Witness Statements and Memory Refreshing
- Reading statements before trial
- Prejudicial or inadmissible evidence in witness statements
- Memory refreshing whilst giving evidence
The CPS is committed to the proper care and treatment of witnesses as set out in the Casework Quality Standards (CQS).
The CPS has a duty to ensure that cases are prosecuted in a way that is fair to all. Prosecutors and paralegals should therefore ensure that witnesses have been offered an opportunity to view their statement to refresh their memory before giving evidence.
Although witnesses are not entitled as of right to see a copy of their statement before the day of trial, there is no general rule that prohibits a witness from seeing their statement before trial. Many courts have approved the practice of allowing witnesses to see their statements prior to trial.
It is good practice to inform defence if a witness has seen their statement some time before giving evidence (as opposed to the day of trial). Advance memory refreshing may affect the weight that can be attached to the witness’ evidence due to the following reasons:
- Risk of collusion between witnesses
- A witness who has made a false statement may try to ensure that his or her evidence in court is consistent with the false statement
- A witness may try to "learn" the content of their statement and create a false impression of their truthfulness
- The statement may be lost or may end up in the wrong hands;
- The defence may seek to undermine the credibility of a witnessby cross-examining on the basis that one or more of these events (i.e. collusion) has occurred.
In light of the potential risks outlined above a witness should preferably be given a copy of their statement on the day of trial. Only in exceptional circumstances should a witness be given a copy of their statement days or weeks before the trial begins. In most cases it is sufficient to allow the witness to view their statement. If the statement is particularly long or complex it may be appropriate to provide a copy. A prosecutor can refuse to provide a witness a copy of their statement if there is reason to believe that the request is made for reasons other than a desire to give honest and accurate evidence.
Prosecutors are referred to the Speaking to Witnesses at Court guidance which provides clarity to CPS advocates about how they are expected to support witnesses in giving their best evidence in court. It emphasises the need for advocates to ensure witnesses are properly assisted at court and prepared before giving their evidence. This includes encouraging witnesses to refresh their memory from their witness statement.
Sometimes witness statements may include material which may prejudice a fair trial if a witness makes reference to it when giving evidence. The prosecutor should clarify to the in advance if their statement contains information that the witness should not mention when giving evidence and explain that they will not ask questions about this content. Awareness of prejudicial material will reduce the chances of the witness inadvertently referring to it or being confused or surprised when the matters are not mentioned in examination-in-chief.
The prosecutor should examine the witness in such a way that avoids the need for the witness to refer to any prejudicial material. Nonetheless, a witness may deliberately or inadvertently disclose prejudicial or inadmissible material while giving evidence. If in such an event the defence applies to discharge the jury, the prosecution advocate must consider the impact the disclosure is likely to have had on the fairness of the trial and respond accordingly. If the prosecutor considers that a fair trial no longer is possible, they should support the application and seek a retrial if the judge discharges the jury. Where the prosecutor considers that a fair trial can still take place, they should resist the application. If the Judge nonetheless grants the application and discharges the jury, the prosecutor should seek a retrial.
Whether done deliberately or inadvertently, the disclosure of prejudicial information should not be considered to have any implications about the truthfulness of the witness's evidence.
Prosecutors should ensure that witnesses are aware of the provisions on memory refreshing from a document that they have made or verified at an earlier time in section 139 of the Criminal Justice Act 2003 (CJA 2003). The witness may refresh their memory if they state in their oral evidence that the statement records their recollection of the matter at an earlier time and that their recollection is likely to have been significantly better when the statement was made than when the witness is giving evidence.
The CJA 2003 does not expressly purport to abolish the common law in relation to memory refreshing but should be read in conjunction with the common law. Many of the authorities built up at common law continue to have relevance.
Section 139 also applies to a transcript of a sound recording. Sound recording is not defined in this part of the Act. The CPD V Evidence 18C covers memory refreshing of visually recorded interviews and the considerations therein can be considered to apply to the sound recording contained in a video, DVD or digital file. Also, refer to Hearsay elsewhere in the Legal Guidance.