ABE 2016/19 has gone AWOL

Shortcomings and legal anachronisms: how can we achieve best evidence if current guidance is dangerously out of date on the law on special measures? asks Laura Hoyano

The March 2011 edition of Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures (‘ABE 2011’) is elderly. Moreover it is dangerously out of date on the law on special measures (‘SMs’).

To highlight just three glaring omissions, ABE 2011:

  • does not cover interviewing complainants of human trafficking and modern slavery under the Modern Slavery Act 2015, nor their access to Special Measures Directions (SMDs);
  • says nothing about video-recorded pre-trial cross-examination under the Youth Justice and Criminal Evidence Act 1999 s 28, notwithstanding that the Ministry of Justice (MOJ) has been zealous about rolling out this, the most radical of the 1999 SMs, across the country, and is now piloting it for adult sex offence complainants;
  • does not deal with difficulties for interviewers in complex sexual exploitation cases in devising appropriate strategies, especially for sequential interviews, to ensure they are admissible.

We cannot ‘achieve best evidence’ if the descriptions of the governing law, the interviewing and investigatory guidelines, and the guidance for managing vulnerable witnesses, used by police, social workers, intermediaries, the Crown Prosecution Service, CAFCASS, and the criminal and family court services across England and Wales, are wrong.

The National Crime Agency supervised a substantial redraft of ABE 2011 in 2016. That draft responded not only to statutory reforms but also to recommendations for substantial changes in ABE by HM Crown Prosecution Service Inspectorate (HMCPSI) and HM Inspectorate of Constabulary (HMIC), Achieving Best Evidence in Child Sexual Abuse Cases – a Joint Inspection (December 2014) (the ‘ABE Joint Inspection’). The ABE Joint Inspection identified critical shortcomings in the quality of video-recorded interviews which stand as the evidence-in-chief of complainants, damaging the prospect of successful prosecutions. The CPS rape and serious sexual offences units’ (RASSO) evaluation of ABE interviews was further severely criticised by HMCPSI in its Thematic Review of the CPS Rape and Serious Sexual Offences Units (February 2016).

The Inspectorates recommended that a new ABE edition reconcile the dichotomy between the investigative and evidential functions of the interview, and rectify common bad practices. It was finalised and presented to government ministers for signature in June 2016, in the expectation that it would come into effect in September (and I, to my eventual embarrassment, relied upon that assurance to write chapter D14 of Blackstone’s Criminal Practice 2017 on the basis of ABE 2016, and then had to roll back to ABE 2011 in the 2018 edition). That draft disappeared into the bowels of the MOJ in Petty France. So too did an updated draft in 2019 and it is now understood that the MOJ has expressed the view that the police are responsible for publishing it, a position which it is far from certain that the police accept.

It is crucial that practitioners in all sectors of the criminal and family justice systems be aware of all the gaps and legal anachronisms in ABE 2011. Those not steeped in the law governing vulnerable witnesses might, not unreasonably, think that the government-sanctioned statutory guidance, available online from every relevant government website, is correct.

In addition to the Modern Slavery Act ss 1 and 2, and the description of s 28 pre-trial cross-examination, the new edition of ABE would have supplemented or replaced guidance on the following topics:

Legal changes

  • a new set of flow diagrams illustrating expanded access by witnesses and defendants in deemed categories of vulnerability SMs, the amended procedures for SMD applications, and the criteria for s 28 cases;
  • numerous changes in the Criminal Practice Rules and Directions;
  • the revised Working Together to Safeguard Children 2015, and statutory guidance issued under Social Services and Well-being (Wales) Act 2014 Part 7;
  • new Advocate’s Gateway Toolkits, frequently endorsed by the Court of Appeal for practitioners (CrimPD I, para 3D.7; Lubemba [2014] EWCA Crim 2064 [40]);
  • statutory requirements in the revised Code of Practice for Victims of Crime (MOJ 2015) and the Witness Charter (MOJ 2013); and
  • emphasis on the importance of treating transgender witnesses with respect.

Investigative and evidential interviewing

  • an overview of the interview planning process, requiring an interview plan;
  • emphasis on interview structure, particularly separating questions relating to the incident itself (mainly for the Code Test’s evidential purposes) from wider context (for investigative purposes);
  • the importance of phrasing questions in the past rather than in the present tense, following concerns expressed in Parliamentary Questions;
  • guidance on ‘truth and lies’ testing in further interviews;
  • guidance on avoiding multiple questions, eg compound questions and those using unidentified multiple pronouns like ‘they’;
  • a new section on clarifying and developing the account;
  • guidance on the use of props (drawings, pictures, photographs, symbols, dolls, figures) with children to reflect current research.

Special measures

  • a requirement that all interviews to be used as evidence-in-chief be properly evaluated for quality, including evidential gaps, and editing, and that security over the videotapes be maintained by police and CPS before trial;
  • early SM discussions with witnesses, and the need for supervision of such discussions;
  • obtaining informed consent to be interviewed, including the child or vulnerable witness’s right to opt for a written statement;
  • when to consider using intermediaries;
  • updating the required qualifications for interpreters (see below).

Further guidance on pre-trial procedures

  • pre-trial therapy (a contentious topic for prosecution and defence advocates and for Independent Sexual Violence (ISVAs) and Domestic Violence Advisors (IDVAs);
  • pre-trial witness interviews, required of prosecuting advocates by the CPS under Speaking to Witnesses at Court;
  • on-going communication with complainants;
  • the nature of witness support and pre-trial preparation; and
  • refreshing the memory of witnesses.

Defence advocates are becoming alive to the possibility of objecting to the admissibility of interviews conducted under ineffectual or obsolete provisions of ABE 2011. Cases have collapsed due to police errors in not testing witnesses’ competence or understanding of ‘truth and lies’, and CPS failures to deal with these difficulties (ABE Joint Inspection para 4.17). In a recent modern slavery case a jury was discharged because of interpretation errors in the complainants’ ABE interviews conducted with an interpreter who was not on the National Register of Public Service Interpreters. ABE 2011 states that interpreters ‘should normally be selected from the National Registers’ and that unregistered interpreters should only be used if impossible to find one from the Registers, in which case they must meet equivalent academic and experience standards. The registration requirement was intended to ensure the quality of interpretation, as in 2011 most interpreters worked freelance. Currently, most interpreters are provided by private companies which do not insist on annual, costly, registration, instead requiring training to the same standard. ABE 2016 would have fixed this problem by stipulating that interpreters should be on the National Register or have equivalent qualifications.

ABE 2011 is also potentially inconsistent with the MOJ Language Services Framework Agreement 2014. Fortunately for the complainants, the trial judge ruled that a re-trial could proceed even though the interpreter’s errors rendered the ABE interviews inadmissible, so evidence-in-chief would have to be given live. Arguably non-English speaking witnesses to slavery or sex offences are, as a class, the most vulnerable of all in our baffling criminal and family justice systems.

If trials collapse because ministers caught in the revolving doors of Petty France cannot take the time to sign off crucial guidance, renowned throughout the world, they are breaching their commitments to vulnerable witnesses. Get out your pens!

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Laura Hoyano

Laura Hoyano is a tenant at Red Lion Chambers (London) and Associate Professor of Law at Oxford University. She is the author of the special measures chapter in Blackstone’s, and author of Hoyano & Keenan’s Child Abuse Law and Policy across Boundaries (2020: forthcoming edition).