Interviewing Witnesses

Whether or not a witness has been interviewed or called as a witness by the other side, the prosecution and defence:

* may interview each other's witnesses or prospective witnesses;
* may take statements from those witnesses; and
* must ensure that no attempt is made to persuade the witness to change his/her story.

In a fast track case under section 51 Crime and Disorder Act 1998 where a witness gives oral evidence for the prosecution in the course of an application to dismiss the prosecution's case, it will only be on very rare occasions that a defending solicitor can properly interview witnesses. This will only be permissible where the defending solicitor feels that the witness has made a genuine mistake and that there are matters which ought to be put to the witness.

Where it is intended to interview a witness for the other side, who has given evidence or who it is known will be giving evidence, it is wise to give notice to the other side stating:

* that the interview is required;
* the reasons for it; and
* that a representative from the other side should be present.

The above propositions have been approved by the Lord Chief Justice, and the Law Society. The Guide to the Professional Conduct of Solicitors contains guidance on interviewing witnesses for the other side.

The right to interview defence witnesses after they have given evidence should only be exercised with the approval of a Unit Head, or designated officer.

The police should be discouraged from interviewing defence witnesses after the witnesses have given evidence.

A witness does not have to be interviewed; it is a matter for the witness, who can refuse. A witness may agree to be interviewed only at a police station, in which case this facility should be made available.

If the defence wish to interview prosecution witnesses who are police officers, they cannot object to a senior police officer being present. It is preferable if the senior officer at the interviews has no connection with the proceedings in question.

If the defence wish to interview potential defence witnesses who are police officers, it is a matter for the Chief Constable or The CPS (Unit Head or designated officer), to determine the conditions for the interviews, provided they are reasonable.

GET CONFIDENCE OF WITNESS

The first step is to try and get the confidence of the witness. Try and find a common ground to talk about. Try to get them talking on a subject they know about until they get used to talking to you. Talk about the weather and how hot, cold, wet, windy or dry it is. Who is their favourite football team and how are they performing. Did they watch the cricket or tennis on the television? Talk about any current subject that is not controversial or likely to offend them. Don't get too personal or they may clam up, thinking you are prying.

Once you have established dialogue with the witness and gained their confidence, it is time to move on to the more formal interview. This initial conversation need only take a couple of minutes, and can be established prior to being formally arranged for the interview. For example, you may accompany the witness from the incident scene to the interview venue and talk while you are walking. Alternatively, if you are already at the interview venue, meet the witness at the door, welcome them, and ask them if the weather conditions are the same as earlier. Any question, just something to break the ice and start a conversation.

USE PREPARED QUESTIONS

The investigator should have a set of prepared questions they want the witness to answer. They should start with non-threatening, easy to answer questions such as asking their full name, their age, their qualification, their experience and their length of service with the organization. The answers to all of these questions are easily answered by the witness and are invariably useful in the investigation. Importantly, they also assist in putting the witness at ease.

The investigator must also be flexible and ask supplementary questions if further detail is required. It is a role of the investigator to probe all avenues of investigation to seek the truth. The danger is, if they do not have a written set of questions, they can get side tracked, and forget to ask specific questions considered important to the investigation.

NEVER LEAD THE WITNESS

It is important that the investigator does not impose their interpretation of events on the witness. It is far better to ask, "how do you think that happened?" rather than make a statement of what they think happened, and seek confirmation from the witness. Guide the witness towards the line of questioning they are interested in by all means, but do not lead them. It is often better to allow a witness to continue talking without interruption because that may disturb their train of thought, and lose an important link in the chain sought by the investigator.