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Witnesses

|Legal Guidance

Introduction

This guidance is intended to summarise the relevant legal principles, rather than provide a definitive guide to the law, and to provide practical advice for prosecutors on various aspects of witness evidence and handling.

Prosecutors should note in particular the following key issues:

  • Compelling a reluctant witness to either provide a deposition or attend court should be a last resort. Before any application for a summons is made a full risk assessment should be carried out taking into account the factors set out in this guidance. Considering why the witness has not/will not attend and whether it is appropriate to compel them should take place before a hearsay application is considered.
  • Prosecutors should consider carefully which witnesses are required to give oral evidence and only serve the statements of the witnesses they intend to call (if the statement has not been agreed in accordance with section 9 Criminal Justice Act 1967).

This guidance also contains links to the following stand-alone pieces of prosecution guidance that may also be of assistance to prosecutors when handling witnesses.

Other sources of guidance relevant to witnesses

For guidance on witness anonymity prosecutors should refer to Witness Protection and Anonymity.

For guidance on victims and witnesses with mental health issues, prosecutors should refer to Mental Health: Victims and Witnesses.

For guidance on special measures for vulnerable or intimidated witnesses, prosecutors should refer to Special Measures.

For guidance on children as victims and witnesses, prosecutors should refer to Safeguarding Children as Victims and Witnesses.

For guidance on expert witnesses, prosecutors should refer to Expert Evidence.

For guidance on speaking to witnesses at court, prosecutors should refer to Speaking to Witnesses at Court

Witness statements

This section sets out guidance on admitting agreed evidence and facts and witness statements taken over the telephone.

Admitting evidence under Sections 9 and 10 of the Criminal Justice Act 1967

These provisions enable the court to deal with cases efficiently, sparing witnesses the need to attend court unnecessarily and enabling cases to be presented clearly and simply. In addition to the requirements of these sections, prosecutors should also apply the relevant Criminal Procedure Rules and Practice Directions.

Section 9 of the Criminal Justice Act 1967 (CJA 1967) allows evidence to be served by way of written statement (subject to the requirements set out in the section). If no objection is taken by the defence, the statement is then read in court rather than requiring the witness to give oral evidence. It is not conclusive evidence and a party who has agreed a statement under section 9 CJA 1967 may still comment on its value or significance. It remains open to the party serving the statement to call the witness to give oral evidence. The court may of its own motion, or on application from any party to the proceedings, require the witness to attend. The statement must be read to the court to be admissible.

Statements taken in Scotland and Northern Ireland can be read in the same way as statements taken in England and Wales, provided all the provisions of section 9 CJA 1967 have been complied with (section 46(1) Criminal Justice Act 1972). Section 9 does not apply to witness statements taken outside the United Kingdom. However, it will still be necessary for the investigator to obtain a written account from the witness even if that witness is not in the United Kingdom. If no objection is taken to it, the defence may be asked to admit the contents of such statements in accordance with section 10 CJA 1967. Otherwise the witness’ attendance, in person or by video link, will need to be arranged.

Section 10 of the CJA 1967 provides for evidence to be reduced to a formal written admission agreed by both the prosecution and the defence. Unlike a statement admitted under section 9 CJA 1967, an admission under section 10 is conclusive evidence of the fact to which it relates.

Where the defence indicate that that they accept part of the prosecution case, or identify the issues in the case and confirm what is not in issue, prosecutors will seek to introduce evidence using the section 9 and 10 provisions. They will do so on the basis that the defence agree to the admission of the evidence, having indicated the real issues in the case and thereby agreeing to the efficient presentation of evidence not in dispute.

Editing statements for tender under section 9 CJA 1967

Investigative agencies are responsible for redacting irrelevant personal or sensitive data from a witness statement prior to sending it to the CPS. If further editing of a witness statement served under section 9 CJA 1967 is necessary to remove inadmissible, prejudicial or irrelevant material, this should be carried out by the prosecutor who should mark the statement in such a way as to make the omitted passages clear and that they are not to be relied upon or read out.

Use of section 9 CJA 1967 – practical tips and considerations

Prosecutors should use section 9 to agree the evidence of witnesses, save where:

  • it is plain that the witness’ evidence is disputed in light of the issue(s) in the trial; or
  • the value of the witness giving oral testimony is outweighed by the inconvenience attending court.

Accordingly, section 9 is best used for formal evidence which is necessary to prove the case but which is not going to be disputed by the defence. Where the defence requires the attendance of a witness it is appropriate to understand why that is, first in engagement with the defence and, if no satisfactory reason is apparent, by raising it with the court (as a case management issue or if necessary, through a hearsay application). Dealing with cases justly includes respecting the interests of witnesses and case management means witnesses should not attend court without good reason. This applies equally to defence witnesses.

Agreeing admissions under section 10 CJA 1967

The key points to note are as follows:

  • A formal admission under section 10 CJA 1967 made before the proceedings must be in writing. If it is made orally during the proceedings, it must be written down.
  • Admissions should relate to facts. Expressions of opinion, speculation and comment, should be avoided, save where the opinion evidence is that of an expert witness.
  • There is no reason why documents or other exhibits should not be referred to provided they are clearly identified and copies are appended.
  • If evidence is inadmissible, an admission under section 10 CJA 1967 will not make it admissible.
  • Service of the underlying statement may still be required.

Use of section 10 CJA 1967 - practical tips and considerations

Magistrates and juries may sometimes find it easier to understand evidence presented to them in an agreed admission, rather than in the form of a witness statement read out to them. Examples include forensic evidence, continuity evidence, maps or other visual imagery, the facts dates and circumstances of previous convictions. Admissions should carefully reflect, and not obscure, the detail of the underlying evidence on which they are based.

Telephone statements and electronic signatures

There is no statutory or other requirement for a signature on a witness statement to be in ink on paper (a so-called ‘wet signature’) or that a document must be signed in any particular way.

The common law in England and Wales has always been flexible in recognising a range of types of signature. The courts have considered electronic signatures on several occasions and have accepted electronic forms of signatures including a name typed at the bottom of an email or clicking an “I accept” tick box on a website. Signatures can be captured in a variety of ways in connection with digital documents:

  1. as a graphical digital representation of the witness’s usual signature (typed version);
  2. as a scanned copy of a ‘wet signature’ (if they have the facilities to do so);
  3. using a digital signature authorised or certified by the maker;
  4. using a password (an e-mail from a named e-mail account could also be considered to ‘purport to be signed’ by the account holder, particularly so if it is a secure account and one that requires a password to obtain access).

All the above would appear to ‘purport to be’ a signature for the purposes of both the Criminal Justice Act 1967 and Magistrates’ Courts Act 1980.

There is specific legislative provision in the Electronic Communications Act 2000 (ECA 2000) that makes the use of digital signatures admissible in evidence in any legal proceedings. Section 7 ECA 2000 provides that an electronic signature incorporated into or logically associated with a particular electronic communication or data and the certification by any person of such a signature will be admissible in any legal proceedings for the purpose of establishing the authenticity or the integrity of any communication or data.

Witness statements taken over the telephone

Where it is not practicable to obtain a signed witness statement in person, it can be taken over the telephone. The steps set out below are best practice but the process may vary between different police forces and investigative bodies. Where best practice has not been followed, prosecutors will need to consider on a case-by-case basis whether they are satisfied as to the admissibility of the statement.

  • The witness’ account should be typed digitally by the statement taker.
  • Consideration should be given to whether there is a risk of harm to the witness if the statement was to be intercepted when sent by e-mail or post.
  • If it is considered safe to do so, the typed statement should be emailed or posted to the witness with instructions to:
    • review the contents of the statement;
    • make any amendments or corrections; and
    • place their electronic or wet signature under the statement of truth to confirm the contents are accurate and true. An electronic signature can take any of the forms set out above, however a typed version of the signature below the statement of truth is preferable.
  • If the witness is unable to make any corrections or amendments to the statement themselves, the statement taker can do this over the telephone. The amended version of the statement must then be sent to the witness to read and sign.
  • If the witness cannot read the statement, a signed declaration is required by someone else that that person read it to the witness. This can be in the form of another statement signed by the person who read the statement to the witness confirming the same.
  • All statements taken by telephone should state that they have been taken by telephone and that the witness has had the opportunity to consider the contents and authenticate it. The following suggested wording can be placed at the top of the statement (in addition to the required statement of truth):
    “This statement has been taken over the telephone by xxxx [Officer’s Name/ Interpreter’s name]. I have had the opportunity to review the contents of the statement and confirm that the contents are accurate and true.”
  • The e-mail correspondence between the police and the witness will be relevant unused material and should be scheduled by the disclosure officer on the schedule of unused material.
  • If the statement is taken in a foreign language using an interpreter the same process set out above applies to authenticate the contents of the statement by the witness.

Unsigned witness statements and charging

For the purposes of making a charging decision under the Code, prosecutors should note that for a Full Code Test decision to be made a statement taken over the telephone must be authenticated as set out above so that it is admissible at the point of charge.

An unsigned telephone statement may, depending on the circumstances, prevent the application of the Full Code Test, which requires prosecutors to be satisfied that the available material to is capable of being put into an admissible format for presentation in court within a reasonable time.

The MG3/request for charging advice should clearly identify any unsigned statements. The investigator can confirm that the statement has been read to the witness and the contents agreed in principle. If unsigned statements are submitted to the CPS, they should be named accordingly with the addition of the word UNSIGNED.

Witnesses’ Addresses – Handling

As a general rule, the police and prosecutors will ensure that witness' addresses are not disclosed. The exception is where this information is common to all parties and part of the offence itself e.g. the location of a burglary.

This means not including witness’ addresses in material to be provided to the defence, in the first place or by redaction. Where it appears to be necessary for reasons of evidence or disclosure to provide this information to the defence, the police should first consult the witnesses involved and conduct a risk assessment. This will inform whether the prosecution choose to rely on this evidence or not. It will also assist in deciding whether the information is to be treated as non-sensitive or sensitive unused material and how it should be handled i.e. whether the obligations of disclosure can be met in some other way or whether a PII hearing is required. It should not be necessary for a witness to state their address in open court.

Handling defence requests to interview prosecution witnesses and interviewing defence witnesses

During criminal proceedings, the overarching principle, subject to the safeguards below, is that either party may interview each other's witnesses or prospective witnesses and/or take statements from them. However, each party to the proceedings must ensure that no undue pressure is applied to the witness concerned and seek to mitigate any risk of exposure to allegations of witness intimidation or evidence tampering.

Defence requests to interview prosecution witnesses

A request from the defence to interview a prosecution witness should be made in writing. This ensures that there is an audit trail of the request and will avoid any miscommunication or misunderstanding. This process applies whether or not the witness is used or unused by the prosecution.

If the matter is still under investigation (i.e. pre-charge) any request should be directed to the police.

If the case has been charged the request should be made to the relevant prosecutor. On receipt of a request the prosecutor should send an action to the police to:

  • contact the witness and inform them of the defence request to interview them; and
  • explain to the witness that it is their choice whether or not to agree to the request and that they are entitled to seek independent legal advice prior to making a decision whether or not to speak to the defence.

Once the witness has considered the request and (if required) sought independent legal advice, the police should obtain confirmation in writing whether or not the witness agrees to speak to the defence.

If the witness agrees, the details of the defence representative should be passed on to the witness so that the witness can make contact.

If the witness does not agree to be interviewed by the defence, the defence should be advised of this and any explanation provided (with the consent of the witness).

If the witness is interviewed by the defence, the defence should ensure that:

  • the witness is reminded that they have a choice about whether or not to speak to the defence;
  • ask the witness whether they wish to have their legal representative and/or an appropriate adult present during the interview; and
  • ensure that the defendant or anyone else connected to the case is not present when the witness is spoken to.

If the defence wish to interview prosecution witnesses who are police officers, they cannot object to a senior police officer being present. It is preferable if the senior officer at the interview has no connection with the proceedings in question. It is a matter for the Chief Constable or the CPS (Unit Head or designated prosecutor), to determine the conditions for the interviews, provided they are reasonable in all the circumstances.

Process for interviewing defence witnesses

The defence must inform the prosecutor and the court of the name, date of birth and contact details of any persons they intend to call as witnesses. This applies in any case in which the accused pleads not guilty in the magistrates’ court or any case which is sent or transferred to the Crown Court for trial. Failure to do so may mean that witness cannot give evidence (see section 6C Criminal Procedure and Investigations Act 1996 (CPIA 1996); Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011.

There is no duty on the defence to disclose the written witness statements of their own witnesses to the prosecution. However, if the defence want the prosecution to agree the contents (to avoid the need to call the witness at trial) then the witness statement will need to be disclosed.

In Rochford [2010] EWCA Crim 1928 , the Court of Appeal confirmed that the combination of the provisions concerning notification of details of defence witnesses and the Criminal Procedure Rules have, or at least are designed, to abolish trial by ambush.

Once the details of defence witnesses have been provided, it is open to the prosecution to contact and interview them. The prosecutor must forward the details of any witnesses to the police expeditiously so that a decision can be made whether or not to conduct interviews.

The Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused, made under section 21A of the CPIA 1996 contains guidance for police officers and other persons charged with the duty of investigating offences for interviewing of witnesses notified by the accused (either to support an alibi or otherwise).

In summary, where it is intended to interview a defence witness who has given evidence or who it is known will be giving evidence, the witness must be asked if they consent to being interviewed and informed that:

  • an interview is being requested following their identification by the accused as a proposed witness;
  • they are not obliged to attend the proposed interview;
  • they are entitled to be accompanied by a solicitor; and
  • a record will be made of the interview.
  • The accused or the accused’s representatives must be notified:
    • that the investigator requested an interview with the witness;
    • whether the witness consented to the interview; and
    • if the witness consented to the interview, whether the witness also consented to a solicitor attending the interview on behalf of the accused, as an observer.

Where a formal alibi notice has been given by the defence:

  • the police should give the solicitor for the defence a reasonable opportunity to be present before interviewing an alibi witness; or
  • if the defendant is unrepresented, it is not appropriate for the defendant to be present at the interview of the alibi witness. However, the police should try and arrange for an independent person to be present;
  • the solicitor present at the interview of the alibi witness is primarily an observer to lessen the risk of allegations that the police acted improperly. They have no right to interfere with the interview if there is no solicitor-client relationship with the witness.

Interviewing defence witnesses after they have given evidence

The police should be discouraged from interviewing defence witnesses after the witnesses have given evidence. The right to interview defence witnesses after they have given evidence should only be exercised with the approval of a Senior District Crown Prosecutor, equivalent grade or above (please see Referrals, approvals and notifications).

For further guidance on defence obligations regarding witnesses, defence statements and alibi prosecutors should refer to the relevant chapter of the Disclosure Manual.

Attendance of Witnesses at Court

This section sets out guidance for handling witnesses who may be reluctant to give evidence.

Securing attendance: compellability

Most competent witnesses can be compelled by the court to testify. For further guidance on competence prosecutors should refer to Special Measures and sections 53 and 54 Youth Justice and Criminal Evidence Act 1999.

The only exception relates to spouses and civil partners who are only compellable to give evidence against their partner in limited circumstances; see section 80 of the Police and Criminal Evidence Act 1984 (PACE).

The prosecution can only compel a spouse or civil partner to give evidence for the prosecution in cases which involve:

  • An allegation of an assault on, or injury or a threat of injury to the spouse or civil partner;
  • An allegation of an assault on, or injury or a threat of injury to a person who was at the material time under the age of sixteen years;
  • An alleged sexual offence against a victim who was at the material time under the age of sixteen years; or
  • Attempting, conspiring or aiding and abetting, counselling and procuring to commit the offences in the categories above.

Reluctant Witnesses: summons for witness to attend a deposition

In some cases, material witnesses may be reluctant to cooperate with the police investigation and prosecutors may wish to consider making an application at the magistrates’ court to compel a reluctant witness to attend court to give a deposition or produce a document or exhibit (see schedule 3, paragraph 4, Crime and Disorder Act 1998).

It follows, therefore, that a deposition is only available where the witness has not already given a statement or produced an exhibit and can only be taken where the defendant has already been charged and sent to the Crown Court for trial.

Prosecutors should refer to the relevant part of the Criminal Procedure Rules for further guidance on the procedure for making an application for a summons in these circumstances.

A risk assessment must be carried out in all cases. Prosecutors should refer to the guidance on Witness Summons below for further details on risk assessment.

A summons for a deposition should only be sought with the approval of a Senior District Crown Prosecutor, equivalent grade or above (please see Referrals, approvals and notifications).

Reluctant Witnesses: witness summons

If a witness declines to attend court to give evidence for the prosecution, consideration may need to be given to applying to the court for a witness summons pursuant to sections 2 – 2C Criminal Procedure (Attendance of Witnesses) Act 1965 (for the Crown Court) or section 97 of the Magistrates’ Courts Act 1980 (for the magistrates’ court). The key legal test to be applied in determining the application is:

  • whether the witness is likely to be able to give material evidence; and
  • whether it is in the interests of justice to issue the summons to secure their attendance.

Applications for a witness summons should be made as soon as practicable after becoming aware of the grounds for doing so. Prosecutors should refer to the relevant part of the Criminal Procedure Rules for guidance on the correct process for making an application for a witness summons.

The Crown Court may also issue witness summons of its own volition (section 2D Criminal Procedure (Attendance of Witnesses) Act 1965).

An application for a witness summons is not dependent on an earlier application to compel a reluctant witness to provide a deposition pursuant to schedule 3, paragraph 4, Crime and Disorder Act 1998 even where the prosecution took a tactical decision not to seek such a summons for a deposition (R v Walker [2022] EWCA Crim 1488).

Applying for a witness summons: practical considerations

Compelling a witness to attend court is a last resort and is a prosecutorial decision that should be exercised with great care and sensitivity. Before applying for a summons, prosecutors must ensure they have a risk assessment for each victim or witness. There will be occasions when the non-attendance of a witness is unexpected, and circumstances do not allow for the risk assessment to be completed before the application is made. Where this occurs, prosecutors must ensure the risk assessment is completed before a decision is made to serve the summons: application and service of the summons are separate.

For important considerations in relation to an application for a summons, please see the section on Witness Warrants below, including the case of Wills v CPS [2016] EWHC 3779 (Admin) which highlights the need to explore the reasons for a victim’s non-attendance before considering adducing evidence by way of res gestae.

Prosecutors should also consider the Domestic Abuse guidance in relation to case building, evidence led prosecutions and the overlapping considerations in terms of compelling a witness to attend Court.

The content of an application for a witness summons

When completing an application for a witness summons, prosecutors should ensure that it explicitly articulates why the legal test is met. It should particularise:

  • what evidence, document or thing the person is likely to be able to give/produce;
  • that the evidence, document or thing is admissible;
  • why it is material (i.e. relevant to an issue in the case); and
  • why it is in the interests of justice.

An insufficiently particularised application is liable to be set aside.

Risk assessment

A risk assessment must be carried out in all cases prior to a witness summons being sought, regardless of the nature of the case.

Prosecutors should refer to Domestic Abuse for detailed guidance on applying for a witness summons including the factors that may be relevant to the risk assessment, the principles of which can be applied in cases other than of Domestic Abuse. This includes taking in account risks associated with any related application for a warrant should the witness refuse to attend court following the issuing of a summons. A combination of factors needs to be considered, with all options balanced. Although some of the below factors are specific to cases involving domestic abuse, they can also be applied more widely.

Factors in favour of a summons:

  • serious offence (or escalation of severity from previous incidents);
  • serious injuries;
  • violent relationship and/or pattern of offending;
  • high level of continued dependency/contact between suspect and victim (e.g. carer/patient or child/parent relationships);
  • attack had been planned;
  • incident witnessed seen or heard by a child victim or any other dependent;
  • offence(s) was committed in the presence of or in close proximity to a child victim;
  • offence(s) have been committed against a child victim or other dependent;
  • effect (including psychological) on any child victim or other dependant living in the household;
  • likelihood of recurrence;
  • threat to health and/or safety of victim or any other person involved;
  • victim is pregnant;
  • further incidents;
  • relationship assessed as 'unstable';
  • no separation or divorce proceedings;
  • still lives within same household;
  • defendant's criminal history (particularly if there has been any previous violence); or,
  • information from any other agencies supporting proceeding with a prosecution (e.g. Social Services, Housing, Health, Women's Aid, other voluntary sector [including suspect services]).

Factors against a summons:

  • minor offence and isolated event;
  • no injuries or minor injuries;
  • no further incidents;
  • no further police call-out;
  • no ongoing civil proceedings; or,
  • no history of volatile relationship.

Before any application for a witness summons is made, the prosecutor must ensure that they have up-to-date information about any matters that might be relevant to the risk assessment from the police and, if applicable, any organisations that are providing support to the witness.

When making the decision to compel a witness to attend Court to give evidence against a spouse or civil partner, prosecutors should bear in mind that the element of compulsion could lead to them becoming a ‘hostile witness’ or even refusing to give evidence altogether, which could potentially place them in contempt of Court.

Prosecutors should bear in mind that the refusal of a witness to attend Court may stem from fear. If this is a possibility, prosecutors should ask for further information from the police and consider the use of section 116 of the Criminal Justice Act 2003 (CJA 2003). The CJA 2003 gives 'fear' a wide definition and it will include fear of the death or injury of another person or of financial loss. Prosecutors should refer to Hearsay for further guidance.

Witness warrants

If a victim or witness refuses to attend court following the issue of a witness summons, prosecutors should consider whether a warrant application to the court is appropriate under section 97(3) of the Magistrates Court Act 1980. A prosecutor considering this course of action must obtain a risk assessment from the police before doing so. They must be able to understand both the risk to the witness and others of obtaining the warrant and the risk of not doing so. The risk assessment must assess the seriousness of the incident, the likelihood of repetition including whether the victim is at high risk of further injury or suffering or escalating abuse and what the likely consequences of the warrant being obtained and not obtained are, in terms of future risk of harm.

In exceptional circumstances, a warrant can be applied for under section 97(2) of the Magistrates' Court Act 1980 without having to apply for a witness summons. This approach may be considered in situations where it is likely that the witness summons would not procure the attendance of the victim or witness in question.

Seeking a witness warrant could deter the victim from seeking help in the future, thereby jeopardising their future safety and that of any child victim or other dependants. Arresting a victim may also have the effect of 'stigmatising' them and may have a detrimental effect on the quality of evidence given. Prosecutors should therefore use this approach only where they are satisfied that the risk and consequences for the witness are clearly outweighed by the risk to them or others of not obtaining the warrant.

However, prosecutors must also consider witness’ attendance as an important part of the case strategy from an early stage and bear in mind that before considering adducing evidence by way of res gestae, they should ensure that proper inquiries have been made to determine why a victim has not/will not appear at court, in accordance with the principles set out in Wills v CPS [2016] EWHC 3779 (Admin).

For more information in relation to adducing evidence under the Res Gestae principle and evidence-led prosecutions, please see Domestic Abuse.

Selection of witnesses

The principles for the calling of prosecution witnesses were set out by the Court of Appeal in Russell-Jones [1995] Cr. App. R. 538 and has been affirmed in Jackson [2023] EWCA Crim 735.

Service of a witness statement as part of the prosecution case (that had not been agreed under section 9 CJA 1967) is an indication that the prosecution will call that witness and secure their attendance at court. Prosecutors should therefore carefully select the witnesses that will be required to give evidence for the prosecution before service of their statements. Although the prosecution retains a discretion not to call witnesses whose statements have been served as part of the prosecution case, it is a discretion that should be exercised in the proper manner and in the interests of justice. For example, the prosecution is not obliged to call a witness if they consider the witness is no longer credible (Olivia [1965] 3 All ER 116).

Where there are a number of witness statements upon which the prosecution could rely that are in broad agreement but differ as to some details, some of which may be more helpful to the defence than others, the better practice is to serve and call all those witnesses (subject to issues as to credibility or agreement to read the statement pursuant to section 9 CJA 1967).

The judge or magistrates have the power to call a witness who has not been called by either the prosecution or the defence, and without the consent of either, if it is necessary in the interests of justice. This power should be exercised rarely (R v Roberts (1985) 80 Cr. App. R. 89).

Police Officer Witnesses and Misconduct

Prosecutors should refer to the relevant chapter of the Disclosure Manual for further guidance on the disclosure of misconduct or criminal proceedings against police officers or police staff involved in an investigation and who may be prosecution witnesses.

Witnesses from abroad

Witnesses from abroad should only be called if their evidence is valuable or crucial. Such a course should only be contemplated once alternatives have been fully explored. Further guidance can be found in Hearsay, Live Links and International.

Special procedures may apply to secure the attendance of witnesses from abroad, depending upon which country they are travelling from, and particular applications may be needed. It is advisable to check what procedures are applicable in the country where the witness is travelling from.

Expert Witnesses

For further guidance on expert witnesses prosecutors should refer to Expert Evidence

Interpreters

Any witness statement taken from a person who has difficulty in speaking or understanding English should be recorded in the foreign language and signed by the witness. It should include the declaration prescribed in section 9(2)(b) Criminal Justice Act 1967. Prosecutors should note that when preparing the case, the foreign language statement should be appearing immediately before or after the translation.

Interpreter for a Witness at Court

If an interpreter is required for a trial at the magistrates’ court, then this should be noted on the Preparation of Effective Trial form at case management. In the Crown Court, this should be recorded on the PTPH form, on the CCDCS system.

The decision as to whether an interpreter should be allowed to assist a defence witness is a matter of discretion for the judge. They are not bound by the witness asserting that they require an interpreter, nor does the judge need to conduct specific inquiries as to their command of English: Sharma [2006] EWCA Crim 16.

The interpreter must be a person who can be expected to be impartial: Mitchell [1970] Crim LR 153 CA.

It is the CPS' responsibility to ensure that an interpreter for a prosecution witness is warned to attend court. The police will normally be able to assist with the task of finding a suitable interpreter. Interpreters working within the Criminal Justice System should be registered on the National Register of Public Service Interpreters (NRPSI). The CPS is responsible for ensuring that the interpreter is appropriately qualified to carry out the assignment and that terms and conditions have been agreed before the assignment is undertaken. The costs incurred in employing interpreters should be included in applications for costs against convicted defendants.

If the question of competence of the interpreter is raised, the hearing should be adjourned, so that it can be resolved.

Interpreter for a witness who has a mental disorder

Where a person with a mental disorder is interviewed on video by the police with the interpretation assistance of another person who was the only person able to understand the witness, the video is admissible under section 116 Criminal Justice Act 2003. However, where the video was unintelligible the interpreter could interpret during the court proceedings and use any transcript or notes made of the video interview as an aide memoire: Duffy [1999] Q B 919.

Interpreter for a Defendant at Court

If they cannot understand or speak the language used in court the defendant has an unqualified right to an interpreter under Article 6 of the European Convention on Human Rights. This does not extend to having the proceedings conducted in a language of their choice.

If the defendant requires an interpreter, it is the responsibility of the court to arrange for the attendance and payment of an independent interpreter. Where there is more than one defendant, each should have a separate interpreter.

When a defendant is remanded in custody from the police station to the Magistrates’ Court, it is the police who are responsible for organising an interpreter.

As a general rule, an interpreter that was used at the police station or in the course of investigations by other investigating agencies should not be engaged to interpret in the courtroom for the same case. If it is not possible to find another interpreter (for example, where the language is rare) the court and all parties must be notified of the intention to use the same interpreter for the court proceedings, (see Code C of the Police and Criminal Evidence (PACE) 1984 and Bozkurt v South Thames Magistrates’ Court [2002] EWHC Admin 400).

‘Double translation’ is permissible at both interview and trial, where it proves impossible to find an interpreter who is fluent in both English and the language in which the defendant is fluent. Both interpreters must be suitably skilled in the interpretation of their particular part of the process. Each must be fluent in their common language as well as the language used by the defendant or in English (R v West London Youth Court, ex p. N. [2000] 1 WLR 2368) If an interpreter is required to give evidence, they should be given an opportunity to confirm the accuracy of any record of interview at which they were present.

The CPS is responsible for the payment of expenses of an interpreter who attends court to give evidence about what took place at the defendant's interview.

Special Provision in Wales for the Welsh Language

Section 22(1) of the Welsh Language Act 1993 states that any party, witness or other person has the right to speak Welsh in a court in Wales. A Welsh-speaking prosecutor should be provided in such cases. Where this cannot be done, a short adjournment should be sought to enable a Welsh-speaking prosecutor to attend or a court interpreter should be used. As soon as it becomes known that the Welsh language is likely to be used, the court should be informed.

Witnesses who are Deaf or have a Speech Impairment

A witness who is deaf or hard of hearing may require the services of a qualified Sign Language Interpreter or, for those who do not know or use sign language, a Lip speaker, when giving their evidence at court. Only registered British Sign Language Interpreters or Lipspeakers should be used.

The true record of the original statement of a witness or defendant who uses sign language is a video recording, not the interpreter's written or oral version of what they say the defendant or witness conveyed: R (on the application of Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134.

A witness who has a speech impairment may be permitted to write down their evidence at court.

Trial issues

This section provides some guidance on common issues with witnesses that can arise at trial.

Memory refreshing

Although witnesses are not entitled as of right to see a copy of their statement before the day of trial, there is no general rule that prohibits it and the courts have approved the practice of allowing witnesses to see their statements prior to trial. Prosecutors should therefore ensure that witnesses have been offered an opportunity to view their statement to refresh their memory before giving evidence – preferably on the day of the trial. If the statement is particularly long or complex it may be appropriate to provide a copy. A prosecutor can refuse to provide a witness a copy of their statement if there is reason to believe that the request is made for reasons other than a desire to give honest and accurate evidence.

Prosecutors may need to consider the logistics of providing witnesses with an opportunity to view their statement where the witness is not present in Court (for example because they are giving evidence remotely at another location). Depending on the venue from which they are giving evidence, a police officer or member of Witness Services staff may be able to facilitate this.

It is good practice to inform the defence if a witness has seen their statement some time before giving evidence (as opposed to the day of trial). The defence may be entitled to explore with a witness whether advance memory refreshing allowed them to collude with other witnesses, or whether the opportunity was used to “learn” the contents of the statement to give a false impression of truthfulness.

These are legitimate defence areas of enquiry but are unnecessary risks to create and therefore it is only in exceptional circumstances that a witness should be given a copy of their statement days or weeks before the trial begins.

Memory refreshing – video recorded interviews

It is CPS policy that a video recorded interview may be shown to the witness before the trial for the purpose of refreshing memory unless it has been ruled inadmissible. How and when this takes place should be decided on a case-by-case basis, with the overriding aim of enabling the witness to give best evidence.

A decision must be made as to who is best placed to support the witness while their memory is refreshed. Watching the video recorded interview can be distressing and best practice is to arrange for the witness to view it prior to the trial, not on the day of the trial. The police will usually arrange to view the video recorded interview with the witness (and their intermediary if one has been engaged for proceedings) during the week before the trial. The time interval between showing the video recorded interview for the purpose of memory refreshing and giving evidence should take account of the witness's needs and concentration span. Minimising delay should be balanced against, for example, the difficulty experienced by some witnesses in concentrating through two viewings on the same day.

Prosecutors should note that many young witnesses may prefer to watch the video recorded interview at least a day before the trial. This allows the young witness to prepare for the trial and reduce the stress of giving evidence. It is recommended that the first viewing of the recording should not be on the morning of the trial.

The Equal Treatment Benchbook, Chapter 2 recommends that if a young witness watches their video recorded interview at a different time from the jury then the young witness should be sworn immediately before cross-examination and then asked if they have watched the video recorded interview and if its contents are true.

The purpose of watching the video recorded interview before trial must be explained to the witness, and their views considered. The witness must be informed of any editing of the video recorded interview. This will avoid the witness being surprised, suspicious or confused when the recording does not precisely match their recollection of the interview.

It is the responsibility of the police to arrange for prosecution witnesses to view their video recorded interview. The police should consult the prosecution about where this should take place and who should be present. The police must keep a record of anything said at the viewing.

For further guidance in relation to ABE interviews, please see Safeguarding Children as Victims and Witnesses.

For guidance in relation to s.28 hearings and the procedure, please see Special Measures.

Memory refreshing whilst giving evidence

Section 139 of the Criminal Justice Act 2003 (CJA 2003) provides for a witness to refresh their memory if they state in their oral evidence that the statement records their recollection of the matter at an earlier time and that their recollection is likely to have been significantly better when the statement was made than when the witness is giving evidence.

The CJA 2003 does not expressly purport to abolish the common law in relation to memory refreshing but should be read in conjunction with the common law.

Section 139 CJA 2003 also applies to a transcript of a sound recording. Sound recording is not defined in this part of the Act.

Prejudicial or inadmissible evidence in witness statements

Sometimes witness statements include material which may prejudice a fair trial if a witness makes reference to it when giving evidence. Awareness of prejudicial material will reduce the chances of the witness inadvertently referring to it or being confused or surprised when the matters are not mentioned in examination-in-chief. The prosecutor should therefore explain to the witness in advance if their statement contains information that the witness should not mention when giving evidence and explain that they will not ask questions about this content.

The prosecutor should examine the witness in such a way that avoids the need for the witness to refer to any prejudicial material. Nonetheless, a witness may deliberately or inadvertently disclose prejudicial or inadmissible material while giving evidence. If in such an event the defence applies 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 no longer is possible, they should support the application and seek a retrial if the judge discharges the jury. 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.

Prosecutors should consider, as part of their case strategy, what part of a witness’ statement or exhibit is admissible and/or to be relied upon. When dealing with service and disclosure, prosecutors may want to consider whether an appropriately edited (such as by the use of square brackets) version of the statement or exhibit should be provided to defence in order to ensure clarity as to which parts of the statement are identified as being inadmissible or not relied upon.

Responding to a request for a victim or witness to observe the trial

A victim or witness may ask if they can watch the rest of the trial after giving their evidence. This is entirely understandable, and the principle of open justice means they are entitled to do so.

Additionally, prosecutors may wish to consider the following points:

  1. Has the victim or witness had special measures during the trial? If so, make sure to take the time to explain that the public gallery may be visible to the defendant(s) and that there may be other people sitting there (members of the public, or perhaps the defendant’s friends and family members). The victim or witness should understand that if they wish to remain to watch the trial, it is unlikely that any special measures will be available.

    Prosecutors may wish to consider whether it would be possible for the victim or witness to attend remotely (for example via CVP).
  2. Is there any evidence which might be adduced that could cause the victim or witness distress, such as CCTV. If so, consider whether it is appropriate for the victim or witness to be warned about this in advance, so they might be able to leave Court for that part of the trial but at any rate are forewarned of it. Your OIC or witness services volunteer may be able to assist with this.

Prosecutors should exercise caution in order to avoid giving, or appearing to give any advice to the victim or witness on whether they ought to remain to watch the trial. It is the victim or witness’ right to remain and the decision is one for them to take.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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