Recorded Evidence

Dr Kevin Smith discusses the revised Achieving Best Evidence guidance aimed at improving the quality of video-recorded interviews in criminal proceedings. He also analyses the implications of recent amendments to special measures legislation


The latest edition of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Guidance on Using Special Measures (“the ABE”) was published by the Ministry of Justice (“MoJ”) on 21 March 2011. It is to be read in conjunction with a document that was published in August 2010 by the Association of Chief Police Officers (“ACPO”) entitled Advice on the Structure of Visually Recorded Witness Interviews.

The important changes in this version of the ABE stem from a desire to improve the quality of video-recorded interviews with witnesses following increasing concerns from the courts and as a result of the need to take account of the amendments to special measures legislation contained in the Coroners and Justice Act 2009.

 

Improving quality


Over recent years the judiciary have become increasingly concerned about the quality of video-recorded evidence-in-chief. These concerns are summarised in Advice on the Structure of Visually Recorded Witness Interviews (ACPO, 2010) as follows:

 

  • Poor technical quality;
  • Inappropriate seating positions;
  • Interviewing by inexperienced officers;
  • Length of interviews;
  • Unfocused interview structure;
  • Length of rapport;
  • Repetitive questioning;
  • Unnecessary probing;
  • Constant summaries.

Given the current state of public finances, improving the technical quality of video-recorded interviews will take some time to address. As a means of ensuring that any newly purchased equipment is of a good standard, however, the ABE signposts police forces towards work recently completed by the National Policing Improvement Agency, in which three approved suppliers have been identified to deliver on a new technical specification for the recording equipment (para M.1.1). The issue of inappropriate seating positions often arises when the interviewer has set up the equipment before commencing the interview because police resources are such that there is no camera operator. The revised ABE, in common with its predecessors, makes it clear that there should always be an independent camera operator (para 2.186) and that the Pan Tilt Zoom (PTZ) camera should “aim to show the witness’s head, face and upper body clearly” (para M.3.3).

 

 

 

 

Developing interview skills


The question of interviewer experience is addressed in the revised ABE,  emphasising the importance of developing interview skills by means of training according to a curriculum that has been developed in support of the National Investigative Interviewing Strategy (ACPO 2009) and the quality assurance of operational interviews in the workplace (paras 1.29 to 1.31). These points are further emphasised in the MoJ Circular that announced the publication of the revised ABE (MoJ Circular 2011/03).

 

 

 

 

 

 

The interview structure


The remaining points raised by the judiciary relate to the interview process itself. The revised ABE sets out to address these issues by advocating the interview structure in figure 3.1 ABE 2011 (opposite).

This structure is intended to ensure that the interview results in a product that is acceptable to the courts by being more focussed and better structured while continuing to take account of the witness’s needs.

The rapport phase contains three elements: preliminaries, neutral topics and ground rules. The preliminaries amount to an introduction to the interview. The ground rules are intended to reduce the anxiety that many witnesses feel in what is likely to be an unfamiliar situation for them by outlining the process and making some of the conversational rules implicit in the interview explicit to them. Most of the problems with rapport stem from the nature and extent of the neutral topics that are covered . Protracted coverage of neutral topics can seem frustrating to witnesses and it can tire them out to the point that they are unlikely to achieve their best evidence when they are eventually asked for their account of what happened. In addition, a protracted rapport phase obviously lengthens the witness’s evidence, increasing the duration of the trial and thus costs. Viewing such a recording also runs the risk of placing an unnecessary burden on the jury. For these reasons, the revised ABE emphasises the need for brevity when covering neutral topics (para 3.8). It goes on to recommend that extensive rapport should take place prior to the interview where the need for it is identified (paras 2.223 and 3.10).

The guidance in the revised ABE recommends that alleged incidents are dealt with next, during the free narrative account and questioning phases. It should amount to an attempt to get to the heart of the matter as soon as possible. Each relevant topic that has not already been adequately covered should then be expanded on and systematically probed (see Advice on the Structure of Visually Recorded Witness Interviews, ACPO 2010). The ABE goes on to recommend that interviewers should not routinely summarise what the witness has said at the end of each topic and that they should only do so when what the witness has said seems disjointed or ambiguous (para 3.65).

The revised ABE recommends that background highly case-specific information that might be important to the investigation be dealt with separately to the incident. Such information could include, for example, the history of a relationship, places frequented, routes taken, and access to vehicles and/or premises. Topic-hopping between the alleged incident and the background material could distract the witness during their recall (para 3.41). It is hoped that separating the incident from the background information will make recordings easier to edit where it is necessary to do so; indeed in complex cases where a refreshment break is needed the background material could be recorded on a separate disk or tape (para 3.43).

 

 

 

 

 

 

Amendments to special measures legislation


MoJ Circular 2011/04 announced the implementation of ss 98 to 103 and 105 of the Coroners and Justice Act 2009 on 27 June 2011. These provisions amend the special measures for vulnerable and intimidated witnesses as described in Pt 2 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999.
Sections 98 to 103 and 105 of the Coroners and Justice Act may be described as set out in the table above.
Section 104 of the Coroners Act (intermediaries for defendants) also features in this part of the legislation but is not being implemented yet.

 

 

 

 

 

 

Implications


17 year olds are now defined as being “vulnerable”.  Although witnesses to knife and gun crime are presumed to be “intimidated”, the fact someone is considered to be “automatically eligible” for special measures does not necessarily mean that they should be video-interviewed; the legislation and case law (R v R [2008] EWCA (Crim) 678) requires decisions to be made on a case-by-case basis.

ALL child witnesses should have the right to “opt out” of video-recorded evidence-in-chief explained either to them or to those with parental responsibility for them where they do not have the capacity to consent. The “opt out” is more fully described in Achieving Best Evidence 2011 (paras 2.29 to 2.39).

Creating a rebuttable presumption that a video-recording will maximise the quality of the evidence of complainants to sexual offences in the Crown Court means that complainants in indictable only cases will be given the opportunity to have a video-recorded interview (it is important to remember that such a recording will only actually be made with their informed consent). ACPO and the national CPS policy directorate are currently in discussion as to the circumstances in which video-recorded interviews should be offered to complainants to triable either-way sexual offences.

The effect of the court having to consider who, if anybody, should support the witness when they give evidence via live link is that the wishes of the witness need to be ascertained before such an application is made.

The new provisions for supplementary testimony relax the rules restricting asking the witness supplementary questions after the video recording and allows for a greater use of supplementary questions. The effect of this is that applications for supplementary testimony can be made in a wider range of circumstances than was previously the case.


Dr Kevin Smith, national Vulnerable Witness Advisor, ACPO Approved Interview Adviser, National policing Improvment Agency, Specialist Operations Centre, Wyboston

 

 

 

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