03-11.1 Statement Taking_da0a9b6328234106180830d0fa828867.pdf

OFFICIAL Unit 3 Lesson 11.1...

OFFICIAL Unit 3 Lesson 11.1 Statement Taking Lesson Aim: The learner will be able to note witness statements in the operational environment and compile operational statements Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- As a Police Officer you will attend many different incidents on a daily basis and to 1. Explain why we require statements understand what has happened you will have to speak to people who were involved, either as the victim or as a witness. All the 2. State disclosure obligations in respect of information that they can supply regarding the witness statements incident should be recorded to give you a clear understanding of what has taken place. Through practice you will be able to develop 3. Identify the content and form required and enhance your statement taking skills. The for National Standard Statements statement you obtain from a witness should contain all the information the witness offers, 4. Describe the different types of witnesses whether it points towards the guilt or you may encounter innocence of a named individual. In addition, you will have to ask probing and at times personal questions to obtain a complete and 5. State the considerations in relation to detailed recollection of the event from them. Child witnesses and Vulnerable The police have no power to compel a Witnesses witness to give a statement but it is the moral obligation of every law-abiding citizen to give the police what information they can. 6. State the signs of trauma in witnesses Most members of the public are willing to assist and will allow the police to question them so that a statement may be obtained. You will however encounter witnesses who are reluctant or hostile and this subject will be discussed later in this lesson note. Note:- The submission of operational Police statements (statements from Police Officers) will be fully covered in the Operational Statements lesson. 1 th Amended 9 April 2024 v.7 OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Why Do We Require Witness Statements? The main reasons for obtaining a witness statements are:- It is the duty of the police to enquire into crimes or offences. The witness statement enables the police to record the information held by a witness regarding what they have experienced. By obtaining this information from all witnesses concerned the police can build an accurate picture of what has occurred. It will show whether or not there is sufficient evidence to prove if a crime has in fact been committed and if so, potentially who is responsible. A good quality statement may also bring to light investigative lines of enquiry. Should the incident be examined in court at a later date, the witness statement sets out what the witness will be prepared to say in evidence. Equipped with a copy of the witness statement, the prosecutor questions the witness and the evidence of the witness is thus placed before the court by the answers given. Therefore, the witness will not be expected to repeat in court the exact words they used during the police interview. Why Statements Must Be Accurate It is a fundamental and obvious requirement that statements should be compiled as accurately as possible. There are specific reasons why such accuracy is critical, not least because witnesses often do not adhere to their original statements. Case Law requires that ALL witness statements are routinely disclosed to defence agents. This is to ensure a fair trial and allows defence agents to make a more informed decision as to how their client should plead. It is essential that the statement provided to the court reflects the words used by the witness and therefore the statement written in the Police Officer's notebook or mobile device should mirror that provided to the Procurator Fiscal. A contemporary High Court case was abandoned as a result of a written statement in a Police Officer's notebook being different to the typed copy produced in court. Another reason why accuracy is important is following the decision in the case of Jamieson v HMA 1994. Here, the witness was unable to remember the contents of her statement but she acknowledged that the statement she made to a Police Officer at the time was true. 2 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Evidence was then led from the Police Officer who noted the statement regarding its content, therefore allowing the witness’ evidence to be admissible. As a consequence of the above case, if the statement is recorded in a document, the officer who took the statement can speak to noting the statement and thus provide the necessary link. An earlier statement can be put to a witness during a trial should their evidence differ from what is contained in that statement. As such, accuracy and authentication in the completion of witness statements is vital. The amount and quality of information which can be collated by you, the investigator, can be influenced by your attitude towards the witness and vice versa. You should be capable of accurately assessing the witnesses’ character and temperament before extracting the relevant information. Disclosure Obligations The National Standard Statement (NSS) form clearly defines where information is ‘disclosable’ or ‘non-disclosable’. Officers must be aware that where it states information is ‘disclosable’ then any text or information recorded will be shared with the defence. The statement obtained should include all information available to the witness, even if it includes evidence favourable to the defence. Full disclosure in fairness to the suspect and witnesses is vital for a fair trial. These two types of evidence are known as:- Inculpatory - evidence which points to the guilt of the accused. Exculpatory - evidence which points to the innocence of the accused. 3 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking National Standard Statement When an accused person pleads not guilty to an offence the Procurator Fiscal will usually require the reporting officer to submit full statements following on from the submission of the SPR. The full statements must contain all the information relating to the incident or offence provided to the Police by all the witnesses. For uniformed officers, these statements are generally noted from witnesses in an officer's notebook/ mobile device, however, for transmission electronically to the Procurator Fiscal these require to be appended onto a “National Standard Statement” (NSS) form (See Appendix A). This format has been approved nationally for the submission of statements electronically to the COPFS, in order to support the disclosure processes and to ensure consistency of practice and standards. This format is required to be used whether it is that of a civilian witness or a Police Officer and whether or not the case is at summary or solemn level. Content and Form An important characteristic of the NSS is that it has non-disclosable sections (not automatically disclosed to the defence). The example at Appendix A contains details of the specific information required for completion of this document. Section 1 - Personal Details (Disclosable) This section contains the personal details of the person making the statement. The ‘disclosable address’ may be the address at which the witness can normally be contacted. Therefore a “care of” address must be used in this field. This should be detailed as ‘care of Police Service of Scotland’, and should not be abbreviated to PSoS. Alternatively, a business address may be used if appropriate, for example where there has been a shoplifting from a supermarket and the witness is an employee. 4 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Section 2 - Provenance (Disclosable) This section provides the Procurator Fiscal with the detail of where, when, by whom and in what format the witness statement was noted as well as how it may have been authenticated e.g. has it been read over and signed by the witness? Section 3 - Statement (Disclosable) This free-text section is where the main statement is entered and should be as far as possible, the witnesses actual words. Section 4 - Confidential Material This section contains information that the prosecution is justified in withholding from the defence but which may be of use in some other way. This may include such sensitive/personal information as an alternative address or identity, or alternative methods of getting in touch with the witness. Where a ‘care of’ or business address has been used in Section 1, the home address must be entered here. Section 5 - Dates of Unavailability Witness inconvenience will be minimised if the prosecution knows when witnesses may not be available to attend court. Any known dates of holidays or other unavailability in the following 12 months should be entered in this section. Section 6 - Other Confidential Information This section may include sensitive information of a medical, sexual or personal nature or explain expressions of opinion or the background to any previous convictions. Key Information KI Information on the views of a child and/or their non-offending parent or guardian should be included in the SPR and recorded in the non – disclosable section of the relevant witness statement if it contains sensitive information in line with current disclosure obligations. 5 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking NSS and Criminal History System The Crown has a duty to disclose all previous convictions and outstanding charges for witnesses that the Crown intends to call at trial. As a result of this, the Criminal History System (CHS) reference number for a witness, if applicable, should be included. Defence agents can request a copy of a witness’ previous conviction or outstanding cases. Note:- Check your local procedure in relation to recording CHS numbers for Expert witnesses. General Considerations It is important that care should be taken to ensure that proper particulars are noted. The spelling of both surnames and forenames can vary, so confirm with the witness the proper spellings, e.g. Lesley and Leslie, Graham and Graeme, etc. When statements are to be taken from a number of witnesses to the same incident they should be taken individually out with the presence of the other witnesses to prevent the evidence of any single witness being influenced by what they have heard other witnesses say. When interviewing a witness a methodical structure should be adopted. The model for interviewing witnesses/victims or suspects used in Scotland is the PRICE model. This is covered in further detail in the Witness Interview Training and Suspect Interview Skills lessons. A civilian witness statement is a product of a witness interview. As such, the interviewing Officer must ask the right questions in order to elicit sufficient, relevant information. It is appreciated that a statement will rarely be a completely verbatim account of everything the witness has said. This is often because the witness will be unaware of what information is required and they can occasionally provide information in an incoherent or non-chronological manner. They may also provide a lot of extraneous information. It is for the interviewing officer to make sense of the information the witness provides and, as far as possible, compile a coherent statement from this. However, it is important that the statement does contain as much as possible, the actual words of the witness. Where critical words of a witness are noted, e.g. what the accused may have said when committing an offence, this should be indicated in quotation marks. Remember, the statement must also include any exculpatory evidence provided by the witness. 6 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking On completion of the statement, this should be read over to or by the witness and they should be asked to sign each page to confirm they are agreeing the content is accurate. Content of Statements Statements are written in first person (e.g. I saw, I did etc.), unlike third person for SPRs. Statements should be noted in chronological order and as far as possible in the witness' own words. Each production, be it a document or label production, must be incorporated in the relevant witness statement and highlighted by indentation. It should clearly be stated if the witness has signed a production label. Productions must be referred to by the witness and should be set out in the following manner:- I found the LABEL NO. BLACK HANDLED KNIFE from the kitchen floor. Each statement should conclude with a declaration as to whether or not the witness can identify the accused. This will be a critical factor in determining whether there is sufficient evidence to proceed and whether or not to hold an identification parade in respect of that witness. Any doubt or qualification regarding identification should be stated. Remember, where possible a description of any suspect/accused should always be noted in as much detail as the witness can provide. Each statement should be concluded with the following declaration:- “I can confirm that this is a true and accurate record.” 7 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Turnbull Rules - ADVOKATE In the English case of R v Turnbull and others (1976), The Court of Criminal Appeal gave guidance as to the matters to be considered in cases where identification is an issue. They stated that the basis of a good statement for an eye-witness account of an incident was to include the following matters:- Amount of time in total that the suspect was under observation by the witness Distance between the witness and the suspect during the observations Visibility at the locus at the material time Observation in any way impeded at any time Known to the observer. Was the suspect known personally/ seen before Any reason for remembering the person they saw (distinguishing features, etc.) Time elapsed between observation by the witness and subsequent identification to the police Error in description. Was there any material discrepancy between the description of the accused given to the police by the witness and their actual appearance? The Fiscal may require the submission of additional statements where any of the above matters have not been adequately dealt with in the statements originally submitted. 8 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Types of Witnesses The Helpful Witness Most members of the public are happy to assist the police with any enquiries and will have no qualms about providing a statement. They will provide you with as much information as possible and will spend the necessary time providing the statement. However, you should be mindful that some witnesses will be eager to please and therefore, should be encouraged to provide only their own account. The Reluctant Witness There may be occasions when a witness will either refuse or be reluctant to give the police a statement. The police have no power to require a person to provide a statement. However in some circumstances under the provision of Section 13 of the Criminal Procedure (Scotland) Act 1995 a person can be required to provide their name and address. (This is covered in the Requiring Person’s Particulars lesson). When you encounter a reluctant witness your communication skills will be put to the test. A key consideration is trying to ascertain the reasons as to why a witness may be reluctant to provide a statement e.g. fear of attending court, fear of retribution, fear of incriminating a relative or friend etc. If you can ascertain the reasons for the witnesses’ reluctance, you may be able to take steps to alleviate any fears or concerns. Even if a witness declines to provide you with a statement, the Procurator Fiscal may precognosce them or compel them to provide evidence (precognition in Scots Law is the practice of taking a factual statement from witnesses by both prosecution and defence before trial). This is no longer a common practice and would only be done in the most serious of cases. The Lying Witness On occasions where you have reasonable cause to believe that a witness is not being truthful, it may be advantageous not to intervene too soon but instead allow them to continue. Very often one lie will lead to another until their lies have confused their account. Any information provided by the witness can subsequently be challenged, but this must be done in an appropriate manner and in the right circumstances. In cases where there is evidence to suggest that the witness is committing a crime, such as attempting to pervert the course of justice or wasting police time, then you must tread carefully, as their status may change from that of a witness to that of a suspect. 9 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking There could be a number of different reasons as to why the witness may lie, for example they may have been bribed or threatened in some way. If you are considering challenging any information the witness has provided to you, then this should be done in a pre-planned, methodical and systematic manner. Differing Versions It is not uncommon for there to be discrepancies between the accounts of different witnesses. As you would expect, these accounts may vary dependent on each individuals perspective (consider the Turnbull rules/ ADVOKATE mnemonic). As such, it is often worth seeking clarification from your witness on any points of contention. This needs to be done carefully in order to avoid contaminating the witness’s evidence. Under no circumstances should officers try and encourage witnesses to change their accounts in order to align themselves with other witnesses or evidence. If on the other hand the statements are found to coincide with remarkable precision, the possibility of collusion should not be overlooked and this fact highlighted to the PF. As mentioned in the previous paragraph, providing false statements to the police may constitute a crime. The Child Witness Interviewing children can be a complex process and depending on the type of incident and the capacity of the child witness, this may require the assistance of specialists. In cases where there has been a serious crime or there are child protection concerns, a Joint Investigative Interview (JII) may be required. A JII involves a video recorded interview of the child which will be conducted by a JII trained Police Officer and JII trained social worker, at an appropriate location. Where you intend to use a child as a witness you must remember that the child may be traumatised by the event whether that be as witness or victim and this should inform your approach to them. Each case must be dealt with on its own merits, and considerations such as the age and cognitive ability of the child should be taken into account when considering the best course of action. As a response officer, there may be occasion when you are required to speak to children to gain information in relation to an incident that has recently happened and/or to check on their welfare. When questioning children the manner in which you communicate with them is often key to obtaining sufficient, relevant information. 10 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Children (generally those aged 15 years and under) will normally require a ‘responsible person’ to be present during interview e.g. a parent or guardian. If the parent or guardian is a suspect, then alternative arrangements will need to be made. Children will often assume you already know what has happened, so you need to be clear that you want them to tell you everything they know about the incident. This sets out your expectations for the child at an early stage. Children, particularly younger children, may occasionally provide incoherent, non-chronological statements. As such the interview should generally take the form of a brief Question and Answer session. The number of questions you ask will depend on the child. The interviewing officer should write down their question and then the child’s answer verbatim. When questioning children you should stick to open questions, such as:- Tell me what happened? Describe X to me? Explain X to me? Also consider open prompts, such as:- What happened next? Tell me more about that? Include your questions and verbatim answers in any subsequent police reports. Please remember to keep your language and wording appropriate to the ‘age and stage’ of the child e.g. avoid complex wording or jargon filled questions. If the officer assessment is that a child cannot or should not be asked questions at that time, this decision and reasons should be explained in the SPR. Where an officer assesses that a more in depth interview is required then they should make further contact with the local Child Protection team for consideration of an IRD/Joint Interview. Vulnerable Witnesses Consideration should be given to the potential vulnerability of any witness and appropriate steps taken to ensure they have the correct levels of support at each stage of the criminal justice process. This 11 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking is to both protect them and to allow for a fair process when dealing with the police and subsequent court processes. There are three key pieces of legislation that should be considered when there are suspected vulnerabilities, which we will now look at. These are:- Criminal Procedure (Scotland) Act 1995, Victim and Witnesses (Scotland) Act 2014, and Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019. The Criminal Procedure (Scotland) Act 1995 For the purposes of the Act, a person who is giving or is to give evidence at, or for the purposes of, a hearing in relevant criminal proceedings is a vulnerable witness is:- 1. a person under 18 years of age on the date of commencement of proceedings; or 2. where the person is not a child witness, there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of:- mental disorder; or fear or distress in connection with giving evidence at trial. 3. they are a victim of alleged sexual offences, human trafficking, an offence the commission of which involves domestic abuse or stalking who are giving evidence in proceedings which relate to that particular offence, 4. there is considered to be a significant risk of harm to the person by reason only of the fact that the person is giving or is to give evidence in the proceedings. Note:- Clearly it can be seen that a child witness is always a vulnerable witness and an adult witness might be in certain circumstances. In determining whether a person fits the vulnerability criteria, the Court shall take into account:- 1. the nature and circumstances of the alleged offence to which the proceedings relate 2. the nature of the evidence which the person is likely to give 12 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking 3. the relationship (if any) between the person and the accused 4. the person’s age and maturity 5. any behaviour towards the person on the part of:- the accused; members of the family or associates of the accused; any other person who is likely to be an accused or a witness in the proceedings; and 6. such other matters including:- the social and cultural background and ethnic origins of the person; the person’s sexual orientation; the domestic and employment circumstances of the person; any religious beliefs or political opinions of the person; and any physical disability or other physical impairment which the person has, as appears to the court to be relevant. Victim and Witnesses (Scotland) Act 2014 The main principles of this Act, which are considered to be vital to improving the experience of victims and witnesses throughout their involvement with the Criminal Justice System, are:- That a victim or witness should be able to obtain information about what is happening in the investigation or proceedings That the safety of a victim or witness should be ensured during and after the investigation and proceedings That a victim or witness should have access to appropriate support during and after the investigation and proceedings That, in so far as it would be appropriate to do so, a victim or witness should be able to participate effectively in the investigation and proceedings 13 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Investigating Officer’s Responsibilities The witness/victim should be kept up to date with any developments in the investigation or proceedings and safety planning carried out. The victim/witness should be signposted or referred to relevant support e.g. Victim Support Scotland, Women’s Aid, Shakti etc. In relation to witness statements, any person who is, or appears to be the victim of any of the following offences MUST be afforded the opportunity to specify the gender of the interviewing officer (deemed to be the officer noting a full statement):- All sexual offences Trafficking for prostitution Asylum and Immigration offences (Human Trafficking) Domestic abuse Stalking Note:- Whilst not written in legislation, it is considered best practice to afford opportunity to specify gender for Honour Based Abuse, Female Genital Mutilation and Forced Marriage Where an SPR is submitted to the PF, the vulnerable victim/witness section must be completed with comprehensive information on vulnerability and impact of crime on victim. This will allow for ‘special measures’ to be put in place at an early stage. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 This Act was introduced to make it easier for vulnerable witnesses to give evidence in criminal trials by increasing the use of pre- recorded evidence, in any form, in advance of trial. This is known as ‘Evidence on Commission’. This is particularly pertinent for witnesses who are vulnerable and/or under the age of 18 years. By utilising pre-recorded evidence in advance of trial, this may remove the need for the vulnerable witnesses to have to attend court to give evidence. 14 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Witnesses and Signs of Trauma Trauma can be defined as a normal human response to abnormal events and often occurs when a person is overwhelmed by something beyond their control, such as a violent or sexual assault. Trauma has a significant impact on victims of crime and it can be extremely daunting for them to report what has happened. Trauma affects victims in a variety of ways and consequently has an impact on the way an officer approaches, supports and understands a victim when they are at their most vulnerable. For officers attempting to gather evidence this can present challenges and, in worst case scenarios, can lead to victims being perceived as unreliable. Some indicators & symptoms of trauma include:- Depression - crying Numbness Stress Feeling sick Feeling of shame/guilt Social isolation Triggers These symptoms can be overwhelming and can lead to other issues such as alcohol and substance misuse, self-harm or disassociation. Trauma can impact upon memory and can make individuals on edge or hyper-vigilant. It is important to stress that everyone is different and we can never know what symptoms someone might have. Indeed, these symptoms can change from day to day. As such, we must recognise the impact of trauma upon a witness or victim. Being trauma aware will inform our practice and should allow us to support and understand individuals at their most vulnerable. 15 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Appendix A 16 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Appendix A continued 17 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Appendix A continued 18 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking For further information, use the resources shown below:- Stated Cases:- Jamieson v HMA 1994 R v Turnbull and others 1976 Review: You can explain why we require statements You can identify the content and form required for national standard statements You can state disclosure obligations in respect of witness statements You can describe the different types of witnesses you may encounter You can state the considerations in relation to Child Witnesses and Vulnerable Witnesses You can state signs of trauma in witnesses 19 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 11.1 Statement Taking Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 20 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL