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As the consultation on Draft CPS Guidance on Speaking to Witnesses at Court takes place, the DPP, Alison Saunders, explains the reasoning behind the guidance and Tony Cross QC gives the Criminal Bar Association’s view.
Last month I announced new proposals to better assist victims and witnesses called to court to give evidence in criminal trials.
Much of what is in the guidelines is just common sense – introducing ourselves to victims and witnesses, explaining how the process works, encouraging them to re-read their witness statement and ensuring they feel able to ask for questions to be repeated or to ask for a break – and I’m pleased that this has been welcomed by the Criminal Bar Association.
However, I readily acknowledge that sections of my draft guidance are controversial for some, which is why I decided to publicly consult on the guidance. I welcome the debate that has taken place across the legal community and am grateful to Counsel magazine for this opportunity to address concerns.
I have been privileged to meet a number of victims and witnesses during my first year as the Director of Public Prosecutions. They often tell me that the fear of not knowing what is going to happen in court is often worse than the actual experience of giving evidence and these personal accounts have really stayed with me.
Barristers live and breathe the courtroom, it is a home from home. But we should never forget how alien it is for the majority of victims and witnesses who do not choose to be there. Some argue that the element of surprise is an important part of the adversarial process. But cross-examination is not about ambush and I am not alone in saying this: the Court of Appeal has made it clear that treating the criminal justice system as a game is not acceptable. No one – prosecution, defence or the public more generally – benefits from a situation which is unfairly stacked against a victim. The court process is about giving everyone the opportunity to give their best evidence and this is what my guidelines aim to do.
It has also been said that we are now in danger of coaching victims and witnesses and training them how to answer likely or specific questions. Those concerns show right and proper regard for the principles of our system – regard that prosecutors not only share but proudly protect.
What I am proposing is limited and within the boundaries of our current system. We know where the line is drawn and prosecution advocates have been conducting pre-trial witness interviews with victims of alleged sexual offences for some years. Has this resulted in a rise in abuse arguments, rehearsed evidence or unfair trials? No.
What we have seen is better evidence which is in the interests of all concerned. My guidance extends this existing service to victims and witnesses of all crimes and is clear about how far prosecutors can go. Reactions in court will remain unrehearsed, but should be less distorted by shock and distress. With the prosecution and defence disclosing much more to each other than ever before, it is only right that victims and witnesses are now included, to an appropriate level, in this approach. This might be a logistical challenge in the larger and more complex cases but by working efficiently together and with sensible timetabling of witnesses, this is achievable. Thus there is unlikely to be a large number of witnesses of fact at court at the same time.
I have always found judges accommodating with court time where necessary to speak to witnesses. In a rape case, a victim would be told if the likely defence was to be, for example, on the issue of consent – but would not be told of the evidence itself, or any further detail. They may also be told that the court has allowed that their sexual history be examined – but not why or what. In an assault case, I would want to tell the victim if the likely defence case was to be self-defence, or perhaps an identity dispute – but not why or how. And if a witness to any case was going to be accused of being inherently dishonest, perhaps due to a past fraud conviction, I would want to tell them that previous convictions had been disclosed to the defence – but not how it may relate to the case.
Finally, I want to take this opportunity to address my use of the word “victim” when referring to those who make allegations of criminal offences. Of course, whether someone is legally a victim of a specific crime by a specific person is for a court to decide. But I think it is really important that everyone in the criminal justice system acknowledges that when someone goes to the police they feel they are a victim of crime and we should respect that.
I hope most people will find the guidance compassionate and reasonable. I strongly encourage Counsel magazine readers to respond to our consultation – those of you who prosecute will be required to follow the guidelines once in force so please make sure you help to shape them. You can respond via our website www.cps.gov.uk/consultations – and join the discussion on Twitter #victimsatcourt. The consultation closes on 16 March 2015.
Alison Saunders CB, Director of Public Prosecutions
I was first contacted by representatives of the press at lunchtime on 16 January to give my preliminary views on the CPS consultation. One of the interviewers told me that the Director had already said she suspected that the reaction from what is sometimes called the “defence community” would be unwelcoming and critical. As usual the Director showed remarkable perspicacity. Those who defend and only defend have indeed been critical of significant parts of the consultation. However, far more worrying for the Director and for the consultation is not the response of those who purely defend but from those of our number who do both.
The aims of much in the consultation are laudable. A properly funded system would ensure that the treatment of witnesses both prosecution and defence from first to last should be first class. From the moment that a statement is first taken to the time that the evidence is given the witness should be treated with respect. I see no distinction to be drawn between either category. Our experience of course is that there are frequent systemic failures largely unconnected to the conduct of the advocates which cause witness difficulties.
Although one can praise the sentiments expressed there seems to me rather fundamental flaws in the thinking of those responsible for the document. The idea that “the prosecutor should meet ALL witnesses”... to “provide assistance about procedure” and ... “about giving evidence” raise huge logistical and ethical concerns.
What though is deeply troubling about the consultation is the section entitled, “Providing assistance for cross-examination”. It is this part that has attracted most criticism and criticism not just from those who defend. It is my view from the soundings that we have taken (of course the CBA will respond in detail in due course) that there is almost universal criticism of these proposals. Essentially the complaints are of two kinds – objections in principle and objections in practice.
First the principle. This attacks a fundamental principle of our adversarial system. The Crown brings the case and they must prove it. It is no part of the task of anyone connected with the prosecution of the case to warn a witness as to the likely defence. There is an absolute bar. I believe that that bar should remain.
Second, even if it were possible to accomplish that which the consultation sets out, how is this to happen? When is it to take place? Some of these proposals may be achievable in the simplest and most straightforward case but what happens in the more complex cases?
These proposals have not really been thought through. What happens where there are 20 witnesses of fact? Are they all to be seen? What happens when there are different defences in a multi-handed trial or a cut-throat defence exists? Is each nuance in the structure of the defence to be outlined? And what happens when it all goes horribly wrong and the jury are discharged and the advocate becomes a witness?
There is a straightforward solution to all this. Invest in the training of police officers to ensure they obtain the best evidence, invest in the infrastructure of witness support and the CPS. Properly fund the Court Service so that waiting rooms and cafeterias are open and friendly, and ensure that criminal cases are conducted by advocates of experience and quality and integrity. In this way perhaps many of these issues will be resolved.
The draft guidance and the consultation details can be found at: http://www.cps.gov.uk/consultations/witnesses_2015_consultation_index.html
Tony Cross QC, Chairman of the Criminal Bar Association
Alison is a barrister. She joined the Criminal Prosecution Service (CPS) in 1986, the year it was formed; prior to that she worked at Lloyds of London following her pupillage. She served as Deputy Legal Adviser to the Attorney General from 2003 before rejoining the CPS two years later to set up and head the Organised Crime Division. In December 2009, Alison was appointed the Chief Crown Prosecutor for CPS London. In November 2013 she became DPP, the first to be appointed from within the CPS.
Tony practises crime from Lincoln House Chambers in Manchester. Called in 1982, he was made a Recorder in 2002 and appointed Silk in 2006. He became Chairman of the Criminal Bar Association in September 2014.
Much of what is in the guidelines is just common sense – introducing ourselves to victims and witnesses, explaining how the process works, encouraging them to re-read their witness statement and ensuring they feel able to ask for questions to be repeated or to ask for a break – and I’m pleased that this has been welcomed by the Criminal Bar Association.
However, I readily acknowledge that sections of my draft guidance are controversial for some, which is why I decided to publicly consult on the guidance. I welcome the debate that has taken place across the legal community and am grateful to Counsel magazine for this opportunity to address concerns.
I have been privileged to meet a number of victims and witnesses during my first year as the Director of Public Prosecutions. They often tell me that the fear of not knowing what is going to happen in court is often worse than the actual experience of giving evidence and these personal accounts have really stayed with me.
Barristers live and breathe the courtroom, it is a home from home. But we should never forget how alien it is for the majority of victims and witnesses who do not choose to be there. Some argue that the element of surprise is an important part of the adversarial process. But cross-examination is not about ambush and I am not alone in saying this: the Court of Appeal has made it clear that treating the criminal justice system as a game is not acceptable. No one – prosecution, defence or the public more generally – benefits from a situation which is unfairly stacked against a victim. The court process is about giving everyone the opportunity to give their best evidence and this is what my guidelines aim to do.
It has also been said that we are now in danger of coaching victims and witnesses and training them how to answer likely or specific questions. Those concerns show right and proper regard for the principles of our system – regard that prosecutors not only share but proudly protect.
What I am proposing is limited and within the boundaries of our current system. We know where the line is drawn and prosecution advocates have been conducting pre-trial witness interviews with victims of alleged sexual offences for some years. Has this resulted in a rise in abuse arguments, rehearsed evidence or unfair trials? No.
What we have seen is better evidence which is in the interests of all concerned. My guidance extends this existing service to victims and witnesses of all crimes and is clear about how far prosecutors can go. Reactions in court will remain unrehearsed, but should be less distorted by shock and distress. With the prosecution and defence disclosing much more to each other than ever before, it is only right that victims and witnesses are now included, to an appropriate level, in this approach. This might be a logistical challenge in the larger and more complex cases but by working efficiently together and with sensible timetabling of witnesses, this is achievable. Thus there is unlikely to be a large number of witnesses of fact at court at the same time.
I have always found judges accommodating with court time where necessary to speak to witnesses. In a rape case, a victim would be told if the likely defence was to be, for example, on the issue of consent – but would not be told of the evidence itself, or any further detail. They may also be told that the court has allowed that their sexual history be examined – but not why or what. In an assault case, I would want to tell the victim if the likely defence case was to be self-defence, or perhaps an identity dispute – but not why or how. And if a witness to any case was going to be accused of being inherently dishonest, perhaps due to a past fraud conviction, I would want to tell them that previous convictions had been disclosed to the defence – but not how it may relate to the case.
Finally, I want to take this opportunity to address my use of the word “victim” when referring to those who make allegations of criminal offences. Of course, whether someone is legally a victim of a specific crime by a specific person is for a court to decide. But I think it is really important that everyone in the criminal justice system acknowledges that when someone goes to the police they feel they are a victim of crime and we should respect that.
I hope most people will find the guidance compassionate and reasonable. I strongly encourage Counsel magazine readers to respond to our consultation – those of you who prosecute will be required to follow the guidelines once in force so please make sure you help to shape them. You can respond via our website www.cps.gov.uk/consultations – and join the discussion on Twitter #victimsatcourt. The consultation closes on 16 March 2015.
Alison Saunders CB, Director of Public Prosecutions
I was first contacted by representatives of the press at lunchtime on 16 January to give my preliminary views on the CPS consultation. One of the interviewers told me that the Director had already said she suspected that the reaction from what is sometimes called the “defence community” would be unwelcoming and critical. As usual the Director showed remarkable perspicacity. Those who defend and only defend have indeed been critical of significant parts of the consultation. However, far more worrying for the Director and for the consultation is not the response of those who purely defend but from those of our number who do both.
The aims of much in the consultation are laudable. A properly funded system would ensure that the treatment of witnesses both prosecution and defence from first to last should be first class. From the moment that a statement is first taken to the time that the evidence is given the witness should be treated with respect. I see no distinction to be drawn between either category. Our experience of course is that there are frequent systemic failures largely unconnected to the conduct of the advocates which cause witness difficulties.
Although one can praise the sentiments expressed there seems to me rather fundamental flaws in the thinking of those responsible for the document. The idea that “the prosecutor should meet ALL witnesses”... to “provide assistance about procedure” and ... “about giving evidence” raise huge logistical and ethical concerns.
What though is deeply troubling about the consultation is the section entitled, “Providing assistance for cross-examination”. It is this part that has attracted most criticism and criticism not just from those who defend. It is my view from the soundings that we have taken (of course the CBA will respond in detail in due course) that there is almost universal criticism of these proposals. Essentially the complaints are of two kinds – objections in principle and objections in practice.
First the principle. This attacks a fundamental principle of our adversarial system. The Crown brings the case and they must prove it. It is no part of the task of anyone connected with the prosecution of the case to warn a witness as to the likely defence. There is an absolute bar. I believe that that bar should remain.
Second, even if it were possible to accomplish that which the consultation sets out, how is this to happen? When is it to take place? Some of these proposals may be achievable in the simplest and most straightforward case but what happens in the more complex cases?
These proposals have not really been thought through. What happens where there are 20 witnesses of fact? Are they all to be seen? What happens when there are different defences in a multi-handed trial or a cut-throat defence exists? Is each nuance in the structure of the defence to be outlined? And what happens when it all goes horribly wrong and the jury are discharged and the advocate becomes a witness?
There is a straightforward solution to all this. Invest in the training of police officers to ensure they obtain the best evidence, invest in the infrastructure of witness support and the CPS. Properly fund the Court Service so that waiting rooms and cafeterias are open and friendly, and ensure that criminal cases are conducted by advocates of experience and quality and integrity. In this way perhaps many of these issues will be resolved.
The draft guidance and the consultation details can be found at: http://www.cps.gov.uk/consultations/witnesses_2015_consultation_index.html
Tony Cross QC, Chairman of the Criminal Bar Association
As the consultation on Draft CPS Guidance on Speaking to Witnesses at Court takes place, the DPP, Alison Saunders, explains the reasoning behind the guidance and Tony Cross QC gives the Criminal Bar Association’s view.
Last month I announced new proposals to better assist victims and witnesses called to court to give evidence in criminal trials.
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