Detective Constable Phil Morris LLB(Hons) PGCE PGDip

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

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

3. 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

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

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

6. 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

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

8. 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

9. 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

10. 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 Youth Justice & Criminal Evidence Act 1999

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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 Witness)

19. 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 Planning of a Video Interview (The Investigation)

20. 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

21. 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

22. 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

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