Identifying and Responding to the Needs and Wishes of Witnesses
4.30 The Code of Practice for Victims of Crime places a statutory obligation
on the police to take all reasonable steps to identify vulnerable or
intimidated victims. In practice, and through new requirements
contained within the MG11 statement, the police will extend this
identification to all witnesses. This obligation is applied to all witnesses
in the Witness Charter, which says that the police will complete an
initial assessment of the needs of witnesses as well as an assessment of
whether they may be vulnerable or intimidated. As such the police will
often be the first to identify the needs and wishes of the witness and will
activate the system for witness support in their area. That service is then
co-ordinated and delivered on a local basis. Witness Care Units, jointly
run by the police and the CPS, are available in all criminal justice
system areas to provide information and explore the need for practical
support for all witnesses who are called to give evidence. Witness Care
Units provide a single point of contact for witnesses after charge, and
will contact all witnesses after the first hearing. Where a ‘not guilty’
plea has been entered they will carry out a needs assessment of all
witnesses and agree how and when information about the case will be
provided. When a witness has support needs the witness care officer will
seek to ensure that support is arranged, and they will liaise with the
Witness Service to arrange pre-trial visits to courts for witnesses. They
also provide practical help for witnesses, such as help with transport to
get to court and liaison with the courts over any disabilities or other
special needs. They also facilitate effective communication with the
police, the CPS and legal representatives as required.
4.31 The police and the prosecutor and/or defence legal representatives require
information about the needs and the wishes of the witness for the
purpose of pre-trial preparation, planning how the witness should give
evidence and in making related applications to the court. At the outset
the police should ask witnesses for details of any difficulties they might
have in giving evidence, and explain how the different Special Measures
might assist them (this is an obligation under the Code of Practice for
Victims of Crime). Child witnesses will automatically be eligible for
consideration for Special Measures. Witnesses can then express an
informed view on their preference for particular measures, which will be
included in any application.
4.32 Through the charging programme the police should provide the CPS with
information relevant to vulnerability and intimidation by completing the
MG2 and the MG3. Provision of this information at this stage allows for
active consideration of the steps necessary to secure the giving of a
witness’s best evidence as early as possible. Under the Code of Practice
for Victims of Crime, Witness Care Units are required to conduct a full
needs assessment with all victims where a ‘not guilty’ plea is entered,
during which issues relevant to the application for Special Measures and
other support will be explored. The Witness Charter applies this to all
witnesses.
4.33 The police may also seek indirect information about the needs of the
witness from their court witness supporter, relatives, friends or carers
(provided that they are not party to the crime under investigation) or
other agencies. The CPS or legal representative should seek such
information
if it is not provided, as this will be necessary for pre-trial planning an
decision-making at the PCMH. In the case of defence witnesses, it is the
responsibility of the defence lawyer to enquire about the witness’s needs, refer
them to appropriate support services (e.g. the Witness Service) and make
appropriate Special Measures applications.
Preparation, Support and Liaison throughout the Court Process
4.34 Pre-trial support and preparation should begin as soon as possible,
particularly if the witness has been identified as vulnerable or liable to
intimidation. Vulnerability will normally have been highlighted before
the first investigative interview. In the case of video-recorded interviews,
a pre-interview planning meeting should be scheduled, at which any
special difficulties are identified and plans made for relevant Special
Measures to be taken at the interview. This can take place before or after
the interview, or indeed at both stages. The police investigators are
responsible for calling an Early Special Measures Discussion during the
investigation. Where there is any doubt as to whether an interview
should be video-recorded, where an intermediary or aids to
communication are involved, or where there might be an issue about the
use of a supporter during an interview, the police investigator should
normally request an Early Special Measures Discussion. The CPS can
subsequently call an Early Special Measures Discussion if they consider
it necessary after reviewing a case file. After the interview, the next stage
involves support, further assessment of needs and liaison with others. As
pre-trial hearings and the trial hearing come closer, specific preparatory
work for these witnesses will be necessary.
In some cases, separate pre-trial therapy or counselling work will be
necessary to meet the needs of the witness (refer to paragraphs 4.58 and
4.59; see also Provision of Therapy for Child Witnesses Prior to a
Criminal Trial: Practical Guidance (CPS and the Department of Health
with the Home Office, 2001) and Provision of Therapy for Vulnerable
or Intimidated Adult Witnesses Prior to a Criminal Trial: Practical
Guidance (CPS and the Department of Health with the Home Office,
2001)). A variety of support needs must be met at the hearing itself. The
period after the hearing is an important one for ensuring continuing
support or treatment, through debriefing and arranging for further work
with the vulnerable witness to be carried out by other professionals.
Hence, opportunities for support occur throughout the witness’s
involvement with the legal process. These activities can be summarised
under four categories:
•Support during the investigation;
•Pre-trial support, preparation and liaison;
•Support at the hearing; and
•Support after the hearing.
Support during the investigation
4.35 Information collected during the planning phase prior to a video-
recorded investigative interview, and that emerging during the interview
itself,
is highly relevant to later decisions concerning how witnesses may give
their best evidence. It is important that the views of the victim or
witness concerned are sought. Not all vulnerable witnesses will
necessarily be video-interviewed – the majority of adult witnesses will
probably give
a written statement. During the investigation, information about the
witness will have been gathered from contact with the witness directly,
as well as from those providing care, education or specific services. The
effective undertaking of the initial needs assessment by the police, prior
to the statement being recorded or the video-interview undertaken, will
also have established critical information relevant to the investigation
and about support needs up to and including the trial.
4.36 During the course of the investigation, for example in an interview,
further information may emerge that may be relevant to decisions about
how the witness might give their best evidence. It may become clear that
further expert advice is needed in order to determine the best method of
communicating with the witness, any special support or assistance
which might be required and in what form the witness’s evidence might
best be taken. For example, it may be identified that the witness requires
an intermediary.
Special Requirements
4.37 For witnesses whose specific needs include culture and language,
consultation should take place with appropriate advisers, interpreters
and intermediaries. During the course of a pre-interview planning
meeting for a video-recorded interview, or immediately after the
interview, the police may have discovered special needs of the witness
with respect to culture or communication. Some of these issues will
have been identified during the undertaking of the initial needs
assessment and recorded in forms MG2, MG3, MG6 and the back of
MG11. Members of the witness’s family or friends or their carer will
often be a good source of information about these needs or
requirements. They can include communication difficulties, but also
differences connected with cultural and minority ethnic values and,
sometimes, religious practices that are likely to have an influence on the
investigative and pre-trial support and preparation phases. The police
should consult with the witness and those who know the witness well in
order to seek their advice on these matters, provided that they are not a
party to the crime under investigation or likely to undermine or interfere
with the investigation. One example is those witnesses whose first
language is not English, but who at first meeting appear to communicate
relatively easily using English. Appropriate advice and interpretation
may be needed during the interview, when providing information about
the court process and when giving evidence at trial, in order to prevent
the witness becoming confused and to enable them to give their best
evidence. The national guidance embodied in the National Agreement
on Arrangements for the Use of Interpreters, Translators and Language
Service Professionals in Investigations and Proceedings within the
Criminal Justice System (Home Office, 2007, available at
http://frontline.cjsonline.gov. uk/_includes/downloads/guidance/race-
confidence-justice/National_ Agreement_on_Use_of_Interpreters-
August_2008.pdf) should be adhered to. This was published in January
2007 and endorsed by the Association of Chief Police Officers.
4.38 As the hearing approaches, witness support work will become more
specifically focused upon preparing the witness for giving evidence at
court. In some cases, therapy prior to trial will be organised as well.
These different tasks are described in more detail below.
Pre-Trial Support, Preparation and Liaison
4.39 The interval between the investigative interview and the final trial hearing
can often be lengthy. Over the months the tasks range from initially
assessing needs, either by direct enquiry or observation by the police,
through gathering information from others, to providing continuing
support. The pre-trial supporter may not take on all these roles and
different components may be carried out by a different person. Unless a
witness has been appointed a specialist supporter, the Witness Care Unit
will provide a witness with updates on all court hearings in their case
and will continually assess their information and support needs. This is
because a witness’s needs may change and require ongoing re-
assessment by the supporter. The role of a pre-trial support person is
considered.
Communication between the Police and the CPS
4.40 Police officers should have undertaken an initial needs assessment for
every witness and recorded relevant information on the rear of the
MG11 statement form. Information relevant to vulnerability and
intimidation could then be recorded in a Victim Personal Statement, if
the victim has chosen to make one, or on the MG2, MG3 or MG6 for
consideration by the CPS. The initial witness assessment form MG2,
case file information form MG6 and the back of witness statement
form MG11 are confidential documents that are completed to inform
the prosecutor of relevant background information so that there can be
an effective case review.
In line with the new charging requirements, the police officer must also
complete form MG3, which includes information relevant to
vulnerability or intimidation. The MG2, MG3 and MG6 forms are
confidential documents and are there to assist the duty prosecutor when
considering the evidential and public interest criteria of cases. Although
the forms are designed for any type of case, they contain a number of
specific questions that relate to children and vulnerable adult witnesses.
The standard forms cover issues such as: whether a Special Measures
Discussion is required; whether key support workers are needed;
whether an application is required for video link evidence; information
about strengths and weaknesses of the evidence and the witness; the
views of the witness; and other information designed to assist rapid
communication. These considerations, where relevant, should be
recorded by the duty prosecutor on the MG3 form, and used to inform
subsequent considerations in the case.
4.41 An Early Special Measures Discussion between the investigating officer
and the CPS may be of assistance in determining which measures could
assist the witness before and during the trial, taking into account the
witness’s own views and preferences for a particular person to act as a
supporter. This may require no more than a telephone call. Where
appropriate, a second Early Special Measures meeting involving the
witness should be considered so that these issues can be discussed further
and the needs of the witness fully assessed and appreciated (for
additional guidance, see Early Special Measures Discussions between the
Police and the Crown Prosecution Service and Meetings between the
Crown Prosecution Service and Vulnerable or Intimidated Witnesses
[(Office for Criminal Justice Reform 2009] CPS, ACPO and the Home
Office, 2001)).
4.42 In addition, both the prosecution and defence have a responsibility to
communicate any special needs of the witness to the court, including the
presence of a court witness support person while evidence is given,
either at the time the case file is reviewed or at a pre-trial hearing. The
court should be made aware of what Special Measures will be needed at
court to enable the witness to give their best evidence. It is also helpful if
the court can be told in advance about any special arrangements they can
make for the witness to make them feel safer e.g. entering and leaving
the court by a separate entrance, or arranging separate seating in the
court. It may also be appropriate for the legal representatives and/ or the
judge to meet the witness before the trial. The Witness Care Unit should
ensure that witnesses discussed at any such hearing (or their supporters)
are informed about these hearings and the outcome.
