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Witness Statements and Memory Refreshing

Principle

The CPS is committed to the proper care and treatment of witnesses as set out in the Casework Quality Standards (CQS), particularly Standard 1.

A witness is not entitled as of right to see his or her statement or be sent a copy of it before the day of the trial. However, as part of the duty of the CPS to ensure that cases are prosecuted in a way which is fair to all prosecutors should show witnesses, or arrange for a representative of the Witness Service to show them, their witness statements so that they can refresh their memories before giving evidence.

Reading statements before trial

There is no general rule that witnesses cannot see their statements before a trial. In a number of cases the courts have approved the practice of allowing witnesses to see their statements prior to trial.

It is desirable, although not essential, that the defence are informed that witnesses have seen their statements prior to giving evidence. However, if a witness is allowed to see his or her statement some time before the hearing (rather than immediately prior to the trial) the defence must be informed as it could go to the weight that can be properly attached to the witness's evidence.

Providing a witness with their statement well in advance of the hearing could raise the following issues:

  • Risk of collusion between witnesses;
  • A witness who has made a false statement may try to ensure that his or her evidence in court is consistent with the false statement;
  • A witness may try to "learn" the content of their statement and create a false impression of their truthfulness;
  • The statement may be lost or may end up in the wrong hands;
  • The defence may seek to undermine the credibility of the witness by cross-examining on the basis that one or more of these events has occurred.

In light of the potential risks outlined above it should only be in exceptional circumstances that a witness is given a copy of their statement days or weeks before the trial begins. Usually a request for a copy of a statement can be met by allowing the witness access and a sight of the statement rather than giving the witness a copy. In circumstances where the statement is particularly long or complex, supplying a statement may be unavoidable.

A prosecutor can deny a witness a copy of his or her statement if there is reason to believe that the request is made for reasons other than a desire to give honest and accurate evidence. For example a witness who is related to, or friendly with, a defendant might want to alter their evidence to be more favourable to the defendant.

Prosecutors are referred to the Speaking to Witnesses at Court guidance which provides clarity to CPS advocates about what they are expected to do to support witnesses in giving their best evidence in court. It emphasises the need for advocates to ensure witnesses are properly assisted at court and that they are better prepared before giving their evidence. This includes encouraging witnesses to refresh their memory from their witness statement.

Prejudicial/inadmissible evidence in witness statements

Witness statements may sometimes include material which, if referred to by the witness whilst giving evidence, may prejudice a fair trial. If this is the case before the witness gives evidence he or she must be told by the prosecutor which part(s) of the statement they should not mention and will not be asked questions about. This course of action will reduce the chances of the witness inadvertently referring to the prejudicial material and/or being confused or surprised when the matters are not mentioned in examination-in-chief.

When questioning the witness the prosecutor should lead the witness in such a way that avoids the need for the witness to refer to the prejudicial material.

Where, despite these precautions, the witness discloses prejudicial or inadmissible material while giving evidence, and the defence apply to discharge the jury, the prosecution advocate must consider the impact the disclosure is likely to have had on the fairness of the trial, and respond accordingly.

If the prosecutor considers that a fair trial is no longer possible, they should support the application and, if the judge discharges the jury, seek a re trial.

Where the prosecutor considers that a fair trial can still take place, they should resist the application. If the Judge nonetheless grants the application and discharges the jury, the prosecutor should seek a retrial.

A witness may deliberately or inadvertently disclose prejudicial or inadmissible material while giving evidence. Whether deliberately or inadvertently, disclosure of the offending information cannot be said of itself to have any implications about the truthfulness of the witness's evidence.

Memory refreshing whilst giving evidence

Section 139 of the Criminal Justice Act 2003 (CJA 2003) provides that a witness may refresh his memory from a document made or verified by him at an earlier time. The conditions for refreshing memory are only that the witness states in his oral evidence that the document records his recollection of the matter at that earlier time and that his recollection at that time is likely to have been significantly better at that time than when he is giving his evidence.

The CJA 2003 does not expressly purport to abolish the common law in relation to memory refreshing but it would seem that the intention was that it should supersede the common law. Many of the authorities built up at common law continue to have relevance.

The provision also applies to a transcript of a sound recording. Sound recording is not defined in this part of the Act. It is submitted that it would apply to the sound recording contained in a video or DVD refer to Hearsay elsewhere in the Legal Guidance.