Collecting witness evidence
- What is a witness statement?
- What type of statement should you take?
- People who may be able to provide you with statements: Directors, managers, etc, with duties under HSWA s37
- Other people
- Arranging to see witnesses
- Dealing with the witness
- Noting the statement
- After an interview
- Disclosure and redaction
- Who can be present when you are taking a witness statement?
- Voluntary statements
- Particular categories of witnesses
- Defence questioning of witnesses
- Witness interference and intimidation
- When should you conduct an interview under caution?
- Statements under caution
- Audio-recorded interview under caution
- Witnesses and self-incrimination
- Interviewing a body corporate (e.g. a company)
- Non tape-recorded interviews under caution - written record
- Victim statements
What is a witness statement?
A witness statement is a document recording the evidence of a person who you have spoken to, which is signed by that person to confirm that the contents of the statement are true.
In general, the statement should only contain information on what the witness saw, and not what others have said to him / her. However, it is important to record anything that may open up a new line of enquiry or help in corroborating other information.
In Scotland, in the past, a witness statement was not normally considered to be evidence in its own right. This was because witness statements are classed as hearsay when led as evidence of the truth of their facts. However, where a statement is led in evidence only to prove that it was made, then that was and remains quite legitimate. There are several exceptions to the general hearsay rule.
A witness statement is a document recording the evidence of a person to whom you have spoken, which is signed by that person to confirm that the contents of the statement are true. There are several ways in which witness statements can become crucial at a trial, and these make it important that all statements are recorded with particular care and accuracy.
Section 259 of the Criminal Procedure (Scotland) Act 1995 allows hearsay evidence to be admitted in a number of situations: where the maker of the statement is dead, unfit or unable to give evidence, or where a witness refuses to answer questions, then, evidence from a prior statement can be put to him/her. There have been several challenges to these statutory provisions on the basis that their operation can breach an accused's right to a fair trial under Article 6 (Schedule 1 Part 1) of the Human Rights Act 1998. It has been argued that where hearsay evidence provides corroboration for the Crown's case then, the accused is being denied a fair trial because the accused is not given the opportunity to examine witnesses who are against him/her. The general approach of the Scottish courts has been to leave the question of fairness to the trial judge; if hearsay evidence is assessed to be unfair to the accused this might lead to a trial being deserted or the jury directed to acquit.
Witness statements, under the common law of Scotland, could always be used in evidence when the original statement differs from the evidence a witness gives in court. Here witness statements are being used to challenge the credibility of the witness by highlighting the inconsistency between evidence provided in a statement, and evidence given at trial.
Witness statement can also be used to fill a gap in a person's recollection. The case of Jamieson v HMA (No 2) 1994 SCCR 610 was of importance for prosecutors in Scotland for it held that if a witness in court was unable to recollect what was said to the police, that gap could be filled by police evidence of what was said, provided the witness stated that what was said to the police was the truth.
In addition to these common law exceptions to the hearsay rule, s260 of the Criminal Procedure (Scotland) Act 1995 provides that
“… any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of proceedings.”
This section applies to statements that would not be admissible under the common law, and allows any prior statement by a witness (not an accused) to be admissible as evidence of any matter stated in it. The second part of the section makes provision for a witness adopting as his/her evidence an earlier statement contained in a document. This seems to have been intended to give legislative force to the Jamieson case, however, that case applies to all statements, not just those contained in written documents. Prior statements, which are not recorded in writing, remain admissible on the authority of Jamieson.
In general a witness statement should only contain information on what the witness saw, and not what others have said to him/her. Hearsay evidence is not normally admissible except as provided for in the common law and in the statutory examples noted above. In addition, s259 of the Criminal Procedure (Scotland) Act 1995, allows a judge to admit hearsay evidence in limited circumstances, such as the death or mental unfitness of the witness who made the original statement.
What type of statement should you take?
When you take a statement from a witness, you should, wherever possible, take a voluntary statement.
NB. Confusingly the expression “voluntary statement” is sometimes used to refer to a statement under caution from a suspect. In HSE we use the expression to mean a statement voluntarily given by a witness to fact who is not a suspect, to differentiate it from a compulsory statement taken using powers under section 20 HSWA.
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 LPS 9. 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 they will be asked to sign a declaration of truth.
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 should not imply to them that, if they decline to give a voluntary statement then you may compel them, as this may be considered as undue pressure. If they continue to decline or remain unsure then you may revert to use of your powers, provided it is necessary and proportionate to do so for the purpose of your investigation.
If the witness declines to provide you with a statement voluntarily you should consider exercising your powers under section 20(2)(j) to take a compelled statement LPS 10.
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.
If you have any reason to believe that a witness may not tell the truth, such as pressure from an employer, you should consider taking a compelled statement, as it is a specific offence to make a false statement (section 33 (1)(k) HSWA).
Any unsolicited admission made during a voluntary interview is admissible against the person who made it. You should record the admission in your notebook, sign and date it and ask the persons making the admission to sign and date though they may not be compelled. Any further questioning should be under caution.
Unsolicited admissions made during compelled interviews are not admissible since answers given by a person compelled to answer your questions are not admissible as evidence against that person or their partner (section 20(7) HSWA).
People who may be able to provide you with statements: Directors, managers, etc, with duties under HSWA s37
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.
These are people in positions of authority within the corporate body who have both the power and responsibility to decide corporate policy and strategy. Whether such a person is a suspect in your investigation will depend on the evidence that you have collected.
You are under a duty to follow all reasonable lines of inquiry. this may include investigating the involvement of individuals in any suspected breach. However, HSE’s Enforcement Policy Statement recognises that it may be necessary to target your investigation (e.g. towards the person best placed to control the risk).
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.
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).
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.
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.
You should see also OC 130/8 Prosecuting individuals for information on the prosecution of individuals.
Arranging to see witnesses
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).
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.
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 & Safety on the HSE intranet.
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.
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.
Dealing with the witness
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.
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’ own words.
You may find it helpful to take notes before beginning to write the statement. Once the statement has been completed you should offer to allow the witness to read it; otherwise you should read the statement over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.
When questioning the witness you should ask all relevant questions ie pursue all reasonable lines of enquiry, whether these point towards or away from the potential accused.
Your primary concern is with obtaining the best evidence possible from witnesses. Therefore you will want to know, and should ask, whether the witness has 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’ evidence, this should be recorded in your notebook.
It is essential that you record each witness’ home address, telephone numbers (including their home number) on the statement, so that you or the Procurator Fiscal can contact the witnesses. It is also essential that you record the witness’ date of birth. 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 on the Police National Computer (PNC) for any previous convictions.
Noting the statement
Witness statements may be noted on a statement form (LPS 9 or 10 as appropriate), in your notebook or on plain paper.
COPFS have asked that witness statements should not be taken using recording equipment. The statement should be in the form of a document. This is because a witness statement in a document is admissible as evidence in certain circumstances – Section 260, Criminal Procedure (Scotland) Act 1995.
The statement forms include declarations that the witness has told the truth and space for the witness signature, so it is best to use a statement form. If the statement is recorded in a notebook, or on plain paper, and proceedings are likely, then a typed version needs to be prepared and the witness asked to read, agree and sign it.
Except under section 20(2)(j) there is no obligation on a witness to sign their statement. If the witness declines to sign their statement you should note that fact in the statement and in your own statement.
At the end of the interview you should ask the witness to read the statement, agree it and sign it. If they cannot read it then you should read it to them and note that fact.
Whatever form is used for the statement taken during the investigation, where a prosecution report is to be submitted, the statement must be typed using the National Standard Statement Format (NSS) (See Disclosure Manual Scotland). Crown Office will not accept statements in any other format. The format is based on the police statement form and contains some headings only relevant to the police. These can be left blank.
Where an HSE specialist prepares a statement to support their report then they should have the statement typed using the NSS format.
Some headings on the NSS form are only relevant to the police, guidance on the various headings is as follows:
Agency No – HSE’s witness number as assigned in Prosecution Report
PF Ref – leave blank
Section 1 Disclosable details:
Forename – this should include all forenames
Family name – self evident
Other or previous name – maiden name
Age/DOB – self evident, provide both
Occupation – self evident
Other – assume this means other occupation
Police station – leave blank
Years service – leave blank, this is for police officer witnesses. For other witnesses including Inspectors narrate occupation details in section 3
Section 2 – Provenance
Statement taken or compiled – statement is taken if record of witness interview, compiled if it is self prepared by investigator.
Date – mandatory field
Time – mandatory field in form hours:minutes – this is the time that statement was started
Place – where statement taken, e.g. Belford House, Edinburgh
By – mandatory field – name of interviewer or self prepared
Other persons present – self explanatory
Source – source of statement, if from hand written statement then “statement form”, if from notebook statement from “notebook”.
Verification – say whether witness read statement, had it read to them etc. Also in this section the investigating inspector should authenticate that the typed copy is a true copy of the original hand written version by saying something like “ A Smith, HM Inspector of Health and Safety authenticate this statement as true copy of the original statement”. For a self prepared statement say “own statement”.
Section 3 – Free text for the body of the statement
Section 4 – Personal Details – this section contains non-disclosable material including the address of the witness
SCRO number – leave blank
Witness type – Inspectors are PEO which is professional, expert, official, most other witnesses would be civilian.
Alias/known as – unlikely to apply in HSE cases
Date of birth – mandatory field
Place of birth – mandatory field, N.B. place and date of birth required for previous convictions to be checked by Crown. Applies to HSE witnesses as well.
Phone number – Home phone
Provide home or business address as appropriate. For civilian witnesses we should always obtain home address. For HSE/HSL and other official witnesses e.g. an independent expert then their business address should suffice.
Mobile phone numbers useful for all witnesses as with other contact details. This can help manage witness attendance at court.
Dates when unavailable – self explanatory
Section 6 – Other material
Any other confidential material – any information from or about the witness that the procurator fiscal may need to consider redacting.
The statement form ends with details of the declaration by the witness and statement taker.
After an interview
Witnesses often ask to be given a copy of their statement. On advice from Crown Office such requests should be refused. The aim is to avoid witnesses “swotting up” their statements prior to appearance in Court.
However, inspectors should be aware that the Procurator Fiscal will now disclose witness statements to the defence prior to trial. If witnesses ask when being interviewed whether their statements will be disclosed then they should be informed of the Fiscal's current practice. In some circumstances the Procurator Fiscal may be able to withhold parts of a statement, such as the witnesses address if there is a risk of intimidation. Any concerns expressed by the witness should be noted for the Fiscal.
A Note about the demeanour, apparent reliability of the witness and any other relevant factors e.g. a severe speech impediment should be prepared and accompany the statement (LPS 6 ).
Disclosure and redaction
In Scotland all statements taken by the investigator and submitted to the Procurator Fiscal will be disclosed to the defence prior to trial. If asked by the witness they should be informed of this. Before sending copies of statements to the defence, the Fiscal will edit (redact) sensitive information. Fiscals have indicated that guidance from the investigator will assist them in this process and the statement forms have been designed to allow none disclosable information to be separately recorded. Investigators should discuss this aspect with the witness to identify sensitive information. This could include personal details and medically in confidence information. The final decision on redaction is for the Fiscal, so no promise that information will be withheld should be made.
Who can be present when you are taking a witness statement?
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
A witness is not entitled as a matter of law to have a legal adviser present when his/her statement is taken.
[Section 31 (Law enforcement) exemption Freedom of Information Act 2000]
Particular categories of witnesses
Juveniles and mentally disordered or otherwise mentally vulnerable people
In 2003 the Scottish Executive produced a comprehensive guidance on interviewing children Guidance on Interviewing Child Witnesses in Scotland. Although the guidance is aimed primarily at the police (and as such deals mainly with issues surrounding suspected abuse) it is stated to be "relevant for all professionals who undertake investigative interviews with child witnesses"(p.5). The guidance should therefore be followed, and referred to by inspectors in appropriate cases. The aim of the guidance is to improve the quality of investigative interviewing, and may be useful, not only in interviewing children but also when seeking information from vulnerable witnesses. So far as young people are concerned the guidance deals with 'very young children' (up to the age of 5 years), 'young children' (up to 11 years of age) and 'older children' (over 11 years of age). Child witnesses are generally taken to be those under the age of 16.
The guidance recommends that all interviews with children are planned, and that the purpose of the interview is clarified fully before it takes place. Examples of planning points are: age and gender, language, mental/physical health requirements, known sources of stress. Although the guidance is framed mainly for those dealing with criminal matters (suspected abuse for example) the methodology suggested should be referred to by inspectors in appropriate cases.
It is recommended that only professionals who are "trained and competent" should carry out interviews with children (generally certain police officers and social workers). In some cases this may mean that an inspector might need to involve other professionals; for example a child's doctor if a child has witnessed a traumatic incident to decide how best to conduct an interview. Two individuals should carry out interviews, one should lead and the other should monitor and accurately record the questions and answers and also the demeanour of the child. The guidance notes that in "most circumstances, it is best for only the two interviewers to be present in the room with the child." In certain cases, however, a child may wish for an adult supporter to be present. If a supporter is present then it is important they understand their role: they should not participate in the interview itself, and it would generally be best for them to withdraw to an adjacent room once the child is settled. In general, for health and safety offences, the presence of a supporter isn't likely to be objectionable per se. However, it should be established that any supporter is not a witness or potential witness, nor someone with a personal involvement in the case. In suitable cases this would rule out a parent who was also an employee or director of a relevant company.
In addition to the guidance, the Vulnerable Witnesses (Scotland) Act 2004 provides for special measures to be used through which the evidence of children and certain vulnerable adults can be given in court. For example, in criminal cases all children under 16 are automatically entitled to give evidence by live television link and have the use of a supporter. Children under the age of 12 will, in some cases, be able to give evidence without attending the court building (for cases involving sexual assault or violence).
Where a witness has a mental disorder then the then Scottish Office guidance of 1998 (Interviewing people who are mentally disordered: "Appropriate Adult" schemes) should be taken account of. Although this is aimed mainly at the police, inspectors should ensure that when there is any suspicion an interviewee is mentally disordered an appropriate adult is called. There are a variety of appropriate adult schemes accessed by the police throughout Scotland, and the majority of these are Social Work led.
The rationale for the scheme is to put mentally disordered people on the same footing as others when they are being interviewed: to ensure that they understand what is happening, and to ensure that their answers are fully understood.
If you need to take a statement from a witness who has difficulty in understanding English, you should arrange for an interpreter to attend. 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. 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.
Deaf witnesses and people with speech difficulties
In such cases you should also arrange for an interpreter to be present, unless the witness agrees in writing to be interviewed without an interpreter present. The interpreter should read the written record and certify its accuracy.
People with a visual impairment or reading difficulties
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.
People unfit to be interviewed
You should not interview a person if you believe that they are unfit to be interviewed. 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.
If you need to take a statement from a witness who is unlikely to live for very much longer, you should contact the Procurator Fiscal who will consider whether it is appropriate to arrange for a “Dying Deposition” to be taken in front of a Sheriff, at the witness’ bedside. However, given the provisions of s.259 of the Criminal Procedure (Scotland) Act 1995 (see para 15) the need for such depositions is now more limited.
Defence questioning of witnesses
There is no “property” in a witness. This means that the fact that you have taken a statement from a witness and the witness is likely to be called to give evidence for the prosecution does not prevent the defence from taking a statement or precognition from that witness. The Procurator Fiscal is required to provide the defence with a list of witnesses together with the address at which they can be contacted for the purposes of precognition to enable them to be interviewed by the defence.
Witness interference and intimidation
It is an offence at common law to interfere with a witness by unlawful means, such as violence, bribery, threats or improper pressure. 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. Interfering with productions is also an offence. Suspicion of any such actions should be discussed with your line manager and usually reported to the police or Procurator Fiscal.
When should you conduct an interview under caution?
There is no express legal requirement that a person suspected of having committed an offence must be interviewed under caution before any decision as to whether to prosecute is taken. However, it is desirable that persons, including corporate bodies via a nominated representative at board level, who are suspected of committing offences are interviewed under caution because:
- the interview may provide important evidence against the suspect, which you would otherwise be unable to obtain;
- the interview may provide important information revealing further lines of inquiry;
- the interview may provide relevant information to be considered in the prosecution decision;
- it is fair and proper to allow a potential defendant an opportunity to answer the allegations and give their own account;
- an interview under caution will help to satisfy the provisions of the Enforcement Concordat
In the light of the above, you should generally try to interview suspects under caution unless there are good reasons for not doing so, such as the suspect refusing to attend. Even in a case where you feel that the evidence you have collected in the course of an investigation is sufficient to provide a realistic prospect of conviction, you may still carry out an interview under caution. In any event, in health and safety investigations, it will generally be appropriate to question the suspect about the reasonable practicability of steps that were or were not taken. This is likely to be difficult to ascertain without an interview. You may also wish to give the suspect the opportunity to comment on the matters you have uncovered in your investigation and to put forward any points that they consider to be relevant.
Once a person has been informed that they may be prosecuted, you should not question them further in relation to the offence, unless such questions are absolutely necessary:
- for the purpose of preventing or minimising harm or loss to some other person or to the public;
- for clearing up an ambiguity in a previous answer or statement;
- in the interests of justice in order to give the person an opportunity to comment on information concerning the offence which has since come to light.
Before any such questions are put to a person, they should be cautioned again. They should also be reminded that they have a right to seek legal advice. Though a suspect has no right to have a solicitor present during an interview under caution, HSE should normally allow the suspect’s solicitor to be present.
When setting up an interview under caution, a letter should be sent inviting the person, or an authorised representative in the case of a company (see below), to attend an interview under caution at an HSE office, or other suitable place. To expedite completion of the investigation a reasonably short deadline for responding and attending such an interview should be given.
If a suspect declines the opportunity to attend or you do not conduct an interview under caution for any other reason, you will not be able to verbally ask the suspect for their representations. You should normally write to the suspect, inviting him/her to make any written representations relating to the investigation or the prospect of prosecution.
A suspect is not obliged to accept your invitation and may therefore refuse to attend. In Scotland the court may make no inference from a suspect exercising their right not to respond.
Statements under caution
There is a distinction evidentially between statements of witnesses and statements made by an accused. To an extent, pre-trial statements made by an accused are admissible in evidence so long as they have been obtained fairly; this applies both to statements taken during a preliminary investigation and when the accused is a suspect. The law is not, however, free from difficulty. There have been a series of conflicting decisions in this area and it is difficult to state the law with complete certainty.
What is clear is that the courts will examine statements made when an individual has become a suspect more closely, mainly because the courts have a special duty to safeguard suspects. This is why it is important to ensure that suspects are cautioned, and, when a person becomes a suspect during the course of questioning that a caution is administered once that person's status changes from witness to suspect. As such, if suspicion falls on the interviewee and you require to ask further questions you should, before doing so, caution the suspect preferably in the presence of another inspector.
Whether the questioning has been fair or not (and therefore admissible in evidence) will depend on the circumstances of each individual case. Answers must not be elicited by unfair means including undue pressure, cross-examination, bullying or trickery.
As far as possible, the nature of the enquiry being undertaken should be explained to the interviewee. You should identify yourself and others present by name and grade and explain that you are not using your section 20 powers to require answers. The interview should be conducted sitting down and as far as possible in comfort with proper breaks for refreshment.
The form of caution that should be used is as follows:
“You are going to be asked questions about (description of offence); you are not bound to say anything but anything you do say will be noted and may be used in evidence. Do you understand?”
Although there is no prescribed form of caution, these words will adequately cover the requirements of fairness to the accused. It is important that each element of the caution is clear, and particularly important that the suspect understands that he/she is not bound or obliged to say anything.
When describing the offence you should not state potential breaches, rather describe briefly the matters which you think may have given rise to an offence that you are investigating.
It is crucial that the terms of the caution are fully noted by you (and the corroborating witness) at the time and that any replies made are similarly noted verbatim. You will be permitted to refer to these contemporaneous notes when giving evidence in court. Clearly the terms of the caution are highly relevant to any incriminating statements made; a failure to caution a suspect fully could result in the statement being ruled inadmissible.
The attitude of the interviewee to caution is something that may be of interest to the Procurator Fiscal in developing the case in court and should be pointed out in the report. It should be borne in mind that the silence of the accused in response to caution and/or charge cannot corroborate guilt.
Interviews under caution may be tape recorded and guidance on tape recording interviews is detailed below. If the interview is not tape recorded then a verbatim note of the interview should be taken on plain paper, which can be used as a production in court. Only one record of the interview should be made as it is unlikely that a record made by the corroborating witness will exactly match, and any discrepancies will leave the record of the interview vulnerable to defence challenge. The record should note the place and time of the interview and the names of all persons present, the terms of the caution and that the suspect had been reminded of their right to seek legal advice.
To aid identification you should record the full name, date and place of birth and National Insurance Number of the suspect. Any difficulties in obtaining that information should be discussed with the Fiscal who may ask the police to assist.
Ideally, the statement should be shown/read over to the interviewee who should be asked if they accept that it is accurate and asked to sign it. Any refusal to do so should be noted by you. The inspector conducting the interview should sign and date it as should corroborating witness.
If a suspect makes unsolicited comments outside the context of an interview but which might be relevant to the offence, you should make a written record of the comments. You should sign the record and record the time the comment(s) were made.
Oppressive interview techniques
You must not try to obtain answers by the use of oppression. Such an approach is likely to mean that any evidence obtained is inadmissible.
You must not indicate, except in answer to a direct question from the person being interviewed, what action HSE will take against them if they answer questions or refuse to do so. To do so could be seen as an oppressive approach
During taped interviews you should not leave the suspect unattended. If you take a short break and all parties remain in the room, it is not necessary to switch off the tape. However, if you do take a break during the interview at which the audio recording is stopped, you must always announce that a break is to be taken and give the reason for it and the time, before switching off the recorder.
If the suspect is to leave the room during a break, you must take the tape out of the tape recorder and seal it as if it were the end of the interview. You should continue the interview on a new tape following the same procedure.
You should resume by announcing on tape that the interview is continuing after a break, repeat the reason why the break was taken and again give the time. You should make it clear when you re-start that the suspect is still under caution and, if there is any doubt, you should give the caution again.
Ending the interview
As soon as you believe that a prosecution should be brought against a suspect, and that there is sufficient evidence for a prosecution to succeed, you should ask if the suspect has anything further to say. If the suspect has nothing further to say, then you should immediately cease questioning the suspect about that offence.
Audio-recorded interview under caution
The purpose of audio recording an interview under caution is to ensure that the most accurate record possible can easily be made. Audibly recorded interviews are the best way to ensure that admissible evidence is collected from suspects who are interviewed. Interviews with suspects should therefore normally be audio recorded.
In HSE, interviews under caution may be tape-recorded. Guidance on tape recording and the equipment is available in each operational office. You should read the guidance thoroughly and clarify any matters, including the operation of the machine, before arranging the interview. Only the main points are dealt with here. The equipment consists of:
- a record-only tape recorder which simultaneously records two tapes, and displays and records a time elapsed signal every 10 seconds;
- interview tapes in sealed packs of two;
The tapes should be unwrapped and loaded into the machine in the sight of the suspect. After the interview, one of the tapes, the master tape, will be sealed in the presence of the suspect and should be considered a production for use in court and should be kept in the HSE evidence room until requested by the procurator fiscal. The second tape will be used as a working copy.
If, during an interview, the recorder indicates the tapes only have a short time left, you should inform the suspect that the tape is ending and round off that part of the interview. You should unwrap and load the next set of tapes into the machine in the presence of the suspect.
Recording the interview
At the start of a tape-recorded interview, you should give the place of interview, the date and time, and then introduce yourself by giving your name and post. All other persons present in the room should be asked to introduce themselves so that their voices may be identified on the tape.
You should inform the suspect that the master tape will be sealed in an evidence bag in their presence at the end of the interview. Since all aspects of disclosure are handled by the procurator fiscal, then the suspect should be advised that they, or their legal advisor, will be able to access the tape, or record of the interview, via the procurator fiscal once HSE has submitted its report in accordance with Scottish criminal law disclosure practice. HSE cannot provide a copy of the tape, or a transcript, directly.
You should then caution the suspect, state that you are not using your s.20 powers and that the suspect is not under arrest and free to leave. You should remind the suspect of the right to seek legal advice if there is no solicitor present at the interview.
The interviewee should be asked to give their full name, address, date and place of birth and, where the suspect is an individual, National Insurance number (as these details will be required if legal proceedings are subsequently initiated).
In circumstances where you are interviewing a person who has been nominated to speak on behalf of the company (in effect that person is the company for the purposes of the interview under caution), you will wish to satisfy yourself that the person has the authority to answer questions on behalf of the company. That authority can only be granted by the board, and you should ask the person attending to bring written authorisation of such that can be referred to in the interview.
If the suspect objects to the interview being recorded, the objection should be recorded on the tape. If the objection is recorded on tape or the suspect has refused to have their objections recorded, you may turn the recorder off. If you do this you should tell the suspect and explain your reasons for doing so. You will then have to make a written contemporaneous record of the interview in the manner described below. If the suspect objects but you reasonably consider that you can proceed to put questions to the suspect with the recorder still on, you may do so.
If the recording equipment fails and no replacement recorder is available, the interview may continue without being audibly recorded. In this situation, you will need to make a written record of the interview in the manner described below.
Concluding the tape-recorded interview under caution
At the end of the interview, you must offer the suspect an opportunity to clarify anything that has been said or to add anything, give the time and announce that you are now switching off the tape recorder. The master tape must be sealed and the label signed by you, the suspect and any other persons present.
Record of taped interview - interview transcripts and summaries
Where a person has been interviewed under caution their response should be summarised in the investigation report (LPS 1). It is not normally necessary to produce a transcript unless requested by the procurator fiscal. The fiscal is likely to request a transcript if a not guilty plea is entered or the case is being considered for prosecution on indictment. Where HSE is recommending prosecution on indictment then it may be beneficial to anticipate the need for a full transcript and make appropriate arrangements.
Master tapes should be stored securely in accordance with local office arrangements and their movements accounted for on the same basis as other material that may be used for evidential purposes.
The investigating inspector has no authority to break the seal on a master tape which is required for criminal proceedings. If it is necessary to gain access to the master tape (e.g. if the working copy becomes faulty), then you should arrange to break the seal in the presence of your Approval Officer. The defendant or their legal advisor should be informed and given an opportunity to be present. If they are present, they should be invited to reseal and sign the master tape. If either refuses or neither is present, this should be done by your Approval Officer.
You may receive a request from a suspect's solicitor for disclosure of information prior to the suspect's attendance at an interview under caution. There is no obligation on an investigator to disclose the whole of the evidence against a suspect prior to interview. You have a wide discretion in relation to disclosure of such information. When a request is made, it is appropriate to provide the suspect with some information so that the solicitor is in a position to usefully advise their client in relation to the interview under caution.
If you receive a request for pre-interview disclosure, you may write a letter to the defence in which you include information on the offence(s) that you suspect may have been committed and a factual summary of the nature of the case against the suspect. You can also include in the letter a broad description of the areas that you intend to cover during the interview under caution.
Witnesses and self-incrimination
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 Rights. 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).
Companies and compelled statements taken from directors
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.
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.
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 personality, 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 director.
Interviewing a body corporate (e.g. a company)
A body corporate (e.g. a company) suspected of having committed an offence should be invited to attend an interview under caution. You should ask the body corporate to nominate a person of suitable seniority, such as a director, to attend the interview under caution to answer questions on its behalf.
It sometimes happens that a company (or other body corporate) that is invited to nominate a representative to attend an interview under caution nominates a person who you suspect may have committed an offence in their individual capacity (e.g. as a director or senior manager pursuant to HSWA section 37) and who you may therefore intend to interview under caution as an individual. Where this happens, the company should be asked if there is anyone else who they can nominate to attend instead to speak as the company’s nominated representative.
If the company cannot nominate a different person (e.g. because there is only one director), there should be two separate interviews under caution, one of the company (through its nominated representative) and one of the same individual in their personal capacity. The order in which the interviews are conducted will depend on the circumstances of the investigation. You must never conduct just one interview where the individual is asked to answer questions both on his/her behalf and on behalf of the company – it would be impossible to identify which answers are admissible against each and the entire interview is likely to be inadmissible in any later court proceedings.
Where two interviews are to take place, it may be possible to conduct both interviews on the same day for the convenience of all concerned, but this may not be possible in more complex cases. It should always be made clear in advance in which capacity a person is being interviewed, either in his/her capacity as an individual or as the company’s nominated representative. Where both interviews are being conducted on the same day, it should be absolutely clear that you are conducting two separate interviews. A separate set of tapes should be used for each interview. You should make it completely clear, when cautioning at the start of each interview, in what capacity the person is being interviewed.
In the past HSE has held a meeting with the company to explain the investigation findings and to invite the company to offer explanation. Such a meeting is now considered inadvisable as the interview under caution of the nominated representative provides them with opportunity to explain themselves, and that explanation will be admissible as evidence. If you consider a meeting with management appropriate to deal with more general failings and to discuss remedial matters then that should be carried out as part of our general role to ensure health and safety and is a separate event to the interview under caution, and may be at an earlier stage in the investigation.
Non tape-recorded interviews under caution - written record
If it becomes necessary to conduct an interview under caution that is not audio recorded (e.g. where the suspect refuses to allow the interview to be taped), you should make an accurate record during the course of the interview on plain paper, or in your note book, usually verbatim in question and answer form, but which must in any event accurately reflect what was said.
The record must state the place of the interview, the time it began and ended, the time the record was made (if different), any breaks in the interview and the names of all those present.
The fact that a caution was given, and any further cautions or reminders, should be recorded.
At the end of the interview, you, or another inspector who has made the interview record, should sign the record at the bottom of each page. You must also ask the witness to read through the interview record. He/she should then sign each page in the space provided to confirm his/her agreement that it is a correct and accurate record of the interview. Any alleged inaccuracies should be amended by the person interviewed, endorsed with a statement that the amendments accurately reflect the disagreement, and signed. You should record any refusal to read or sign the statement and any other persons present (for example, an appropriate adult or a solicitor) should be asked to read and sign the record instead.
Victim Personal Statements are not required for health and safety offences in Scotland though the procedure is being piloted for other offences in some areas. In the meantime Inspectors should ensure that the views of victims are considered, as set down in the public interest considerations in the Crown Office and Procurator Fiscal Service 'Prosecution Code' (Taking account of the views of victims refers), and that this is included in the report to the Fiscal.