under section 9 CJA as there are limitations on how a compelled (s20) statement tin exist used in legal proceedings.

10. The witness should exist asked if s/he agrees to give you a voluntary argument. If they practice, their evidence should be recorded on an LP70. The argument may be handwritten or typed. You should ensure that the witness has the opportunity to bank check the contents of the statement and make whatever corrections before due south/he signs information technology. You should likewise ensure that the witness understands the perjury declaration (see above) contained in a s9 statement earlier signing.

eleven. In most cases, witnesses volition be willing to cooperate with your investigation. If a witness is unsure as to whether they wish to provide a voluntary statement, you will demand to carefully explicate your reasons for interviewing him/her and that s/he is non being treated equally a suspect. Yous may explain that, if s/he will not volunteer relevant information or feels that circumstances prevent him/her from doing so, you can use your powers to require that information.

12. Where you lot take grounds to doubtable that a person may accept committed an offence, you lot should not treat him equally a witness but should offer him/her an interview under circumspection instead. If a witness becomes a potential suspect in the class of taking a witness statement from him/her, you must stop the interview and offer to conduct an interview under caution.

thirteen. But if the witness declines to provide you with a statement voluntarily should you consider exercising your powers nether section 20(2)(j) to accept a compelled argument.

14. A s9 CJA statement is preferable considering:

  • s9 statements tin can, providing they accept been accepted by the defence, be relied upon in courtroom every bit evidence, without the witness attending court to give evidence;
  • Department 20(ii)(j) gives y'all the power to crave a person to sign a annunciation of truth. This is not the same equally the perjury declaration required under s9 CJA; the latter includes an acknowledgement by the witness that they are liable to be prosecuted if they wilfully say anything that they know to be false or untrue;
  • [Department 31 (Law enforcement) exemption Freedom of Information Act 2000]

15. Whenever yous take a statement (whether compelled or not) you should record whether you take exercised your section twenty(ii)(j) power in your notebook, in case this is raised at a later date.

[Section 31 (Police force enforcement) exemption Freedom of Information Human action 2000]

Using compelled statements (s20 HSWA) in court proceedings

21. Where a witness refuses to requite a voluntary (s9 CJA) statement and you compel them to give a statement under s20 of HSWA you should consider how these compelled statements can exist used if yous demand to rely on the evidence they contain.

22. Form LP7 (s20) does not contain the perjury declaration and does not comply with the provisions of s9 CJA. A department 20 statement cannot be relied upon in testify without the witness attention courtroom to give the show recorded on the LP7 except in very limited circumstances (meet Exceptions to the hearsay rule).

23. If the case is tried in the magistrates' court (ie where the charge is a summary only offence or where, after the manner of trial procedure, the case is to be tried in the magistrates' courtroom), compelled statements can exist served on the defense force:

  • to indicate that the witness volition exist called to give evidence; and
  • to give accelerate warning of what that witness will say.

24. Fifty-fifty if the witness'due south prove is not in dispute, the witness will all the same have to be called to give live evidence unless the content of the witness's bear witness tin can be agreed by a formal admission.

25. In the effect that the magistrates' courtroom declines jurisdiction, the case volition be allocated to the Crown Court and subsequently sent forthwith for trial. The prosecution must then serve copies of the documents containing the evidence on which the charges are based, no later than 70 days after the date on which the example was sent for trial. Whilst a department twenty statement tin be included inside those documents, it should exist borne in mind that the witness volition have to be chosen to give evidence unless the content of the statement can be agreed past a formal admission.

26. There are a number of ways a compelled statement can be useful. The compelled statement:

  • can inform the approval process;
  • will be served on the defence every bit unused material (if you are not going to rely on the witness) and consequently may reduce the value of that witness to the defense force;
  • tin assist in cross-test of defence (or hostile) witnesses.

People who may be able to provide y'all with statements

Directors, managers etc with duties under HSWA department 37

27. It is important to carry in mind that, where an offence has been committed by a torso corporate, directors, managers, company secretaries or other like officers of a corporate body may also exist guilty of an offence under HSWA section 37.

28. These are people in positions of dominance within the corporate body who take both the power and responsibility to decide corporate policy and strategyiii. Whether such a person is a suspect in your investigation volition depend on the bear witness that you accept collected.

29. You are under a duty to follow all reasonable lines of inquiry. This may include investigating the involvement of individuals in any suspected breach4. Nonetheless, the Enforcement Policy Statement recognises that information technology may be necessary to target your investigation (eg towards the person best placed to control the risk).

30. Usually, yous volition only be in a position to determine whether an private should exist interviewed under caution once those lines of inquiry are completed. If, at that stage, y'all are satisfied that a person in a senior position is not a suspect, then you can, if necessary, request a argument from that person.

Other people

31. This category will include managers, supervisors and other similar people who do not autumn within the category higher up. Information technology will besides include employees and self-employed people. These people may have knowledge of the particular incident that you are investigating or the dangerous situation that gave rise to the investigation. They might too be able to deal with matters relating to the extent of the breaches that you are investigating (eg their knowledge of the hazard and the ability to avoid the risk, including arrangement of work, training, instructions, supervision etc).

32. Statements taken from people within this category should include details of their employment condition (whether they are employed or self-employed). If they are employed, y'all should record details of their employer, together with their position or post.

33. You should bear in mind that people within this category may also accept committed an offence under HSWA section 7 and/or section 36. If you lot have reasonable grounds to doubtable that a person has committed such an offence, y'all should not seek to obtain a witness statement from them. They should be questioned in a formal interview under caution in accordance with the provisions of PACE.

34. You should see also OC130/eight for information on the prosecution of individuals.

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Witnesses and cocky-incrimination

General

35. Every person has a right not to incriminate themselves, both under domestic law and under the fair trial provisions independent in Commodity 6 of the European Convention on Human Rights5. This right presupposes that the prosecution in a criminal instance will seek to prove the case against the defendant without resort to evidence obtained through coercion or oppression of the accused. Section 20(7) HSWA protects this right past preventing the use of a compelled statement confronting the maker of the statement (and their spouse or civil partner).

Companies and compelled statements taken from directors

36. Although a compelled statement taken nether department twenty(2)(j) is non admissible in evidence confronting its maker, there may be situations where it will be necessary to rely on the evidence of a manager who has been compelled to make such a argument, against the company.

37. Information technology may exist argued after that the director should exist regarded equally "the company" and therefore cannot be compelled to requite bear witness against the company as this would infringe the company'south correct against self-incrimination.

38. However, the courts have held that, although the full general privilege against self-incrimination, which allows a person to refuse to reply a question that could expose them to a risk of prosecution, tin can be claimed by a company or any other body with legal personality6, it is limited to the person who makes the statement. This means that a director cannot claim the privilege against self-incrimination to avert incriminating the company or to foreclose the company disclosing information that would incriminate the directorvii.

Documents and self-incrimination

39. Nether southward 20 HSWA, you accept the power to accept a re-create of documents required to be kept under whatsoever of the relevant statutory provisions or that are necessary for you lot to encounter for the purposes of your investigation. You lot should be aware that the defense force may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The footing of this statement is that, since the defendant was compelled to provide the copies, they have been compelled to incriminate themselves8.

twoscore. The Courtroom of Appeal has statedix that there is a stardom to exist drawn between the compulsory production of documents or other material which had an beingness independent of the will of the doubtable or accused person and statements that they have had to brand under coercion.

41. In other words, it is of import to determine whether the textile in question is testify that a defendant has been compelled to create (eg a compelled statement) or bear witness that was already in existence, where the effect of the compulsory power is to bring such bear witness to the attending of the court (eg a visitor'south documents).

42. As the police currently stands, material that a defendant has been compelled to create may be protected from subsequent prosecution use by the correct not to incriminate oneself. Textile that was already in existence, only which the defendant was required to produce, does non have this protection and may be used as part of the prosecution case.

Victim personal statements

43. A victim personal statement (VPS) is a statement made by the victim of a criminal offence relating to the effect of the offence on that person. The purpose of such a argument is:

  • to give the victim an opportunity to state how the offence has affected them physically, emotionally, psychologically, financially or in any other style;
  • to provide the victim with a means past which they can request data about, for example, the progress of the instance;
  • to requite the victim an opportunity to say whether they require further support (for instance, from Victim Support), take particular communication needs (such as visual or hearing impairments) or wish to claim compensation in the criminal proceedings; and
  • to provide HSE and the courts with information on these matters and allow them to take account of the consequences of the offence on the victim.

44. The VPS scheme is an element in HSE's policy on working with victims . Instructions on the utilise of victim personal statements in HSE investigations are given in OC130/12 .

45. A "victim", in relation to HSE's work, is an individual, injured every bit a result of another person (including a corporate body) committing an offence under the relevant statutory provisions or, where there has been a fatality, the bereaved relatives or partners (including aforementioned sexual practice partners). OC130/12 gives further advice on how "victim" is to be defined in practice for the purposes of the VPS scheme. Encounter also Contact with relatives of people killed through work activities.

46. Where an incident has been selected for investigation, any individual who has been injured every bit a result of a possible wellness and safety offence will usually be interviewed (see Investigation Operational Procedure ). If a witness statement is to be taken, the victim should be given the HSE VPS leaflet. The opportunity to give a VPS is bachelor during the investigation and prosecution stages and the victim can provide a VPS any fourth dimension until the example is heard in court. The procedures independent in OC130/12 should exist followed. A VPS is a voluntary statement (run across below).

47. When because the public interest exam in deciding whether to bring a prosecution, para four.12 c) of the Code for Crown Prosecutors says that, "In deciding whether a prosecution is required in the public interest, prosecutors should have into account the views expressed by the victim about the touch on that the offence has had".  A VPS, if there is one, may provide data that assists in meeting the requirements of para 4.12 c). Withal, whether or non the victim chooses to participate in the VPS scheme, the approval offices should still apply the Lawmaking for Crown Prosecutors, as set downwardly in OM 2003/106, and take account of any meaning views expressed by the victim.

48. Victims have the option of whether or non to make a victim personal statement and no inference is to exist made if they choose not to do so. A VPS should exist taken as a voluntary (department 9 CJA) argument on form LP70. Information technology should be taken on a split grade to any other statement the victim makes. As with other, evidential statements, guidance on taking statements from detail categories of witnesses (come across beneath) should be followed when taking a VPS.

49. The VPS is disclosable and should be provided to the defence force earlier the hearing. It is unlikely that the VPS will contain any sensitive textile for the purposes of the CPIA; if it does, it will need to be edited by the prosecutor before disclosure.

50. The VPS will exist put before the courtroom afterwards conviction in the sentencing bundle. Victims should not comment on the appropriate level of sentence; courts will not have business relationship of any such comments. Victims should be advised of this. The VPS may provide data relevant to a possible compensation order merely the VPS scheme does non bear upon the procedures past which the court will consider and, if appropriate, make such an social club. The Criminal Practice Directions 2015 include directions (at CPD 7 Sentencing F) to judges and magistrates on how to use the VPSten.

How should witness statements be taken?

Arranging to see witnesses

51. The circumstances of the investigation volition dictate whether or not it is appropriate to see witnesses with the knowledge of their employer (or another person). In determining the arrangements for interviews, y'all volition demand to use your discretion in this respect and so as to ensure that the witness feels most able to aid the investigation, free of any take a chance of intimidation (intended or otherwise).

52. In many cases, dutyholders will voluntarily assist you with making suitable arrangements to interview witnesses. Even so, should this not prove to be the case, you lot accept a number of powers to require this under section 20 HSWA, including the power to require any person to afford you such facilities and assistance as are necessary to enable y'all to exercise your powers (section xx(2)(l)). This can include facilities to see witnesses in private (subject to a person's correct to accept another person nowadays if you are requiring information under department 20(two)(j)). You do not have to make appointments to see employees via their employer. Nonetheless, you should arrange to see potential witnesses at an advisable fourth dimension.

53. Witness statements should normally be taken as soon as possible to ensure that:

  • the events are withal fresh in the mind of the witness;
  • the testify is recorded before the witness is tempted/has opportunity to discuss their evidence with others.

54. This approach will give you the best evidence from the witness and arrive more hard for the defence to challenge the witness's evidence.

55. In some cases it may exist more appropriate to obtain the habitation contact details of the potential witness and contact them there. (Ensure you follow HSE's personal prophylactic communication in the section Your Health and Safety on the Intranet.)

Dealing with the witness

56. All witnesses should be treated with courtesy and every attempt should be made to put witnesses at their ease. It is preferable to speak to witnesses in a private room and so that there is a more relaxed environment. At the get-go, yous should explain to the witness that the main aim of taking a argument from them is to find out what happened.

57. It is mutual exercise within HSE to employ the term witness "interview" when taking or proposing to take a witness statement.  Elsewhere in the criminal justice arrangement the term "interview" is used to refer to the questioning of a suspect.  It is important therefore to clearly explain to a potential witness that they are not a doubtable and you propose to take a statement from them.

58. Any argument should be written and signed in ink. Witness statements should be drafted so that they are concise and to the bespeak. They should simply deal with matters inside the direct knowledge of the witness. As far as is possible, y'all should try to record the witness's own words.

59. You may find it helpful to take notes before showtime to write the statement. Once the statement has been completed, you should read it over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.

60. When questioning the witness, you lot should ask all relevant questions and so as to satisfy your duty under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of enquiry, whether these betoken towards or away from the doubtable (see 'Primal requirements' in the relevant section on disclosure of unused material in the Pre-trial Stage).

61. You will be concerned with obtaining the best evidence possible and therefore y'all will desire to know from the witness whether they have discussed their evidence with anyone else (including the solicitor representing any suspect eg a visitor/employer or another person). If there is any information relevant to the weight to be attached to a witness's bear witness, this should be recorded in your notebook.

62. Information technology is essential that yous tape each witness's dwelling address, telephone numbers (including their dwelling) and dates to avoid (if known) on the course attached to the argument, so that you tin contact the witnesses at any time, if necessary. Information technology is too essential that you record the witness's date of nascence on the back of the statement where indicated. This is a legal requirement if the witness is under 18. Even so, it is also necessary in other circumstances, in order to properly identify the witness and, if required, perform a cheque for any previous convictions (see the related section in Attendance of witnesses). Yous should also ask whether or not the witness will consent to the disclosure of their witness statement for the purposes of any subsequent civil proceedings that may exist commenced. You lot should make a written record of their reply on the back of their statement. If a asking for disclosure is received for any other purpose so yous must seek consent for this and again make a written tape of the reply.

Identification of suspects by witnesses

63. It may be necessary as part of the investigation for a witness to identify a person as someone they have seen involved in committing an offence. Whilst this occurs relatively rarely in HSE investigations, it could be required in certain circumstances (for example, where show is needed that an individual was indeed the person seen to carry out work on a domestic gas appliance).

64. In such a instance, identification evidence should only be obtained in accord with Pace Lawmaking D. Y'all should tape the witness'due south description of the suspect before any identification procedures are carried outxi. This record would normally be made in the class of a witness statement. Identification procedures, such as video (or photo) identification, must then only be carried out in accordance with Lawmaking D. In such circumstances, you should seek guidance from Legal Adviser's Office via your legal liaison signal.

Who can be present when you are taking a witness statement?


[Department 31 (Law enforcement) exemption Freedom of Information Act 2000]

67. A witness is not entitled as a matter of police to accept a legal adviser nowadays when his/her statement is taken.

68. The state of affairs changes if a witness turns into a suspect. Yous must terminate the statement-taking do immediately and issue the caution as required by the Constabulary and Criminal Evidence Act 1984 (PACE). The procedures relating to interviewing a suspect are found in the Questioning of Suspects section.

Statements complying with department nine CJA


[Section 31 (Law enforcement) exemption Freedom of Information Deed 2000]

Presence of solicitor/representative who represents a doubtable

76. During an investigation into possible breaches of health and condom legislation by an employer, an employee witness providing a argument (whether nether s9 CJA or s20 HSWA) may enquire for the solicitor, or other representative, of the employer to be nowadays when s/he is interviewed.

77. You should explicate to the witness that the interests of the employer may non be the same as those of an employee. The witness may want, for example, to seek the advice of his/her trade marriage.

78.  The Solicitors Regulation Say-so (SRA), the trunk that regulates solicitors in England and Wales, has published outcomes focused regulation which focuses on the high-level principles and outcomes that should bulldoze the provision of legal services rather than detailed and prescriptive rules. The SRA handbook incorporates the SRA Code of Comport.

79.Under the SRA Code of Acquit, a solicitor must generally not act for two or more clients where there is a conflict of involvement or a significant adventure of such a conflict between them12.

lxxx. The SRA has also issued guidance on whether it is appropriate for the employer's solicitor to be present during HSE's interview of an employee. Whilst this is only guidance, the SRA and the courts will take it into business relationship and you are therefore entitled to refer to it.

81.  Paragraph 2 of the SRA guidance deals with the situation where a solicitor claims to human action for both the employer and the witness. It includes an example of the conflicts that may arise in such a state of affairs: the solicitor will be nether a professional duty to tell each political party what due south/he learns from the other, notwithstanding at the same time will exist under a similar duty to keep confidential what southward/he has learned.

82. Where an employer's solicitor does not claim to represent the witness, the guidance states that "information technology is difficult to justify the employer's solicitor accompanying the employee to the interview" and that "it is generally inappropriate for the employer's solicitor to attend such interviews as the employee's nominee, or to seek to obtain the employee'southward consent to being present at the interview"xiii.

83. The guidance recommends that, if an employer's solicitor does attend an HSE interview, s/he should ask to exist provided at the terminate of the interview with a copy of any witness argument taken. You take the discretion to refuse such a request where supplying a copy of the statement would be probable to interfere with, or prejudice, the ongoing investigation - see Supplying statements to witnesses for further guidance.

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[Section 31 (Law enforcement) exemption Liberty of Information Deed 2000]
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Detail categories of witnesses

89. The "Revised code of do for the detention, treatment and questioning of persons by constabulary officers", Code C of the codes of practice, fabricated under section 67 of PACE, gives guidance on the procedures to follow when you lot speak to certain categories of witness.

ninety. The 'notes for guidance to the Lawmaking'14 say that, although sure sections of the code apply specifically to people in custody, those who are nowadays voluntarily to assistance with an investigation should be treated with no less consideration. You should therefore follow the guidance below both when speaking to witnesses and when questioning suspects at an interview nether caution.

Juveniles and mentally disordered or otherwise mentally vulnerable people fifteen

91. It is important to establish the age of a juvenile witness. Special Measures may be available for witnesses under 18 and, for those who announced to be under 17, they should exist accompanied by an appropriate adult.

92. Any witness who appears to be under the historic period of 17, unless y'all have clear testify to show that they are older, and any witness who you suspect, or are told, may be "mentally disordered or otherwise mentally vulnerable" should be spoken to in the presence of an appropriate adult 16.

93. An advisable developed for a juvenile is a parent or guardian, a social worker or, declining this, another responsible adult not employed by HSE 17.

94. An appropriate adult for a mentally matted or otherwise mentally vulnerable person is a relative, guardian or other person responsible for care, or someone who has experience of dealing with "mentally disordered or otherwise mentally vulnerable" people, and failing that, another responsible adult who is not employed by HSE 18.

95. The appropriate adult should not be someone suspected of interest in the offence in question, or a witnessxix. The role of the appropriate adult is to advise the juvenile and to discover whether or not the interview is being conducted properly and fairly, and to facilitate advice with the person beingness interviewed, and this should be explained 20.

96. Juveniles should not be interviewed at their place of education except in infrequent circumstances21.

97. The Youth Justice and Criminal Prove Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence past vulnerable and intimidated witnesses. The measures are collectively known as "special measures".

98. Vulnerable witnesses are defined as:

  • All child witnesses (under 18); and
  • Any witness whose quality of prove is likely to be diminished because they:
    • are suffering from a mental disorder (as defined by the Mental Health Human activity 1983);
    • have a significant impairment of intelligence and social performance; or
    • have a physical disability or are suffering from a physical disorder

99. The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include the apply of screens, alive link and video recorded interviews.

100. If yous consider that special measures could apply to your witness then legal advice should exist sought.

Non-English speakers

101. If you lot need to accept a statement from a witness who has difficulty in understanding English, you should arrange for an interpreter to nourish 22. The interpreter will normally be a member of the National Annals of Public Service Interpreters (NRPSI). The statement should be written in the witness's own language and signed by the witness 23. If they are unable to read it, the statement should exist read back to the witness by the translator. A translation should be obtained, which the interpreter volition normally prepare. S/he should complete a witness statement producing the English translation, certifying that it is a true and accurate translation of the argument given by the witness and stating that s/he is a member of the NRPSI (or other relevant organisation). The translation should be obtained as soon equally possible, so as non to delay the investigation.

102. If the instance goes to trial and y'all propose to phone call a witness who requires an interpreter, y'all should notify the court equally soon as possible, so that the court can arrange for a suitable interpreter to attend.

Deaf witnesses and people with speech difficulties

103. In such cases you should also arrange for an interpreter to be present24. The interpreter should read the written record and certify its accuracy 25.

People with a visual impairment or reading difficulties

104. Where a witness cannot read the written record, you should read it out and ask the witness to sign it as correct. You should then have a note that this has occurred 26.

People unfit to be interviewed

105. You lot should not interview a person if you believe that they are unfit to exist interviewed 27. This can be where conducting the interview could significantly harm the person'southward physical or mental state or anything that they say about their involvement or suspected interest in the offence might exist considered unreliable in subsequent courtroom proceedings because of their physical or mental state. For example, a person may be unfit to exist interviewed if they are under the influence of booze or drugs.

Defence questioning of witnesses

106. There is no "property" in a witness. This means that the fact that y'all have taken a statement from a witness and are probable to phone call them to give evidence does not prevent the defence from taking a statement from the same witness. Yet, a person who seeks to speak to a witness who has already provided a statement for the other side may be exposed to the proposition of tampering with evidence, particularly where the witness changes their evidence as a result.

107. Where the defence seek to interview a witness whom you lot intend to call, you may advise the witness that they take a option every bit to whether they brand a statement to the defence. Where the witness consents to make a statement to the defence, yous should suggest to the defence that, subject to the consent of the witness, you should likewise exist present when this takes place 28.

Releasing copies of witness statements

108. If a witness requests that you provide them with a copy of their witness statement, y'all should normally comply with their request. All the same, you lot are not obliged to supply a copy immediately; yous have a discretion to refuse or delay providing a copy of the statement in circumstances where this would exist likely to interfere with the class of justice 29 30. In sure circumstances, yous might have concerns that providing the statement could prejudice the investigation 31.

109. Y'all should besides be careful non to provide statements to witnesses in circumstances which enable them to compare with one another what each has said. If in that location are grounds to believe that a witness will pass their statement to a suspect or their representative, yous will demand to consider whether this may interfere with the grade of justice. If so, you may use your discretion to decline to provide a re-create of the argument at that time.

110. For further guidance, see the sections Supplying statements to witnesses and Supplying statements to the defence in the Pre-trial section.

Witness interference and intimidation

111. It is an offence at mutual police force to interfere with a witness by unlawful ways, such every bit violence, bribery, threats or improper pressure 32. Such comport amounts to an offence of perverting (or attempting to debauchee) the course of justice. Information technology does not affair that no criminal proceedings have withal been commenced, provided investigations which could or might bring about proceedings are in progress 33. Interfering with exhibits is also an offence 34.

112. The Criminal Justice and Public Society Act 1994 (CJPOA) contains two farther offences of intimidating a witness and taking revenge on a witness 35.

113. The commencement offence covers acts which intimidate and are intended to intimidate either a witness or a person profitable in the investigation of an offence, intending to cause the investigation or the grade of justice to exist obstructed, perverted or interfered with 36.

114. The second offence covers doing, or threatening to do, an act which harms and is intended to harm a person, knowing or believing that person to have been a witness or to have assisted in an investigation 37. The harm may be physical or financial, to that person, their family unit and friends, as well as their property.

115. Where y'all have taken a statement from a witness who volition non requite oral prove at court considering of fearfulness, the court may requite get out to allow the written argument to be admitted in evidence 38 (run into Exceptions to the hearsay rule ).

116. The courts have been reluctant to let a written statement to be admitted in these circumstances, as the witness will non exist cross-examined. It also means that the jury will non be able to appraise the credibility of the witness. Yous should therefore consider whether any of the special measures that the court tin take to protect witnesses, for case use of screens or video links, will aid the witness to requite evidence 39.

117. If you become aware of information suggesting that a witness has been interfered with or intimidated, you should report this data to the police.

Footnotes

  1. The investigator is nether a duty to pursue all reasonable lines of enquiry, whether these point towards or abroad from the suspect (section 23(1)(a) Criminal Procedure and Investigations Human action 1996 set out in para 3.5 of the Lawmaking of Practice issued under south.23(1)). What is reasonable will depend on the circumstances of a particular case. Back
  2. Available on the Ministry of Justice website. Back
  3. R v Boal (Francis) [1992] iii All ER 177. Back
  4. See OC130/8 on prosecuting individuals for farther guidance. Back
  5. Saunders v United Kingdom [1997] 23 EHRR 313; approved in numerous subsequent English cases. Back
  6. Triplex Rubber Glass Company v Lancegaye Safety Glass (1934) Ltd [1939] 2 All ER 613, Rio Tinto Zinc Corporation v Westinghouse Electrical Corporation [1978] 1 All ER 434. Back
  7. Tate Access Floors Inc v Boswell [1990] 3 All ER 303: the directors argued that the company was a mere creature of themselves and therefore any disclosure by the company was, indirectly, a disclosure by them. The court rejected this argument stating that if people conduct their business organisation through a corporation and take advantage of the separate legal entities, they cannot and then claim that they are non separate legal entities where beneficial to do so; (b) R five Hertfordshire County Council ex parte Green Ecology Industries Ltd and some other [1997] TLR 497 (CA) [2000] 2 WLR 412: the Court of Appeal stated that the upshot of section 69 of the Environmental Protection Act 1990 (identical provisions to section 20 of HSWA) was that where an individual (including a manager) was compelled to reply questions, the answers would not be admissible against that individual personally but would be admissible confronting the visitor. The Business firm of Lords dismissed an entreatment against the Court of Appeal'due south determination simply did not address the bespeak relating to section 69. See besides Walkers Snack Foods Ltd five Coventry City Council [1998] 3 All ER 164 - an individual could not rely on their privilege against cocky-incrimination to avoid answering questions or giving information in relation to others, including the company who employed them. Back
  8. In JB v Switzerland, May 3 2001 (ECHR), a person's right against self-incrimination nether Article 6 of the European Convention on Human Rights was infringed where they were fined for refusing to surrender financial documents to the Swiss revenue enhancement government when required to practice so by constabulary. Dorsum
  9. R five Kearns [2002] ane WLR 2815, relying on Attorney General's Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the issue of JB 5 Switzerland in reaching its decision. Kearns was considered more than recently in the instance of R v Southward [2009] ane All E.R. 716 and applied in R v K [2009] EWCA Crim 1640.R 5 Kearns [2002] 1 WLR 2815, relying on Chaser General's Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the effect of JB five Switzerland in reaching its determination. Kearns was considered more recently in the instance of R 5 S [2009] i All E.R. 716 and practical in R v K [2009] EWCA Crim 1640. Back
  10. Criminal Practise Directions 2015 Sectionalization VII Sentencing. Back
  11. PACE Code D, paragraph three.one. Back
  12. Chapter 3 SRA Code of Behave. If there is a conflict, or a meaning chance of a conflict, between two or more current clients, you lot must not act for all or both of them unless the thing falls inside the telescopic of limited exceptions. In deciding whether to act in these limited circumstances, the overriding consideration will exist the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks. Dorsum
  13. Paragraph 5.2 of the SRA guidance. Back
  14. Paragraph five.5 of the SRA guidance. Back
  15. Code C, Notes for Guidance paragraph 1A. Dorsum
  16. Code C paragraph 11.15 -11.17 uses these terms. Back
  17. Code C, paragraph 11.15. Back
  18. Lawmaking C, paragraph ane.7(a). Back
  19. Lawmaking C, paragraph 1.7(b). Back
  20. Code C, Notes for Guidance, 1B. Back
  21. Lawmaking C, paragraph eleven.17. Back
  22. Code C, paragraph eleven.16. Back
  23. Code C, paragraph 13.2. HSE Language Services tin arrange an interpreter where required, encounter the information section of the intranet. Back
  24. Lawmaking C, paragraph 13.four. Back
  25. Code C, paragraph 13.5. Back
  26. Code C, paragraph 13.three. Dorsum
  27. Code C, paragraph 11.11. Dorsum
  28. Code C, paragraph 12.3 and Annex G. Back
  29. See the CPS website – Legal Guidance – Interviewing witnesses for the other side. Back
  30. R v Richardson (D) [1971] 2 QB 484 (CA); R v Skinner (Gary) [1994] 99 Cr App R 212 (CA); R v Roberts (Michael) [1998] 162 JP 691 (CA); R v Arif [1993] The Times, 17 June 1993 (CA). Back
  31. Under the Information Protection Human action 1998 (DPA), HSE may refuse a "subject access" asking to provide a witness with a copy of his/her statement where to comply with the asking would be likely to prejudice the prevention or detection of crime, or the apprehension or prosecution of offenders (section 29(i) DPA) or where to exercise so would be probable to prejudice HSE's functions for securing the wellness, condom and welfare of persons at work or for protecting persons not at work against risks to their health and safety from piece of work activities (sections 31(1), (2)(e) and (f) DPA). Back
  32. Dwelling house Role Circular 82/1969 gives examples of situations in which a witness's request for a re-create of his/her statement may exist refused on the grounds that the form of justice might exist prejudiced: where the statement is sought to enable the witness to prevarication consistently; or where others are bringing pressure on the witness to obtain a copy of the statement with a view to persuading him/her to change what s/he said. Back
  33. R v Kellett [1976] 1 QB 372, CA. Back
  34. R five Sharpe and Stringer (1938) 26 Cr. App. R. 122, CCA; R v Grimes [1968] 3 All ER 179. Back
  35. R v Murray (1982) 2 All ER 225. Back
  36. CJPOA 1994, s.51. The offences are punishable on indictment by 5 years imprisonment, or an unlimited fine or both; and summarily by 6 months imprisonment or £5,000 or both: s.51 (5). Back
  37. CJPOA 1994, s.51(1). The offence extends to investigations by the police and past other persons charged with the duty of investigating offenders or charging offences: due south.51(9). Back
  38. CJPOA 1994, s.51(2). Back
  39. Section 116 Criminal Justice Deed 2003. Dorsum

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Source: https://www.hse.gov.uk/enforce/enforcementguide/investigation/witness-witness.htm

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