Pre-trial witness interviews
Interviewing prosecution witnesses
A socio-legal evaluation of the pre-trial witness interview pilot by Paul Roberts (Professor of Criminal Jurisprudence, University of Nottingham) and Candida Saunders (LLB, LLM, MA, doctoral candidate, University of Nottingham School of Law).
Please note that this report expresses the views of its authors. Its contents are not necessarily endorsed by any other individual or organisation. In particular, this report does not represent official policy of either the Crown Prosecution Service or the University of Nottingham.
Executive summary
Pre-trial witness interviewing (PTWI) by Crown Prosecutors was tested in a limited Pilot exercise undertaken in four CPS Areas between January 2006 and February 2007. This was the first time that selected prosecutors in England and Wales had been empowered to conduct such interviews with complainants and other potential Crown witnesses. A small group of prosecutors underwent PTWI training, and interviews were conducted in accordance with a specially-devised Code of Practice.
The authors of this Report were engaged by CPS in April 2006 with a view to injecting a more probing empirical dimension into PTWI Pilot evaluation. In order to generate detailed qualitative data on the conduct, experiences and outcomes of PTWI-interviewing during the Pilot period, the authors devised a relatively small-scale socio-legal project based on in-situ interviews with PTWI-trained prosecutors, supplemented by two focus-group evaluation sessions.
During the life of the Pilot, prosecutors considered undertaking interviews in 93 cases, resulting in a total of 53 PTWI interviews being conducted in 47 Pilot cases. Rapes and other sexual assaults constituted over a third of all Pilot cases, which also included serious non-sexual assaults, kidnapping, robberies and aggravated burglary. However, less serious offences were also strongly represented: section 47 actual bodily harm, burglary, theft, common assault, harassment.
The first part of this Report describes the "life history" of a PTWI interview, beginning with case-selection and referral. This is followed by a preparatory phase of interview preparation, leading up to the conduct of the interview itself. Finally, prosecutors must consider post-interview action, potentially utilising information derived from PTWI to make decisive decisions about case progression. This account of PTWI interviewing, summarising extensive research interview data, is largely descriptive. It forms the basis for a series of conclusions and recommendations relating both to the general merits of PTWI, and to specific aspects of its operation, which are set out in the second half of the Report.
The principal conclusion is that PTWI is capable of delivering a range of benefits, to prosecutors, to victims, to other criminal justice professionals and agencies, and to the higher ideals of criminal justice policy, across a range of cases – including crimes of serious violence and sexual assault. Whilst significant potential risks, drawbacks and limitations of PTWI interviewing also became evident during the Pilot, this Report pinpoints key issues, practical steps and sensible precautions which, if acted upon, could significantly improve the chances of PTWI's successful implementation were the initiative to be extended throughout England and Wales.
This Report demonstrates that the potential "outputs" of PTWI are more numerous and extensive than might have been anticipated from an ostensibly rather prosaic procedural innovation. The value of PTWI should consequently be viewed in broad terms, taking full account of the range of potential benefits of pre-trial witness interviewing, set against candid recognition of PTWI's inescapable risks and limitations.
PTWI improves the quality of prosecutorial decision-making both by strengthening cases that proceed to trial and by timely rejection of evidentially weak cases. In the majority of Pilot cases discussed with the authors, prosecutors felt that PTWI had significantly clarified the prosecution's position. This often meant a clear decision not to charge, to discontinue or to offer no evidence at trial. In a similar proportion of cases PTWI confirmed the prosecutor's inclination to proceed, by resolving any residual doubts or contributing important evidential clarifications. There were even several notable instances in which PTWI "rescued" prosecutions which would otherwise have been abandoned. In a third group of cases, however, PTWI failed to clarify the situation, and the prosecutor essentially remained none the wiser about how to proceed.
Although this study was not specifically designed to test the impact of PTWI on aggregate rates of conviction or acquittal, suggestive patterns can nonetheless be discerned in the final disposals of Pilot cases. PTWI does not appear to have had any negative impact on the rate of guilty pleas or convictions after contested trial. Indeed, PTWI is negatively correlated with acquittals of all kinds, and especially with judge ordered or directed acquittals. By the same token, on present limited information it is quite possible that PTWI interviewing could be neutral, or even conceivably negative, in its overall impact on problems of attrition.
Several on-going concerns about PTWI emerged during the Pilot. Amongst the most significant are risks of (allegations of) "witness coaching", witness non-cooperation, hostility or avoidable trauma, and the possibility that PTWI will generate impeachment material damaging to the witness's credibility, which could potentially undermine future prosecutions involving the same complainant as well as derailing the instant case. It is conceivable that PTWI could create an additional procedural hurdle for complainants to surmount, effectively "setting up the prosecutor as judge and jury" and contributing to the deterioration of conviction rates in already-hard-to-prosecute cases. In the event of national roll-out, it may therefore be prudent to undertake continuous monitoring of implementation to ensure that prosecutorial practice remains faithful to the original motivation behind PTWI.
The Report identifies additional outstanding issues on which further policy guidance or clarification may be desirable. These relate to the formal legal basis of PTWI, prosecutor selection and training, tape-recording interviews, disclosure, and supplementary witness statements.
A significant broader finding of this study was that PTWI interviewing affects all prosecutors, whether as interviewers themselves, or as sources of referrals at the pre-charge or file review stages. Concerted efforts need to be made to "sell" PTWI to charging and reviewing lawyers in order to maintain an adequate flow of appropriate case-referrals. The campaign to win prosecutors' hearts and minds over to PTWI interviewing must, moreover, be carried beyond the doors of CPS offices, in order to engage the interest and active cooperation of police officers, counsel and the judiciary in the successful implementation of PTWI.
The Pilot and its evaluation have been experienced as a steep learning curve by everybody who has participated in it. This accumulated experience should be widely disseminated, both within and beyond CPS, to policymakers and academic researchers and scholars, as well as to the public at large.
Introduction
This Report summarises the findings of a socio-legal evaluation of pre-trial witness interviewing (PTWI) by Crown Prosecutors in England and Wales. The evaluation was conducted by the authors on behalf of the Crown Prosecution Service (CPS).
Policy context of the PTWI Pilot
In May 2003 the CPS issued a consultation paper which mooted the possibility of empowering prosecutors in England and Wales to interview potential Crown witnesses at the pre-trial stage of criminal proceedings. (Note: Crown Prosecution Service, Pre-Trial Witness Interviews by Prosecutors: A Consultation Paper (CPS, 2003).) This consultation exercise was followed by a policy document issued by the Office of the Attorney-General in December 2004, in which the Attorney tasked the Director of Public Prosecutions (DPP) with implementing this initiative. (Note: Office of the Attorney-General, Pre-Trial Witness Interviews by Prosecutors – Report (December, 2004), 3.)
Recognising that this was "a fairly radical proposal", (Note: Crown Prosecution Service, above n. 1, 5.) it was decided to explore the possibilities for pre-trial witness interviewing (PTWI) through a Pilot project of limited geographical scope and duration. After consultation with the Bar and the judiciary, resulting in an amendment to the Bar's Written Standards for the Conduct of Professional Work, (Note: Inserting paragraph 6.3.2, to the effect that "Prosecution counsel may, if instructed to do so, interview potential witnesses for the purposes of, and in accordance with, the practice set out in the Code for Pre-Trial Witness Interviews".) a Code of Practice for the conduct of PTWI interviews during the current of the Pilot was drafted, circulated for comment and finalised by CPS Policy Directorate. (Note: See PTWI Code on this website.)
The PTWI Pilot and its evaluation
PTWI was piloted in four CPS Areas in the North West, (Note: Greater Manchester, Merseyside, Lancashire and Cumbria.) between January 2006 and February 2007. Chief Crown Prosecutors (CCPs) in the four Pilot Areas were invited to nominate prosecutors for PTWI-training. Twelve prosecutors were trained in the initial phase during 2005, and these were joined by a second cohort of ten prosecutors who began to undertake PTWI interviews in July 2006.
Evaluation of PTWI by CPS Policy Directorate comprised several overlapping strands addressing legal, administrative and financial considerations. A "Control Form" was completed by the relevant prosecutor for every case in which a PTWI interview was at least considered (i.e. whether or not an interview was actually conducted), and these records became the central informational resource for basic PTWI case-monitoring. They were supplemented with information derived from the CPS's computerised Case Management System (CMS) and augmented by ad hoc "despatches from the front" from individual PTWI-trained lawyers during the life of the Pilot.
For the purposes of this Evaluation, the "counting period" was closed on 22 January 2007. During this 12 month period a total of 93 cases in which PTWI was at least considered was reported to Policy Directorate by PTWI-trained prosecutors. The "vital statistics" of these 93 Pilot cases are shown in the two Tables reproduced in the Appendix to this Report, summarising information available on CMS at 1 August 2007 ("the census date" for case-monitoring purposes).
It can be seen from PTWI considered and conducted by case outcome at 1 August 2007 that PTWI interviews were conducted in 47 Pilot cases. In fact, 53 PTWI interviews were conducted in total during the Pilot exercise: [CASE 4] and [CASE 52] involved interviews with two witnesses, whilst three witnesses were interviewed in both [CASE 57] and [CASE 82]. Of the remaining 46 cases, an interview was actively considered or expected in 33 Pilot cases but did not take place, either because the case was finalised without conducting an interview (31 cases) or remained unfinalised at the census date (two cases). The option of conducting a PTWI interview was considered but consciously rejected in the remaining 13 cases, two of which had not reached final disposition at the census date.
Profile of the Pilot cases
- PTWI conducted - 47
- PTWI contemplated - 33
- PTWI rejected - 13
- Total Pilot cases - 93
Socio-legal methodology – strengths and limitations
The authors were engaged by CPS on a consultancy basis in April 2006 with a view to injecting a more probing empirical dimension into PTWI Pilot evaluation. This socio-legal study was not (and, in view of prevailing constraints, could not have been) designed to provide definitive answers to comprehensive policy questions, such as: "Will PTWI, as currently conceived, work effectively if rolled-out throughout England and Wales?" Only much more extensive empirical research could hope to address such multifaceted questions in a methodologically credible fashion. This study was constructed to explore, in a more preliminary way, questions of vital importance for policymakers concerning the viability, immediate challenges, and potential – anticipated and unforeseen – benefits and pitfalls of PTWI. Its aim was to piece together a searching, critical overview of PTWI in action, spanning the "life-cycle" of the interview process from initial case-selection to discernable impacts and final outputs.
In order to generate detailed qualitative data on the conduct, experiences and outcomes of PTWI-interviewing during the Pilot period, the authors devised a relatively small-scale socio-legal project with two principal components:
- In-situ interviews comprised 12 in-depth semi-structured interviews with PTWI-trained prosecutors, (Note: In the event, interviews were conducted with 11 PTWI-trained prosecutors and one prosecutor in her capacity as a reviewing lawyer making PTWI referrals. In this Report interviewees are designated "CPS Prosecutor # 1" through to "CPS Prosecutor # 17" (and CCPs as Chief Crown Prosecutor "A" through to "D"), and to further protect anonymity all PTWI-trained prosecutors are described as female in this Report (in reality, the ratio was 12:5), whilst all CCPs assume male identities (in reality, 3:1).) conducted by the authors at CPS offices in the four Pilot Areas between August and December 2006. Only those prosecutors who had conducted at least one PTWI were interviewed. Research interviews generally lasted about 90 minutes, although several were considerably longer. They were tape-recorded and then written-up as notes containing extensive verbatim quotation. Supplementary interviews were conducted with the CCPs in the four Pilot Areas. (Note: One of these interviews was conducted by telephone, a second through email correspondence. The remaining two were in person.)
- Group evaluation meetings with PTWI-trained prosecutors were conducted at the beginning and at the end of the data-collection phase. These meetings functioned as a hybrid combination of research focus-groups and advanced prosecutor training days. The first meeting, attended by ten of the 12 initial PTWI cohort, was designed to finesse the interview instruments and draw prosecutors' attention to key issues in the research prior to the in situ interviews. The second group evaluation meeting, attended by 18 first and second-tranche trained PTWI prosecutors, extended over two days. As well as facilitating supplementary data-collection from a larger pool of prosecutors, this meeting gave prosecutor-interviewees an opportunity to provide feedback on the study's preliminary findings. This mechanism provided reassurance that nothing significant had been misinterpreted or overlooked by the researchers.
The power of socio-legal research to generate rich and detailed empirical information on the criminal justice process was amply vindicated by this study. However, the two methodological limitations explained in Box One merit emphasis.
Methodological note
- Limited sources: The findings summarised in this Report are largely based on what prosecutors told the authors during their in-situ interviews and group meetings, that is to say, on prosecutors' recollections, perceptions, interpretations, predictions, evaluations and opinions. The authors did not personally review CPS files, attend or observe actual PTWI interviews, or listen to any tape-recordings of them. Other relevant participants – such as lay witnesses and complainants, witnesses' supporters, police officers, witness care unit (WCU) officers, defence lawyers, prosecution counsel, or even (with one exception) CPS reviewing lawyers or caseworkers without PTWI training – were not interviewed. By the same token, however, there is no more direct way for researchers to investigate prosecutors' decision-making than by asking prosecutors to recount their beliefs, intentions, objectives and reasons for action. Reliance on PTWI-trained prosecutors as "expert participant informers" might therefore be regarded as this study's crowning glory and simultaneously its major blindspot.
- No random sampling: From a methodological point of view, there was very little that was truly random about PTWI implementation, which was conducted, quite understandably, in a fashion calculated to improve its chances of success. Pilot Areas were selected on the basis of their geographical proximity and mixture of urban and rural profiles. PTWI-trained prosecutors were hand-picked by CCPs on the basis of their experience, reliability and good judgement. An effort was made to secure case referrals of an appropriate type, essentially concentrating on mid-range indictable offences. And the procedures and protocols for implementing PTWI were supervised, managed and in some respects adjusted during the life of the evaluation. The result was a research environment more akin to "action research" than randomised sampling. This inevitably limits the generalisability of the inferences and conclusions that can properly be drawn from the research findings. It would, for example, be reckless to assume that positive outcomes could be replicated more widely without also ensuring that the prerequisites of successful PTWI interviewing are properly understood and are capable of being sustained, scaled-up and exported beyond the confines of the Pilot.
PTWI is a unique experiment in criminal prosecutions in England and Wales, and the learning curve for policy-makers (and also for front-line prosecutors) is exceedingly steep. This Report demonstrates how much has already been learnt through investigating the formative stages of this major procedural innovation in prosecutorial practice. It also indicates areas in which current knowledge and understanding of PTWI and its future prospects remain, necessarily for the time being, conjectural and incomplete.
Report outline
The remainder of this summary Report is divided into three sections. Section Two summarises the study's findings in relation to the sequential "life history" of a PTWI interview. Section Three describes and evaluates PTWI "outputs", including final case disposals. Finally, Section Four summarises the study's conclusions, and presents policy recommendations based on these findings.
The PTWI interviewing process
PTWI interviewing begins with case-selection, a process which is strongly influenced by whatever case-referral mechanisms may be in place in the relevant CPS office. There follows a preparatory phase of interview preparation, leading up to the conduct of the interview itself. Finally, prosecutors must consider post-interview action, potentially utilising information derived from PTWI to make decisive decisions about case progression.
The "life history" of PTWI interviewing, and its key inputs and outputs, are represented diagrammatically below.
Each stage of the process is now described as follows.
Case-selection
Case-selection is obviously a pivotal decision-point. However, the Pilot demonstrated that there is no simple, straightforward answer to the question: what makes a case suitable for PTWI? Prosecutors employed a range of divergent and overlapping criteria in their Pilot case selections, which appeared to revolve around the following matrix of factors:
- the nature of the charge;
- the circumstances of the alleged offence;
- analysis of the prosecution case (as reflected on the CPS file);
- source of the referral;
- timing of the referral;
- the PTWI lawyer's motivations and appreciation of interviewing objectives; and
- the structure of work in the relevant CPS office, set within the broader policy context (including local implementation of the PTWI Pilot).
Flexibility was valued: "I don't think we're using them enough… You might have any type of case" (CPS Prosecutor # 2); but countervailing factors were also mentioned, e.g. by CPS Prosecutor # 3: "in cases involving younger children we get tapes anyway and you can make a lot of judgements about how convincing people will be from looking at the tape." The prosecutor may also have access to video-recorded statements by adult complainants and witnesses pursuant to the Key Witness initiative operating in some Pilot Areas, as in [CASE 85]. Additional factors pointing away from PTWI included the relatively minor nature of the charge, potential distress for the witness (especially complainants), the risk of generating impeachment material harmful to the prosecution's case, the possibility of attracting allegations of "witness coaching", personal concerns about meeting the witness (e.g. a history of violence) and the judgement that PTWI would be a waste of time because the case was irremediably evidentially weak.
PTWI by principal charge summarises PTWI interviews considered or conducted against the principal charge in the case. Rapes and other sexual assaults constituted over a third of all PTWI Pilot cases (23 post-charge plus another ten pre-charge interviews, or at least 33 out of a total of 93 cases). Pilot cases also included serious non-sexual assaults, kidnapping, robberies and aggravated burglary, but less serious offences were also strongly represented: section 47 actual bodily harm, burglary, theft, common assault, harassment. (Note, however, that the formal charge is not necessarily a reliable guide to the true gravity of the underlying incident. For illustrations, see Elaine Genders, 'Reform of the Offences Against the Person Act: Lessons from the Law in Action' [1999] Crim LR 689.) A significant proportion of PTWI interviews were conducted (in 14 cases) or at least considered (a further six cases) at the pre-charge stage.
Selection criteria are often mutually reinforcing. Thus, PTWI is regarded as useful in "one-on-one" allegations in which comparative judgements of credibility loom large, and these are disproportionately cases of sexual and domestic violence:
"One-on-one [allegations of sexual assault] make the case totally about credibility…. The only way you can assess that person's credibility is by looking at them and listening to them and thinking, 'Can you convince me that you didn't want this to happen? Or that you didn't know X was happening?'" (CPS Prosecutor # 8)
Analysis of the prosecution's case calls for legal expertise and professional experience applied to the circumstances of the instant case. In terms of assessing the desirability of PTWI, prosecutors were looking for obvious gaps in the prosecution's case ("missing information"), aspects of the case that appear "strange" (CPS Prosecutor # 10) or don't seem to "add up", conflicting or otherwise problematic evidence (such as apparent changes in the complainant's story), and points on which the credibility of the witness will be crucial: "The main types of cases referred concern issues of credibility" (CPS Prosecutor # 17); "Reviewing lawyers should be looking for cases where they are in doubt about a witness' credibility, I think" (CPS Prosecutor # 5).
Some of the selection criteria mentioned by prosecutors, such as the desire to test the witness's credibility, reflected a clear objective of PTWI from the beginning. (Note: Paragraph 2.1 of the PTWI Code of Practice states that pre-trial witness interviews are to be conducted "for the purpose of assisting a prosecutor to assess the reliability of a witness's evidence…" Witness credibility is plainly one important dimension of the reliability of a witness's evidence.) Others, including attempts to fill perceived gaps in the prosecution's case or to explore parts of the witness's statement that seemed (in our terminology) "inherently implausible", were predictable elaborations of the original basic concept of using PTWI interviews to build up the prosecution's case. However, a third type of objective which emerged from the Pilot cases was not so readily anticipated: testing complainants' and other witnesses' commitment to continuing with the case and co-operating with the prosecutor. Despite initial hesitation in some quarters, commitment-testing featured as an important objective of PTWI, especially in domestic violence cases. Several prosecutors cited commitment-testing as one of PTWI's most useful and reliable attributes, with the prospect of looking behind and possibly even reversing a witness retraction:
"We have a huge amount of domestic violence, and it's very depressing because so many of them just go down the tube because the women won't proceed…. [Y]ou want to say to them, 'We'll help you'. We can hope that this might reach out to a few of them a bit." (CPS Prosecutor # 3).
The criteria for selecting cases for PTWI have been kept relatively open-ended, and were interpreted flexibly by prosecutors in the Pilot study. There is clear advantage in a flexible approach, avoiding wholesale categorical exclusions of certain types of case. But the flip-side of this flexibility is that it becomes very difficult to say whether this or that particular case should be referred for PTWI, let alone to try to predict an optimum number of referrals in the aggregate. On the broadest view, just about any case involving a significant witness is a plausible candidate for PTWI. Even if less serious cases are excluded from consideration on a de minimis basis, this still leaves a very large pool of PTWI candidate-cases.
One implication of this approach may be that the number of PTWI interviews conducted will expand to fill the amount of prosecutor-time allocated to PTWI interviewing. A further implication is that if the amount of time available – or perceived by front-line prosecutors to be available – for PTWI interviewing is close to zero, the number of PTWI interviews conducted may be close to nil. And who is to say that this or that prosecutor ought to have conducted an interview in this or that case?
Case referrals
Effective case-referral is crucial to the success of PTWI interviewing. To be effective, referrals must be both timely and appropriately selective. Reviewing lawyers and, in relation to pre-charge PTWIs, charging lawyers were the main sources of PTWI referrals in the Pilot. Notably, a significant chunk of the Pilot cases are accounted for by PTWI-lawyers making "referrals" to themselves, acting in the capacity of pre-charge advice (e.g. [CASE 18], [CASE 52], [CASE 1]) or reviewing lawyer (e.g. [CASE 20]). Some cases were even picked up by PTWI lawyers at the point where the case was being prepared for trial (e.g. [CASE 39]). A small minority of referrals was prompted by counsel, or even at the suggestion of investigating police officers.
Most prosecutors thought that referrals should ideally occur pre-charge, but others stressed the benefits of waiting until more information is known. In reality, suitable cases might not be picked up pre-charge regardless of the ideal timing of referrals: "A lot of these cases, it's not even thought about pre-charge… you have to deal with the world that you're in…" (CPS Prosecutor # 7).
One important lesson learnt during the Pilot is that it has proved harder to generate cases for PTWI than might have been anticipated at the outset. This is essentially because prosecutors already regard themselves as hard pressed to cope with their existing workloads, so that PTWI-trained lawyers have limited time to conduct interviews and their colleagues have limited time to consider making case referrals. Several of the PTWI lawyers we interviewed spoke of getting just one office-based day per week and that day was normally already oversubscribed with other work.
Once initiated, prosecutions may develop their own self-propelling momentum which tends to dissuade prosecutors from taking the positive, interventionist step of diverting cases to PTWI:
"These cases get on the treadmill, and are plodding on. People think, 'Well no, I'll just bash on to the next stage'. To me it seems odd that there's been so few referrals." (CPS Prosecutor # 1)
Interview preparation
Once the initial decision has been taken to conduct a PTWI interview in a particular case, various administrative and preparatory tasks must be undertaken in order to arrange the interview and plan its conduct. Somebody must liaise with the witness to arrange a mutually convenient time and location for the interview. Suitable accommodation must be found, not only for conducting the interview but also for waiting areas, for the witnesses themselves and, potentially, for their supporters. CPS colleagues may have to be briefed, and perhaps their own availability to attend the interview checked and agreed. External criminal justice agencies, including the officer in the case and counsel and possibly even the Judge, may require notification. Then the interviewing lawyer must find time to read the case-file and develop an interview strategy.
Initial liaison with the witness is not merely a trivial formality. It is sometimes difficult to acquire reliable contact details. Nor can it be assumed that all witnesses will understand the initial invitation letter, or even bother to read it. A small minority of witnesses refused to attend PTWI in Pilot cases (e.g. in [CASE 86]), or failed to turn up on the day (e.g [CASE 84], [CASE 91]). Some witnesses have inflexible work or child care responsibilities, whilst others have clearly not been very well-disposed to participating in the prosecution (e.g. [CASE 26]). Whilst prosecutors are bound to take their witnesses as they find them, some were more proactive than others in seeking to accommodate the witness's situation and took greater pains to put the witness at their ease. For example, in one Pilot Area it had become standard practice for a police officer to hand-deliver the initial invitation letter and to arrange for the witness to be escorted to CPS offices on the day of the interview. Prosecutors in other offices made extensive use of their local witness care units. Without having undertaken any systematic comparison, our impression was that prosecutors who went the extra mile in this way experienced fewer unanswered invitation letters and witness "no shows" than prosecutors who adopted a more reactive approach.
CPS offices were not configured with PTWI interviewing in mind. Although all the offices in the Pilot Areas had at least one conference room that could serve for this purpose, prosecutors repeatedly said that their office accommodation was ill-suited for receiving visitors, lacked appropriate waiting areas (especially if the witness turned up with an unsuitable supporter), and could be regarded as insecure.
Re-reading their police statement is an important part of a witness's preparation for PTWI. Failure to do so may result in the witness's inability to recall salient facts or even the "manufacture" of phantom inconsistencies in their account. It became apparent in Pilot cases, however, that it cannot be assumed that witnesses who have been provided with their police statement on arrival at CPS officers will either be able or inclined actually to read it. It seems preferable that witnesses should be supervised when reading their statements. Prosecutors should at least check that the witness has read and understood his or her statement before commencing the interview.
PTWI interviewing
The duration of Pilot interviews ranged from 25 minutes [CASE 28] to a mammoth three-and-a-half hours in [CASE 69], producing five full tapes of recorded material. Representative of the average, CPS Prosecutor # 2 reported that 45 minutes was generally the most satisfactory duration for the interviews to achieve their desired objectives. Given the nature of the events typically under discussion, to draw the interview out much longer might be excessively distressing for the witness. A subsidiary consideration is that the standard-issue tapes are 45 minutes long.
Pilot interviews were attended by between one and six people, in addition to the witness. In a minority of cases, only the interviewing lawyer was in the room with the witness; at the other end of the spectrum, interviewing lawyer and witness might be accompanied by the reviewing lawyer, a police officer, counsel, an interpreter and the witness's supporter, as in [CASE 11] for example.
Witnesses have occasionally reported for PTWI with unsuitable supporters – usually other witnesses in the case (Note: Paragraph 5.1 of the PTWI Code states that: "The witness may be accompanied by a supporter. The prosecutor must satisfy himself that the supporter has no actual or potential involvement in the case and has no personal knowledge of the matters likely to be discussed. The prosecutor conducting the interview has discretion as to whether the supporter should be permitted to be present at, or remain in, the interview. If the proposed supporter is, in the view of the prosecutor, unsuitable to act as a supporter then the witness should be given an opportunity to arrange for an alternative suitable supporter and the interview should be rearranged for this purpose" (emphasis supplied).) – but this did not appear to have created any major difficulties in the Pilot cases (albeit that in [CASE 3] such a supporter-witness was permitted to sit through the interview).
Prosecutors differed in the extent of their technical competence in operating the recording equipment (several were only too happy to delegate this task to police attendees). There have been some minor teething troubles of a technological nature (machine not switched on properly; correct equipment unavailable).
Interviews commenced with full introductions and a rapport-building phase (which prosecutors stressed is much more than a perfunctory formality), before proceeding to the substance of the interview. In terms of interviewing-style, there was no uniformity of practice between Pilot Areas, or even between individual prosecutors within the same CPS Area. Some PTWI interviews were conceived – and described to witnesses – as informal "chats" (CPS Prosecutor # 3; CPS Prosecutor # 5); whilst at the other end of the spectrum, the style of questioning – if not the atmosphere and relative informality of the occasion – came close to cross-examination (CPS Prosecutor # 4; CPS Prosecutor # 6): "I suppose in a sense, what it is, it's examination-in-chief segueing into cross-examination, but not in a hostile way..." (CPS Prosecutor # 8).
Prosecutors proffered more or less robust interpretations of what it means to ask "probing" questions of a witness. It cannot be entirely discounted that some of this activity might fall on the wrong side of the "witness preparation" line staked out by the Court of Appeal in R v Momodou. (Note: R v Momodou and Limani [2005] 1 WLR 3442, [2005] EWCA Crim 177.) As CPS Prosecutor # 9 put it, "I think it's very tricky. I think that the line between clarifying what a witness says or coaching a witness is very thin, you see". Other respondents, however, were adamant that accusations of "coaching" were misplaced: "the obvious risk will be the suggestion that we're somehow coaching or influencing the evidence with the witnesses. I honestly can't see that…. I've never suggested things to them or… felt even close to… influencing what they were saying; just the opposite in fact. You're almost soaking it up, a bit" (CPS Prosecutor # 6). On this perennially fraught issue, there is much to commend the balanced reflections of CPS Prosecutor # 17, to the effect that "witness coaching will always be a risk – if a lawyer doesn't fear this possibility the potential dangers are likely to be greater. However, the benefits of PTWI should outweigh this risk, generally [speaking]". Along similar lines, CPS Prosecutor # 13 added that witness-coaching was "not a problem in my experience, but an issue we must all be alive to".
Some prosecutors seemed to be well-supported by professional colleagues and administrative assistants, and had developed the practice of inviting CPS colleagues, police officers and counsel to sit in on interviews and participate in subsequent decision-making; others were effectively running PTWI single-handed from start to finish. PTWI-trained prosecutors repeatedly extolled the advantages of being accompanied in interviews by CPS colleagues and other professional staff, including police officers and (where possible) counsel. Even prosecutors who are currently "flying solo" in interviews perceived the potential merits of such assistance. Small wonder, then, that whilst some PTWI-trained prosecutors exuded confidence and were firm advocates of PTWI, others seemed less sure, or felt isolated, ploughing their own furrow in unfamiliar territory.
On balance, the prosecutors had been pleasantly surprised by their initial experiences of PTWI interviewing. Anticipated problems with witnesses had not materialised. Conducting the interview itself had been more straightforward and worthwhile than some prosecutors had initially imagined, and prosecutors quickly gained in confidence as they undertook more interviews. Still, doubts and concerns persisted. As CPS Prosecutor # 5 reflected philosophically, the fact that her first few interviewees turned out to be reasonable people did not preclude "an awkward one or two" in future cases.
Post-interview action
In relation to those interviews that were attended by CPS colleagues and, sometimes, counsel or the police, prosecutors spoke of the immediate aftermath of the interview spontaneously turning into a kind of impromptu case conference: "That happened almost naturally, once we'd had the second interview. We didn't formally sit down… but we just discussed it, because we'd all just listened to it…" (CPS Prosecutor # 1). Such input from professional colleagues was without exception regarded as very helpful. Several prosecutors added that it was convenient for the officer in the case (OIC) to attend the interview (or at least attend CPS offices whilst the interview took place), since "the OIC can also take an additional evidential statement, if necessary, following the interview" (CPS Prosecutor # 16).
Where the case is to proceed, the charging or reviewing lawyer (other than in "self-referrals") is provided with a tape-recording of the interview and a file-note summarising the interviewing lawyer's conclusions. One PTWI interviewer insisted that the relevant reviewing lawyer also be present during the interview, but this was not standard practice in other Areas. Even the perceived "ideal" of the interviewing lawyer and the reviewing lawyer sitting down together to listen to the tape and discussing how to proceed in the light of the interview was widely regarded as impractical. However, formal file-notes may in some cases be augmented by more informal discussions or e-mail correspondence between the interviewing lawyer and the charging or reviewing lawyers.
PTWI prosecutors identified a number of outstanding issues in relation to the provision of transcripts, the full extent of pre-trial disclosure (Note: For example, must material solely relevant to a witness's credibility be disclosed? Should information be retained) and the need for supplementary statements to be taken. These are matters on which practical solutions are currently being improvised at the local level. Further policy guidance may be appropriate (see para iii in Outstanding policy issues below).
Impacts, outputs and case disposal
What, if anything, was gained – by the prosecutor, by the witness, by the public purse, or in terms of more aspirational standards of justice – from the conduct of PTWI interviews in Pilot cases? In order to be able to answer this evaluative question, it is first necessary to clarify what, exactly, the objectives of PTWI might be.
A broad range of potential benefits was mooted in the two consultation papers, (Note: In addition to enhancing the quality of prosecutorial decision-making, PTWI interviewing was expected to facilitate effective cooperation between police and CPS, contribute to witness care, and improve the effectiveness and efficiency of criminal prosecutions.) but improving the quality of prosecutorial decision-making was always at the heart of the initiative. The double-edged quality of PTWI for case progression was acknowledged from the outset:
"[W]eak cases are more likely to be weeded out at an early stage…. while cases that may have seemed weak on paper appear stronger when the witness has been seen in person." (Note: CPS, above n. 1, 7.)
Did PTWI succeed in influencing prosecutorial decision-making?
The direct "outputs" of PTWI interviews in Pilot cases, as described in prosecutors' own self-evaluations, can be divided into two broad categories: (i) the discovery of new information; and (ii) clarifications of witness credibility. Prosecutors often said that conducting PTWI had enabled them to form a better appreciation of the witness's credibility, either in general terms (How will this person come across as a witness in court?) or more specifically in relation to the facts of the instant case and potential weaknesses in the prosecution's contentions.
A threshold condition for PTWI interviewing to influence prosecutorial decision-making is, seemingly, that an interview actually take place. In this connection it is worth recalling that in 31 cases (Note: Plus two cases unfinalised at the census date.) in which PTWI was actively considered no interview was in fact arranged prior to final case-disposition, whilst in a further 13 cases the option of holding an interview was considered but rejected. This logical analysis is subject to one significant qualification. In several cases prosecutors interpreted the complainant's failure to attend PTWI as signalling the complainant's lack of commitment to the prosecution, triggering discontinuance. As CPS Prosecutor # 4 put it in relation to [CASE 6]: "PTWI did what it says on the tin. We were looking to test the alleged victim's commitment to the case and it turned out that there was none. The process revealed that, without the necessity of the interview."
In the majority of Pilot cases discussed during the in situ research interviews with prosecutors, study respondents felt that PTWI had significantly clarified the prosecution's position. This often meant a clear decision not to charge (e.g. [CASE 28]; [CASE 82]), to discontinue (e.g. [CASE 4]; [CASE 14]; [CASE 68]) or to offer no evidence at trial (e.g. [CASE 26]). In a roughly similar proportion of cases PTWI confirmed the prosecutor's inclination to proceed, by resolving any residual doubts or contributing important clarifications (e.g. [CASE 1]; [CASE 22]; [CASE 39]; [CASE 54]). There were even several notable instances in which PTWI "rescued" prosecutions which would otherwise have been abandoned (e.g. [CASE 2]; [CASE 38]). In a third group of cases, however, PTWI failed to clarify the situation, and the prosecutor essentially remained none the wiser about how to proceed (e.g. [CASE 11]; [CASE 18]; [CASE 47]). The following overall assessment could reasonably be taken as emblematic of prosecutors' experiences (to the extent that such reductive generalisations are ever valid):
"[PTWI interviews] do not provide the easy answer I had thought possible, but do assist in establishing the willingness of the witness to attend, ability to be sober and presentable, and to deal with questioning [at court]." (CPS Prosecutor # 13)
Some PTWI interviews were conducted too late in the day to facilitate timely discontinuance; whilst in several other cases prosecutors ploughed on despite seemingly negative indications ([CASE 8] resulting in a guilty plea in these circumstances).
PTWI and final case disposition
This study was not specifically designed to test the impact of PTWI on aggregate rates of conviction or acquittal. Certain patterns can nonetheless be discerned in the CMS-generated data on final case disposition (see PTWI considered and conducted by case outcome at 1 August 2007, below).
Of the 47 Pilot cases in which a PTWI interview was conducted, 17 resulted in convictions on the principal charge (seven by guilty plea), seven in acquittals (five by judicial direction), six were discontinued, and ten were not charged. The remaining seven cases were unfinalised at the census date.
Of the 46 Pilot cases in which a PTWI interview had been considered but not conducted by the census date, seven resulted in convictions on the principal charge (five on pleas of guilty), 22 in acquittals (16 by judicial direction), ten were discontinued, and three were not charged. The remaining four cases were unfinalised at the census date.
The following graphic and table summarise these comparative case outcomes.
Final case disposition at census date (n = 82) according to whether PTWI interview conducted or not conducted
Final case disposition in criminal proceedings is affected by many factors. Discrete causal relationships are notoriously difficult to disentangle, and it is not possible to draw firm inferences from bare statistics. However, one plausible interpretation of these data is that PTWI (when conducted pre-charge) pre-empts discontinuances by allowing the prosecutor to make a more informed decision not to charge in the first instance. It can also be said that PTWI does not appear to have had any negative impact on the rate of guilty pleas or convictions after contested trial. Indeed, PTWI is negatively correlated with acquittals of all kinds, and especially with judge ordered or directed acquittals. This is all consistent with the hypothesis that PTWI helps prosecutors to build up strong cases for trial, whilst rejecting evidentially weak cases at an earlier stage.
Yet this analysis is highly tentative, because no attempt has been made to compare like with like in terms of significant case characteristics. Further research might generate more robust data on the impact of PTWI on case progression. On present information, however, it is quite possible that the impact of PTWI interviewing could be neutral, or even conceivably negative, in the sense that cases which previously would have gone to trial (and perhaps secured guilty pleas, in spite of their evidential or other weaknesses) will be abandoned following PTWI.
At least some of the cases which were discontinued or not charged subsequent to a PTWI would probably have gone to trial without an interview. However, it obviously does not follow that such cases would have resulted in convictions. In several Pilot cases the prosecutor's decision to discontinue could conceivably have been challenged on the basis that there was sufficient evidence to put before a jury (arguably, e.g. [CASE 11], [CASE 14] and [CASE 40]); albeit that there would have been evident pressure points in the prosecution's case. Similar weaknesses do not necessarily prevent other cases from proceeding. Nonetheless, it was evident that decision-making in such Pilot cases involved fine judgement-calls integrating a plurality of conflicting considerations. Reasonable minds might diverge in evaluating the merits of such decisions. In a minority of cases PTWI was being used to allow the prosecutor to be doubly sure that a complainant who had already retracted their statement was truly committed to withdrawing their complaint, so it certainly cannot be said that every ensuing discontinuance was caused by PTWI. In these commitment-testing cases, PTWI either makes no impact on the ultimate outcome or, more rarely, "rescues" an allegation that would otherwise have been irretrievably lost to the system.
PTWI outputs and prosecution objectives
The value of PTWI was mainly expressed by prosecutors themselves – as one would expect – in terms of satisfying the objectives prompting case-selection: filling in gaps in the prosecution case, clearing up unanswered queries, and allowing the prosecutor to make a more informed assessment of how key witnesses might perform in court. However, prosecutors also enumerated a long list of collateral benefits, including:
- improved witness care, keeping witnesses better informed and making their participation in criminal proceedings a somewhat less traumatic or alienating experience;
- more effective liaison with witnesses (including encouraging attendance at court, and making more informed decisions regarding special measures for vulnerable witnesses, where appropriate);
- resource savings, for CPS and for other criminal justice agencies, where PTWI led to no charge, or timely discontinuance;
- enhanced prosecutor commitment to the case, and ultimately greater job-satisfaction;
- generating additional information to inform trial strategy, including reassessing the prosecution's principal contentions, presentation of other evidence, the prosecutor's opening, examining the witness in-chief, awareness of potential impeachment material, etc.;
- the possibility that PTWI will induce a plea of guilty;
- an opportunity to educate police officers about PTWI in particular, and the work of the CPS more generally, which officers will hopefully put to good use in the conduct of their future investigations, witness statement-taking, and related administrative duties;
- a more general opportunity to advertise the role and work of CPS, both to lay witnesses and to other criminal justice professionals and agencies, in accordance with the broader policy objective of raising the Service's public profile and promoting greater awareness of the nature and challenges of its work, and the initiatives being implemented to improve the Service's level of performance in all aspects of its activities.
The potential "outputs" of PTWI are evidently more numerous and extensive than might initially be appreciated, looking at what is – on its face – a rather prosaic procedural innovation. Overall evaluation of PTWI consequently calls for a sophisticated cost-benefit analysis.
Conclusions and recommendations
The Pilot and its evaluation have, for the first time in England and Wales, provided empirical verification that PTWI is capable of delivering a range of benefits, to prosecutors, to victims, to other criminal justice professionals and agencies, and to the higher ideals and aspirations of criminal justice policy, across a range of cases – including prosecutions of serious physical and sexual assault. It is particularly noteworthy that PTWI reinforces existing policies in areas such as witness care, special measures for vulnerable and intimidated witnesses, redoubled efforts to build up prosecutions in cases of rape and domestic violence, and enhancing the public profile of the CPS. The value of PTWI should therefore be viewed in broad terms, taking full account of the range of potential benefits of pre-trial witness interviewing which emerged in the Pilot cases and follow-up research interviews with prosecutors.
This study has also identified a range of potential risks, drawbacks and limitations of PTWI interviewing, albeit none which can be regarded, either singly or in combination, as constituting a decisive objection to appropriately cautious and circumspect extensions of the initiative. The Pilot clearly demonstrates that the potential benefits of PTWI will not be realised in every case in which an interview is considered or undertaken. PTWI is in this sense an inherently uncertain proposition: the prosecutor's additional efforts in interviewing the witness may come to nought. Whether or not the full potential of PTWI is realised in practice partly depends on initial case selection decisions and on the prosecutor's case-specific objectives, but it also depends on many factors on which the prosecutor can exert little or no influence (including the attitude of the witness and tactical decisions by the defence). This situation calls for a balanced overall evaluation, acknowledging potential risks and challenges alongside the demonstrable benefits of PTWI.
Sophisticated risk-benefit analysis
The most elementary risk presented by PTWI, adverted to by several prosecutor-interviewees, is the absence of any explicit legal basis for PTWIs in England and Wales. The leading English case on witness coaching, Momodou, (Note: R v Momodou and Limani [2005] 1 WLR 3442, [2005] EWCA Crim 177.) draws a distinction between permissible "witness familiarisation" and impermissible "witness preparation". Whilst PTWI might more readily be described as "prosecutor preparation" rather than "witness preparation", what takes place in particular interviews might conceivably fall under the general rubric of better preparing the witness to give their evidence at trial. Clarification of the legal basis for PTWI would therefore be welcome.
Beyond basic questions of legality, a catalogue of other potential risks, drawbacks and limitations of PTWI interviewing was identified by prosecutors who participated in the Pilot. This roster includes:
- the irremediable risk of being accused of witness coaching in any particular case (with the complicating prospect of prosecutors themselves becoming witnesses in the case);
- the possibility that the prosecutor will in fact go too far in questioning the witness and consequently jeopardise the prospects for a successful prosecution;
- the possibility that the witness (or their chosen supporters) will refuse to co-operate with PTWI; or will turn aggressive; or will pose other security risks to CPS staff or property;
- the risk that PTWI may impose an additional traumatic experience on complainants and witnesses;
- the general risk that PTWI may create an additional procedural hurdle for complainants to surmount, effectively "setting up the prosecutor as judge and jury" and potentially exacerbating problems of attrition in already-hard-to-prosecute cases, including rape and domestic violence;
- the more specific risk that PTWI may generate additional impeachment material making it more difficult to secure convictions in relation to certain types of complainant, particularly those with a history of making allegations/disclosures of sexual assault or domestic violence. In this way, PTWI could pose risks to future prosecutions, as well as potentially jeopardising the instant case;
- problems surrounding disclosure (including irregular disclosure of material subject to public interest immunity; less than full disclosure by prosecutors; exposure of complainants and witnesses to criminal intimidation and reprisals).
This research sheds significant light on each of these issues, albeit without producing definitive conclusions. Some of these risks – including the possibility of attracting accusations of witness coaching – seem inherent to the very notion of PTWI interviewing, as several prosecutors informed us. Steps have been taken to minimise the risk, prominently including tape-recording interviews, but the possibility of encountering criticism from the defence must presumably be accepted as part-and-parcel of an adversarial system. In [CASE 47], defence counsel waited until the day of trial to challenge PTWI as an abuse of the court's process, leading to an unanticipated adjournment. Unfortunately, this prosecution was subsequently abandoned, owing to the ill-health of the accused, so that the nature of defence counsel's objection was never spelt out or tested in court.
A further complication, which no amount of empirical research could finally resolve, is that any list of "potential risks, drawbacks and limitations" ultimately boils down to normative moral and political choices. The Pilot cases clearly demonstrate that PTWI is sometimes distressing for complainants, and even for other non-victim witnesses: several Pilot-study interviewees broke down in tears. But what follows from that? It can plausibly be maintained that such distress is a reasonable price to pay for building up more effective prosecutions, and even, on balance, benefits the witnesses themselves, since PTWI gives them access to additional information and support and – in any event – they will face much worse in court if the case goes to trial.
The prospect that PTWI might "set the prosecutor up as judge and jury", and more particularly exacerbate the problem of attrition in rape and domestic violence prosecutions, must rank alongside the spectre of witness-coaching as one of the most controversial aspects of the initiative. The Pilot exercise has clearly demonstrated that domestic violence and sexual assault allegations are quite likely to constitute a significant proportion of the PTWI caseload. The Pilot included domestic violence cases that probably would not have proceeded to trial without the benefit of PTWI; and a far greater number of rapes and domestic violence allegations which were discontinued, or not charged at all, subsequent to PTWI. There were also cases which would have proceeded anyway, but in which PTWI enabled the prosecution to be better prepared for trial.
These suggestive findings must be set against the backcloth of existing prosecutorial practice. Prosecutors already routinely take decisions not to charge, or to discontinue cases where charges were initially laid. It is therefore somewhat misleading to charge PTWI with "setting up the prosecutor as judge and jury", as though prosecutors were not already taking case-dispositive decisions. The pertinent question is whether PTWI improves the quality of decision-making, which at present is normally an exclusively paper-based exercise. PTWI gives prosecutors access to additional information not available to them in the ordinary run of cases. Secondly, it should be understood that PTWI, as currently conceived and implemented in the Pilot, occurs far too infrequently to make any discernable impact on overall attrition rates for any offence category. PTWI is capable of affecting attrition only marginally, on a case-by-case basis. Important though this may be for individual complainants and suspects, holding an occasional PTWI cannot conceivably affect aggregate attrition rates, for better or worse. (This situation would change if, for example, PTWI became mandatory for designated offence categories or types of witness.) Furthermore, PTWI could function as an antidote to attrition in individual cases, in the sense that a better prepared prosecution is, all else being equal, more likely to succeed at trial. Whether the additional opportunity afforded by PTWI to review and reject potential charges or prosecutions should, in the final analysis, be regarded as desirable or problematic remains to be determined through qualitative evaluation of the particular allegations, charges and prosecutions in question. After all, informing decisions not to charge and timely discontinuance have been presented as explicit objectives of PTWI.
Overall, these findings reiterate the need for a balanced approach, in the first instance by policy-makers, and subsequently – if the initiative continues – by individual prosecutors empowered to conduct PTWI interviews. The prospects for successful implementation will be greatly enhanced by candid recognition of PTWI's inescapable risks and limitations, which can then be weighed even-handedly against its tangible benefits.
Practical steps towards successful implementation
If the decision is taken to extend PTWI, wider implementation must be regarded as an on-going process. A range of practical steps and sensible precautions, which might significantly improve the chances of successful implementation, emerged from this study. Such proposals include:
- on-going training and support for PTWI interviewers (including "refresher courses", updates, and opportunities to pool experience, innovative approaches, and emergent best practice with CPS colleagues on a rolling basis);
- ensuring adequate office time for prosecutors and appropriate administrative support to facilitate PTWI interviewing (including scheduling to permit participation of caseworkers, reviewing lawyer, police and counsel, as appropriate);
- developing effective liaison around PTWI with other criminal justice professionals, especially the police, counsel and the judiciary, to promote co-operation and effective inter-agency working (e.g. through case referrals and attendance by police and counsel at interviews, where appropriate);
- reviewing the nature of initial contacts with witnesses, the suitability of designated interview rooms and waiting facilities (also for witness supporters), and the practical arrangements for witness liaison and escort on the day of the interview. Existing good practice should be captured and disseminated throughout the Service.
In view of the inherent risks and uncertainties attending PTWI and any contemplated national roll-out, it may be prudent to undertake continuous monitoring of the initial phases of implementation, possibly augmented by periodic follow-up reviews to ensure that prosecutorial practice remains faithful to the original motivation behind PTWI. For example, PTWI should be directed towards building up successful prosecutions in rape and domestic violence (Note: See Louise Ellison, 'Promoting Effective Case-Building in Rape Cases: A Comparative Perspective' [2007] Crim LR 691.) cases rather than further exacerbating problems of attrition in these challenging proceedings. (Note: Cf. Laura McGowan, 'Prosecution Interviews of Witnesses: What More will be Sacrificed to "Narrow the Justice Gap"?' (2006) 70 Journal of Criminal Law 351.)
Outstanding policy issues
Beyond the threshold policy question of whether to extend PTWI at all, a number of important subsidiary issues remain to be addressed, particularly in relation to (i) prosecutor selection; (ii) tape-recording; (iii) disclosure; and (iv) the definition of "new evidence" requiring supplementary witness statement(s).
- Prosecutor selection: If PTWI is extended, should it continue to be limited to small, hand-picked groups of trained specialists or extended more broadly, perhaps ultimately to all Crown Prosecutors (or all Crown Prosecutors of an appropriate level of seniority)? The prosecutors interviewed in this study were divided on this critical issue. Some thought, and for a variety of reasons, that all Crown Prosecutors should be trained to conduct PTWIs "in their own cases". Others felt that PTWI interviewing would remain a relatively specialist activity for the foreseeable future, either because it requires professional competences and interpersonal skills that not all prosecutors would be able or inclined to cultivate, or because, pragmatically speaking, sufficient resources would never be forthcoming to fund comprehensive national training. A third view was that, by analogy with Higher Courts Advocacy training, all prosecutors of sufficient seniority should undergo PTWI training. Once trained, those prosecutors with a particular interest or flair for witness interviewing would probably take on the lion's share of PTWI work in their team or office, leaving colleagues who preferred advocacy or paperwork to concentrate on tasks more sympathetic to their own particular talents.
Regardless of the ultimate policy decision on the appropriate extent of PTWI training, the Pilot has shown how PTWI interviewing affects all prosecutors, whether as interviewers themselves, or as sources of referrals at the pre-charge or file review stages. It is therefore essential to explain the rationale, scope and function of PTWI to all prosecutors. Moreover, repeated efforts need to be made to "sell" PTWI to charging and reviewing lawyers in order to maintain an adequate flow of appropriate case-referrals. Successful implementation of PTWI requires an on-going campaign, waged simultaneously on several fronts, to win prosecutors' hearts and minds over to the idea and practice of PTWI interviewing. - Tape-recording: After some initial equivocation, the decision was taken to tape-record all PTWI Pilot interviews. Although occasional dissenting opinions were expressed by prosecutors interviewed in this study, the clearly prevailing view was that tape-recording is an essential protection for prosecutors to demonstrate that nothing untoward has transpired during an interview (albeit that this is a double-edged sword if material harmful to the prosecution also emerges).
From a principled perspective, tape-recording seems an indispensable and relatively inexpensive safeguard for the prosecutor and the integrity of the judicial process. In the absence of an unimpeachable record of what has passed between prosecutor and witness, prosecutors might encounter the same kinds of accusations of coaching or "verballing" witnesses that used to be levelled against police officers prior to the introduction of tape-recorded PACE interviews. (Note: Cf. the Royal Commission on Criminal Justice's observation that '[b]y general consent, tape recording in the police station has proved to be a strikingly successful innovation providing better safeguards for the suspect and the police officer alike': RCCJ, Report, Cm 2263 (HMSO, 1993), 26.) Although prosecutors, as officers of the court, should merit the confidence of judges and defence lawyers, it seems gratuitous to run even a remote risk of accusations of impropriety when a complete remedy is so obviously at hand.
Were tape-recording of PTWI to be withdrawn, however, it would become essential for the protection of both witness and prosecutor that interviews be attended by a least one other criminal justice professional in addition to the interviewing lawyer. - Disclosure: It does not necessarily follow that all tape-recordings of PTWIs must automatically be disclosed to the defence (subject to public interest immunity considerations). Automatic disclosure was nonetheless adopted for the PTWI Pilot, in order to underscore the transparency of this unfamiliar and predictably controversial procedural innovation. There is an argument for bringing PTWI interviews into line with the general disclosure regime of the Criminal Procedure and Investigations Act 1996. This might limit the extent to which material relevant only to the credibility of the witness forms part of primary disclosure to the defence. On the other hand, the credit/issue distinction is often tenuous in the types of case in which PTWI is conducted (e.g. "one-on-one" allegations, where the issue essentially boils down to whether the complainant or the accused should be believed). In view of the lingering controversy surrounding PTWI in many quarters, it might be thought that a "belt and braces" approach favouring automatic full disclosure remains the safest course for the foreseeable future. At any rate, this is an area in which more concrete policy guidance might usefully be provided to prosecutors.
- Supplementary witness statements: A final area of practical difficulty which emerged from the Pilot cases concerns the concept of "new evidence" and the circumstances in which the police should be instructed to take follow-up statements from the witness. (Note: Paragraph 8.2 of the PTWI Code states that: 'Where, in the course of an interview, the witness provides further evidence which is material to the case, a further witness statement should be taken (or visual interview conducted) by a police officer and served upon the defence'.) In the broadest sense, PTWI is always directed towards securing new information (qua something that the prosecutor did not already know before conducting the interview), but not all such information constitutes fresh evidence in the technical legal sense. Doubtless the distinction is ultimately a matter of degree. But in the absence of more concrete guidance, front-line prosecutors will draw their own conclusions and distinctions, and this may not be conducive to an acceptable degree of uniformity in prosecutorial practice. Policy guidance might therefore usefully clarify the circumstances in which the PTWI interview has revealed "new evidence", such that it would be appropriate to take follow-up police statements from the witness.
Spreading the message and winning the argument on PTWI
Criminal procedure reform cannot sensibly be evaluated in isolation from other parts of the criminal justice process. Although first-and-foremost a CPS initiative, PTWI also affects the work of police, prosecution counsel, defence lawyers and trial judges. Pilot cases and research interviews provide ample confirmation of the capacity of the police, counsel and judges to contribute to the successful implementation of PTWI. But they also reveal pervasive ignorance of the Pilot and its objectives amongst fellow criminal justice professionals. The campaign for hearts and minds clearly must not stop at the doors of CPS offices.
Unless prosecutors and other criminal justice professionals and agencies are won over to the traditionally unfamiliar idea of PTWI interviewing, and relevant prosecutors are furnished with adequate training, on-going support and scheduled office time to conduct witness interviews, there is a genuine risk that following ostensibly "successful" national roll-out PTWI interviews will effectively disappear from view. Prosecutors will have been equipped with an additional and highly versatile tool of their trade, which is then hardly ever taken out of its toolbox. The best way to insulate PTWI from "withering on the vine" in this way would be to make the benefits of PTWI interviewing so self-evident to prosecutors that they will want to conduct interviews whenever they can. A less satisfactory alternative might be to make designated prosecutors responsible and accountable for conducting PTWIs, or to task managers with ensuring that PTWIs occur in their local offices on a regular basis. Such bureaucratic mechanisms could potentially impact adversely on the quality of case-selection, by constraining prosecutors to satisfy arbitrary quotas for PTWI interviewing.
The Pilot and its evaluation have been experienced as a steep learning curve by everybody who has participated in it, from front-line PTWI prosecutors and office managers, to CPS Policy Advisors and their consultant-researchers. In terms of its pedagogic value, the PTWI Pilot has already been immensely valuable, quite apart from its ultimate contribution to policy-making, whatever that might be. This accumulated experience should be widely disseminated in appropriate formats and fora, both within and beyond CPS, to policymakers and academic researchers and scholars, as well as to the public at large.
PTWI considered and conducted by case outcome at 1 August 2007
Notes: (a) denotes tentative classification owing to incomplete information.
PTWI considered but rejected (pro tem)
- Un-finalised at 1 Aug 07 - 2
(Cases 60, 85) - Not charged/NFA - 0
- Discontinued - 4
(Cases 17, 44, 71, 84) - Acquittal - Judge-ordered/directed - 3
(Cases 9, 23, 46) - Acquittal - by fact-finder - 1
(Case 34) - Conviction - on guilty plea - 3
(Cases 13, 70, 72) - Conviction - by fact-finder - 0
- TOTALS n - 13
PTWI expected/elected, but not (yet) held
- Un-finalised at 1 Aug 07 - 2
(Cases 19(a), 41) - Not charged/NFA - 3
(Cases 29, 78, 86) - Discontinued - 6
(Cases 6, 31, 50, 68, 77, 91) - Acquittal - Judge-ordered/directed - 13
(Cases 5, 15, 24, 27, 30, 33, 48, 49, 51, 63 [bind over], 73, 75, 79) - Acquittal - by fact-finder - 5
(Cases 16, 21, 74, 81, 87) - Conviction - on guilty plea - 2
(Cases 8, 76) - Conviction - by fact-finder - 2
(Cases 45, 88) - TOTALS n - 33
PTWI conducted
- Un-finalised at 1 Aug 07 - 7
(Cases 47, 52, 53, 54, 65, 80, 90) - Not charged/NFA - 10
(Cases 11, 18, 28, 40, 55, 59, 69, 82, 92, 93) - Discontinued - 6
(Cases 4, 14, 32, 36, 56, 58) - Acquittal - Judge-ordered/directed - 5
(Cases 1, 2, 26, 64, 66 [p'd guilty lesser counts]) - Acquittal - by fact-finder - 2
(Case 10, 22) - Conviction - on guilty plea - 7
(Cases 7, 20, 35, 37, 38, 39, 61) - Conviction - by fact-finder - 10
(Cases 3, 12, 25, 42, 43, 57, 62(a) 67, 83 [p'd guilty on other counts], 89) - TOTALS n - 47
TOTALS n
- Un-finalised at 1 Aug 07 - 11
- Not charged/NFA - 13
- Discontinued - 16
- Acquittal - Judge-ordered/directed - 21
- Acquittal - by fact-finder - 8
- Conviction - on guilty plea - 12
- Conviction - by fact-finder - 12
- TOTALS n - 93
PTWI by principal charge
PTWI considered but rejected
- rape - Cases 34, 85
- other sexual assault - 0
- s.18 GBH with intent - 0
- kidnapping/false imprisonment - 0
- robbery/agg. burglary - 0
- threats to kill - 0
- s.20 wounding/s.47 ABH - Cases 9, 13, 46, 70
- harassment/threats & ib - Case 71
- affray - Case 72
- common assault - Cases 17, 44, 84
- burglary/theft - Case 23
- pre-charge - Case 60 [sex assault]
- TOTALS n - 13
PTWI elected, but not held
- rape - Cases 24, 73, 74, 81
- other sexual assault - Cases 21, 31, 33, 45
- s.18 GBH with intent - Cases 8, 86
- kidnapping/false imprisonment - Cases 27, 88
- robbery/agg. burglary - Case 75
- threats to kill - 0
- s.20 wounding/s.47 ABH - Cases 5, 15, 16, 63, 77, 87
- harassment/threats & ib - Cases 19, 30, 49
- affray - 0
- common assault - Cases 6, 48, 50, 51, 76, 79
- burglary/theft - 0
- pre-charge - Cases 29 [racial abuse]; 41; 68 [sex assault]; 78 [harass.]; 91
- TOTALS n - 33
PTWI conducted
- rape - Cases 4(x2), 12, 14, 22, 38, 54, 64, 83
- other sexual assault - Cases 2, 47, 55, 57(x3), 65
- s.18 GBH with intent - Cases 3, 26, 61
- kidnapping/false imprisonment - Cases 1, 25, 42, 66
- robbery/agg. burglary - Cases 7, 89
- threats to kill - Case 10
- s.20 wounding/s.47 ABH - Cases 20, 39, 80
- harassment/threats & ib - Case 67
- affray - 0
- common assault - Cases 32, 35, 36, 56, 58
- burglary/theft - Case 37
- pre-charge - Cases 11, 28 [assault]; 18, 43, 52(x2), 53, 59, 92 [rape]; 40, 69, 90, 93 [sex assault]; 62 [blackmail]; 82(x3)
- TOTALS n - 47
TOTALS n
- rape - 14
- other sexual assault - 9
- s.18 GBH with intent - 5
- kidnapping/false imprisonment - 6
- robbery/agg. burglary - 3
- threats to kill - 1
- s.20 wounding/s.47 ABH - 13
- harassment/threats & ib - 5
- affray - 1
- common assault - 14
- burglary/theft - 2
- pre-charge - 20
- TOTALS n - 93
