- What is a witness statement?
- Types of witness statements
- Compelled statements taken under section 20(2)(j) HSWA
- People who may be able to provide you with statements
- Witnesses and self-incrimination
- Victim personal statements
- How should witness statements be taken?
- Identification of suspects by witnesses
- Who can be present when you are taking a witness statement?
- Particular categories of witnesses
- Defence questioning of witnesses
- Releasing copies of witness statements
- Witness interference and intimidation
What is a witness statement?
1. A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that the contents of the statement are true.
2. A statement should record what the witness saw, heard or felt. However, it is also important to record anything that may open up a new line of enquiry or help in corroborating other information1.
Types of witness statements
Statements provided voluntarily in compliance with section 9 of the Criminal Justice Act 1967 (LP70s) - "s9 statements"
3. A s9 statement is taken from a person who has voluntarily given the statement. It does not rely on s20 (2) HSWA powers. S9 statements are recorded on form LP70.
4. Under s9 CJA the contents of a written statement will be admissible, without the witness attending court to give oral evidence, if the following conditions are satisfied:
- the statement purports to be signed by the maker;
- the statement contains a declaration by the maker that it is true to the best of his/her knowledge and belief and that it was made knowing that, if it were tendered in evidence, the maker would be liable to prosecution if s/he wilfully stated in it anything which he knew to be false or did not believe to be true (known as a `perjury declaration');
- a copy of the statement is served on the other parties before the hearing where the statement is tendered in evidence; and
- none of the other parties object to the statement being tendered in evidence.
- Part 16 of the Criminal Procedure Rules should be also complied with2.
5. You also need to be aware of the following other provisions of section 9 CJA:
- If the statement is made by a person under 18, you must ensure that the age of the witness is included on the statement.
- If the witness cannot read the statement, you should read the statement to them before they sign it and sign a declaration that you have done so.
- If the witness statement refers to any document as an exhibit, a copy of the document should be served at the same time as the statement.
Compelled statements taken under section 20(2)(j) HSWA
6. Section 20(2)(j) HSWA gives you the power to require any person whom you have reasonable cause to believe will be able to provide information relevant to your examination or investigation, to answer such questions as you think fit to ask and to sign a declaration of the truth of the answers.
7. Information obtained using this power should be recorded in the form of a statement using form LP7 and, if required, the continuation form LP8. The witness must sign the declaration of truth. You should only record the information provided to you by the witness, i.e. the answers given. It is essential that you make it clear to the witness that you are using your compulsory powers before asking any questions.
8. Answers given by a person compelled to answer your questions are not admissible against that person or their spouse or civil partner (section 20(7) HSWA, as amended).
What type of statement should you take?
9. When you take a statement from a witness, you should, wherever possible, take a statement under section 9 CJA as there are limitations on how a compelled (s20) statement can be used in legal proceedings.
10. The witness should be asked if s/he agrees to give you a voluntary statement. If they do, their evidence should be recorded on an LP70. The statement may be handwritten or typed. You should ensure that the witness has the opportunity to check the contents of the statement and make any corrections before s/he signs it. You should also ensure that the witness understands the perjury declaration (see above) contained in a s9 statement before signing.
11. In most cases, witnesses will be willing to cooperate with your investigation. If a witness is unsure as to whether they wish to provide a voluntary statement, you will need to carefully explain your reasons for interviewing him/her and that s/he is not being treated as a suspect. You may explain that, if s/he will not volunteer relevant information or feels that circumstances prevent him/her from doing so, you can use your powers to require that information.
12. Where you have grounds to suspect that a person may have committed an offence, you should not treat him as a witness but should offer him/her an interview under caution instead. If a witness becomes a potential suspect in the course of taking a witness statement from him/her, you must stop the interview and offer to conduct an interview under caution.
13. Only if the witness declines to provide you with a statement voluntarily should you consider exercising your powers under section 20(2)(j) to take a compelled statement.
14. A s9 CJA statement is preferable because:
- s9 statements can, providing they have been accepted by the defence, be relied upon in court as evidence, without the witness attending court to give evidence;
- Section 20(2)(j) gives you the power to require a person to sign a declaration of truth. This is not the same as the perjury declaration required under s9 CJA; the latter includes an acknowledgement by the witness that they are liable to be prosecuted if they wilfully say anything that they know to be false or untrue;
- [Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
15. Whenever you take a statement (whether compelled or not) you should record whether you have exercised your section 20(2)(j) power in your notebook, in case this is raised at a later date.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
Using compelled statements (s20 HSWA) in court proceedings
21. Where a witness refuses to give a voluntary (s9 CJA) statement and you compel them to give a statement under s20 of HSWA you should consider how these compelled statements can be used if you need to rely on the evidence they contain.
22. Form LP7 (s20) does not contain the perjury declaration and does not comply with the provisions of s9 CJA. A section 20 statement cannot be relied upon in evidence without the witness attending court to give the evidence recorded on the LP7 except in very limited circumstances (see Exceptions to the hearsay rule).
23. If the case is tried in the magistrates’ court (i.e. where the charge is a summary only offence or where, after the mode of trial procedure, the case is to be tried in the magistrates’ court), compelled statements can be served on the defence:
- to indicate that the witness will be called to give evidence; and
- to give advance warning of what that witness will say.
24. Even if the witness’s evidence is not in dispute, the witness will still have to be called to give live evidence unless the content of the witness’s evidence can be agreed by a formal admission.
25. In the event that the magistrates' court declines jurisdiction, the case will be allocated to the Crown Court and subsequently sent forthwith for trial. The prosecution must then serve copies of the documents containing the evidence on which the charges are based, no later than 70 days after the date on which the case was sent for trial. Whilst a section 20 statement can be included within those documents, it should be borne in mind that the witness will have to be called to give evidence unless the content of the statement can be agreed by a formal admission.
26. There are a number of ways a compelled statement can be useful. The compelled statement:
- can inform the approval process;
- will be served on the defence as unused material (if you are not going to rely on the witness) and consequently may reduce the value of that witness to the defence;
- can assist in cross-examination of defence (or hostile) witnesses.
People who may be able to provide you with statements
Directors, managers etc with duties under HSWA section 37
27. It is important to bear in mind that, where an offence has been committed by a body corporate, directors, managers, company secretaries or other similar officers of a corporate body may also be guilty of an offence under HSWA section 37.
28. These are people in positions of authority within the corporate body who have both the power and responsibility to decide corporate policy and strategy3. Whether such a person is a suspect in your investigation will depend on the evidence that you have collected.
29. You are under a duty to follow all reasonable lines of inquiry. This may include investigating the involvement of individuals in any suspected breach4. However, the Enforcement Policy Statement recognises that it may be necessary to target your investigation (e.g. towards the person best placed to control the risk).
30. Usually, you will only be in a position to decide whether an individual should be interviewed under caution once those lines of inquiry are completed. If, at that stage, you are satisfied that a person in a senior position is not a suspect, then you can, if necessary, request a statement from that person.
31. This category will include managers, supervisors and other similar people who do not fall within the category above. It will also include employees and self-employed people. These people may have knowledge of the particular incident that you are investigating or the unsafe situation that gave rise to the investigation. They might also be able to deal with matters relating to the extent of the breaches that you are investigating (e.g. their knowledge of the risk and the ability to avoid the risk, including system of work, training, instructions, supervision etc).
32. Statements taken from people within this category should include details of their employment status (whether they are employed or self-employed). If they are employed, you should record details of their employer, together with their position or post.
33. You should bear in mind that people within this category may also have committed an offence under HSWA section 7 and/or section 36. If you have reasonable grounds to suspect that a person has committed such an offence, you should not seek to obtain a witness statement from them. They should be questioned in a formal interview under caution in accordance with the provisions of PACE.
34. You should see also OC130/8 for information on the prosecution of individuals.
Witnesses and self-incrimination
35. Every person has a right not to incriminate themselves, both under domestic law and under the fair trial provisions contained in Article 6 of the European Convention on Human Rights5. This right presupposes that the prosecution in a criminal case will seek to prove the case against the accused without resort to evidence obtained through coercion or oppression of the accused. Section 20(7) HSWA protects this right by preventing the use of a compelled statement against the maker of the statement (and their spouse or civil partner).
Companies and compelled statements taken from directors
36. Although a compelled statement taken under section 20(2)(j) is not admissible in evidence against its maker, there may be situations where it will be necessary to rely on the evidence of a director who has been compelled to make such a statement, against the company.
37. It may be argued later that the director should be regarded as "the company" and therefore cannot be compelled to give evidence against the company as this would infringe the company's right against self-incrimination.
38. However, the courts have held that, although the general privilege against self-incrimination, which allows a person to refuse to answer a question that could expose them to a risk of prosecution, can be claimed by a company or any other body with legal personality6, it is limited to the person who makes the statement. This means that a director cannot claim the privilege against self-incrimination to avoid incriminating the company or to prevent the company disclosing information that would incriminate the director7.
Documents and self-incrimination
39. Under s 20 HSWA, you have the power to take a copy of documents required to be kept under any of the relevant statutory provisions or that are necessary for you to see for the purposes of your investigation. You should be aware that the defence may argue that, if such documents are relied upon in a prosecution, this infringes their right against self-incrimination. The basis of this argument is that, since the defendant was compelled to provide the copies, they have been compelled to incriminate themselves8.
40. The Court of Appeal has stated9 that there is a distinction to be drawn between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that they have had to make under compulsion.
41. In other words, it is important to determine whether the material in question is evidence that a defendant has been compelled to create (e.g. a compelled statement) or evidence that was already in existence, where the effect of the compulsory power is to bring such evidence to the attention of the court (e.g. a company's documents).
42. As the law currently stands, material that a defendant has been compelled to create may be protected from subsequent prosecution use by the right not to incriminate oneself. Material that was already in existence, but which the defendant was required to produce, does not have this protection and may be used as part of the prosecution case.
Victim personal statements
43. A victim personal statement (VPS) is a statement made by the victim of a criminal offence relating to the effect of the offence on that person. The purpose of such a statement is:
- to give the victim an opportunity to state how the offence has affected them physically, emotionally, psychologically, financially or in any other way;
- to provide the victim with a means by which they can request information about, for example, the progress of the case;
- to give the victim an opportunity to say whether they require further support (for example, from Victim Support), have particular communication needs (such as visual or hearing impairments) or wish to claim compensation in the criminal proceedings; and
- to provide HSE and the courts with information on these matters and allow them to take account of the consequences of the offence on the victim.
45. A “victim”, in relation to HSE’s work, is an individual, injured as a result of another person (including a corporate body) committing an offence under the relevant statutory provisions or, where there has been a fatality, the bereaved relatives or partners (including same sex partners). OC130/12 gives further advice on how “victim” is to be defined in practice for the purposes of the VPS scheme. See also Contact with relatives of people killed through work activities.
46. Where an incident has been selected for investigation, any individual who has been injured as a result of a possible health and safety offence will normally be interviewed (see Investigation Operational Procedure ). If a witness statement is to be taken, the victim should be given the HSE VPS leaflet. The opportunity to give a VPS is available during the investigation and prosecution stages and the victim can provide a VPS any time until the case is heard in court. The procedures contained in OC130/12 should be followed. A VPS is a voluntary statement (see below).
47. When considering the public interest test in deciding whether to bring a prosecution, para 4.12 c) of the Code for Crown Prosecutors says that, "In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had". A VPS, if there is one, may provide information that assists in meeting the requirements of para 4.12 c). However, whether or not the victim chooses to participate in the VPS scheme, the approval offices should still apply the Code for Crown Prosecutors, as set down in OM 2003/106, and take account of any significant views expressed by the victim.
48. Victims have the option of whether or not to make a victim personal statement and no inference is to be made if they choose not to do so. A VPS should be taken as a voluntary (section 9 CJA) statement on form LP70. It should be taken on a separate form to any other statement the victim makes. As with other, evidential statements, guidance on taking statements from particular categories of witnesses (see below) should be followed when taking a VPS.
49. The VPS is disclosable and should be provided to the defence before the hearing. It is unlikely that the VPS will contain any sensitive material for the purposes of the CPIA; if it does, it will need to be edited by the prosecutor before disclosure.
50. The VPS will be put before the court after conviction in the sentencing bundle. Victims should not comment on the appropriate level of sentence; courts will not take account of any such comments. Victims should be advised of this. The VPS may provide information relevant to a possible compensation order but the VPS scheme does not affect the procedures by which the court will consider and, if appropriate, make such an order. The Criminal Practice Directions 2015 include directions (at CPD VII Sentencing F) to judges and magistrates on how to use the VPS10.
How should witness statements be taken?
Arranging to see witnesses
51. The circumstances of the investigation will dictate whether or not it is appropriate to see witnesses with the knowledge of their employer (or another person). In determining the arrangements for interviews, you will need to use your discretion in this respect so as to ensure that the witness feels most able to assist the investigation, free of any risk of intimidation (intended or otherwise).
52. In many cases, dutyholders will voluntarily assist you with making suitable arrangements to interview witnesses. However, should this not prove to be the case, you have a number of powers to require this under section 20 HSWA, including the power to require any person to afford you such facilities and assistance as are necessary to enable you to exercise your powers (section 20(2)(l)). This can include facilities to see witnesses in private (subject to a person’s right to have another person present if you are requiring information under section 20(2)(j)). You do not have to make appointments to see employees via their employer. However, you should arrange to see potential witnesses at an appropriate time.
53. Witness statements should normally be taken as soon as possible to ensure that:
- the events are still fresh in the mind of the witness;
- the evidence is recorded before the witness is tempted/has opportunity to discuss their evidence with others.
54. This approach will give you the best evidence from the witness and make it more difficult for the defence to challenge the witness's evidence.
55. In some cases it may be more appropriate to obtain the home contact details of the potential witness and contact them there. (Ensure you follow HSE’s personal safety advice in the section Your Health and Safety on the Intranet.)
Dealing with the witness
56. All witnesses should be treated with courtesy and every attempt should be made to put witnesses at their ease. It is preferable to speak to witnesses in a private room so that there is a more relaxed environment. At the outset, you should explain to the witness that the primary aim of taking a statement from them is to find out what happened.
57. It is common practice within HSE to use the term witness "interview" when taking or proposing to take a witness statement. Elsewhere in the criminal justice system the term "interview" is used to refer to the questioning of a suspect. It is important therefore to clearly explain to a potential witness that they are not a suspect and you propose to take a statement from them.
58. Any statement should be written and signed in ink. Witness statements should be drafted so that they are concise and to the point. They should only deal with matters within the direct knowledge of the witness. As far as is possible, you should try to record the witness's own words.
59. You may find it helpful to take notes before beginning to write the statement. Once the statement has been completed, you should read it over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.
60. When questioning the witness, you should ask all relevant questions so as to satisfy your duty under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect (see ‘Key requirements’ in the relevant section on disclosure of unused material in the Pre-trial Stage).
61. You will be concerned with obtaining the best evidence possible and therefore you will want to know from the witness whether they have discussed their evidence with anyone else (including the solicitor representing any suspect e.g. a company/employer or another person). If there is any information relevant to the weight to be attached to a witness's evidence, this should be recorded in your notebook.
62. It is essential that you record each witness’s home address, telephone numbers (including their home) and dates to avoid (if known) on the form attached to the statement, so that you can contact the witnesses at any time, if necessary. It is also essential that you record the witness’s date of birth on the back of the statement where indicated. This is a legal requirement if the witness is under 18. However, it is also necessary in other circumstances, in order to properly identify the witness and, if required, perform a check for any previous convictions (see the related section in Attendance of witnesses). You should also ask whether or not the witness will consent to the disclosure of their witness statement for the purposes of any subsequent civil proceedings that may be commenced. You should make a written record of their reply on the back of their statement. If a request for disclosure is received for any other purpose then you must seek consent for this and again make a written record of the reply.
Identification of suspects by witnesses
63. It may be necessary as part of the investigation for a witness to identify a person as someone they have seen involved in committing an offence. Whilst this occurs relatively rarely in HSE investigations, it could be required in certain circumstances (for example, where evidence is needed that an individual was indeed the person seen to carry out work on a domestic gas appliance).
64. In such a case, identification evidence should only be obtained in accordance with PACE Code D. You should record the witness’s description of the suspect before any identification procedures are carried out11. This record would normally be made in the form of a witness statement. Identification procedures, such as video (or photograph) identification, must then only be carried out in accordance with Code D. In such circumstances, you should seek guidance from Legal Adviser’s Office via your legal liaison point.
Who can be present when you are taking a witness statement?
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
67. A witness is not entitled as a matter of law to have a legal adviser present when his/her statement is taken.
68. The situation changes if a witness turns into a suspect. You must terminate the statement-taking exercise immediately and issue the caution as required by the Police and Criminal Evidence Act 1984 (PACE). The procedures relating to interviewing a suspect are found in the Questioning of Suspects section.
Statements complying with section 9 CJA
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
Presence of solicitor/representative who represents a suspect
76. During an investigation into possible breaches of health and safety legislation by an employer, an employee witness providing a statement (whether under s9 CJA or s20 HSWA) may ask for the solicitor, or other representative, of the employer to be present when s/he is interviewed.
77. You should explain to the witness that the interests of the employer may not be the same as those of an employee. The witness may want, for example, to seek the advice of his/her trade union.
78. The Solicitors Regulation Authority (SRA), the body that regulates solicitors in England and Wales, has published outcomes focused regulation which focuses on the high-level principles and outcomes that should drive the provision of legal services rather than detailed and prescriptive rules. The SRA handbook incorporates the SRA Code of Conduct.
79.Under the SRA Code of Conduct, a solicitor must generally not act for two or more clients where there is a conflict of interest or a significant risk of such a conflict between them12.
80. The SRA has also issued guidance on whether it is appropriate for the employer’s solicitor to be present during HSE’s interview of an employee. Whilst this is only guidance, the SRA and the courts will take it into account and you are therefore entitled to refer to it.
81. Paragraph 2 of the SRA guidance deals with the situation where a solicitor claims to act for both the employer and the witness. It includes an example of the conflicts that may arise in such a situation: the solicitor will be under a professional duty to tell each party what s/he learns from the other, yet at the same time will be under a similar duty to keep confidential what s/he has learned.
82. Where an employer’s solicitor does not claim to represent the witness, the guidance states that “it is difficult to justify the employer’s solicitor accompanying the employee to the interview” and that “it is generally inappropriate for the employer’s solicitor to attend such interviews as the employee’s nominee, or to seek to obtain the employee’s consent to being present at the interview”13.
83. The guidance recommends that, if an employer’s solicitor does attend an HSE interview, s/he should ask to be provided at the end of the interview with a copy of any witness statement taken. You have the discretion to refuse such a request where supplying a copy of the statement would be likely to interfere with, or prejudice, the ongoing investigation - see Supplying statements to witnesses for further guidance.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
Particular categories of witnesses
89. The “Revised code of practice for the detention, treatment and questioning of persons by police officers”, Code C of the codes of practice, made under section 67 of PACE, gives guidance on the procedures to follow when you speak to certain categories of witness.
90. The 'notes for guidance to the Code'14 say that, although certain sections of the code apply specifically to people in custody, those who are present voluntarily to assist with an investigation should be treated with no less consideration. You should therefore follow the guidance below both when speaking to witnesses and when questioning suspects at an interview under caution.
Juveniles and mentally disordered or otherwise mentally vulnerable people 15
91. It is important to establish the age of a juvenile witness. Special Measures may be available for witnesses under 18 and, for those who appear to be under 17, they should be accompanied by an appropriate adult.
92. Any witness who appears to be under the age of 17, unless you have clear evidence to show that they are older, and any witness who you suspect, or are told, may be "mentally disordered or otherwise mentally vulnerable" should be spoken to in the presence of an appropriate adult 16.
93. An appropriate adult for a juvenile is a parent or guardian, a social worker or, failing this, another responsible adult not employed by HSE 17.
94. An appropriate adult for a mentally disordered or otherwise mentally vulnerable person is a relative, guardian or other person responsible for care, or someone who has experience of dealing with "mentally disordered or otherwise mentally vulnerable" people, and failing that, some other responsible adult who is not employed by HSE 18.
95. The appropriate adult should not be someone suspected of involvement in the offence in question, or a witness19. The role of the appropriate adult is to advise the juvenile and to observe whether or not the interview is being conducted properly and fairly, and to facilitate communication with the person being interviewed, and this should be explained 20.
96. Juveniles should not be interviewed at their place of education except in exceptional circumstances21.
97. The Youth Justice and Criminal Evidence Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "special measures".
98. Vulnerable witnesses are defined as:
- All child witnesses (under 18); and
- Any witness whose quality of evidence is likely to be diminished because they:
- are suffering from a mental disorder (as defined by the Mental Health Act 1983);
- have a significant impairment of intelligence and social functioning; or
- have a physical disability or are suffering from a physical disorder
99. The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include the use of screens, live link and video recorded interviews.
100. If you consider that special measures could apply to your witness then legal advice should be sought.
101. If you need to take a statement from a witness who has difficulty in understanding English, you should arrange for an interpreter to attend 22. The interpreter will normally be a member of the National Register of Public Service Interpreters (NRPSI). The statement should be written in the witness’s own language and signed by the witness 23. If they are unable to read it, the statement should be read back to the witness by the translator. A translation should be obtained, which the interpreter will usually prepare. S/he should complete a witness statement producing the English translation, certifying that it is a true and accurate translation of the statement given by the witness and stating that s/he is a member of the NRPSI (or other relevant organisation). The translation should be obtained as soon as possible, so as not to delay the investigation.
102. If the case goes to trial and you propose to call a witness who requires an interpreter, you should notify the court as soon as possible, so that the court can arrange for a suitable interpreter to attend.
Deaf witnesses and people with speech difficulties
People with a visual impairment or reading difficulties
104. Where a witness cannot read the written record, you should read it out and ask the witness to sign it as correct. You should then take a note that this has occurred 26.
People unfit to be interviewed
105. You should not interview a person if you believe that they are unfit to be interviewed 27. This can be where conducting the interview could significantly harm the person's physical or mental state or anything that they say about their involvement or suspected involvement in the offence might be considered unreliable in subsequent court proceedings because of their physical or mental state. For example, a person may be unfit to be interviewed if they are under the influence of alcohol or drugs.
Defence questioning of witnesses
106. There is no "property" in a witness. This means that the fact that you have taken a statement from a witness and are likely to call them to give evidence does not prevent the defence from taking a statement from the same witness. However, a person who seeks to speak to a witness who has already provided a statement for the other side may be exposed to the suggestion of tampering with evidence, particularly where the witness changes their evidence as a result.
107. Where the defence seek to interview a witness whom you intend to call, you may advise the witness that they have a choice as to whether they make a statement to the defence. Where the witness consents to make a statement to the defence, you should suggest to the defence that, subject to the consent of the witness, you should also be present when this takes place 28.
Releasing copies of witness statements
108. If a witness requests that you provide them with a copy of their witness statement, you should normally comply with their request. However, you are not obliged to supply a copy immediately; you have a discretion to refuse or delay providing a copy of the statement in circumstances where this would be likely to interfere with the course of justice 29 30. In certain circumstances, you might have concerns that providing the statement could prejudice the investigation 31.
109. You should also be careful not to provide statements to witnesses in circumstances which enable them to compare with one another what each has said. If there are grounds to believe that a witness will pass their statement to a suspect or their representative, you will need to consider whether this may interfere with the course of justice. If so, you may use your discretion to refuse to provide a copy of the statement at that time.
Witness interference and intimidation
111. It is an offence at common law to interfere with a witness by unlawful means, such as violence, bribery, threats or improper pressure 32. Such conduct amounts to an offence of perverting (or attempting to pervert) the course of justice. It does not matter that no criminal proceedings have yet been commenced, provided investigations which could or might bring about proceedings are in progress 33. Interfering with exhibits is also an offence 34.
112. The Criminal Justice and Public Order Act 1994 (CJPOA) contains two further offences of intimidating a witness and taking revenge on a witness 35.
113. The first offence covers acts which intimidate and are intended to intimidate either a witness or a person assisting in the investigation of an offence, intending to cause the investigation or the course of justice to be obstructed, perverted or interfered with 36.
114. The second offence covers doing, or threatening to do, an act which harms and is intended to harm a person, knowing or believing that person to have been a witness or to have assisted in an investigation 37. The harm may be physical or financial, to that person, their family and friends, as well as their property.
115. Where you have taken a statement from a witness who will not give oral evidence at court because of fear, the court may give leave to allow the written statement to be admitted in evidence 38 (see Exceptions to the hearsay rule link to statutory provisions section ).
116. The courts have been reluctant to allow a written statement to be admitted in these circumstances, as the witness will not be cross-examined. It also means that the jury will not be able to assess the credibility of the witness. You should therefore consider whether any of the special measures that the court can take to protect witnesses, for example use of screens or video links, will assist the witness to give evidence 39.
117. If you become aware of information suggesting that a witness has been interfered with or intimidated, you should report this information to the police.
- The investigator is under a duty to pursue all reasonable lines of enquiry, whether these point towards or away from the suspect (section 23(1)(a) Criminal Procedure and Investigations Act 1996 set out in para 3.5 of the Code of Practice issued under s.23(1)). What is reasonable will depend on the circumstances of a particular case. Back to reference of footnote 1
- Available on the Ministry of Justice website. Back to reference of footnote 2
- R v Boal (Francis)  3 All ER 177. Back to reference of footnote 3
- See OC130/8 on prosecuting individuals for further guidance. Back to reference of footnote 4
- Saunders v United Kingdom  23 EHRR 313; approved in numerous subsequent English cases. Back to reference of footnote 5
- Triplex Safety Glass Company v Lancegaye Safety Glass (1934) Ltd  2 All ER 613, Rio Tinto Zinc Corporation v Westinghouse Electric Corporation  1 All ER 434. Back to reference of footnote 6
- Tate Access Floors Inc v Boswell  3 All ER 303: the directors argued that the company was a mere creature of themselves and therefore any disclosure by the company was, indirectly, a disclosure by them. The court rejected this argument stating that if people conduct their business through a corporation and take advantage of the separate legal entities, they cannot then claim that they are not separate legal entities where beneficial to do so; (b) R v Hertfordshire County Council ex parte Green Environmental Industries Ltd and another  TLR 497 (CA)  2 WLR 412: the Court of Appeal stated that the effect of section 69 of the Environmental Protection Act 1990 (identical provisions to section 20 of HSWA) was that where an individual (including a director) was compelled to answer questions, the answers would not be admissible against that individual personally but would be admissible against the company. The House of Lords dismissed an appeal against the Court of Appeal's decision but did not address the point relating to section 69. See also Walkers Snack Foods Ltd v Coventry City Council  3 All ER 164 - an individual could not rely on their privilege against self-incrimination to avoid answering questions or giving information in relation to others, including the company who employed them. Back to reference of footnote 7
- In JB v Switzerland, May 3 2001 (ECHR), a person's right against self-incrimination under Article 6 of the European Convention on Human Rights was infringed where they were fined for refusing to surrender financial documents to the Swiss tax authorities when required to do so by law. Back to reference of footnote 8
- R v Kearns  1 WLR 2815, relying on Attorney General's Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the effect of JB v Switzerland in reaching its decision. Kearns was considered more recently in the case of R v S  1 All E.R. 716 and applied in R v K  EWCA Crim 1640.R v Kearns  1 WLR 2815, relying on Attorney General's Reference (No 7 of 2000), TLR 12 April 2001. In Kearns, the court considered the effect of JB v Switzerland in reaching its decision. Kearns was considered more recently in the case of R v S  1 All E.R. 716 and applied in R v K  EWCA Crim 1640. Back to reference of footnote 9
- Criminal Practice Directions 2015 Division VII Sentencing. Back to reference of footnote 10
- PACE Code D, paragraph 3.1. Back to reference of footnote 11
- Chapter 3 SRA Code of Conduct. If there is a conflict, or a significant risk of a conflict, between two or more current clients, you must not act for all or both of them unless the matter falls within the scope of limited exceptions. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks. Back to reference of footnote 12
- Paragraph 5.2 of the SRA guidance. Back to reference of footnote 13
- Paragraph 5.5 of the SRA guidance. Back to reference of footnote 14
- Code C, Notes for Guidance paragraph 1A. Back to reference of footnote 15
- Code C paragraph 11.15 -11.17 uses these terms. Back to reference of footnote 16
- Code C, paragraph 11.15. Back to reference of footnote 17
- Code C, paragraph 1.7(a). Back to reference of footnote 18
- Code C, paragraph 1.7(b). Back to reference of footnote 19
- Code C, Notes for Guidance, 1B. Back to reference of footnote 20
- Code C, paragraph 11.17. Back to reference of footnote 21
- Code C, paragraph 11.16. Back to reference of footnote 22
- Code C, paragraph 13.2. HSE Language Services can arrange an interpreter where required, see the information section of the intranet. Back to reference of footnote 23
- Code C, paragraph 13.4. Back to reference of footnote 24
- Code C, paragraph 13.5. Back to reference of footnote 25
- Code C, paragraph 13.3. Back to reference of footnote 26
- Code C, paragraph 11.11. Back to reference of footnote 27
- Code C, paragraph 12.3 and Annex G. Back to reference of footnote 28
- See the CPS website – Legal Guidance – Interviewing witnesses for the other side. Back to reference of footnote 29
- R v Richardson (D)  2 QB 484 (CA); R v Skinner (Gary)  99 Cr App R 212 (CA); R v Roberts (Michael)  162 JP 691 (CA); R v Arif  The Times, 17 June 1993 (CA). Back to reference of footnote 30
- Under the Data Protection Act 1998 (DPA), HSE may refuse a “subject access” request to provide a witness with a copy of his/her statement where to comply with the request would be likely to prejudice the prevention or detection of crime, or the apprehension or prosecution of offenders (section 29(1) DPA) or where to do so would be likely to prejudice HSE’s functions for securing the health, safety and welfare of persons at work or for protecting persons not at work against risks to their health and safety from work activities (sections 31(1), (2)(e) and (f) DPA). Back to reference of footnote 31
- Home Office Circular 82/1969 gives examples of situations in which a witness’s request for a copy of his/her statement may be refused on the grounds that the course of justice might be prejudiced: where the statement is sought to enable the witness to lie consistently; or where others are bringing pressure on the witness to obtain a copy of the statement with a view to persuading him/her to change what s/he said. Back to reference of footnote 32
- R v Kellett  1 QB 372, CA. Back to reference of footnote 33
- R v Sharpe and Stringer (1938) 26 Cr. App. R. 122, CCA; R v Grimes  3 All ER 179. Back to reference of footnote 34
- R v Murray (1982) 2 All ER 225. Back to reference of footnote 35
- CJPOA 1994, s.51. The offences are punishable on indictment by 5 years imprisonment, or an unlimited fine or both; and summarily by 6 months imprisonment or £5,000 or both: s.51 (5). Back to reference of footnote 36
- CJPOA 1994, s.51(1). The offence extends to investigations by the police and by other persons charged with the duty of investigating offenders or charging offences: s.51(9). Back to reference of footnote 37
- CJPOA 1994, s.51(2). Back to reference of footnote 38
- Section 116 Criminal Justice Act 2003. Back to reference of footnote 39