Witness Interviews: An Update on Current Developments, Legislation and Challenges

1. Witness Interviews:An Update on Current Developments, Legislation and Challenges Kevin Smith NPIA

2. Overview • Influences on change • Impact of the changes on the ABE

3. Interview Management Interview Content & Structure Judicial Concerns • Too many video interviews • Lack of informed consent • Camera position • Transcripts v MG11s (significant witnesses) • Rapport (neutral topics) too long • Truth and lies • Too much probing • Relevance • Poor structure • Topic hopping • Summaries ? ?

4. Legislation: Coroners and Justice Act 2009 • Increases age of ‘child’ to ‘under 18’ (Section 98) • Establishes the presumption that witnesses to knife and gun crime are ‘intimidated’ as in Section 17 YJCEA (Section 99) • Abolishes the ‘primary rule’ (presumption that all child witnesses to sexual or violent offences will give evidence by video) (Section 100) • Strengthens the presumption that video interviews of complainants to sexual offences will be played in court (Section 101) • Makes statutory provision for a witness supporter in the live link room (Section 102) • Relaxes the rules around supplementary testimony after a video interview is played (Section 103) Implemented 27th June 2011 MoJ Circular 2011/04

5. To Video or Not to Video for Evidence-in-Chief As is the case with the other special measures, video-recorded interviews can only be used as evidence-in-chief if three ‘tests’ are met. These ‘tests’ are set out in Section 19 YJCEA as follows: • Whether the witness is defined as ‘vulnerable’ or ‘intimidated’ within the meaning of sections 16 and 17 YJCEA respectively; • What special measures are available to the witness; • Which of the available special measures are most likely to maximise the quality of the witness’s evidence. √ But the implications of Section 21 YJCEA as amended still creates a stronger presupposition that children will have a video-recorded interview IF THEY CONSENT For example: video-recorded evidence-in-chief or MG11 then live TV link or MG11 then screens

6. Legislation: Coroners and Justice Act 2009 • Increases age of ‘child’ to ‘under 18’ (Section 98) • Establishes the presumption that witnesses to knife and gun crime are ‘intimidated’ as in Section 17 YJCEA (Section 99) • Abolishes the ‘primary rule’ (presumption that all child witnesses to sexual or violent offences will give evidence by video) (Section 100) • Strengthens the presumption that video interviews of complainants to sexual offences will be played in court (Section 101) • Makes statutory provision for a witness supporter in the live link room (Section 102) • Relaxes the rules around supplementary testimony after a video interview is played (Section 103)

7. Child Witness ‘Opt Out’ • Explain what video-recorded evidence-in-chief is; • Tell witness/carer evidence in chief of children is usually given this way but they can ‘opt out’; • If they opt out explain that evidence in chief of children is usually given by live TV link in these circumstances but they can opt out with the court’s permission; • If they opt out explain that evidence in chief of children is usually given from behind screens in these circumstances but they can opt out with the court’s permission.

8. VIW: A Police Service Guide (2011) • Explanations of Special Measures: • Video-Recorded Evidence-in-Chief • May be eligible for special measures IF THE COURT AGREES (i.e. no guarantees); • Video evidence-in-chief an OPTION; • Evidence-in-chief means …; • Video evidence-in-chief means playing video in open court (consider evidence in private); • Would need to be available for cross-examination (via live link?); • Purpose = reduce stress by limiting repetition of the account; • Video will be served on defence with rest of prosecution case papers (as would happen with an MG11)

9. Child Witness ‘Opt Out’ • Explain what video-recorded evidence-in-chief is; • Tell witness/carer evidence in chief of children is usually given this way but they can ‘opt out’; • If they opt out explain that evidence in chief of children is usually given by live TV link in these circumstances but they can opt out with the court’s permission; • If they opt out explain that evidence in chief of children is usually given from behind screens in these circumstances but they can opt out with the court’s permission.

10. Child Witness ‘Opt Out’ Interviewer can express an opinion if they think video is NOT appropriate • Explain what video-recorded evidence-in-chief is; • Tell witness/carer evidence in chief of children is usually given this way but they can ‘opt out’; • If they opt out explain that evidence in chief of children is usually given by live TV link in these circumstances but they can opt out with the court’s permission; • If they opt out explain that evidence in chief of children is usually given from behind screens in these circumstances but they can opt out with the court’s permission.

11. Changes to ABE

12. Revised ABE: Overview • Structure of document • Bit of new stuff

13. Revised ABE: Structure of Document • Chapter 1 Introduction • Chapter 2 Planning and Preparation • information about the witness sub-divided into child, vulnerable adult, intimidated witnesses, significant witnesses • convergence of the guidance surrounding categories of witness after information about the witness • Chapter 3 Conducting the Interview • Chapter 4 Witness Support and Preparation • Chapter 5 Witnesses in Court • Appendices • Appendix E: Interviewing Disabled Children & Children with Communication Difficulties (includes very young + psychologically disturbed children) • Appendix H: The Enhanced Cognitive Interview

14. New Stuff in Revised ABE Coroners and Justice Act 2009 • Increased emphasis on: • Preparation of the witness for the interview; • The structure of the interview (including the difference between • the account of the incident and case specific information important • to the investigation. • Minor changes to: • Using signers (either as interpreters or intermediaries); • Post-interview documentation; • Chronological investigative summery (independent of ROVI); • Certification; • Full MG11 from significant witnesses as the ‘preferred’ option. More on using drawings, pictures, photographs, symbols, dolls, figures and props with children

15. Witness Preparation • Begin to build rapport, reduce witness’s anxiety • Practice interview (where necessary) • Roles • Neutral topics • Interview structure • Time, place and likely duration • No discussion of offence but initial contact rules apply to any unsolicited comments of evidential/investigative significance • Review interview strategy and plan

16. Incident Background Outline Structure of Interview • Rapport • Free narrative account • Questions • About the witness’s account • About case-specific information important to the investigation not covered in the witness’s account • Closure

17. Case-Specific Information Important to the Investigation Depends on the circumstances but could for example include: • History/background of relationships • Associates of witness/suspect • Access to vehicles • Access to premises • Access to mobiles & computers • Access to weapons • Places frequented • Routines • Routes usually taken

18. Include ‘truth & lies’ only if appropriate, no declarations or oaths Topic Topic Topic Topic Topic Topic Topic Topic Topic Topic Topic Topic Typical Witness Interview Structure • Preliminaries Rapport • Ground rules • Brief neutral topics Free narrative Questioning Summarise only where necessary Topic division Information Important to the Investigation (not covered in account) Closure

19. Incident Information Important to the Investigation (e.g. background of relationships, places frequented, use of mobile phones, computers, vehicles, etc.) Typical Witness Interview Structure Rapport Mostly Evidence Free narrative May be a separate recording Questioning Not usually evidence Topic division Topic Topic Topic Topic Information Important to the Investigation Topic Topic Topic Topic Closure

20. New Stuff in Revised ABE Coroners and Justice Act 2009 • Increased emphasis on: • Preparation of the witness for the interview; • The structure of the interview (including the difference between • the account of the incident and case specific information important • to the investigation. • Minor changes to: • Using signers (either as interpreters or intermediaries); • Post-interview documentation; • Chronological investigative summery (independent of ROVI); • Certification; • Full MG11 from significant witnesses as the ‘preferred’ option. More on using drawings, pictures, photographs, symbols, dolls, figures and props with children

21. Signers Some signs are iconic and context-dependent So Pre-interview discussion with signer And 2 X PTZ cameras

22. New Stuff in Revised ABE Coroners and Justice Act 2009 • Increased emphasis on: • Preparation of the witness for the interview; • The structure of the interview (including the difference between • the account of the incident and case specific information important • to the investigation. • Minor changes to: • Using signers (either as interpreters or intermediaries); • Post-interview documentation; • Chronological investigative summery (independent of ROVI); • Certification; • Full MG11 from significant witnesses as the ‘preferred’ option. More on using drawings, pictures, photographs, symbols, dolls, figures and props with children

23. New Stuff in Revised ABE Coroners and Justice Act 2009 • Increased emphasis on: • Preparation of the witness for the interview; • The structure of the interview (including the difference between • the account of the incident and case specific information important • to the investigation. • Minor changes to: • Using signers (either as interpreters or intermediaries); • Post-interview documentation; • Chronological investigative summery (independent of ROVI); • Certification; • Full MG11 from significant witnesses as the ‘preferred’ option. More on using drawings, pictures, photographs, symbols, dolls, figures and props with children

24. Drawings, Pictures, Photographs, Symbols, Dolls, Figures and Props with Children • Plan use with care • Awareness of potential challenges in court • Justify use (e.g. verbal report not an option) • Timing (often though not exclusively clarification) • Method of introduction • Training (e.g. in respect of dolls) • Intermediary?

25. What’s on the Horizon?

26. Section 28 Youth Justice & Criminal Evidence Act 1999: video-recorded cross-examination Section 104 Coroners and Justice Act 2009: intermediaries for defendants & pre-implementation common law use of the same

27. Dr. Kevin Smith National Vulnerable Witness Adviser ACPO Approved Interview Adviser Specialist Operations Centre NPIA Wyboston Tel: 01480 334635 Mobile: 07776 473420 kev.smith@npia.pnn.police.uk