Video Recorded Evidence
Principle
Video recorded evidence is admissible in evidence in the same way as photographic or audio-taped evidence is admissible.
Where there is video recorded evidence of material events relevant to a case there may be a duty on the investigator (usually the Police) and/or the Prosecutor to obtain or retain the video tape - see Code of Practice under Sections 23 and 25 Criminal Procedure and Investigations Act 1996, and also see Attorney-General's Guidelines in relation to disclosure of information in criminal proceedings.
In such cases the investigator should include details in the case papers as to the existence of the video recorded evidence and in appropriate cases the steps taken to seize and retain the video recorded evidence.
If the video is destroyed, R v Feltham Magistrates, ex parte Ebrahim, T.L.Rep 27th February 2001 sets out the tests for courts to decide if the loss of the video evidence means that the criminal proceedings should be stayed as an abuse of process. See Abuse of Process, elsewhere in this guidance.
Guidance
Video recorded evidence may be used in a number of different ways:
- As the evidence-in-chief of a young witness. See Child Abuse and Child Witnesses, elsewhere in this guidance.
- As direct evidence of the events which are captured on the video recording, either to set the scene of an incident in general terms or to show what was done by a particular offender.
- As a means of putting a context to the evidence of witnesses in the same way as a plan or photographs of the scene would be used. In this case the video recorded evidence is likely to have been taken after the incident that is the subject of the case.
Video recording interviews with vulnerable and significant witnesses Revised guidance (2007)
Introduction
The purpose of this paper is to revise and replace the advice set out in the November 2002 ACPO document entitled 'Guidance on the Recording of Interviews with Vulnerable and Significant Witnesses'. It has been necessary to conduct this revision to take account of developments in practice and to ensure consistency with the revised Achieving Best Evidence (ABE) document that is due to be published by the Home Office in spring 2007.
This guidance has been agreed by the ACPO Investigative Interviewing Steering Group and the Crown Prosecution Service.
The starting point will always be for the SIO/investigating officer to clearly identify the type of witness being dealt with. This decision should be documented in the policy file (summarised in Appendix A PDF) and will determine:
- how the evidence should be captured;
- the skill level of the interviewer;
- the product of the interview pre-charge (ROVI);
- the product of the interview post charge (ROVI/transcript);
- capability of being used as evidence-in-chief;
- eligibility for special measures.
To further assist witness definitions are described in Appendix B and methods of processing video recording interviews at Appendix C PDF. Following interview a ROVI (Record of Video Interview) will be completed and Appendix D contains guidance in respect of how it should be compiled by the police interviewer.
A ROVI is a revised version of the interview summary formerly known as an index that police have been required to compile since the Memorandum of Good Practice was published in 1992 (Annex K of the Memorandum, Annex M of the current ABE) although until now there was no guidance on what it should contain.
Vulnerable witnesses
Vulnerable witnesses are defined by Section 16 of the Youth Justice and Criminal Evidence Act, 1999 as:
- Children under 17; and
- People whose quality of evidence is likely to be diminished because:
- They are suffering from a mental disorder (as defined by the Mental Health Act 1983); or
- Have a significant impairment of intelligence and social functioning; or
- Have a physical disability or are suffering from a physical disorder.
The reference to the quality of a witness' evidence in this Section relate to its completeness, coherence and accuracy. "Coherence" refers to a witness' ability in giving evidence to answer questions in a way that can be understood individually and collectively.
This paper does not deal with 'intimidated' witnesses as defined by Section 17 of the Youth Justice and Criminal Evidence Act 1999 because video-recorded evidence-in-chief has not been implemented for them yet (although they are currently eligible for a number of other special measures). It is anticipated that some intimidated witnesses will be eligible for video-recorded evidence-in-chief later this year (2007).
Post-interview process
The post-interview process for video-recorded interviews with vulnerable witnesses is as follows:
- The police compile a ROVI. Appendix D sets out more detailed guidance about the functions and content of a ROVI. Dependant on the circumstances the SIO still has the discretion to transcribe the interview at an early stage in the investigation.
- Charging decisions by the duty prosecutor should be based on the ROVI and/or the transcript if done, unless impractical and a viewing of the video-recording. Similarly this also applies to case management prior to a plea being entered:
- Where a 'not guilty' plea is entered, the CPS is responsible for sending the recording to one of their Video Transcription Units for transcription (unless the recording has already been transcribed by police for an investigative purpose such as inputting into HOLMES).
- Where a 'guilty' plea is entered or the case is not proceeded with, the recording will not be transcribed (unless already transcribed by police for an investigative purpose).
- The CPS makes an application to play the video-recording as evidence-in-chief under Section 27 of the Youth Justice and Criminal Evidence Act 1999 and serve the transcript on the defence.
- If the application under Section 27 is successful, the video-recording is played as evidence-in-chief. If the application is unsuccessful, the witness should be lead through their evidence-in-chief using the transcript (consideration may be given to applying for the witness to give evidence via live TV link under Section 24 of the Youth Justice and Criminal Evidence Act 1999).
- The CPS Video Transcription Unit(s) (VTU) normal turnaround time for production of a transcript is 7 working days (9 calendar days). It is important to note that if the circumstance of the case change and a transcript is no longer required the CPS prosecutor must notify the VTU immediately of the cancellation to avoid any unnecessary work.
This process will also be applicable to other groups of witnesses when implemented for video-recorded evidence-in-chief (notably, intimidated witnesses Section 17 of the Youth Justice and Criminal Evidence Act 1999 and significant witnesses Section 137 of the Criminal Justice Act 2003).
Significant witnesses
Significant witnesses will be currently defined as follows in the revised ABE:
Significant witnesses, sometimes referred to as 'key' witnesses, are those who:
- Have or claim to have witnessed, visually or otherwise, an indictable offence, part of such an offence or events closely connected with it (including any incriminating comments made by the suspected offender either before or after the offence).
- Stand in a particular relationship to the victim or have a central position in an investigation into an indictable offence.
In these circumstances, the purpose of the recording is primarily one of demonstrating the integrity of the way in which the evidence has been gathered. Currently there is no statutory provision for video recordings of interviews with significant witnesses to be played as evidence-in-chief until Section 137 Criminal Justice Act, 2003 is implemented. However a fundamental difference exists between the current ACPO definition and Section 137. ACPO do not specify a timescale for when the alleged offence / events occurred whereas the Section 137 requires that the video interview should be conducted soon after the commission of the offence/event when events are fresh in the witness's memory thereby providing an early and reliable account. See Appendix B for the full definition for a Section 137 of the Criminal Justice Act 2003 witness.
Therefore to be consistent with these principles interviews should only be recorded where the process will add value to the investigation. Again, once a person has been identified as a significant witness the SIO will consider whether or not to video record the interview and document the decision in the policy log. Operational constraints such as availability of video suites or the number of significant witnesses will influence that decision.
Where multiple witnesses are involved, it will be necessary to prioritise the number of interviews that are video-recorded according to the resources that are available. Such a decision should be made by the senior officer in charge of the investigation, in consultation with an interview adviser where appointed (Tier 5 of the ACPO Investigative Interviewing Strategy). A record should be made of the decision and the rationale underpinning it, including the criteria used for determining which interviewees were visually recorded.
Post-interview process
As included in the revised ABE there are two ways in which the testimony on a video-recorded interview with a significant witness may be adduced as evidence:
Option 1: Brief Written Statement from the Witness followed by the Production of a Transcript of the Video Recording as an Exhibit
- The witness should be invited to make a brief Section 9 Criminal Justice Act, 1967 statement (MG11) as soon after the interview as possible, while what was said is fresh in their memory, confirming that what they said during the interview is an accurate account of their evidence. This statement should not include the detail of what was said during the interview because it will subsequently be reflected in the transcript.
- The police compile a Record of Video Interview (ROVI). Dependant on the circumstances the SIO still has the discretion to transcribe the interview at an early stage in the investigation.
- Case management and charging decisions should be based on the ROVI and/or the transcript if done, unless impractical, and a viewing of the video-recording prior to a plea being entered:
- Where a 'not guilty' plea is entered, the police transcribe the recording (unless it has already been transcribed for investigative purposes).
- Where a 'guilty' plea is entered or the case is not proceeded with, the recording will not be transcribed (unless it has already been transcribed for investigative purposes).
- The interviewer should check the transcript for accuracy against the recording and produce it as an exhibit in a MG11.
- The witness' and the interviewer's MG11s, together with the transcript, should be adduced as evidence. The existence of the recording(s) should be revealed to the Crown Prosecution Service (CPS) as 'unused material' under the terms of the Criminal Procedure and Investigations Act, 1996.
This option represents the recommended method for the following reasons:
- Provides for effective investigation and case management;
- Reduces the risk of inconsistent statements (MG11);
- Assists the witness to refresh their memory.
Option 2: Full Written Statement of the Witness' Evidence derived from the Video-Recording
- A full Criminal Justice Act statement (MG11) should be prepared from the video-recording as soon as possible, while what was said is still fresh in the witness' memory. It is essential to review the recording prior to preparing the statement. There is no need to have the witness present during this process.
- The police compile a Record of Video Interview (ROVI).
- The witness should be asked to review the MG11 as soon as possible and invited to make any corrections, alterations or additions to it that they consider necessary. It may also in appropriate circumstances be necessary for the witness to review the working copy video to mitigate any inconsistencies in the record. Having agreed its content, the witness should be invited to sign their MG11. This process should be video-recorded where the witness wants to make substantial modifications to their account. Minor changes should be noted on the MG11 in the usual way.
- The witness' MG11 should be adduced as evidence. The existence of the video-recording should be revealed to the CPS as unused material.
Option 1 represents the ACPO recommended method. It is accepted that it may be necessary to use Option 2 where the resources needed to transcribe a recording are limited.
The decision about which of these options to adopt is one that will need to be made at the planning stage of an interview.
Identification from video recorded evidence
The use of a video identification parade is dealt with in Code D of the Codes of Practice issued under Section 66 of the Police and Criminal Evidence Act 1984. Security video recordings from shops, banks, and from City Centre Closed Circuit Television schemes etc. are not subject to Code D.
Evidence of what a witness sees on a video recording is admissible in the same way as the evidence of an eyewitness: see Taylor v Chief Constable of Cheshire 1986 84 Cr App R 333. As a result, an incident that has been video recorded may be viewed by a witness and used as a means of identifying an offender: see R v Grimer 1982 Crim L R 674.
See also Identification, elsewhere in this guidance.
Procedure
Proving the authenticity of the video recording
The Prosecution must be able to show that the video film produced in evidence is the original video recording or an authentic copy of the original and show that it has not been tampered with. In order to do so statements must be available which produce the video evidence as an exhibit and which cover its continuity and security.
If the Police retain the original video film then a statement from the cameraman who took the film (together with continuity statements) will be sufficient to produce the video recorded evidence as an exhibit.
In respect of evidence obtained from automatic video recording systems, e.g. shop security video systems, a statement should be obtained from the person responsible for operating the video equipment. The statement should include a description of the system used and explain how it works.
If the original film is not available or is not in a playable format then the prosecution must establish that the copy produced is an authentic copy of the original recording and if the original is not available that the police do not have possession of it.
If the recording is of digital images, see Casework Bulletin 24 of 2001.
Disclosure of video recorded evidence
The video film, on which evidence is recorded of an incident, is a document for the purposes of the Magistrates Court (Advance Information) Rules 1985. The Divisional Court in the case of R v Calderdale Magistrates Court ex parte Donahue and Cutler 2001 Crim L.R. 141 has held that there is a duty on the Prosecution to disclose on request by the Defence a copy of any video recording forming part of the prosecution case prior to plea before venue being considered.
The Defence must always be informed of the existence of video recorded evidence, subject to any matters that relate to Public Interest Immunity, e.g. where the premises from which the video recording was filmed have been used as an observation post. See Covert Surveillance, elsewhere in this guidance.
Similar considerations apply where the video recording is not part of the prosecution case and the video recording is treated as unused material under the procedures set out in the Criminal Procedure and Investigations Act 1996. See Disclosure of Unused Material, elsewhere in this guidance.
Viewing policy
If the reviewing lawyer is satisfied that there is a realistic prospect of a conviction, disclosed on the papers without taking account of the video recorded evidence, and provided care is taken that the written material submitted by the police adequately reflects the seriousness of the offence charged, then the video recorded evidence does not need to be viewed before a plea is entered, plea before venue considered or, in the case of an indictable-only offence, the sending of the case to the Crown Court. See R (on the application of Joseph) v DPP 2001 Crim L.R. 489.
If a Guilty plea is entered or indicated there will usually be no need to view the video recorded evidence. It may, however, be necessary if a dispute emerges as to the basis of a plea, or where it is considered that the viewing of the video will assist the court in sentencing.
If a Not Guilty plea is entered or indicated, or jurisdiction is declined, or the Defendant elects Crown Court trial, or the case is to be transferred to the Crown Court, the video recorded evidence must be viewed prior to committal or transfer by the reviewing lawyer.
In the case of indictable-only offences sent to the Crown Court, the reviewing lawyer must view the video prior to the preliminary hearing in the Crown Court.
In addition, in cases before the Crown Court involving video recorded evidence, Prosecuting Counsel should always view the video film unless the Defence have formally indicated that there will be no dispute about the content of the video recorded evidence or where the Defendant has been committed to the Crown Court for sentence.
When viewing video recorded evidence discretion should be applied when relying on any indications given by the police that only part of the video recording is relevant as evidence in the particular case. If in doubt the whole video film should be watched.
Witnesses viewing video recorded evidence
In the same way as witnesses are able to refresh their memory of events by reading a written statement made to the police video, recorded evidence of an incident may be viewed by witnesses who were present at the time of the incident in order that they are able to refresh their memories as to what happened.
However in the case of video recorded evidence, consideration should be given as to whether or not it is necessary or desirable for witnesses to view the video film prior to giving evidence at trial. This is because the video film captures directly the events shown on it and as a result the witnesses may be cross-examined on the basis that their evidence is based not on their own recollection of what happened but on their viewing of the video film.
In cases where the video recorded evidence is in effect the only evidence of the incident, it is open to Police Officers to closely study the video recorded evidence and thereafter make a statement based on what is shown on the video film. See R v Caldwell and Dixon 1993 Crim L.R. 862 and Clare and Peach 1995 2 Cr. App. R. 333.
Useful references
Code of Practice under Sections 23 and 25 Criminal Procedure and Investigations Act 1996
Attorney-General's Guidelines in relation to disclosure of information in criminal proceedings
Abuse of Process, elsewhere in this guidance
Child Abuse and Child Witnesses, elsewhere in this guidance
Taylor v Chief Constable of Cheshire 1986 84 Cr App R 333
R v Grimer 1982 1982 Crim L R 674
Identification, elsewhere in this guidance
R v Calderdale Magistrates Court ex Parte Donahue and Cutler 2001 Crim L R 141
Covert Surveillance, elsewhere in this guidance
Disclosure of Unused Material, elsewhere in this guidance
R ( on the application of Joseph) v DPP 2001 Crim L R 489
R v Caldwell and Dixon 1993 Crim L R 862
Clare and Peach 1995 2 Cr App R 333