Supplying Witnesses with Copies of Their Statements
Last Updated - 20/10/05 confirmed up to date - 23/01/08
Principle
The CPS is committed to the proper care and treatment of witnesses.
A witness is not entitled as of right to see his or her statement or to be sent a copy of it before the day of trial.
Guidance
There is no general rule that witnesses cannot, before a trial, see their statements.
In R v Richardson (D.) [1971] 2 Q.B. 484, 55 Cr. App. R. 244, Worley v Bentley (1976) 62 Cr App R 239 and R v Westwell (1976) 62 Cr App R 251, the courts approved the practice of providing statements to witnesses prior to trial. The Court of Appeal stated in Richardson:
'..in most cases and particularly where, as often happens, there is a long interval between the alleged offence and the trial, the interests of justice are likely to be best served and witnesses will be more fairly treated if, before giving evidence, they are allowed to refresh their recollection by reference to their own statement....As was said in Supreme Court of Hong Kong in Lau Pak Ngam v R [1966] Crim.L.R. 443,.. if a witness is deprived of this opportunity his testimony in the witness box becomes more a test of memory than truthfulness....'
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 handed his/her statement some time before the hearing (rather than at the door of the court), it becomes imperative that the defence are told of this fact as it goes to the weight that can properly be attached to that witness's evidence (per Bridge L.J. in R v Westwell). The following issues could be raised in such circumstances:
- There is a risk of collusion between witnesses;
- A witness who has made a false statement may try to ensure his or her evidence in court is consistent with the false statement;
- Witnesses may try and "learn" the contents of their statements and create a false impression of their credibility;
- The statement may be lost or fall into the wrong hands;
- The defence may undermine credibility of the witness by cross-examining on the basis that one or more of these dangers have arisen.
Accordingly, witnesses should not be handed copies of their statements days or weeks before the trial begins.
Statements should not be handed to several witnesses in circumstances that enables one to compare with another what each has said - R v Richardson (D) [1971] 2 QB 484.
Usually, a request for a copy of a statement can be met by allowing access and a sight of the statement rather than giving the witness a copy, although in a case where the statement is long or complex supplying a copy may be unavoidable.
A prosecutor can deny a witness a copy of his or her statement if there are grounds to believe the request is made other than with the desire to give evidence honestly and accurately. For example, a witness may be friendly with or related to a defendant, may wish to alter his or her evidence in favour of the defendant or change it in such a way so as not to appear to be lying.
The <Home Office Circular No. 82 - 1969 ("Supplies of Copies of Witnesses' Statements")>, states that the police should normally provide a witness, upon request, with a copy of his or her statement. The Circular also recognises that on occasion a chief officer may exercise discretion to refuse such a request if, for example, they believe it is for an improper purpose.
The policy guidance contained within this circular, is currently under discussion in light of the fact that it was issued 35 years ago.
Memory refreshing in the box
A witness who has made a "contemporaneous" statement i.e. at the time of an incident or shortly afterwards when the facts were still fresh in his or her mind may be permitted to use that statement to refresh his or her memory while giving evidence: Attorney-General's Reference (No. 3 of 1979) 69 Cr App R 411. Before the witness can do this you will need to obtain details as to the circumstances in which the statement was made and obtain the leave of the court.
A witness who has made a "non-contemporaneous" statement may be allowed to refresh his or her memory while giving evidence provided certain criteria have been satisfied: R v Da Silva (1990) 90 Cr App R 233 and Archbold 8 - 75.
Even if these criteria are not satisfied the court has a broad discretion as to whether to permit a witness to refresh his or her memory from a "non-contemporaneous" document: R v South Ribble Magistrates' Court, ex p Cochrane [1996] 2 Cr App R 544
Section 139 Criminal justice Act 2003
<Section 139 of the Criminal Justice Act 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 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 this guidance>.