Planning and preparation
The Importance of Planning
2.1 The purpose of an investigative interview is to ascertain the witness’s
account of the alleged event(s) and any other information that would assist
the investigation. A well-conducted interview will only occur if appropriate
planning has taken place. The importance of planning cannot be overstated.
The success of an interview and, thus, an investigation could hinge on it.
Even if the circumstances necessitate an early interview, an appropriate
planning session that takes account of all the information available about the
witness at the time and identifies the key issues and objectives is required.
Time spent anticipating and covering issues early in the criminal
investigation will be rewarded with an improved interview later on. It is
important that, as far as possible, the case is thoroughly reviewed before an
interview is embarked upon to ensure that all issues are covered and key
questions asked, since the opportunity to do this will in most cases be lost
once the interview(s) have been concluded.
2.2 In some cases, it might be advisable for there to be a discussion with the
Crown Prosecution Service (CPS) 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 2009). Where
such a discussion takes place, there should be a decision about the form in
which the statement is to be taken (video-recorded or written). Such
decisions must take account of the witness’s expressed preferences and, if
appropriate, those of their carers.
2.3 In some cases it may useful to obtain the assistance of an interview adviser
to develop a witness interview strategy (see National Investigative
Interviewing Strategy, Association of Chief Police Officers 2009).
Initial Contact with Victims and Witnesses
2.4 The need to consider a video-recorded interview will not always be
immediately apparent, either to the first police officer who has contact with
the witness or to other professionals involved prior to the police being
informed. Even where it is apparent, the need to take immediate action in
terms of securing medical attention and making initial decisions about the
criminal investigation plan might be such that some initial questioning is
necessary.
2.5 Any initial questioning should be intended to elicit a brief account of what
is alleged to have taken place; a more detailed account should not be
pursued at this stage but should be left until the formal interview takes
place. Such a brief account should include where and when the alleged
incident took place and who was involved or otherwise present. This is
because this information is likely to influence decisions made in respect of
the following aspects of the criminal investigation plan:
• Forensic and medical examination of the victim;
• Scene of crime examination;
• Interviewing of other witnesses;
• Arrest of alleged offender(s); and
• Witness support.
2.6 In these circumstances, any early discussions with the witness should, as
far as possible, adhere to the following basic principles:
a) Listen to the witness.
b) Do not stop a witness who is freely recalling significant events.
c) Where it is necessary to ask questions, they should, as far as possible in
the circumstances, be open-ended or specific-closed rather than forced-
choice, leading or multiple.
d) Ask no more questions than are necessary in the circumstances to take
immediate action.
e) Make a comprehensive note of the discussion, taking care to record the
timing, setting and people present as well as what was said by the
witness and anybody else present (particularly the actual questions
asked of the witness).
f) Make a note of the demeanour of the witness and anything else that
might be relevant to any subsequent formal interview or the wider
investigation.
g) Fully record any comments made by the witness or events that might
be relevant to the legal process up to the time of the interview.
Competence, Compellability and Availability for Cross-Examination: the
Legal Position
2.7 Section 53 Youth Justice and Criminal Evidence Act 1999 provides that in
principle ‘all persons are (whatever their age) competent to give evidence’.
The Section qualifies this principle by saying that persons are incompetent
as witnesses where the court finds that they are unable to understand
questions put to them, or unable to give answers to them which can
be understood; but Section 54(3) makes it clear that in considering this
question a court must bear in mind the various Special Measures that are
available under Sections 23 to 30 of the Act.
2.8 In the case of children the Court of Appeal judgment in R v B [2011]
Crim.L.R. 233 makes it clear that “…although the chronological age of the
child will inevitably help to inform the judicial decision about competency,
in the end the decision is a decision about the individual child and his or her
competence to give evidence in the particular trial.”
2.9 Where a video-recorded interview is to be played in court as evidence-in-
chief, there is no need for the witness to be sworn. Section 31(2) and (3) of
the Youth Justice and Criminal Evidence Act 1999 expressly provides that
such a video-recorded statement, if admitted by the court as the evidence of
the witness, shall have the same legal status as that witness’s direct oral
testimony in court – even where, if giving direct oral testimony in court, the
witness would have been required to take an oath.
2.10 Where a witness is competent to give evidence they are usually also
compellable. This means that they can be legally required to attend trial. In
general, however, the fact that a witness is compellable does not mean that
they can be legally required to give any kind of preliminary statement to the
police – even the sort of statement that is made under this guidance.
2.11 It does not necessarily follow that because a witness is competent and
compellable, the CPS will insist on making them attend court to give
evidence if they are unwilling to do so. The prosecution is not legally
required to call every piece of evidence available, and in some cases may
proceed without a particular witness’s evidence if they believe they can
secure a conviction without it. In cases where they believe the evidence of a
particular witness is essential, the Code for Crown Prosecutors leaves it
open to the CPS to drop the case if they think that it would be particularly
damaging to the witness to proceed. In deciding whether to include a
particular witness’s evidence, and whether to proceed with the case at all,
the CPS will always take account of the wishes of the witness (although
they will not necessarily defer to them). Reports to the CPS should always
include clear information about the wishes of the witness, and, if
appropriate, their carers, about going to court. The CPS may in any event
need to seek further information from the investigating team, and should
always be kept up to date throughout the case to ensure a continuous
review.
2.12 A video-recorded interview is usually only admissible as evidence-in-chief
at trial where the witness is ‘available for cross-examination’. The
exceptions to this general rule are set out in the hearsay provisions in
Section 116 of the Criminal Justice Act 2003 that give the judge discretion
to allow the court to hear the pre-trial statements of witnesses who
are unable to give evidence for various specified reasons. These include the
fact that the witness is dead, or ‘by reason of his bodily or mental condition
unfit to attend as a witness’, or does not give evidence at trial ‘through fear
or because he or she is kept out of the way’. It must be remembered,
however, that the judge has the final word on whether or not the statement
will be admitted.
Planning Information
Overview
2.13 The planning phase of an interview with a witness involves some
consideration of three types of information:
• Information about the witness;
• Information about the alleged offence(s); and
• Information important to the investigation.
At this stage, interviewers need to have differing amounts of knowledge
about each type of information. In a general sense, they need to know as
much as is possible in the circumstances about the witness and a little about
the alleged offence and information important to the investigation.
2.14 The kind of information needed and the decision making that surrounds it
differs somewhat for each category of witness considered in this guidance.
For this reason, the information needed in respect of each category
of witness will be considered in turn before moving on to look at the
information that is needed about the offence and the information that
may be important to the investigation.
2.15 The information that should ideally be considered in respect of:
• Child witnesses is covered in paragraphs 2.16 to 2.59;
• Vulnerable adults is covered in paragraphs 2.60 to 2.123;
• Intimidated and significant witnesses are covered in paragraphs 2.124 to
2.147.
The information that is needed about the offence is covered in paragraphs
2.148 to 2.150 and information important to the investigation is dealt with
in paragraphs 2.151 to 2.164.
