.
Intimidated Witnesses
Definition
2.124 The statutory definition for intimidated witnesses is set out in Section 17
Youth Justice and Criminal Evidence Act 1999 (see paragraphs 1.10 and
1.11). Briefly, intimidated witnesses are those whose quality of
evidence is likely to be diminished by reason of fear or distress.
Preliminaries
Support for Intimidated Witnesses
2.125 Intimidated witnesses need to feel safe and may require support and
encouragement to participate in an interview. Such witnesses should be
appraised at an early stage about the possibility of having a supporter
present during the interview where this is appropriate and about the pre-
trial support that can be made available to them.
2.126 Intimidated witnesses should also be informed about the
protection that might be available to them, including witness
protection schemes where appropriate.
2.127 Where there is risk of intimidation, witnesses should be offered
information about where rapid help and support can be obtained. A
leaflet listing names, addresses and telephone numbers of relevant
individuals and agencies should be available in each locality for
distribution to witnesses.
2.128 The Special Measures that intimidated witnesses might be given access
to at the trial should be outlined and their views ascertained in respect of
them. Their views about the possibility of having a supporter present
while they are giving evidence should also be ascertained. When these
matters are discussed it is essential that the witness understands that
while their views will be listened to, access to Special Measures and/or
a supporter during the trial is very much a decision for the court based
on an application by the prosecution, and as such should not be taken
for granted.
2.129 Investigators need to be alert to the possibility that a witness may not be
intimidated at the time the offence is reported, but that subsequent events
may give rise to fear and distress later on in the criminal process that would
qualify the witness for consideration for Special Measures.
Presenting the Evidence of Intimidated Witnesses
2.130 Intimidated witnesses are eligible for video-recorded evidence-in-
chief provided that the court agrees that access to this Special
Measure is more likely to maximise the quality of the witness’s
evidence than other measures that could be taken (i.e. live evidence-
in-chief either with the use of screens or via live TV link).
2.131 The court also has to take account of the interests of justice when
considering an application for video-recorded evidence-in-chief
(Section 27[2]).
2.132 The practical effect of these limitations are that it is very important that an
early Special Measures discussion takes place as soon as possible in
accordance with the guidance set out in Early Special Measures
Discussions between the Police and the Crown Prosecution
Service (Office for Criminal Justice Reform February 2009).
Information about Intimidated Witnesses
2.133 While circumstances will sometimes limit what can be found out
about the witness prior to the interview taking place (for example,
as a result of time constraints where the alleged perpetrator is in
custody), as much of the following information should be obtained
about the witness as possible:
•Age;
•Gender;
•Sexuality (where the alleged offence might contain a
homophobic element);
•Preferred name/mode of address;
•Domestic circumstances (including whether the witness is
currently in a ‘safe’ environment);
•Relationship of the witness to the alleged perpetrator;
•Any medication being taken and its potential impact on the interview;
•Current emotional state (including trauma, distress, shock,
depression, fears of intimidation/ recrimination, and recent
significant stressful events experienced);
•Likely impact of recalling of traumatic events on the behaviour of
the witness;
•Current or previous contact with public services (including
previous contact with police, the local children’s or adult
services authority or health professionals); and
•Any other relevant information or intelligence known.
Significant Witnesses (not eligible for Special Measures)
Definition
2.134 Significant witnesses are defined in police guidance such as the Murder
Investigation Manual (Association of Chief Police Officers 2006). This definition
is set out in paragraph 1.25 and the reasons for video-recording interviews with
significant witnesses are set out in paragraph 1.26. While interviews with
significant witnesses should generally be video-recorded it is important to
remember that there is no statutory provision for video-recordings of
interviews with significant witnesses to be played as evidence-in-chief,
although interviewers should be aware that the defence might ask the court for
permission to play some or all of the recording in support of their case. The
options for adducing the testimony on the recording as evidence in chief are
set out below.
Presenting the Evidence of Significant Witnesses
2.135 The previous edition of this guidance described two ways in which
the testimony on a video-recorded interview with a significant witness
may be adduced as evidence:
Option 1: Brief written statement from the witness followed by the
production of a transcript of the video-recording as an exhibit
a) The witness should be invited to make a brief Section 9 Criminal Justice Act
1967 statement as soon after the interview as possible, while what was said
is fresh in their memory, confirming that what they said during the interview
is an accurate account of their evidence. This statement should not include
the detail of what was said during the interview because it will subsequently
be reflected in the transcript.
b) A transcript should be compiled by the police. The interviewer should
check the transcript for accuracy against the recording and produce it
as an exhibit in a Criminal Justice Act 1967 statement.
c) The witness’s and the interviewer’s Criminal Justice Act 1967
statements, together with the transcript, should be adduced as
evidence. The existence of the recording(s) should be revealed to the
Crown Prosecution Service (CPS) as ‘unused material’ under the
terms of the Criminal Procedure and Investigations Act 1996.
Option 2: Full written statement of the witness’s evidence derived
from the video-recording
a) A full Criminal Justice Act 1967 statement should be prepared from
the video-recording as soon as possible, while what was said is still
fresh in the witness’s memory. It is good practice to review the
recording prior to preparing the statement. There is no need to
have the witness present during this process.
b) The witness should be asked to review the Criminal Justice Act
1967 statement and invited to make any alterations or additions
to it that they consider necessary. Having agreed its content, the
witness should be invited to sign the statement.
c) The witness’s Criminal Justice Act 1967 statement should be
adduced as evidence. The existence of the recordings should be
revealed to the CPS as unused material.
2.136 For resource reasons option 2 represents the usual method. It
is accepted, however, that there will be exceptional cases where
option 1 may be more appropriate; it is essential that the
agreement of the CPS is obtained before this option is pursued.
2.137 In circumstances where multiple witnesses are involved, it is important that
the number of witnesses who are visually recorded be limited to a number
that is likely to be manageable by the prosecution team. Such a decision
should be made by the senior police officer in charge of the
investigation, in consultation with the CPS where practical, and a
record should be made of the rationale underpinning it, including the
criteria used for determining which witnesses were visually recorded.
Information about Significant Witnesses
2.138 The information needed about a significant witness for the
purposes of planning an interview is the same as for an
intimidated witness (see paragraph 2.133).
Reluctant Witnesses
2.139 Reluctant witnesses are people believed to have witnessed an offence,
part of an offence or events closely connected with it, but who are reluctant
to become involved in the investigative process. At times within an
investigation, interviewers will encounter reluctant vulnerable, intimidated or
significant witnesses. There could be a number of different reasons for this.
For example: adverse perceptions of the police or criminal justice process
based on experience or popular perception; fear of an alleged perpetrator;
concern about the response of the community where they live; worries
about their identity being released; or uncertainty about how they fit into the
overall process. The initial actions of the interviewer should, therefore,
include trying to establish the reasons for the witness’s reluctance, since it
is only by doing so that an attempt to address the issue can be made.
2.140 In order to try to address the issues underpinning the witness’s
reluctance, it is essential that interviewers have a good knowledge of
the criminal justice process and the Special Measures that intimidated
witnesses are eligible for. Interviewers should also be conversant with
local protocols in relation to witness protection programmes and in
respect of witness support organisations.
2.141 Interviewers should endeavour to build a rapport with reluctant witnesses and
take reasonable steps to address their concerns prior to the interview. In some
instances, it might be necessary to build rapport over several sessions.
Reluctant witnesses should be given an outline of the offence(s) being
investigated and informed that it is suspected that they might have witnessed
it, part of it or events closely connected with it (as appropriate). Specific details
of the allegation and the particulars of what is alleged to have been witnessed
should not be discussed during these sessions. No pressure should be
brought to bear on these witnesses to talk to police or to give evidence; the
function of the investigator in these circumstances is simply one of providing
enough information to allow the potential witness to make an informed choice.
2.142 Records should be kept of these sessions either in the form of notes or by
way of a visual or audio-recording, as appropriate in the circumstances.
2.143 Interviewers should seek advice from a supervisor, the senior
officer in charge of the investigation or an interview adviser (see
National Investigative Interviewing Strategy, Association of Chief
Police Officers 2009) wherever necessary.
Hostile Witnesses
2.144 Hostile witnesses are people believed to have witnessed an offence, part
of an offence, or events closely connected with it, but who are opposed to
the investigative process. During some investigations, interviewers will
encounter hostile vulnerable, intimidated or significant witnesses. The
reasons for such hostility might include their lifestyle or the fact that they
have a close relationship to the alleged perpetrator and intend later to
appear before the court as a defence witness. Some of these witnesses
might simply refuse to co-operate with police, while others might choose to
provide false information intended to support the alleged perpetrator’s
account. Records must be kept of all interactions with hostile witnesses,
regardless of the reason for their hostility and the extent of their
co-operation.
2.145 Where a hostile witness consents to an interview, it should be
recorded in accordance with the guidance set out in this document;
on video unless they object to it.
Race, Gender, Culture and Ethnic Background
2.146 The witness’s race, gender, culture, ethnicity and first language should be
given due consideration by the interviewing team. They have a responsibility
to be informed about and take into account the needs and expectations of
witnesses from the specific minority groups in their local area. The
interviewing team’s knowledge of the witness’s religion, culture, customs and
beliefs may have a bearing on their understanding of any account given by
the witness, including the language and allusions the witness may make to,
for example, reward and punishment.
2.147 The investigating team needs to bear in mind that some witnesses may
have experienced discrimination and/or oppression through their
contact with government agencies and local authorities. Their
experiences of racism, for example, may result in them distrusting the
professionals involved in an investigative interview. Asylum-seeking
witnesses and refugees may have a fear of disclosing abuse because
of what may happen to them and their family.
2.148 It is also important that the investigating team considers the complexities of
multiple discrimination, e.g. as might be the case with a homosexual
witness from a minority ethnic community, and of individuals’ experiences
of discrimination. The specific needs and experiences of dual-heritage
witnesses must also be taken into account.
2.149 Some possible relevant considerations include the following,
although this list is in no way intended to be exhaustive:
•Customs or beliefs that could hinder the witness from participating in
an interview on certain days (e.g. holy days), or may otherwise affect
the witness’s participation (e.g. when fasting);
•The relationship to authority figures within different minority ethnic
groups. For example, witnesses from some cultures may be expected to
show respect to authority figures by not referring to them by their first
names, and by not correcting or contradicting them;
•The manner in which love and affection are demonstrated; and
•Issues of shame. For example, witnesses from some cultures
may be inhibited from talking about a sexual assault for fear of
shaming their family.
2.150 A witness should be interviewed in the language of their choice. If a
witness is bilingual, then this may require the use of an interpreter. The
interpreter should be from the National Register of Interpreters.
Information about the Alleged Offence(s)
2.151 It is usually preferable (and not always necessary or essential) that the
interviewer knows little detail of the alleged offence(s) for the purposes
of the interview. However, in order to plan and prepare for the
interview, the interviewer will need a general knowledge of:
•The type of alleged offence(s);
•The approximate time and location of the alleged offence(s);
•The scene of the alleged offence(s) (note that this should only
be enough general knowledge to help the interviewer
understand what might be said during the interview); and
•How the alleged offence(s) came to the notice of the police.
2.152 Where the interviewer is also the investigating officer and has been involved
in a multi-agency strategy discussion, it is accepted that circumstances and
practical resource considerations will probably be such that they are likely to
know more about the alleged offence(s) than is set out above. In this situation,
the interviewer should try as far as possible to avoid contaminating the
interview process with such knowledge. It is also accepted that circumstances
and resource considerations might be such that it could be necessary for an
interviewer to interview more than one witness during the course of an
investigation. In such a situation, care should be taken to avoid
asking questions of a witness based upon the responses of previous
witnesses, because this could contaminate the witness’s account.
2.153 Nothing in this guidance is intended to limit operational decision-making in
cases where the nature of the investigation, the context of the interview and
the circumstances as they are known at the time make it necessary for
interviewers to have a more detailed knowledge of the offence than the
general information outlined in paragraph 2.151 above.
Information Important to the Investigation
2.154 While obtaining an account of the alleged event is essential, other matters
might need to be covered during the interview in order to progress the
investigation. These matters can be regarded as ‘information important to the
investigation’. Obtaining a complete picture of all the relevant issues within an
interview is essential because it will provide the investigating officer with the
information necessary to conduct a comprehensive investigation. It could also
prove beneficial in discussions with the CPS
if the subject of witness assessment is raised. Information important to the
investigation falls into two categories: general investigative practice and
case-specific material. Where such information has not already been covered
as part of the witness’s account, interviewers should consider introducing it
either in the latter part of the questioning phase or in a subsequent interview
session, depending on the complexity of the case and what is alleged to have
been witnessed by the witness.
2.155 The amount of knowledge that the interviewer has about information important
to the investigation prior to the interview depends on what they know about
what is alleged to have been witnessed by the witness. As suggested above, it
is preferable that the interviewer knows little detail of the alleged offence(s)
before the interview. Only a little knowledge that could form the basis of
potential questions about information important to the investigation is, therefore,
likely to be available to the interviewer at this point in time. However, while
planning the interview, the interviewer should apply what they know of the
alleged offences to determine the areas of general investigative practice that
might need to be covered in the interview. More case specific material could
either be made available to the interviewer (from the investigating officer,
interview monitor or recording equipment operator) after an attempt has been
made to elicit and clarify the witness’s account or be included in the planning
information for a later interview to avoid potential contamination of the process.
Information Important to the Investigation Relating to General
Investigative Practice
2.156 Information important to the investigation relating to general
investigative practice includes:
•Points to prove any alleged offence(s);
•Information that should be considered when assessing a witness’s
identification evidence, as suggested in R v Turnbull and Camelo ([1976]
63 Cr App R 132) and embodied in the mnemonic ADVOKATE (Practical
Guide to Investigative Interviewing (National Centre for Policing
Excellence, most recent edition 2004)):
A Amount of time under observation
D Distance from the eyewitness to the person/ incident V
Visibility – including time of day, street lighting, etc.
O Obstructions – anything getting in the way of the witness’s view
K Known or seen before – did the witness know, or had they
seen, the alleged perpetrator before?
A Any reason to remember – was there something specific that
made the person/ incident memorable?
T Time lapse – how long since the witness last saw the
alleged perpetrator?
E Errors or material discrepancies;
•Anything said by the witness to a third party after the
incident (evidence of first complaint, etc.); and
•Any other witnesses present.
2.157 This is not intended to be an exhaustive list. The nature of the information
important to the investigation pertaining to general investigative practice varies
according to the circumstances of the case.
Information Important to the Investigation Relating to Case-Specific Material
2.158 Information important to the investigation relating to case-
specific material could include:
•How and where any items used in the commission of the offence (e.g.
clothing, vehicles, weapons, cash, documents, other property) were
disposed of, if the witness might have some knowledge of this;
•Access by the victim, witness and suspect to electronic media
including computers and mobile telephones;
•Relevant financial transactions by the victim, witness and suspect;
•Any background information relevant to the witness’s account (e.g.
matters that might enhance or detract from the credibility of the
witness’s evidence, such as the amount of any alcohol consumed);
•Any lifestyle information relevant to the witness’s account;
•Where the witness has knowledge of an alleged victim or a
suspected perpetrator, an exploration of their relationship,
background history, places frequented and any events related or
similar to the matter under investigation; and
•Any risk assessment issues that the witness might know about
that concern the likely conduct of the alleged perpetrator,
family or associates.
2.159 This is not intended to be an exhaustive list. The nature of any
case-specific material varies according to the circumstances of the
alleged offence, the nature of any relationship between the
witness and the alleged perpetrator and what is alleged to have
been seen, heard or otherwise experienced.
2.160 Significant evidential inconsistencies and significant evidential omissions
(case-relevant information) are discrete categories of case-
specific material.
Significant Evidential Inconsistencies
2.161 During the course of an investigation it may be necessary to ask a
witness to explain a significant evidential inconsistency between what
they have said during the interview and other material gathered during
the course of the investigation. Such inconsistencies would, for
example, include significant differences between the account provided
by the witness during the interview and:
•What the witness is reported to have said on a previous occasion;
•The accounts of other witnesses; and
•Injuries sustained by either the alleged victim or the alleged offender.
2.162 There are a number of reasons for significant evidential inconsistencies
between what a witness says during an interview and other material
gathered during the course of an investigation. Many of these reasons are
perfectly innocent in their nature (e.g. genuine mistakes by the witness or
others stemming from a memory-encoding or recall failure, or
subconscious contamination of their memory by external influences), but
occasions may arise where the witness is motivated to either fabricate or
exaggerate their account of an event.
2.163 Whatever the reason for the significant evidential inconsistency, occasions
may arise where it is necessary to ask the witness to explain it. The
following principles should be taken into account when considering
whether, when and how to solicit such an explanation:
•Explanations for evidential inconsistencies should only be sought
where the inconsistency is a significant one;
•Explanations for evidential inconsistencies should only be
sought after careful consideration has concluded that there is
no obvious explanation for them;
•Explanations for evidential inconsistencies should only be sought after
the witness’s account has been fully explored, either at the end of the
interview or in a further interview, as appropriate;
•Interviewers should always be aware that the purpose of asking a
witness to explain an evidential inconsistency is to pursue the
truth in respect of the matter under investigation; it is not to put
pressure on a witness to alter their account;
•Explanations for evidential inconsistencies should take
account of the extent to which the witness may be vulnerable
to suggestion, compliance or acquiescence;
•Questions intended to elicit an explanation for evidential
inconsistencies should be carefully planned, phrased tactfully
and presented in a non-confrontational manner.
Significant Evidential Omissions
2.164 During the course of an investigation it may be necessary to ask a witness
about relevant information that they have not mentioned in their account. This
may arise, for example, where others say that the alleged offender was
carrying an object, or that the alleged offender’s behaviour was unusual or
that there was something particular about the alleged offender’s description or
vehicle, but this is not mentioned by the witness. There are a number of
reasons why this type of information can be omitted from an account, and
situations may arise where it is important to seek an explanation from the
witness. In these circumstances, it may be necessary to ask a question to
establish whether the witness has knowledge of the information. Such a
question should only be asked after the witness’s account has been fully
explored, at the end of the interview (or in a further interview if necessary).
2.165 When planning such a question, the interviewer should consider:
•Whether the information omitted by the witness is likely to
be important enough to be worthy of explanation;
•The extent to which the witness may be vulnerable to
suggestion, compliance or acquiescence; and
•Which type of question is most likely to elicit the information
in a manner least likely to have an adverse effect on the
value of any answer.
2.166 A plan for soliciting an explanation for the omission of case-relevant
information from a witness’s account must take account of the reliability
of any answer. For example, a useful starting point might be to ask the
witness a specific-closed question, such as: ‘What else can you tell me
about the incident?’ If the witness’s answer:
•Includes the case-relevant information but lacks sufficient detail, the
interviewer should ask the witness to provide a more detailed
response by means of an open question (e.g. ‘tell me about…’).
When the case-relevant information has been covered, the witness
should be tactfully asked to explain its omission from their account,
unless the reason for its omission is apparent from the witness’s
response or the circumstances of the case;
•Does not include the case-relevant information, a further decision will need
to be made as to whether it is necessary to ask a question that might be
regarded as leading (e.g. ‘Do you recall seeing/hearing…?’). It should be
noted that if the answer to such a leading question contains the case-
relevant information, it is likely to be of limited evidential value. The
evidential value of such an answer may, however, be enhanced if the
interviewer then asks the witness to provide a more detailed response by
means of an open question (e.g. ‘Tell me about…’), followed by questions
intended tactfully to elicit an explanation for its omission from their account
(unless the reason for the omission is apparent from the witness’s response
or the circumstances of the case).
2.167 Where the witness cannot recall the case-relevant information, this may be
due to not attending to the information or to memory loss. Further reading
on case-relevant information can be found in The Evaluation of the
Investigation and Legal Process Involving Child Abuse Offences to
Establish a Model of Investigation for Investigators by K.B. Marlow
(unpublished MSc thesis, Portsmouth, 2002).
