Pre-Trial Witness Interviews

Background

The Crown Prosecution Service is responsible for deciding whether or not a person who has been arrested for an offence should be charged and whether the offence should proceed to trial. Prior to 2006 Prosecutors had no power to test a witness’s credibility prior to making this important decision. In other jurisdictions however, such as Canada, New South Wales, Australia and Scotland, it is standard practice for a prosecuting lawyer to interview witnesses before trial. On the 20th December 2004 the Attorney General’s report titled “Pre-Trial Witness Interviews” advocated change and as a result a pilot exercise was undertaken by Prosecutors between January 2006 and February 2007. The pilot proved a success and a national rollout of the scheme took place in April 2008.

Do all cases have a Pre-Trial Witness Interview?

No, any Prosecutor reviewing a file can refer a case for a Pre-Trial Witness Interview, where they consider that an assessment of a witness is needed or their credibility is in doubt. The referral is made to a trained pre trial witness interviewer who then reviews the case and makes a preliminary assessment of whether or not an interview is appropriate. The Prosecutor should also consult the Investigating Officer as well as obtain the authorisation of the line manager or the Chief Crown Prosecutor where an interview is considered appropriate.

What type of cases will have an interview?

A Prosecutor may conduct a pre trial witness interview in any case where he considers that it will enable him to reach a better-informed decision about any aspect of the case. In practice this means that an interview can be held where the credibility of a witness is in doubt or where some aspects of the witness’s evidence needs clarification or in complex evidence cases.

Below are examples of the type of cases where an interview could be held:
  • Rape – The Prosecutor is unsure about the complainants’ evidence, as there is information in the unused material that suggests she has an ulterior motive for making the allegation. An interview would assist the prosecution in determining the credibility or reliability of the complainant.
  • Theft – The victim is 81 years old and suffers from Alzheimer’s disease. An interview would be appropriate to determine whether the victim would be able to give coherent evidence, would understand court procedure and to help identify any special measures that could assist him in giving evidence.
  • Assault – The victim has given three statements to the police all of which give a conflicting account of the assault. An interview would be appropriate to deal with the conflicting evidence and establish the reliability of the witness given his conflicting evidence.

What type of questioning is allowed?

The form of questioning should keep within the same restrictions imposed when examining your own witness in court. Closed or leading questions therefore should be avoided and the Prosecutor should aim to ask open questions. Coaching of the witness is prohibited but where there is a conflict of evidence for example and that is the reason for holding the interview then that scenario or inconsistency can be put to the witness as would happen in cross-examination. It is not permissible for the Prosecutor to suggest that the witness is mistaken or that some other version of events is correct. The purpose of the interview is always to test or clarify evidence. The interview should not be used to gather more evidence. However if during the interview the witness begins to provide more evidence, they should be told immediately to stop and that a Police Officer will take a further statement.

How is an interview held?

The interview should be held as soon as possible after it is considered appropriate to hold one. It can be held at the CPS office or at the police station. If the original statement was video recorded it is appropriate to video interview again. Ideally the interview should take place in the presence of a person who has no connection to the case, such as a Caseworker or Administrative Worker. In some cases it will be appropriate for the Officer in Case to be present where there are issues as to the credibility of the witness. The interview is tape recorded and after the interview the Master Tape is sealed and copies are then made from a working copy. The tapes are unused material and will as a matter of course be disclosed to the defence.