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Can You Sign as a Witness Statement if You Are a Family Member

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Witness statements

OG Status: Partially open

  • What is a witness statement?
  • Types of witness statements
  • Compelled statements taken under department 20(ii)(j) HSWA
  • People who may exist able to provide you with statements
  • Witnesses and self-incrimination
  • Victim personal statements
  • How should witness statements exist taken?
  • Identification of suspects by witnesses
  • Who can be nowadays when you are taking a witness argument?
  • Particular categories of witnesses
  • Defence questioning of witnesses
  • Releasing copies of witness statements
  • Witness interference and intimidation

What is a witness statement?

1. A witness argument is a certificate recording the bear witness of a person, which is signed by that person to confirm that the contents of the argument are truthful.

2. A statement should record what the witness saw, heard or felt. However, it is too important to record anything that may open up upwardly a new line of research or help in corroborating other information1.

Types of witness statements

Statements provided voluntarily in compliance with section 9 of the Criminal Justice Act 1967 (LP70s) - "s9 statements"

3. A s9 argument is taken from a person who has voluntarily given the statement. It does not rely on s20 (2) HSWA powers. S9 statements are recorded on form LP70.

four. Under s9 CJA the contents of a written statement will exist admissible, without the witness attending courtroom to give oral evidence, if the post-obit conditions are satisfied:

  • the argument purports to exist signed by the maker;
  • the statement contains a declaration by the maker that information technology is truthful to the best of his/her knowledge and conventionalities and that information technology was made knowing that, if it were tendered in bear witness, the maker would be liable to prosecution if s/he wilfully stated in it annihilation which he knew to be simulated or did not believe to exist true (known every bit a `perjury declaration');
  • a copy of the argument is served on the other parties before the hearing where the statement is tendered in evidence; and
  • none of the other parties object to the statement being tendered in show.
  • Role 16 of the Criminal Procedure Rules should be besides complied with2.

5. Y'all also demand to be aware of the following other provisions of department 9 CJA:

  • If the statement is made past a person nether 18, you must ensure that the age of the witness is included on the statement.
  • If the witness cannot read the statement, yous should read the argument to them before they sign it and sign a declaration that you accept done then.
  • If the witness statement refers to any document every bit an exhibit, a copy of the certificate should be served at the aforementioned time equally the statement.

Compelled statements taken nether department xx(ii)(j) HSWA

6. Department 20(ii)(j) HSWA gives you the ability to require whatever person whom you have reasonable cause to believe volition be able to provide information relevant to your test or investigation, to answer such questions as you lot think fit to inquire and to sign a declaration of the truth of the answers.

vii. Information obtained using this ability should exist recorded in the form of a statement using grade LP7 and, if required, the continuation class LP8. The witness must sign the declaration of truth. You should only record the information provided to you past the witness, ie the answers given. It is essential that yous brand information technology clear to the witness that you are using your compulsory powers before asking any questions.

eight. Answers given by a person compelled to answer your questions are not open-door against that person or their spouse or civil partner (section xx(7) HSWA, as amended).

What type of statement should you have?

9. When you take a statement from a witness, you should, wherever possible, take a statement under department 9 CJA every bit there are limitations on how a compelled (s20) statement tin can be used in legal proceedings.

10. The witness should be asked if south/he agrees to give you a voluntary statement. If they do, their testify should be recorded on an LP70. The statement may exist handwritten or typed. You should ensure that the witness has the opportunity to cheque the contents of the statement and brand any corrections before s/he signs it. You lot should also ensure that the witness understands the perjury declaration (see above) contained in a s9 argument earlier signing.

11. In most cases, witnesses will be willing to cooperate with your investigation. If a witness is unsure as to whether they wish to provide a voluntary statement, yous will need to carefully explain your reasons for interviewing him/her and that s/he is not being treated as a suspect. Y'all may explain that, if southward/he will not volunteer relevant information or feels that circumstances prevent him/her from doing so, you tin use your powers to crave that information.

12. Where yous have grounds to suspect that a person may have committed an offence, you lot should non care for him as a witness but should offer him/her an interview under caution instead. If a witness becomes a potential suspect in the course of taking a witness argument from him/her, you must cease the interview and offering to comport an interview under circumspection.

thirteen. Merely if the witness declines to provide yous with a statement voluntarily should yous consider exercising your powers under section 20(2)(j) to have a compelled statement.

fourteen. A s9 CJA statement is preferable because:

  • s9 statements can, providing they take been accepted by the defense force, be relied upon in court equally evidence, without the witness attending courtroom to give show;
  • Section 20(two)(j) gives y'all the power to crave a person to sign a proclamation of truth. This is non the same equally the perjury announcement required under s9 CJA; the latter includes an acknowledgement by the witness that they are liable to be prosecuted if they wilfully say annihilation that they know to be false or untrue;
  • [Section 31 (Police enforcement) exemption Freedom of Information Deed 2000]

xv. Whenever you lot take a argument (whether compelled or not) you lot should record whether you have exercised your section 20(2)(j) power in your notebook, in case this is raised at a later appointment.

[Department 31 (Law enforcement) exemption Liberty of Information Deed 2000]

Using compelled statements (s20 HSWA) in courtroom proceedings

21. Where a witness refuses to give a voluntary (s9 CJA) statement and you compel them to requite a statement under s20 of HSWA yous should consider how these compelled statements can exist used if yous demand to rely on the evidence they contain.

22. Form LP7 (s20) does non contain the perjury announcement and does not comply with the provisions of s9 CJA. A section twenty statement cannot be relied upon in evidence without the witness attending court to give the bear witness recorded on the LP7 except in very express circumstances (come across Exceptions to the hearsay dominion).

23. If the case is tried in the magistrates' court (ie where the accuse is a summary merely offence or where, after the mode of trial procedure, the case is to be tried in the magistrates' court), compelled statements can be served on the defence:

  • to bespeak that the witness will exist called to give evidence; and
  • to requite advance warning of what that witness will say.

24. Even if the witness's evidence is not in dispute, the witness volition withal accept to be called to requite live show unless the content of the witness's bear witness tin be agreed past a formal admission.

25. In the upshot that the magistrates' courtroom declines jurisdiction, the case will exist allocated to the Crown Court and later on sent forthwith for trial. The prosecution must and then serve copies of the documents containing the show on which the charges are based, no subsequently than 70 days after the engagement on which the case was sent for trial. Whilst a section 20 statement can be included within those documents, it should be borne in mind that the witness will have to exist called to give evidence unless the content of the statement can exist agreed by a formal admission.

26. In that location are a number of means a compelled argument can be useful. The compelled statement:

  • can inform the blessing process;
  • volition be served on the defence every bit unused material (if you are non going to rely on the witness) and consequently may reduce the value of that witness to the defence;
  • can help in cross-test of defence force (or hostile) witnesses.

People who may be able to provide yous with statements

Directors, managers etc with duties under HSWA section 37

27. It is important to bear in mind that, where an offence has been committed by a body corporate, directors, managers, company secretaries or other similar officers of a corporate body may also be guilty of an offence under HSWA department 37.

28. These are people in positions of authority within the corporate torso who take both the power and responsibleness to decide corporate policy and strategythree. Whether such a person is a doubtable in your investigation volition depend on the bear witness that you take collected.

29. You are under a duty to follow all reasonable lines of research. This may include investigating the interest of individuals in whatsoever suspected breachfour. Nevertheless, the Enforcement Policy Argument recognises that information technology may be necessary to target your investigation (eg towards the person best placed to control the risk).

30. Normally, you will only be in a position to decide whether an individual should be interviewed under caution once those lines of inquiry are completed. If, at that stage, y'all are satisfied that a person in a senior position is not a suspect, then y'all tin, if necessary, request a argument from that person.

Other people

31. This category will include managers, supervisors and other similar people who do not fall inside the category above. It will besides include employees and cocky-employed people. These people may have knowledge of the particular incident that yous are investigating or the unsafe situation that gave rise to the investigation. They might too be able to deal with matters relating to the extent of the breaches that you are investigating (eg their cognition of the adventure and the ability to avoid the risk, including system of work, training, instructions, supervision etc).

32. Statements taken from people within this category should include details of their employment status (whether they are employed or self-employed). If they are employed, you should record details of their employer, together with their position or mail.

33. You should conduct in mind that people within this category may also accept committed an offence under HSWA section 7 and/or section 36. If yous take reasonable grounds to suspect that a person has committed such an offence, you should not seek to obtain a witness statement from them. They should exist questioned in a formal interview nether circumspection in accordance with the provisions of Footstep.

34. You lot should come across too OC130/8 for information on the prosecution of individuals.

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Witnesses and self-incrimination

General

35. Every person has a right non to incriminate themselves, both nether domestic police force and under the fair trial provisions contained in Commodity half dozen of the European Convention on Human Rights5. This correct presupposes that the prosecution in a criminal case will seek to bear witness the case against the accused without resort to evidence obtained through coercion or oppression of the accused. Section 20(7) HSWA protects this right by preventing the use of a compelled argument against the maker of the statement (and their spouse or civil partner).

Companies and compelled statements taken from directors

36. Although a compelled statement taken nether section 20(2)(j) is not open-door in bear witness against its maker, there may be situations where it will be necessary to rely on the show of a director who has been compelled to make such a statement, against the company.

37. It may exist argued later that the director should be regarded as "the visitor" and therefore cannot be compelled to give show against the company equally this would borrow the company'due south right against self-incrimination.

38. Withal, the courts take held that, although the general privilege against self-incrimination, which allows a person to reject to answer a question that could expose them to a chance of prosecution, tin exist claimed past a company or any other body with legal personality6, information technology is limited to the person who makes the statement. This means that a director cannot claim the privilege against self-incrimination to avoid incriminating the visitor or to forestall the company disclosing information that would incriminate the directorseven.

Documents and self-incrimination

39. Nether s twenty HSWA, you take the ability to take a copy of documents required to be kept under any of the relevant statutory provisions or that are necessary for y'all to see for the purposes of your investigation. Yous should exist enlightened that the defence may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The basis of this argument is that, since the defendant was compelled to provide the copies, they have been compelled to incriminate themselves8.

forty. The Courtroom of Entreatment has stated9 that there is a distinction to be drawn between the compulsory production of documents or other cloth which had an beingness contained of the will of the doubtable or accused person and statements that they have had to make nether coercion.

41. In other words, it is important to make up one's mind whether the fabric in question is testify that a defendant has been compelled to create (eg a compelled statement) or evidence that was already in existence, where the effect of the compulsory power is to bring such evidence to the attention of the courtroom (eg a company'due south documents).

42. As the police force currently stands, material that a defendant has been compelled to create may be protected from subsequent prosecution use past the right non to incriminate oneself. Material that was already in being, but which the defendant was required to produce, does not take this protection and may exist used as part of the prosecution case.

Victim personal statements

43. A victim personal statement (VPS) is a statement made past the victim of a criminal offence relating to the effect of the offence on that person. The purpose of such a statement is:

  • to give the victim an opportunity to state how the offence has affected them physically, emotionally, psychologically, financially or in whatever other mode;
  • to provide the victim with a means past which they can request information about, for example, the progress of the case;
  • to give the victim an opportunity to say whether they require farther support (for case, from Victim Back up), take particular communication needs (such as visual or hearing impairments) or wish to claim bounty in the criminal proceedings; and
  • to provide HSE and the courts with information on these matters and allow them to take business relationship of the consequences of the offence on the victim.

44. The VPS scheme is an element in HSE's policy on working with victims . Instructions on the utilize of victim personal statements in HSE investigations are given in OC130/12 .

45. A "victim", in relation to HSE's work, is an private, injured as a upshot of another person (including a corporate body) committing an offence nether the relevant statutory provisions or, where there has been a fatality, the bereaved relatives or partners (including same sex partners). OC130/12 gives further advice on how "victim" is to be divers in practice for the purposes of the VPS scheme. See likewise Contact with relatives of people killed through work activities.

46. Where an incident has been selected for investigation, any individual who has been injured equally a event of a possible wellness and safety offence volition normally be interviewed (see Investigation Operational Procedure ). If a witness statement is to be taken, the victim should be given the HSE VPS leaflet. The opportunity to requite a VPS is bachelor during the investigation and prosecution stages and the victim tin provide a VPS any fourth dimension until the case is heard in court. The procedures contained in OC130/12 should exist followed. A VPS is a voluntary statement (meet beneath).

47. When considering the public interest examination in deciding whether to bring a prosecution, para 4.12 c) of the Code for Crown Prosecutors says that, "In deciding whether a prosecution is required in the public interest, prosecutors should accept into account the views expressed past the victim nearly the touch on that the offence has had".  A VPS, if there is one, may provide information that assists in meeting the requirements of para 4.12 c). However, whether or not the victim chooses to participate in the VPS scheme, the approval offices should however apply the Code for Crown Prosecutors, as set down in OM 2003/106, and take business relationship of any significant views expressed by the victim.

48. Victims accept the choice of whether or not to make a victim personal statement and no inference is to be fabricated if they cull not to do so. A VPS should be taken as a voluntary (section nine CJA) statement on grade LP70. Information technology should be taken on a separate class to any other statement the victim makes. As with other, evidential statements, guidance on taking statements from particular categories of witnesses (see below) should be followed when taking a VPS.

49. The VPS is disclosable and should be provided to the defence before the hearing. It is unlikely that the VPS volition contain any sensitive material for the purposes of the CPIA; if it does, it will need to exist edited by the prosecutor earlier disclosure.

50. The VPS will be put before the courtroom subsequently conviction in the sentencing bundle. Victims should non comment on the appropriate level of sentence; courts will non take business relationship of any such comments. Victims should be advised of this. The VPS may provide data relevant to a possible compensation order only the VPS scheme does not touch the procedures by which the courtroom volition consider and, if appropriate, brand such an club. The Criminal Do Directions 2015 include directions (at CPD 7 Sentencing F) to judges and magistrates on how to apply the VPS10.

How should witness statements be taken?

Arranging to run across witnesses

51. The circumstances of the investigation will dictate whether or not information technology is appropriate to come across witnesses with the cognition of their employer (or another person). In determining the arrangements for interviews, you will need to use your discretion in this respect so every bit to ensure that the witness feels almost able to assist the investigation, free of any chance of intimidation (intended or otherwise).

52. In many cases, dutyholders will voluntarily assist you with making suitable arrangements to interview witnesses. However, should this not evidence to be the case, you take a number of powers to require this under section xx HSWA, including the power to require whatsoever person to afford you such facilities and assistance every bit are necessary to enable you to practice your powers (section twenty(2)(l)). This can include facilities to come across witnesses in individual (subject to a person'due south right to have another person present if you are requiring information under section 20(2)(j)). Yous do not take to make appointments to meet employees via their employer. However, y'all should arrange to run into potential witnesses at an appropriate fourth dimension.

53. Witness statements should normally be taken equally soon as possible to ensure that:

  • the events are still fresh in the mind of the witness;
  • the evidence is recorded before the witness is tempted/has opportunity to talk over their evidence with others.

54. This approach will give you the best evidence from the witness and make it more difficult for the defense force to challenge the witness's evidence.

55. In some cases it may exist more appropriate to obtain the domicile contact details of the potential witness and contact them there. (Ensure you follow HSE's personal safety communication in the section Your Health and Safety on the Intranet.)

Dealing with the witness

56. All witnesses should be treated with courtesy and every attempt should be made to put witnesses at their ease. Information technology is preferable to speak to witnesses in a individual room so that in that location is a more relaxed surround. At the outset, you should explicate to the witness that the main aim of taking a argument from them is to find out what happened.

57. It is mutual practice within HSE to use the term witness "interview" when taking or proposing to take a witness statement.  Elsewhere in the criminal justice system the term "interview" is used to refer to the questioning of a suspect.  Information technology is important therefore to clearly explain to a potential witness that they are not a suspect and you propose to accept a statement from them.

58. Any statement should exist written and signed in ink. Witness statements should be drafted and so that they are concise and to the indicate. They should only bargain with matters inside the direct cognition of the witness. As far equally is possible, you should try to record the witness'south own words.

59. You may discover it helpful to take notes before first to write the statement. Once the statement has been completed, you should read information technology over to the witness before it is signed. If at that place are any alterations on the statement, these should be initialled past the witness.

threescore. When questioning the witness, yous should ask all relevant questions so every bit to satisfy your duty under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of inquiry, whether these bespeak towards or away from the suspect (see 'Key requirements' in the relevant section on disclosure of unused material in the Pre-trial Phase).

61. Y'all will be concerned with obtaining the best evidence possible and therefore you volition want to know from the witness whether they take discussed their bear witness with anyone else (including the solicitor representing any suspect eg a company/employer or some other person). If there is any data relevant to the weight to be attached to a witness's prove, this should be recorded in your notebook.

62. It is essential that you tape each witness's home address, telephone numbers (including their abode) and dates to avert (if known) on the form attached to the statement, so that yous can contact the witnesses at any time, if necessary. Information technology is as well essential that you record the witness's date of nativity on the back of the statement where indicated. This is a legal requirement if the witness is under 18. Nevertheless, information technology is also necessary in other circumstances, in society to properly identify the witness and, if required, perform a bank check for any previous convictions (run into the related section in Attendance of witnesses). You should also enquire whether or not the witness will consent to the disclosure of their witness argument for the purposes of any subsequent ceremonious proceedings that may be commenced. You lot should make a written record of their reply on the back of their statement. If a asking for disclosure is received for whatsoever other purpose and then you lot must seek consent for this and again brand a written record of the respond.

Identification of suspects by witnesses

63. Information technology may be necessary as part of the investigation for a witness to identify a person as someone they accept seen involved in committing an offence. Whilst this occurs relatively rarely in HSE investigations, it could be required in certain circumstances (for example, where testify is needed that an private was indeed the person seen to carry out piece of work on a domestic gas apparatus).

64. In such a case, identification testify should merely be obtained in accord with PACE Code D. You should tape the witness'due south description of the suspect earlier whatever identification procedures are carried out11. This record would unremarkably be fabricated in the form of a witness argument. Identification procedures, such equally video (or photo) identification, must and then just be carried out in accordance with Code D. In such circumstances, you should seek guidance from Legal Adviser'south Function via your legal liaison signal.

Who can be present when y'all are taking a witness statement?


[Section 31 (Law enforcement) exemption Liberty of Information Act 2000]

67. A witness is non entitled as a matter of law to accept a legal adviser nowadays when his/her statement is taken.

68. The situation changes if a witness turns into a doubtable. You lot must terminate the statement-taking exercise immediately and issue the caution equally required by the Police and Criminal Evidence Human action 1984 (PACE). The procedures relating to interviewing a suspect are plant in the Questioning of Suspects department.

Statements complying with section 9 CJA


[Section 31 (Police enforcement) exemption Freedom of Information Act 2000]

Presence of solicitor/representative who represents a suspect

76. During an investigation into possible breaches of health and condom legislation by an employer, an employee witness providing a statement (whether nether s9 CJA or s20 HSWA) may ask for the solicitor, or other representative, of the employer to be present when s/he is interviewed.

77. You should explain to the witness that the interests of the employer may not be the same as those of an employee. The witness may want, for example, to seek the advice of his/her trade union.

78.  The Solicitors Regulation Authority (SRA), the body that regulates solicitors in England and Wales, has published outcomes focused regulation which focuses on the loftier-level principles and outcomes that should bulldoze the provision of legal services rather than detailed and prescriptive rules. The SRA handbook incorporates the SRA Code of Deport.

79.Under the SRA Lawmaking of Conduct, a solicitor must mostly not act for ii or more clients where there is a conflict of interest or a pregnant risk of such a disharmonize between them12.

80. The SRA has besides issued guidance on whether it is appropriate for the employer's solicitor to be present during HSE's interview of an employee. Whilst this is simply guidance, the SRA and the courts will accept it into account and you are therefore entitled to refer to it.

81.  Paragraph 2 of the SRA guidance deals with the situation where a solicitor claims to act for both the employer and the witness. Information technology includes an example of the conflicts that may arise in such a situation: the solicitor will be under a professional duty to tell each party what south/he learns from the other, nonetheless at the same time will exist under a similar duty to proceed confidential what s/he has learned.

82. Where an employer's solicitor does non claim to represent the witness, the guidance states that "information technology is difficult to justify the employer's solicitor accompanying the employee to the interview" and that "it is generally inappropriate for the employer's solicitor to attend such interviews as the employee's nominee, or to seek to obtain the employee's consent to being nowadays at the interview"13.

83. The guidance recommends that, if an employer's solicitor does nourish an HSE interview, s/he should enquire to be provided at the end of the interview with a copy of whatever witness statement taken. You have the discretion to refuse such a request where supplying a copy of the statement would be likely to interfere with, or prejudice, the ongoing investigation - see Supplying statements to witnesses for further guidance.

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[Section 31 (Law enforcement) exemption Liberty of Information Act 2000]
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Particular categories of witnesses

89. The "Revised code of practice for the detention, treatment and questioning of persons past police officers", Code C of the codes of exercise, made under section 67 of Step, gives guidance on the procedures to follow when you speak to sure categories of witness.

xc. The 'notes for guidance to the Lawmaking'14 say that, although sure sections of the code employ specifically to people in custody, those who are present voluntarily to assist with an investigation should exist treated with no less consideration. You should therefore follow the guidance below both when speaking to witnesses and when questioning suspects at an interview under caution.

Juveniles and mentally disordered or otherwise mentally vulnerable people 15

91. Information technology is important to establish the age of a juvenile witness. Special Measures may be available for witnesses under 18 and, for those who appear to be under 17, they should be accompanied by an appropriate developed.

92. Any witness who appears to exist under the historic period of 17, unless y'all take articulate prove to show that they are older, and any witness who you suspect, or are told, may be "mentally disordered or otherwise mentally vulnerable" should exist spoken to in the presence of an appropriate adult 16.

93. An appropriate adult for a juvenile is a parent or guardian, a social worker or, failing this, another responsible adult not employed by HSE 17.

94. An advisable adult for a mentally matted or otherwise mentally vulnerable person is a relative, guardian or other person responsible for intendance, or someone who has experience of dealing with "mentally matted or otherwise mentally vulnerable" people, and failing that, some other responsible developed who is non employed by HSE eighteen.

95. The appropriate developed should non be someone suspected of involvement in the offence in question, or a witness19. The role of the appropriate developed is to advise the juvenile and to discover whether or not the interview is existence conducted properly and fairly, and to facilitate communication with the person beingness interviewed, and this should exist explained 20.

96. Juveniles should not be interviewed at their place of pedagogy except in exceptional circumstances21.

97. The Youth Justice and Criminal Evidence Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "special measures".

98. Vulnerable witnesses are divers equally:

  • All child witnesses (under 18); and
  • Any witness whose quality of evidence is likely to be diminished because they:
    • are suffering from a mental disorder (every bit defined by the Mental Health Act 1983);
    • accept a significant damage of intelligence and social functioning; or
    • have a physical inability or are suffering from a physical disorder

99. The special measures bachelor to vulnerable and intimidated witnesses, with the agreement of the court, include the utilise of screens, live link and video recorded interviews.

100. If you consider that special measures could utilize to your witness and then legal communication should be sought.

Non-English language speakers

101. If you need to take a statement from a witness who has difficulty in understanding English, you should suit for an interpreter to attend 22. The interpreter volition unremarkably exist a member of the National Register of Public Service Interpreters (NRPSI). The argument should be written in the witness's ain language and signed by the witness 23. If they are unable to read information technology, the argument should be read back to the witness by the translator. A translation should be obtained, which the interpreter will unremarkably set up. Southward/he should complete a witness statement producing the English translation, certifying that it is a true and accurate translation of the statement given by the witness and stating that southward/he is a member of the NRPSI (or other relevant organisation). The translation should be obtained equally soon every bit possible, so as not to delay the investigation.

102. If the example goes to trial and you advise to phone call a witness who requires an interpreter, yous should notify the court equally soon as possible, so that the court can accommodate for a suitable interpreter to nourish.

Deaf witnesses and people with speech communication difficulties

103. In such cases yous should too arrange for an interpreter to be present24. The interpreter should read the written record and certify its accurateness 25.

People with a visual impairment or reading difficulties

104. Where a witness cannot read the written record, you should read it out and enquire the witness to sign it as correct. Y'all should then accept a notation that this has occurred 26.

People unfit to be interviewed

105. You should not interview a person if you believe that they are unfit to be interviewed 27. This can be where conducting the interview could significantly harm the person's physical or mental state or anything that they say nigh their involvement or suspected interest in the offence might be considered unreliable in subsequent court proceedings because of their concrete or mental state. For example, a person may be unfit to be interviewed if they are under the influence of booze or drugs.

Defence questioning of witnesses

106. There is no "holding" in a witness. This means that the fact that you have taken a statement from a witness and are likely to phone call them to requite evidence does non prevent the defence from taking a statement from the same witness. However, a person who seeks to speak to a witness who has already provided a statement for the other side may exist exposed to the suggestion of tampering with evidence, especially where the witness changes their evidence as a issue.

107. Where the defence seek to interview a witness whom you intend to phone call, you lot may suggest the witness that they have a option as to whether they make a statement to the defence force. Where the witness consents to make a statement to the defense force, you should advise to the defence force that, subject to the consent of the witness, you should also exist present when this takes place 28.

Releasing copies of witness statements

108. If a witness requests that you provide them with a copy of their witness statement, you should usually comply with their request. Withal, you are not obliged to supply a copy immediately; you have a discretion to refuse or delay providing a copy of the statement in circumstances where this would be likely to interfere with the course of justice 29 30. In certain circumstances, you might have concerns that providing the statement could prejudice the investigation 31.

109. Y'all should likewise exist conscientious not to provide statements to witnesses in circumstances which enable them to compare with ane another what each has said. If there are grounds to believe that a witness volition laissez passer their statement to a doubtable or their representative, yous will need to consider whether this may interfere with the course of justice. If so, y'all may employ your discretion to decline to provide a copy of the argument at that fourth dimension.

110. For further guidance, see the sections Supplying statements to witnesses and Supplying statements to the defence in the Pre-trial department.

Witness interference and intimidation

111. It is an offence at common law to interfere with a witness by unlawful ways, such as violence, bribery, threats or improper pressure 32. Such conduct amounts to an offence of perverting (or attempting to pervert) the class of justice. It does not matter that no criminal proceedings have nonetheless been commenced, provided investigations which could or might bring most proceedings are in progress 33. Interfering with exhibits is likewise an offence 34.

112. The Criminal Justice and Public Order Deed 1994 (CJPOA) contains two farther offences of intimidating a witness and taking revenge on a witness 35.

113. The first offence covers acts which intimidate and are intended to intimidate either a witness or a person assisting in the investigation of an offence, intending to cause the investigation or the course of justice to exist obstructed, perverted or interfered with 36.

114. The second offence covers doing, or threatening to do, an act which harms and is intended to harm a person, knowing or assertive that person to accept been a witness or to have assisted in an investigation 37. The harm may be concrete or financial, to that person, their family and friends, also as their belongings.

115. Where you have taken a statement from a witness who will not give oral evidence at court because of fear, the courtroom may requite leave to allow the written argument to be admitted in evidence 38 (encounter Exceptions to the hearsay rule ).

116. The courts have been reluctant to allow a written statement to be admitted in these circumstances, equally the witness will non be cross-examined. It also means that the jury will not be able to assess the credibility of the witness. You should therefore consider whether whatsoever of the special measures that the courtroom can take to protect witnesses, for example use of screens or video links, volition aid the witness to give prove 39.

117. If you become aware of information suggesting that a witness has been interfered with or intimidated, yous should study this information to the law.

Footnotes

  1. The investigator is under a duty to pursue all reasonable lines of enquiry, whether these point towards or away from the suspect (department 23(ane)(a) Criminal Process and Investigations Act 1996 prepare out in para 3.v of the Code of Practise issued under s.23(1)). What is reasonable volition depend on the circumstances of a particular case. Dorsum
  2. Available on the Ministry of Justice website. Back
  3. R v Boal (Francis) [1992] iii All ER 177. Back
  4. See OC130/8 on prosecuting individuals for farther guidance. Dorsum
  5. Saunders v United Kingdom [1997] 23 EHRR 313; canonical in numerous subsequent English cases. Back
  6. Triplex Condom Glass Visitor 5 Lancegaye Condom Glass (1934) Ltd [1939] ii All ER 613, Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] 1 All ER 434. Back
  7. Tate Admission Floors Inc five Boswell [1990] 3 All ER 303: the directors argued that the company was a mere beast of themselves and therefore any disclosure by the company was, indirectly, a disclosure by them. The court rejected this statement stating that if people conduct their business through a corporation and take advantage of the separate legal entities, they cannot then claim that they are not separate legal entities where beneficial to do and so; (b) R 5 Hertfordshire County Quango ex parte Green Ecology Industries Ltd and some other [1997] TLR 497 (CA) [2000] ii WLR 412: the Courtroom of Entreatment stated that the effect of section 69 of the Environmental Protection Act 1990 (identical provisions to section 20 of HSWA) was that where an individual (including a managing director) was compelled to answer questions, the answers would non be open-door against that individual personally but would be admissible confronting the company. The House of Lords dismissed an appeal confronting the Court of Appeal's determination but did not address the indicate relating to section 69. See also Walkers Snack Foods Ltd five Coventry City Council [1998] three All ER 164 - an private could not rely on their privilege against cocky-incrimination to avoid answering questions or giving information in relation to others, including the company who employed them. Back
  8. In JB v Switzerland, May 3 2001 (ECHR), a person's right against self-incrimination under Commodity six of the European Convention on Human Rights was infringed where they were fined for refusing to surrender financial documents to the Swiss revenue enhancement authorities when required to practise so past law. Back
  9. R five Kearns [2002] 1 WLR 2815, relying on Attorney General's Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the consequence of JB v Switzerland in reaching its decision. Kearns was considered more than recently in the instance of R v S [2009] 1 All Due east.R. 716 and applied in R 5 G [2009] EWCA Crim 1640.R v Kearns [2002] 1 WLR 2815, relying on Chaser General'southward Reference (No 7 of 2000), TLR 12 Apr 2001. In Kearns, the court considered the consequence of JB v Switzerland in reaching its decision. Kearns was considered more recently in the example of R v S [2009] 1 All E.R. 716 and applied in R five Yard [2009] EWCA Crim 1640. Back
  10. Criminal Practice Directions 2015 Division Vii Sentencing. Back
  11. PACE Code D, paragraph three.1. Back
  12. Chapter three SRA Lawmaking of Conduct. If at that place is a disharmonize, or a significant risk of a conflict, between 2 or more current clients, you lot must not act for all or both of them unless the matter falls within the scope of express exceptions. In deciding whether to human action in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in detail, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks. Back
  13. Paragraph 5.2 of the SRA guidance. Back
  14. Paragraph five.5 of the SRA guidance. Dorsum
  15. Code C, Notes for Guidance paragraph 1A. Back
  16. Code C paragraph 11.15 -xi.17 uses these terms. Back
  17. Lawmaking C, paragraph 11.fifteen. Back
  18. Code C, paragraph 1.7(a). Back
  19. Code C, paragraph 1.vii(b). Back
  20. Code C, Notes for Guidance, 1B. Back
  21. Code C, paragraph xi.17. Back
  22. Code C, paragraph 11.16. Back
  23. Lawmaking C, paragraph 13.2. HSE Language Services can arrange an interpreter where required, come across the information section of the intranet. Dorsum
  24. Lawmaking C, paragraph 13.4. Back
  25. Code C, paragraph thirteen.5. Back
  26. Lawmaking C, paragraph 13.three. Dorsum
  27. Code C, paragraph xi.11. Back
  28. Code C, paragraph 12.three and Annex G. Dorsum
  29. See the CPS website – Legal Guidance – Interviewing witnesses for the other side. Back
  30. R v Richardson (D) [1971] ii QB 484 (CA); R v Skinner (Gary) [1994] 99 Cr App R 212 (CA); R five Roberts (Michael) [1998] 162 JP 691 (CA); R five Arif [1993] The Times, 17 June 1993 (CA). Back
  31. Under the Data Protection Act 1998 (DPA), HSE may refuse a "subject area access" request to provide a witness with a copy of his/her argument where to comply with the asking would exist likely to prejudice the prevention or detection of crime, or the anticipation or prosecution of offenders (section 29(1) DPA) or where to do so would be likely to prejudice HSE's functions for securing the health, safety and welfare of persons at work or for protecting persons not at work against risks to their health and condom from work activities (sections 31(1), (two)(east) and (f) DPA). Back
  32. Home Part Circular 82/1969 gives examples of situations in which a witness'southward asking for a re-create of his/her statement may be refused on the grounds that the course of justice might exist prejudiced: where the statement is sought to enable the witness to lie consistently; or where others are bringing pressure on the witness to obtain a copy of the argument with a view to persuading him/her to alter what s/he said. Back
  33. R v Kellett [1976] ane QB 372, CA. Back
  34. R v Sharpe and Stringer (1938) 26 Cr. App. R. 122, CCA; R five Grimes [1968] iii All ER 179. Dorsum
  35. R v Murray (1982) 2 All ER 225. Back
  36. CJPOA 1994, s.51. The offences are punishable on indictment past 5 years imprisonment, or an unlimited fine or both; and summarily by 6 months imprisonment or £5,000 or both: s.51 (5). Back
  37. CJPOA 1994, s.51(ane). The offence extends to investigations past the constabulary and by other persons charged with the duty of investigating offenders or charging offences: s.51(9). Dorsum
  38. CJPOA 1994, s.51(2). Back
  39. Section 116 Criminal Justice Human action 2003. Back

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Source: https://www.hse.gov.uk/enforce/enforcementguide/investigation/witness-witness.htm

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