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Consultation on Speaking to Witnesses at Court - summary of responses

September 11 2015

Introduction

In January 2015 the Crown Prosecution Service (CPS) launched a public consultation on draft guidance entitled "Speaking to Witnesses at Court". The purpose of the guidance was to provide clarity to prosecutors about what they were expected to do in order to support witnesses at court to ensure they were able to give their best evidence. The purpose of the consultation was to ensure the final version of the guidance was informed by as wide a range of views as possible so that it had the best chance of being able to meet the needs of witnesses and other interested parties.

This document is the CPS' response to the consultation.

Background

The draft guidance published in January consisted of only eight pages. It covered the purpose of speaking to witnesses before or at court; what the prosecutor should, and should not, say during their initial conversation, when else the prosecutor might speak to the witness, the law around avoiding coaching a witness before they give evidence and the role and usefulness of a range of other courts supporters.

The consultation was publicised through the media (local and national press and specialist journals such as the Law Gazette), on the CPS website, through direct letters from the DPP and other senior staff to key stakeholders and internally within the CPS through our intranet.

The consultation asked five questions:

  1. Does the guidance cover the key issues that impact upon the victim or witness's experience at court? If not, what other subject areas might be covered?
  2. Does the guidance strike the right balance between supporting the witness in advance of their appearance at court and ensuring that the trial is, and is seen to be, fair to the defendant?
  3. Does the guidance set out clearly what a prosecutor should do when meeting a witness at court? Is there anything else that might be done?
  4. Does the guidance give enough information regarding other support services at court?
  5. Do you have any other comments on the guidance you would like to offer?

Method of Analysis

We received 179 returns all of which have now been analysed. A breakdown of the source of the responses generally and by question is attached at Annex A. An overall evaluation of whether responses were positive (i.e. could answer the question in a manner that suggested the guidance was likely to be helpful) or negative (suggested that the guidance needed to be significantly amended or that the focus was incorrect) or neutral is shown at Annex B.

Each response given to each question was analysed separately and main points identified and responses given to each of the points made to ensure that all of the feedback was fully considered and taken into account when making decisions on not only changing the guidance but deciding on the support necessary (including training content) to make sure it could be successfully implemented.

A summary of the key themes raised in responses to each of the questions and is shown below.

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Summary of responses to specific questions

Question 1: Does the guidance cover the key issues that impact upon the victim or witness's experience at court? If not, what other subject areas might be covered?

There were 147 responses to this question. The largest group of respondents felt that the guidance did cover the key issues sufficiently. Other possible areas of attention suggested in the feedback included asking about the Victim Personal Statement; whether more could be done before court to refresh witness memory; how to explain time delays and reasons for trials not going ahead; and the roles of others throughout the case in providing support (e.g. Witness Care Units and paralegal staff).

CPS Response:

We welcome the feedback that most respondents felt the guidance did cover the right issues.

We recognise that Victim Personal Statements (VPS) play a key role in ensuring the victim's voice is heard in court and have, with criminal justice partners, recently issued a cross CJS protocol to ensure that these are used effectively. Most of the work around ensuring that a VPS will be used in the way that the victim suggests will have been done before the day of trial. We will, though, remind prosecutors in the training that accompanies the introduction of this guidance to discuss the VPS with the victim if they have indicated that they wish to read this out or have it read out.

In terms of witnesses refreshing their memory in advance of the hearing date, we have firmed up the guidance to say that prosecutors should consider a special measures or other meeting in advance of trial for all vulnerable or intimidated witnesses. They would be able to take these opportunities to provide earlier support and assistance with refreshing the memory.

We would always wish to avoid trial delays wherever possible but feel that it would be useful to provide prosecutors and other CPS staff at court with some support in being able to explain when delays do happen. This will be covered in the training we develop for our staff to support the guidance.

We will also provide staff with a reminder of the other parties who have supported the witness throughout their journey as part of the same training.

Question 2: Does the guidance strike the right balance between supporting the witness in advance of their appearance at court and ensuring that the trial is, and is seen to be, fair to the defendant?

The majority of respondents to this question (88 from 147) believed that the guidance did strike the right balance and was fair to victims, witnesses and defendants. This is again a positive result on what was seen by some as the most contentious element of the guidance. Some respondents, though, felt that it was inappropriate to discuss even the general nature of the defence case (or of information that has been disclosed to the defence) with the witness. Some were concerned that this would constitute coaching of the witness. Others felt that, even if it was not coaching, it could lead the witness – consciously or unconsciously – to tailor their evidence to what they have been told.

CPS Response

Coaching

We believe that the concerns expressed on this issue show right and proper regard for the principles of our system regarding the fairness of the trial for the defendant – regard that prosecutors not only share but proudly protect. But what is being proposed is limited and within the boundaries of our current system.

So, for example, in a rape case, a victim might be told if the likely defence was to be on the issue of consent – but would not be told of the evidence itself, or any further detail. They may also be told that the court has allowed that their sexual history be examined – but not why or what. In an assault case, the advocate would tell the victim if the likely defence case was to be self-defence, or perhaps an identity dispute – but not why or how. And if a witness to any case was going to be accused of being inherently dishonest, perhaps due to a past fraud conviction, the advocate would tell them that previous convictions had been disclosed to the defence – but not how it may relate to the case.

Prosecution advocates have been conducting pre-trial witness interviews with victims of alleged sexual offences for some years. These have not resulted in a rise in abuse arguments, rehearsed evidence or unfair trials. Instead we have seen better quality evidence which is in the interests of all concerned. We believe that the guidance extends the practice to victims and witnesses of all crimes. Reactions in court will remain unrehearsed, but should be less distorted by shock and distress. With the prosecution and defence disclosing much more to each other than ever before, it is only right that victims and witnesses are now included, to an appropriate level, in this approach.

We believe that prosecution advocates, both those employed by the CPS and those from the independent Bar, know where the line should be drawn. However, we have noted the concerns and intend to address them through training and development which will be compulsory for all CPS advocates and offered to the independent Bar and those acting as CPS agents before the guidance is implemented in full. We will also work with partners to examine whether and how we might provide information to victims on these issues in advance of the case in a way that addresses some of the concerns expressed.

Tainting of Evidence

Some of those who accept that while the guidance does not amount to coaching still believe that the witnesses' evidence is in some way tainted by the revelation of the nature of the defence case. They feel that, when presented, it will no longer a recollection of what the witness saw/heard etc. but instead a pre-considered response to the information on the nature of the defence case.

However this argument assumes that witnesses will not already undertake this thought process for themselves under the current arrangements (i.e. trying to anticipate the nature of the defence case and mentally preparing responses for each scenario). It is likely that most witnesses will think through the scenarios to some extent - and it might be argued that those who are not are in greatest need of the assistance offered. All that the provision of the information on the likely nature of the defence case does is reduces the risk that the witness will feel "ambushed" in the witness box by focusing their thoughts on the subject most likely to be raised.

This will help them give their best evidence and at the same time improve the experience of those witnesses who have felt that they were not given sufficient support to deal with the stresses of cross-examination.

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Question 3: Does the guidance set out clearly what a prosecutor should do when meeting a witness at court? Is there anything else that might be done?

There were 129 responses to this question and, again, the largest group felt that the guidance did fulfil its remit in this regard. However there were some concerns that the guidance did not cover sufficiently how the content of the conversations between counsel/prosecutors and the witness be recorded in case there is a challenge or a need for disclosure?

CPS Response

There was a strong feeling in a number of responses that there needed to be clear arrangements for the recording of the content of conversations to guard against the prosecutor or counsel being called as a witness and being unable to prove the content of the discussion.

The guidance itself urges prosecutors to make it clear that, when they refer to the nature of the defence case or what has been disclosed to the defence, they are not seeking a response to the information – merely providing it to make the witness better informed and able to cope. The provision of the guidance as a public document also gives a clear guide as to what the defence might expect the prosecutor to have discussed in any pre-court conversation. Coupled with the common law duty on prosecutors to disclose to the defence anything that undermines the prosecution case, and the training being provided to all prosecutors on the matter, this should assure the defence community about the nature and content of the conversations.

But we do accept that there will be occasions when the witness will disclose information that needs to be recorded and disclosed to the defence. Also, there is a possibility of challenge from the defence about what has been said to the witness, even if no fresh disclosure is made. That being the case, we need to make sure that proper provision is made to manage these risks and we will do the following:

For any conversations that happen before the day at court (e.g. special measures meetings or pre-trial witness interviews) the current arrangements for recording and disclosing the content of such meetings will remain in place.

In the Crown Court, there will be a reallocation of resources within CPS that will provide sufficient paralegal cover to allow for effective recording of conversations where they happen on the day at court.

There are no current plans to change the levels of paralegal support in the magistrates' courts on a day to day basis. These are undertaken in nearly three quarters of cases by in-house advocates in the magistrates' courts. The training given to our prosecutors will include very clear guidance on how they should record the conversations that take place with the witness. We will also make arrangements to ensure that those employed as agents in the magistrates' courts are given both access to the guidance and relevant training and are able to contact a CPS member of staff in case of a need for advice or a decision on these matters.

Question 4: Does the guidance give enough information regarding other support services at court?

There were 129 responses to this question of which most said that the guidance did give good information on other services. However, some felt that there was a need for further clarification of roles and responsibilities between CPS, WCU, Citizens Advice WS, Court Ushers etc. within the guidance. Many respondents felt that there was still significant overlap, in particular between what the guidance asks the prosecutor to do and what is done by the Citizens Advice Court Based Witness Service to familiarise the witness with the court environment and the trial process – in particular prosecutors and Witness Service volunteers flagged this.

CPS Response

These are good points but, within an eight page guidance document, it is not possible to fully outline the individual roles and responsibilities of the various parties. We accept though that more can be done to be clearer on "who says what" – though it must be recognised that all parties need to be flexible. Also the clearer definition of roles and responsibilities may assist prosecutors on making the most effective use of their time. To this end, we have begun work with HMCTS and Citizen's Advice to develop a new articulation of ‘who does what' at court to support witnesses. We intend to trial any new arrangements in a number of pathfinder areas as part of the introduction of the new guidance.

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Question 5: Do you have any other comments on the guidance you would like to offer?

There were 124 responses to this question containing a range of suggestions mostly focusing on the practicality of implementing the guidance effectively – is there time for prosecutors to meet all V/Ws before and after (particularly in mags)? Do courts have the confidential spaces to enable these conversations to take place? How can the conversations take place without lengthening the waiting times for witnesses – a key driver of dissatisfaction with the service given by the CJS?

CPS Response

This was a key set of concerns from practitioners. There was an acknowledgement that the time available to meet all witnesses was less likely to be problematic in Crown Courts due to the smaller number of trials likely to be listed/on-going at any one time. However, current listing practices in the magistrates courts were felt by some to make the suggested arrangements impractical.

We continue to work with our partners on making listing more effective and the Transforming Summary Justice arrangements that have been introduced in the magistrates courts are already impacting positively. A similar set of reforms will be put in place for the Crown Court later in the year. Better listing will reduce the numbers of trials scheduled for the same date and therefore lessen the numbers of witnesses whom the prosecutor and others will have to support on any given day. We have agreed with HMCTS to trial the guidance in a number of pathfinder sites to establish the scale of the issues and develop our approach to overcome these.

In terms of court estate, the publication of the guidance gives us an opportunity to examine again the arrangements in place to facilitate the prosecution's interaction with witnesses and try to improve these where possible. We will be working with HMCTS in a number of pathfinder sites to develop agreed good practice and seek to have this rolled out as far as possible within the existing estate and built into the planning for any new estate to be built under the HMCTS Reform plans recently trailed by the Justice Secretary.

We acknowledge that the period of time that witnesses have to wait can be a driver of dissatisfaction. However, if there is flexibility on how that time can be used, or the witness is given freedom to continue with other activities while waiting, this may lessen the impact on the witness's time. We have agreement to work with HMCTS not just on the length of waiting time but how we can give more flexibility to witnesses and proposals will be tested before implementation.

Additionally there were suggestions about reducing the time commitment for prosecutors without undermining the quality of service? For example, by getting more information to witnesses via DVDs, booklets, internet pages in advance of their arrival at court, or by using paralegals/ushers for updates on progress or to thank the witness?

There are products that are already in place to give information in advance of an appearance for cross-examination (e.g. pre-court visits, the new on-line Victim Information Service, films showing the location and layout of the court and the processes and procedures). But the take up of these is too low (according to the victim and witness survey we have just undertaken). We need to work with our partners to raise awareness and usage of the current set of materials that exist as well as exploring what else might be developed.

The use of CPS paralegals to give thanks after the witnesses cross-examination and to provide further information appears to be a good idea where the paralegal is able to explain what the next steps will be or can help to explain the sentence and there is no need for the prosecutor to be present. We will use the pathfinders to explore the best arrangements for managing this situation.

Specific changes made to the guidance as a result of feedback

In addition to addressing these themes, we have made the following specific changes (beyond simple language changes) to clarify some points within the guidance and emphasise some others:

  • Section 1) – There is an additional paragraph to emphasise that prosecutors should be aware of other support offered throughout the time of the case (e.g. WCUs) and how this will impact on the support they give at court
  • Section 2) – As well as some language changes the text has been amended to emphasise that a special measures meeting should be considered by prosecutors in all cases involving vulnerable and intimidated witnesses
  • Section 3) Introduction – the text addressing the behaviours of advocates at court has been changed to emphasise that it applies to all interactions where others involved in the case are present
  • Section 3)b) – A paragraph has been added to ensure that the prosecutor asks the witness what they've already been told by other court supporters to both check their understanding and reduce the possibility of duplication
  • Section 3)d) – a paragraph has been added to clarify that Crown court advocates should ensure they are accompanied by a CPS member of staff whilst the conversation takes place.
  • Section 3)d)ii) – text is added to suggest that, even where the prosecutor believes that the victim is already aware of sensitive information being disclosed to the defence, they should check this fact and remind them
  • Section 3)e) – text is added to suggest that other court staff (CPS paralegals or the at court witness service for example) might be used to keep the witness informed of progress
  • Section 3)f) – text is added to suggest that others court staff (CPS paralegals or the at court witness service for example) might be used to thanks the witness
  • Section 4) – An introductory paragraph is added to remind prosecutors that large amounts of emotional support are provided outside then formal channels mentioned in this guidance
  • Section 4) – text is added to remind the prosecutor that they should provide relevant information to other supporters to help them provide a good service.

Next steps

The following next steps will be put in place so that the new guidance can be fully implemented in time for 2016/17:

  • Training and development will be available to the pathfinder sites by early October 2015;
  • Pathfinders will begin to operate in Liverpool, Sheffield and one other site from October 2015;
  • Training will begin for other sites in January 2016;
  • Taking on board lessons from the pathfinders, rollout across the rest of England and Wales will begin from January 2016;
  • Following operation of the guidance consider whether further changes are necessary by December 2016 and amend as appropriate.

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Conclusion

We are grateful to everyone who responded to the consultation. We are content that the responses and analysis have led us to make changes to the content and the proposed implementation plan that will make the changes more effective and improve the service we, and our partners, provide to witnesses at court.

Annex A

Total number of responses: 179

Category Number
CPS 84
Academic 4
Individuals 14
Legal Profession 22
Other External Organisations (e.g. charities, Victims Support etc.) 22
Public Sector (e.g. CJS partners) 33
Total 179
Q1 Category Number
CPS 69
Academic 4
Individuals 8
Legal Profession 17
Other External Organisations (e.g. charities, Victims Support etc.) 18
Public Sector(e.g. CJS partners) 31
Total 147
Q2 Category Number
CPS 67
Academic 2
Individuals 9
Legal Profession 16
Other External Organisations (e.g. charities, Victims Support etc.) 16
Public Sector(e.g. CJS partners) 28
Total 140
Q3 Category Number
CPS 65
Academic 1
Individuals 5
Legal Profession 13
Other External Organisations (e.g. charities, Victims Support etc.) 16
Public Sector(e.g. CJS partners) 29
Total 129
Q4 Category Number
CPS 63
Academic 1
Individuals 3
Legal Profession 15
Other External Organisations (e.g. charities, Victims Support etc.) 16
Public Sector(e.g. CJS partners) 31
Total 129
Q5 Category Number
CPS 59
Academic 2
Individuals 12
Legal Profession 11
Other External Organisations (e.g. charities, Victims Support etc.) 16
Public Sector(e.g. CJS partners) 24
Total 124

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Annex B

Numbers and Percentages of Positive/Negative and Neutral Responses

1. Does the guidance cover the key issues that impact upon the victim or witness's experience at court? If not, what other subject areas might be covered?

Positive 44%
Negative 21%
Neutral 19%
No response 16%

2. Does the guidance strike the right balance between supporting the witness in advance of their appearance at court and ensuring that the trial is, and is seen to be, fair to the defendant?

Positive 49%
Negative 24%
Neutral 9%
No response 18%

3. Does the guidance set out clearly what a prosecutor should do when meeting a witness at court? Is there anything else that might be done?

Positive 35%
Negative 16%
Neutral 24%
No response 25%

4. Does the guidance give enough information regarding other support services at court?

Positive 46%
Negative 21%
Neutral 11%
No response 22%

5. Do you have any other comments on the guidance you would like to offer?

Positive 14%
Negative 17%
Neutral 41%
No response 28%

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