Requests for witness statements from CPS staff
Principle
Members of the Crown Prosecution Service may be asked to give evidence or to make a witness statement for use in legal proceedings, both civil and criminal. The request may come from the police or any party to the relevant proceedings, including a private prosecutor.
The request may arise either from an incident which you witnessed or played a part in whilst carrying out your duties as a CPS employee, or simply because you witnessed an event as an ordinary member of the public. The guidance and procedure set out below draws a distinction between these two sets of circumstances.
The CPS has a responsibility to ensure that the interests of justice are served and recognises it has a duty to assist those making external investigations where it is possible and proper to do so. The CPS cannot and would not wish to prevent a member of staff from agreeing to help. Equally, no one is obliged to give evidence or to volunteer to be interviewed and assist in the preparation of proofs of evidence.
The guidance set out below is to ensure that CPS staff are properly advised if they are approached to make a witness statement. Guidance is also given about the principles which apply to the contents of witness statements.
If the request arises from events witnessed by you when carrying out your duties as a member of CPS staff you should refer the request in the first instance to your Chief Crown Prosecutor, (Sector Director, London) or the designated officer, as appropriate. This principle applies whether the request is for:
- an interview;
- a statement; or
- for evidence in relation to an internal inquiry being carried out by another organisation e.g. a police disciplinary hearing.
If the request arises from witnessing an event as an ordinary member of the public you are not required to refer the request to your CCP, Sector Director (London) or the designated officer. You may feel however that it would be helpful to you to discuss the request with that person.
Many requests for witness statements can be resolved simply by giving information. Whilst CPS staff should be encouraged to provide a witness statement when it is necessary that they do so, equally they should seek to avoid becoming witnesses in the course of their duties where this can be avoided. For example, a member of CPS staff should not check a defendant's driving documents.
This guidance is not intended to inhibit the provision of information in accordance with the rules of disclosure of unused material to the defence. (R v Birmingham Justices ex parte Shields, The Times, August 3, 1994).
If a CPS employee (or a member of their close family or household) has any involvement with the police which could result in a police caution, a charge or a summons being brought against them, they should notify Area Personnel (Personnel 2 for HQ staff) via line management, at the earliest opportunity. Staff must similarly report any investigation by other prosecution agencies. Refer to Personnel Management Manual Vol 2, 1.57-59.
Civil proceedings
The same principles apply to witness statements for civil proceedings as in any other case.
However, if the request to make a statement or to give evidence is not connected with the handling of a particular criminal case and either of the following categories apply you should refer it, via line management, to HQ Personnel 2 for advice:
- the case is a civil one in which the CPS is, or is likely to be, a party to the proceedings (for example, a personal injury claim against the CPS)
- the case is a civil one in which the CPS is not a party to the proceedings but the member of staff is approached in their official capacity (for example they are asked to give evidence about another employee's work within the CPS in a claim against a previous employer).
Guidance
Events witnessed in the course of CPS duties
Your duties as an employee of the CPS may lead to you becoming a potential witness in a variety of situations. You may:
- see something relevant, e.g. an incident at court such as contempt of court, jury interference, escape from lawful custody;
- be responsible for the conduct of a criminal case or for maintaining the CPS file;
- be able to assist after the conclusion of a case e.g. in an investigation for perjury, attempting to pervert the course of justice or malicious prosecution, or a police complaint.
The role of CCP, Sector Directors (London) or designated officer
Your role as CCP, Sector Director (London), or designated officer in dealing with requests from others for a member of your staff to make a statement or give evidence can be summarised as follows:
- to help and advise on the decision to make a statement to ensure a consistency of approach by the CPS;
- to advise on the timing of the taking of any statement;
- to be present whilst any statement is taken from the staff member concerned to ensure they have appropriate support and guidance, particularly in relation to the difficult issues of Public Interest Immunity and legal professional privilege.
The decision to make a statement
- Any request received by you for a member of your staff to make a statement or to give evidence should be considered carefully and discussed with the staff member concerned. You will need to ensure that you have full information from the other party about the scope of the investigation and the reasons for requesting a statement, preferably in writing. You should establish:
- that it is a reasonable request, and not one which may be frivolous or malicious;
- that the information which can be given by the CPS is genuinely likely to be relevant to the issues in the proceedings; and
- whether it is possible to give the information in some other way.
In many cases you may feel that a witness statement is unnecessary and that the provision of information could suffice. It is important that the decision to make a statement is only made where such a course of action is genuinely necessary.
- Although it is not possible to offer guidance to cover every situation, the following points may assist you in making the decision whether it is appropriate for a member of your staff to give evidence or make a statement:
- CPS representatives at court are sometimes invited to give evidence to the court during the course of pre-trial reviews, or during a trial, about aspects of pre-trial preparation, eg to confirm the receipt or sending of correspondence; or some other evidence about records held on the CPS file. CPS staff should resist doing so wherever possible. Counsel should be instructed to resolve the issue by agreement between the parties;
- the defence may invite a member of the CPS to make a statement during a criminal investigation by the police eg to support an allegation that police or prison officers used excessive force to restrain a defendant; or some irregularity in the trial or prosecution process. If a statement is made it should be made to the police. It will be disclosed or served on the defence in the usual way if it is not used by the prosecution;
- it will generally only be necessary to provide a formal statement in relation to a police disciplinary enquiry where it is clearly envisaged that disciplinary charges will result and that a member of CPS staff will be essential as a witness in those proceedings. At the initial stage of a police enquiry into a disciplinary matter, the simple provision of information by the CPS should suffice. Similar considerations apply to the investigation of complaints against the police.
Timing
If it is appropriate to make a statement, you should try to avoid the statement being taken until the criminal proceedings from which the matters arose have been concluded. But there are exceptions to this; for example when the investigation relates to alleged jury interference or when a member of CPS staff witness an incident which may lead to separate proceedings. In such cases it will aid the witness's recollection of events if the statement is taken promptly.
If the defence ask for a statement from a member of the CPS about alleged CPS or police failures during current proceedings, it may be necessary to seek the guidance of the court. Requests of this nature should normally be resisted.
The content of the statement
If you feel that it is appropriate for a member of your staff to give evidence and that member of staff agrees to be interviewed, or to give evidence, the statement made must be confined to factual matters.
Requests are often received from parties to civil litigation, private prosecutors and the police to interview CPS staff, or for a witness statement, covering aspects of the prosecution process. Evidence must not be given which touches in any way upon the reasons for a decision to prosecute, or not to prosecute, or the handling of a case. The content of any statement made must be guided by the general policy about giving reasons for prosecution decisions; and the common law on public interest immunity and legal professional privilege.
Public Interest Immunity
Public Interest Immunity (PII) attaches to:
- some internal documents or correspondence between the police and CPS, setting out or discussing reasons for prosecution or non-prosecution (Evans v Chief Constable of Surrey [1988] QB 588);
- the contents of internal CPS guidance;
- police reports to the CPS and CPS/police internal correspondence giving legal advice.
PII operates to inhibit the disclosure of documents and information where such disclosure would be contrary to the public interest. It is a developing and complex area of the law but in dealing with requests to make statement, you must bear in mind the points set out below. PII only needs to be asserted when there is a legal obligation to produce documents or give information in proceedings before a court or tribunal. The doctrine does not prevent the CPS revealing information to another government department or agency or the police, although great care should be taken with any decision to do so. It is only when that other party attempts to adduce such documents or information in evidence that PII operates formally.
Great care must be taken to ensure that material which attracts PII is not volunteered as part of an initial statement. In both criminal and civil proceedings, where the overall public interest favours disclosure, it is possible to volunteer the disclosure of information and documents covered by PII without advancing a claim to the court. This is a decision for the Director, in the light of the views of the CCP and Director, Casework, and before such a course is contemplated you should refer the matter to them so that Private Office may be informed. Refer to Public Interest Immunity.
If you are asked to give a statement or prepare an affidavit giving the reasons why a prosecution was discontinued, the proper course is to keep to factual matters relating to the prosecution by setting out, for example:
- the date on which the case was taken over by the CPS;
- the nature and date of applications made to the court (eg for a remand in custody or an adjournment);
- the date of discontinuance and the basic reason: either insufficient evidence to provide a realistic prospect of conviction; or a prosecution was not needed in the public interest.
Refer to Freedom of Information, elsewhere in this guidance.
It is open to any party to civil proceedings to apply to the court for a sub poena to be issued against a member of the CPS. Should that occur, a Head of Division at Casework Directorate should be informed via your CCP, and the prosecuting advocate fully instructed to represent the CPS.
Legal professional privilege
Legal professional privilege does not attach to communications between the police and CPS with a view to obtaining legal advice. The same rule of public policy is applied, however, and communications between ourselves and the police are covered by PII (see above). But legal professional privilege does attach to CPS communications to and from the prosecuting advocate, including:
- instructions and briefs, requests for an opinion and the opinion itself;
- drafts and notes made by the prosecuting advocate and documents settled by him or her;
- notes made by the CPS about communications with the prosecuting advocate.
It does not cover the prosecuting advocate's endorsements on the brief, recording the result of an application or trial.
You should be alert to ensure that matters covered by legal professional privilege are not included or quoted in a statement given by a CPS employee. Counsel should always be consulted if there is any question of referring to his or her advice.
Judicial review of a CPS decision
Judicial review proceedings may challenge the decision to prosecute or not to prosecute. Before the plaintiff is granted leave to bring proceedings, the CPS should follow its general policy about giving reasons for prosecution decisions which is set out above under Public Interest Immunity.
The basic rule followed by all public prosecuting authorities is that reasons for prosecution decisions are given in only the most general terms. This policy applies quite apart from the law on public interest immunity.
Once proceedings are commenced, the CPS will usually be obliged to provide an affidavit giving reasons for prosecution or non prosecution. If a policy statement contained in the CPS manuals or a circular was applied, other than a policy whose details are already in the public domain, e.g. the statement on domestic violence, you should not expressly make reference to the circular or manual entry itself. Nor should you exhibit it to the affidavit. The way the principles were applied by you in the individual case should, of course, be set out.
The CCP, Sector Director (London) must be consulted.
Making a statement and giving evidence
When you make your statement there are two overriding considerations to bear in mind:
- that it is your evidence and not that of the CPS or anyone else;
- that you have to tell the whole story insofar as you know it and it is relevant to the case.
Whether you prepare your own statement or it is prepared for your from an interview, you are free to reject the draft statement in whole or in part, or have amendments made, or ask for material to be presented differently.
Actively test the accuracy of your statement, rather than just responding to the passages which strike you as wrong:
- are the incidents covered by the statement in their proper context? For example, if the statement says that X told you something, did X write, telephone or meet you specifically to pass the information on, or was it mentioned in passing while some other matter was being discussed;
- are you open and honest about your own role or that of colleagues? For example, if you are describing a procedure is it always strictly followed, or is it an ideal rarely achieved in practice?
- are you uncertain about anything? If so, is this indicated? Has your memory of events been influenced by what you were told at the time or since?
Your statement taken as a whole needs to give a balanced account. Be aware that even if each element of your statement is true it could still be misleading, either because some parts of the story are missing or because the wrong emphasis has been placed on various parts. Consider the impact of the statement as a whole.
- There may be occasions when you cannot tell the whole story, for example:
- when you cannot remember everything;
- when you cannot distinguish between what you remember and what you have learnt since;
- some elements of the facts are covered by PII and ought not to be disclosed in the public interest without a court order.
Statements should be as complete as possible, but they must always be accurate and reliable. Gaps or deficiencies should be indicated in the statement. You should get advice about this from your CCP, Sector Director (London) or designated officer.
Requests for material on CPS files
Any request to have access to material held on CPS files must be considered carefully by the CCP, Sector Director (London), Head of Unit or designated officer. Some of the material will be subject to PII or legal professional privilege. If you are in any doubt you should refer to your Sector Director or Head of Unit for advice. But there is no objection to police having copies of statement, records of taped interviews, police notebooks, and other material which is part of the evidence where no dual file is kept by the police. Refer to Freedom of Information, elsewhere in this guidance.
Procedure
Events witnessed in the course of CPS duties (Flowchart 1) (Flowchart 2)
If, as a CPS employee, you receive a request to make a statement or to give evidence you should ask the person making the request to make a formal request in writing to the CCP, Sector Director (London) setting out the nature of the investigation and the reasons for wishing to interview you. In exceptional circumstances, for example in an investigation of great confidentiality or urgency, this requirement may be satisfied by a telephone request or a request in person to the appropriate line manager.
Similarly, if as a CCP, Sector Director (London) Head of Unit or designated officer you are contacted concerning a request to interview a member of your staff you should ask for the request to be made in writing setting out the nature of the investigations and the reasons for wishing to interview the CPS employee concerned. You may deal with such a request over the telephone or in person if the investigation is urgent or highly confidential.
Once such a request is received the CCP, Sector Director (London) Head of Unit or designated officer should meet with the employee involved to discuss the request and should be ready to give advice to that person to enable them to make an informed decision as to whether to make a statement or to give evidence.
Making a statement
If, after discussion, the CPS employee agrees to make a statement you will need to arrange to attend any interview during which a statement is taken and to give advice as outlined in Procedure above. The witness should not sign the statement until you are satisfied that the advice you have given concerning its contents has been followed.
A request which relates to proceeding which are being, or were, handled or notified to Headquarters, should be referred via the CCP to the relevant HQ Division.
Allocation of cases where a CPS employee is a witness
If criminal proceedings arise from previous proceedings in which a Crown Prosecutor was the advocate, and who may as a result be a witness, all aspects of the later proceedings must be allocated to another prosecutor not involved in the earlier proceedings. You should consider whether the case should be transferred to another Branch or possibly another Area, depending on the considerations set out below under Location, below in this section and the degree of sensitivity attaching to the case. This is likely to arise in proceedings for perjury, interfering with jurors, attempting to pervert the course of justice etc.
However, if the original case was prosecuted from Casework Directorate and later proceedings ensue arising from an alleged contempt of court, which is also handled by Casework Directorate, the case may be handled by the original prosecutor if no breach of professional etiquette or conduct is likely to arise. Equally, if a prosecutor has advised on a case, but has not otherwise been involved in the conduct of the original proceedings, he or she may handle the later proceedings.
All cases
Location
If a criminal prosecution may follow, and you have made or intend to make a witness statement in connection with it you will need to discuss it with your CCP, Sector Director (London) Head of Unit or designated officer who should then consider whether arrangements need to be made for the case to be heard in a different court, or handled in a different Branch or Area. This is to ensure that:
- the fairness of the proceedings is not compromised; and
- you are not personally embarrassed.
Factors to be considered include whether:
- you are known to the magistrates, or the clerk or judge in the court likely to try the case;
- you are known to the defence advocate;
- the case file is held in your office;
- you are well known to the CPS prosecutors in the Branch or Area.
It is the responsibility of the CCP, Sector Director (London), Head of Unit or designated officer to ensure that arrangements for any change of location are put in place.
Progress of the case
When you make your witness statement, a suspect may not yet have been arrested. It is important that you ask the police to tell you if an arrest is made and if proceedings are imminent. The police should also be asked to inform the relevant CPS Branch receiving the file that the proceedings involve a CPS employee appearing as a witness.
The procedure to be followed has been set out in the attached flowcharts.
Flowchart 1 is for the guidance of members of staff who are asked to make a statement.
Flowchart 2 is for the guidance of CCPs, Sector Directors (London) Heads of Unit and designated officers, when they are approached with requests for members of their staff to make a statement.
Useful references
R v Birmingham Justices ex parte Shields, The Times, August 3, 1994
Personnel Management Manual Vol 2, 1.57-59
Public Interest Immunity
Evans v Chief Constable of Surrey [1988] QB 588
Freedom of Information, elsewhere in this guidance