- Use of written statements
- Form of statements
- Inconsistent evidence
- Editing witness statements
- Defence witnesses
- Interviewing defence witnesses
Use of written statements
1. An investigator may take a statement from a witness in the course of an investigation (see Collecting Witness Evidence). The evidence that the statement contains can affect a number of important decisions connected with the investigation, for example whether:
- a prosecution should be undertaken;
- the witness has evidence that will be used as part of the prosecution case; or
- the statement should be disclosed as unused material under the Criminal Procedure and Investigations Act 1996 (CPIA).
2. If there is a prosecution that leads to a trial, the witness may be called to give oral evidence. However there are procedures whereby the contents of a witness statement may be used as evidence in criminal proceedings without the witness being required to attend court.
3. To do this:
- all parties must agree to the statement being used; and
- the form of the statement must comply with section 9 of the Criminal Justice Act 1967 (CJA 1967). Statements taken using powers under section 20(2)(j) (form LP7) do not comply with these requirements and cannot therefore be used in this way. Guidance on the requirements is set out in the paragraphs below.
4. The use of this procedure saves time and facilitates the progress of the prosecution but, as it does not allow the witness to be cross-examined, it is unlikely to be appropriate where the content of the statement is contentious or the evidence is central to the prosecution's case.
5. The procedure is particularly suitable for the admission of certain types of factual evidence that are not in dispute, for example:
- evidence of employment;
- evidence that an accident occurred; or
- non-contentious laboratory evidence.
6. The procedure may also be used if it is likely to be difficult to bring a witness to court.
Form of statements
7. To be accepted in evidence in summary proceedings, a written statement must:
- be signed by the "maker", that is the person whose evidence it is;
- include a declaration of truth, such as the one printed on the statement forms; 1
- give the witness's age if under 18.
8. Statements taken on the forms provided 2 comply with these requirements.
9. If a witness cannot read the statement, it must be read to the witness before it is signed. The person who reads the statement to the witness must sign a declaration that this has been done.
10. If a statement refers to another document as an exhibit, that document must either be copied to all the parties, or they must be given sufficient information to enable them to inspect it. 3
11. Expert evidence may be given by way of a written report, 4 whether or not the expert also gives oral evidence. The report should either be provided in the form of a statement that complies with s.9 CJA 1967 (ie on form LP70) or be exhibited to such a statement. In certain circumstances, the court may give leave for the report to be admitted in evidence without the expert being called. 5
12. Before serving any statement under section 9 CJA 1967, you should ensure that the statement covers all matters on which the witness will be required to give evidence.
13. The witness's address should not be given. You should not serve the form containing the witness's personal details on the defence, as these are confidential and may place the witness at risk of intimidation.
14. The statement must be served on each party to the proceedings. It must be accompanied by a form LP17 which states that, if the defence requires the witness to be present, the prosecution must be informed before the hearing. If there are several defendants, all must be separately served with the statement.
15. A defendant has the right to object to a statement being admitted as evidence under section 9 CJA 1967 by written notice within 7 days of service.
16. If an objection is received out of time to the use of a statement under section 9 CJA 1967, you should try to ensure that the witness attends, otherwise the court may decide to adjourn the matter to allow the witness to attend.
17. In the absence of objection, you can normally rely on the written statement, which is then read in full to the court (or summarised if the court allows). However, the court may itself require a witness to attend and give evidence, even if the defence has accepted the statement.
18. The requirements of section 9 CJA 1967 are not mandatory if all parties agree to the statements being admitted as evidence.
19. All statements and exhibits served on the defendant should be copied to the court as soon as practicable. Additionally, it is good practice to copy the accompanying form to the court as evidence that the defendant was advised of the right to object to the statement(s) being tendered in evidence. You should ask the court office to confirm the number of copies of statements and exhibits which the court will require.
20. If the defendant either agrees to the statement being used in evidence or does not reply, but at the trial tenders evidence that conflicts with the statement, you should draw the court's attention to the discrepancies between the evidence given and the contents of the statement.
21. You should show that the appropriate forms have been served and request that, in view of the conflict in evidence, the case should be adjourned so that the witness may attend. 6
Editing witness statements
22. It may be necessary for witness statements to be edited before being tendered in evidence, for example:
- where a statement contains material that is inadmissible (such as hearsay), prejudicial (such as mention of a previous offence) or irrelevant;
- where more than one statement made by a witness can conveniently be reduced into a single statement (although all the original statements must be retained as they are potentially disclosable under the CPIA).
23. A statement can be edited by marking a copy or obtaining a fresh statement.
24. A copy of the statement may be marked in a way which indicates the parts on which you will not rely: this can be done either by lightly striking out the passages to be edited or by bracketing, or a combination of both, so long as the material that is not to be relied upon is NOT obliterated. The original signed statement to be tendered to the court should not be marked in any way.
25. A fresh statement, signed by the witness, may be obtained which omits the offending material. This would be appropriate, particularly if the statement is to be tendered under s 9 CJA 1967, where, for example:
- the statement contained details of interviews with other suspects who were not charged;
- other offences were investigated but not charged;
- only a small part of the original is to be used; or
- the original statement contains material which the prosecution is entitled to withhold from the defence.
26. Defence statements may also be served under s.9 CJA 1967. You are under no obligation to accept them in evidence, but you may do so if you are satisfied that you need not cross-examine the defence witness.
27. If you wish to object to the statement, you should notify the defence by registered post or recorded delivery within 7 days of the statement being served on you.
Interviewing defence witnesses
28. Section 34 of the Criminal Justice Act 2003 Act inserts a new s.6C into the Criminal Procedure and Investigations Act 1996, requiring the defence to give the prosecutor and the court advance details of any witnesses they intend to call at trial. They are not required to provide a copy of the statement of the witness (expert witnesses are covered by separate provisions).
29. A potential issue arises as to when the defence form the intention to call a witness which may sometimes be late in the trial process. However the courts are likely to interpret the obligation to notify the prosecution as arising when the defence "intend or may intend to call" a witness.7
30. The witness disclosure requirements are mandatory in both the Crown Court and the magistrates' court and apply to any case in which the defendant pleads not guilty in the Magistrates Court on or after 1 May 2010 or any case which is committed/sent to the Crown Court on or after that date. The defendant should comply within 14 days of initial prosecution disclosure.8
31. The Secretary of State has issued a Code of Practice to govern the arranging and conduct of interviews of defence witnesses disclosed under the new requirement by persons charged with the duty of investigating offences.9
32. The witness has to consent to being interviewed and can have a solicitor present. The interview should be recorded.
33. There is no requirement for the defence to supply any statement from the witness to the prosecutor before the interview. The prosecutor may therefore be unlikely to know what evidence the witness may give. In deciding whether to seek to interview any witness the investigator should take into account all the circumstances of the case. If you are already aware of what the witness is likely to say (you may have spoken to them at an earlier stage of the investigation) you may consider that interviewing them now is unlikely to be of benefit. On the other hand if you are unaware of the nature of the witnesses' evidence an interview could be helpful to the prosecution. If you require advice then please contact your Legal Liaison Point.
- The declaration reads as follows: "This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true." Back to reference of footnote 1
- LP70, in Legal Forms. Back to reference of footnote 2
- CJA 1967, s.9(3)(c). Back to reference of footnote 3
- CJA 1988, s.30. Back to reference of footnote 4
- This is normally only when the evidence is non-contentious and can be agreed. Back to reference of footnote 5
- CJA 1967, s.9(4)(a). Lister v Quaife  2 All ER 29. Back to reference of footnote 6
- R v Ensor  EWCA Crim 2519. Back to reference of footnote 7
- The Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 [SI 2010/214]. Back to reference of footnote 8
- Code of practice for arranging and conducting interviews of witnesses notified by the accused. Back to reference of footnote 9