‘Interviewing Vulnerable & Intimidated Witnesses’ ‘The UK Experience’ Iceland Detectives Association Seminar 2008 Detective Constable Phil Morris LLB(Hons) PGCE PGDip

Presentation Contents Legal History to Present Day The Planning of Interviews Interview Models

History to Modern Day Child witnesses and the ‘oath’ NSPCC lobbying (1885) R V Wallwork (1958) – No child under 6 years of age reliable R V Wright (1987) extended the rule to include children 6 years old R V Z [1990] No minimum age

History to Modern Day The Criminal Justice Act 1988 The Pigot Review The Criminal Justice Act 1991

History to Modern Day The Memorandum of Good Practice Planning, location, equipment ‘The Phased Approach’ – rapport, free recall, questioning & closure

History to Modern Day The Criminal Justice & Public Order Act 1994 DPP V M (1997) The Youth Justice & Criminal Evidence Act 1999 Achieving Best Evidence In Criminal Proceedings

The Youth Justice & Criminal Evidence Act 1999 S16 – Vulnerable Witnesses S17 – Intimidated Witnesses

The Youth Justice & Criminal Evidence Act 1999 Vulnerable Witnesses include: All Child Witnesses under 17 years Witnesses with Mental Health Illnesses Witnesses with Learning Disabilities Witnesses with Physical Disabilities

The Youth Justice & Criminal Evidence Act 1999 Intimidated Witnesses include: Repeat Victims Victims of Rape/Serious Sexual Assault Victims/Witnesses who know the offender Victims/Witnesses who are intimidated due to fear or distress to testifying at court Victims of Domestic Abuse Racially Motivated Crimes

The Youth Justice & Criminal Evidence Act 1999 Special Measures include: Screens (S23) Live Link (S24) Evidence given in Private (S25) Removal of wigs & Gowns (26) Video recorded evidence in chief (S27) Video recorded Cross Examination (S28) Use of an Intermediary (S29) Communication Aids (S30)

The Murders of Charlene Ellis & Letisha Shakespeare Total witness anonymity for 4 witnesses including pseudonyms Voice distortion that lowered pitch of witnesses voices Dock was sealed to ensure real voices could not be heard Time delay used to avoid accidental identification

The Murders of Charlene Ellis & Letisha Shakespeare Defence claimed breach of Article 6 (fair trial) Court of Appeal said measures were not unfair if a need was clearly established, cross examination allowed and trial as a whole was deemed fair Recent House of Lords authority had made it clear that a court’s discretion in allowing anonymous evidence was acceptable

R V Davis - House of Lords 2008 Three witnesses allowed anonymity, pseudonyms & voice distortion Common law right from Roman times that a defendant should be able to confront his accusers in order to cross examine and challenge the evidence Lords deemed breach of common law & ECHR Prevented defendant exploring if witnesses had a motive for lying or exaggerating

R V Davis - House of Lords 2008 A trial will be unfair if two conditions are met Anonymous evidence is the sole or decisive basis of the prosecution case and Where the anonymous nature of the evidence prevents effective cross examination to support the defence case

R V Davis - House of Lords 2008 The Criminal Evidence (Witness Anonymity) Act 2008 Police should obtain as much additional evidence as possible so that the witness is not the sole or decisive evidence Superintendent makes request to the CPS in writing for witness anonymity

R V Davis - House of Lords 2008 Full evidential statement with witness detail Revised statement with personal details removed Statement from the witness setting out their concerns Full risk assessment explaining why normal protection measures are insufficient Why are special measures insufficient

R V Davis - House of Lords 2008 What measures have already been taken (e.g. house move) Background of witness including pre cons & bad character Any relationship between the witness and the defendant Whether the police may have cause to doubt the evidence of the witness

The Planning of a Video Interview (The Witness) Rapport – Preferred name, interests, hobbies,empathy Gender & Culture issues? Attention/Memory Span ? Any medication being taken? Emotional or physical state? Effect of any mental health or learning disabilities? How many interviews/breaks will be needed? Professionals already working with the family? The need for an Interpreter? The need for an Intermediary? Where is the best place to conduct the interview?

The Planning of a Video Interview (The Investigation) What other evidence is already available? What are the objectives of the interview? What happened? Who was involved? Where did it happen? When did it happen? What evidential points to prove does the interviewer need to show? Who is the best person to conduct the interview? What should we do if it the witness is lying? How can we challenge a witness who we suspect of lying?

The Enhanced Cognitive Interview For Vulnerable Witnesses For Compliant Witnesses Rapport / Empathy Ground Rules Free Recall Active Listening / Use of Silence Interruptions Summarise Free Recall Setting Parameters

The Enhanced Cognitive Interview For Vulnerable Witnesses TED Questions 4WH (not ‘why’) Context re-instatement Changing perspective The Use of Drawings Changing or Reverse Order Closure

The Management of Conversation Model For Reluctant/Hostile Witnesses Witnesses who struggle to remember Requires awareness of topics Rapport / Empathy Free Recall Probe, summarise & link If Witness starts to talk revert to cognitive model

‘Interviewing Vulnerable & Intimidated Witnesses’ ‘The UK Experience’ Iceland Detectives Association Seminar 2008 Detective Constable Phil Morris LLB(Hons) PGCE PGDip