Interviewing Witnesses for the Other Side
Whether or not a witness has been interviewed or called as a witness by the other side, the Prosecution and Defence:
- May interview each other's witnesses or prospective witnesses; and
- May take statements from those witnesses.
However, each party must ensure that no attempt is made to persuade the witness to change his/her story.
The Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused, made under Section 21A of the Criminal Procedure and Investigations Act 1996 (‘the Act’), contains guidance to police officers and other persons charged with the duty of investigating offences in relation to interviews of witnesses notified by the accused (either to support an alibi or otherwise).
In summary, where it is intended to interview a witness for the other side, who has given evidence or who it is known will be giving evidence, the witness must be asked if she or he consents to being interviewed and informed that:
- An interview is being requested following his or her identification by the accused as a proposed witness;
- She or he is not obliged to attend the proposed interview;
- She or he is entitled to be accompanied by a solicitor; and
- A record will be made of the interview.
The accused or the accused’s representatives must be notified:
- That the investigator requested an interview with the witness;
- Whether the witness consented to the interview; and
- If the witness consented to the interview, whether the witness also consented to a solicitor attending the interview on behalf of the accused, as an observer.
In Rochford  1 WLR 534, the Court of Appeal confirmed that the combination of the provisions concerning notification of details of Defence witnesses and the Criminal Procedure Rules have, or at least are designed, to abolish trial by ambush.
In a fast track case, under Section 51 Crime and Disorder Act 1998, where a witness gives oral evidence for the Prosecution in the course of an application to dismiss the Prosecution's case, it will only be on very rare occasions that a defending solicitor can properly interview witnesses. This will only be permissible where the defending solicitor feels that the witness has made a genuine mistake and that there are matters which ought to be put to the witness.
The right to interview Defence witnesses after they have given evidence should only be exercised with the approval of a CPS Unit Head, or designated officer.
The police should be discouraged from interviewing Defence witnesses after the witnesses have given evidence.
If the Defence wish to interview Prosecution witnesses who are police officers, they cannot object to a senior police officer being present. It is preferable if the senior officer at the interview has no connection with the proceedings in question.
It is a matter for the Chief Constable or the CPS (Unit Head or designated officer), to determine the conditions for the interviews, provided they are reasonable.
Where a formal alibi notice, pursuant to Section 6A(2) of the Act, has been given:
- Before interviewing an alibi witness, the police should give the solicitor for the Defence a reasonable opportunity to be present; or
- If the Defendant is unrepresented, it is not appropriate for the Defendant to be present at the interview of the alibi witness. However, the police should try and arrange for an independent person to be present.
- The solicitor present at the interview of the alibi witness is primarily an observer to lessen the risk of allegations that the police acted improperly. He/she has no right to interfere with the interview if there is no solicitor-client relationship with the witness.