FORMAL MEMORANDUM

INTERVIEWING

INDEX TO FORMAL MEMORANDUM

Introduction Page 2

Planning Page 2

Principles Page 3

Interviews with witnesses Page 4

Initial contact with witnesses Page 4

Interview location Page 5

Confidentiality Page 5

Vulnerable interviewees Page 5 - 6

Accompanied interviewees Page 6 - 7

Interviews with victims Page 7

Codes of practice for victims of crime Page 7

Section 15 interviews Page 7 - 8

Interviewing jurors Page 8

Interviewees who may admit offences Page 8 - 9

Interviews/Meetings with police officers Page 9

Recording interviews Page 9 - 11

Witnesses produced from prison Page 11 – 12

Recognising and managing hostile witnesses Page 12

Interviews about sensitive matters Page 12

Telephone interviews Page 12

Appendix A: Procedure for tape recorded interviews.

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Introduction

1. Interviews are conducted to assist the Commission’s review of a conviction or sentence, or as part of an inquiry directed by the Court of Appeal, or when considering a matter referred by the Secretary of State in connection with the prerogative of mercy. Although the nature of interviews conducted by the Commission will vary according to circumstances, interviews are generally of one of two types; an interview may be either to gather information, or to establish what evidence a witness is or is not able to give. Interviewees will include police officers, lawyers, forensic scientists, applicants, convicted persons, members of the public and, of course, persons who have been victims of crime.

Planning

2. Specialist advice on interviewing is available from the Investigations Advisers. The need for advice should be considered on every occasion, and in some circumstances obtaining such advice is mandatory. Those situations are set out in this Formal Memorandum. It is the responsibility of case reviewers and Commissioners to ensure that they are aware of the Commission’s policy in this regard, and to be aware of the circumstances in which it is necessary to consult an Investigations Adviser before taking any action.

3. It is important to carefully plan and prepare for each interview. There must first be a belief that the person to be interviewed is able to provide information or evidence which will assist the Commission in its review. Timing is also important – interviews are best conducted when enough progress has been made to allow proper planning and preparation. The structure of the interview and the method of recording must also be planned.

4. On rare occasions there may be a need for an unplanned interview. For example when a person attends a planned interview with another witness and that person has some relevant information. There may be occasions when an individual visits the Commission without an appointment and has relevant information to give. It would usually be good practice to arrange a formal appointment in order to allow for proper interview planning. This may not always be possible and in such circumstances it should be possible to obtain a brief outline of the nature of the evidence/information to be given before a formal interview commences. Knowledge of the likely content may well determine interview strategy. A lack of knowledge about the prospective witness and the type of information he/she is likely to impart may impair the interviewer’s effectiveness and judgement.

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Principles

5. The following principles should be borne in mind when considering or conducting interviews:

Interviews are conducted in order to obtain the best evidence or information to assist the Commission in the exercise of its functions.

Where possible appointments for interview should be confirmed in writing. (The letter should enclose the leaflet,’ The Way We Work’, explaining the Commission’s role.)

The Commission should always act in a fair and reasonable way and with due consideration towards all interviewees regardless of race, ethnic group, religion or gender.

Those conducting the interview should be introduced to the interviewee and

the identities of all persons present recorded.

The independent role of the Commission should be explained to all interviewees.

The Commission should ensure accuracy and avoid ambiguity in putting questions to interviewees. Care needs to be taken when interpreting and recording answers.

Care must be taken not to lead the interview. Open questions should be asked and the interviewee should be given the opportunity to give a full and reasoned account of the information they have or the evidence they can give. This is particularly important when that information or evidence differs from that which was originally anticipated.

Whenever possible, at the conclusion of an interview, interviewees should be asked to sign a record of what has been said. This record may be in the form of a written statement or contemporaneous notes. In some cases it may be appropriate to take rough notes and send a full minute of the interview to the interviewee at a later time for signature. However, in the case of the latter it would be good practice to have those rough notes initialed by the interviewee at the time of the interview. Original rough notes should be retained with the case file.

It is usually good practice to conduct interviews in pairs, although there may be exceptions. Generally one person will conduct the interview while the second person will monitor the interview and ensure that the agreed issues are covered.

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Interviews with Witnesses

6. Judgements have to be made as to whether or not a particular witness should be interviewed. Whilst every case must be judged on its own merits the following guidance will assist:

The Commission is often provided with a witness statement taken on behalf of an applicant. In such cases it may be useful to establish the circumstances in which the statement was taken. A witness should normally be interviewed where such a statement contains new evidence or information that is relevant to the review, and warrants further investigation. In the event that it is likely a committee will consider a referral based upon the information contained within a provided statement the witness concerned will usually be interviewed by the Commission in order to confirm the evidence.

On occasions the Commission learns that a co-accused is now prepared to exculpate an applicant. The Court of Appeal is generally reluctant to admit new exculpatory evidence from a co-accused on the basis that this type of evidence should be adduced at the time of trial. Each such situation, however, must be assessed on its own particular facts: see R v Ditch (1969) 53 Cr. App. R. 627. A Legal Adviser must be consulted if any such interview with a co-accused is contemplated.

It is sometimes suggested that the Commission should interview a trial witness to see whether or not the witness will still give the same account. A trial witness should not normally be interviewed unless there is reason to believe they are in possession of some new information or evidence, or their credibility has been put in issue and is something that should be put to them for comment.

Initial contact with witnesses

7. In the event of the Commission not being able to make initial contact with a witness care must always be taken to ensure that further attempts to make contact are appropriate, particularly if the witness is unaware of the Commission’s review. An Investigations Adviser will advise on the best method of approach which may include obtaining assistance from the following:

The police The Prison Service The Probation Service An independent solicitor Social Services. An independent person such as a family member or friend.

8. The applicant, or persons closely connected with the applicant, should not normally be used for such contact unless unavoidable.

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Interview Location

9. Interviews may be conducted at one of the following:

Alpha Tower. A Prison establishment. In London, at 2 Pump Court, Temple EC4 (by arrangement with the Chief

Clerk). A Police station, providing the police are willing to provide interviewing

facilities. A court service interview room. A hotel conference room hired for the occasion. The home of the interviewee. A Solicitor’s office. The office of the Police Ombudsman for Northern Ireland. Any other venue deemed suitable by the Commission.

10.Whilst the Commission must be open to reasonable suggestions from an interviewee or his/her legal representative as to where an interview should be conducted, it is the Commission that must be satisfied with the proposed arrangements. Deciding factors will include:

The safety of Commission staff; The safety of the interviewee; Privacy and comfort; Travelling considerations – both the interviewee and Commission staff; Expense – is it more cost-effective for the interviewee or Commission staff to

do the travelling? Interviewees asked to travel should be offered reimbursement of reasonable out of pocket expenses including the cost of refreshments.

Confidentiality

11.Some interviewees may only be prepared to speak to the Commission in confidence. As a general rule the Commission should not give any assurance that information given by the interviewee will not be disclosed. However, an explanation of the Commission’s disclosure policy and the level of care taken with sensitive information may reassure the interviewee.

Vulnerable Interviewees

12.On rare occasions, the Commission may consider it necessary to interview a child or young person. In all such cases an Investigations Adviser must be consulted. A child or young person will normally be interviewed in the presence of a parent or other appropriate adult1. Where appropriate, an Investigations Adviser can arrange for a police officer or other person with special skills to undertake the interview on the Commission’s behalf.

1 By “appropriate adult” the Commission refers to people described as such in the Codes of Practice to the Police and Criminal Evidence Act 1984.

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13.The Commission, on rare occasions, may also consider it necessary to interview a person who has some form of mental impairment or learning difficulty. In all such cases an Investigations Adviser must be consulted. A person who has such an impairment or disability must not be interviewed or asked to provide or sign a written statement except in the presence of an ‘appropriate adult’.

14.Witnesses may also be vulnerable if they have been intimidated, or if they have been the victim of a violent, sexual or racist crime. Consideration should be given as to whether the witness may require support. Please see below the sections on ‘Accompanied Interviews’ and ‘Interviews with Victims’.

15. Interviews with protected/supported2 witnesses must be arranged through those responsible for managing them. An Investigations Adviser must always be consulted before any attempt is made to locate or contact the witness.

16.Witnesses granted anonymity at trial will require similar considerations.

17.Witnesses who cannot speak English or whose English is not fluent are also vulnerable. Wherever possible an interpreter qualified for use in police stations and courts must be used.

Accompanied Interviewees

18.Some interviewees will wish to have their legal adviser present and this is, of course, acceptable and very often desirable (although a conflict of interest may arise if the solicitor is also acting for the applicant). Some interviewees may wish to be accompanied by a relative, friend or associate. Whilst it is generally preferable that the interviewee is unaccompanied at the interview by relatives or other persons (to encourage frankness), there is in principle no objection to them being accompanied so long as that person is not likely to become a witness in the review.

19. In the case of vulnerable witnesses it may be desirable for a friend or relative to be present to support the witness. Please see also the section above on ‘Vulnerable Interviewees’. In any event, it is for those conducting the interview to be satisfied that the presence of another person is neither inappropriate nor inhibiting. Applicants should not normally be interviewed in the presence of a person involved in a campaign on their behalf. If in doubt advice should be sought from an Investigations Adviser. If necessary the interview should be curtailed with a view to a further approach being made to the interviewee in an attempt to secure an unaccompanied interview. That may entail a candid explanation being given as to why the presence of the other person is unacceptable.

2 “Supported” and “protected” witnesses are in reality the same category of witness. Either title may be used by the investigative authority having responsibility for that witness.

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20.On rare occasions, an applicant’s legal adviser may ask to be present at the interview of a prosecution witness. It would not be consistent with the Commission’s independent and impartial role to expect a witness to answer questions in the presence of the applicant’s legal adviser. Such requests should normally be refused.

Interviews with Victims

21. Interviews with victims should not be considered lightly, especially in cases of child abuse, rape, other sexual offence or racist crimes. Interviews with victims should always be handled with care and advice from an Investigations Adviser must always be sought.

22.Victims of crime will often have had the service of a police Family Liaison Officer (FLO) which, in some cases, may still be ongoing. In such cases it will normally be appropriate to approach the victim through the FLO. However, if the integrity of the victim/FLO relationship is in issue then steps may be taken for an FLO who has not been involved in the original investigation to be used.

23.Where a victim of a sexual crime is to be interviewed, specific consideration should be given to the constitution of the Commission’s interview team. The preferences of the victim, if any, should be taken into account. Gender of the interviewers in particular should be considered. In any event, the interview must always be conducted by two persons and where practicable one of them should be of the same gender as the interviewee. Please see also the section above on ‘Vulnerable Interviewees’.

Codes of Practice for Victims of Crime

24. The Commission is a signatory to the ‘The Codes of Practice for Victims of Crime’. Included in the Commission’s responsibilities under the Codes is the requirement to inform a victim that a review is taking place in circumstances where it is likely that the Commission’s inquiries will become known to the victim.

25. In circumstances where interviews with a witness may result in the victim becoming aware of the Commission’s review, consideration will be given to the appropriate course of action in relation to the victim.

Section 15 Investigations

26.On occasions the Court of Appeal will require the Commission to carry out interviews with witnesses on their behalf. Such directions will always be received through the Director of Casework.

27.The directions from the Court of Appeal will often set out specific questions to be asked of a witness. At an early stage the case reviewer must consult an Investigations Adviser and the Assigned Commissioner. It will usually be good

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practice to hold a case planning meeting at which a prepared interview questionnaire and strategy will be agreed.

28.Care must always be taken to ensure that the specific questions in the Court of Appeal directions are those set out in the interview questionnaire. Where it is considered necessary to use the Commission’s discretion to ask supplementary questions, the Director of Casework will first discuss this with the Court of Appeal.

Jurors

29.Section 15 investigations may often require interviewing jurors. There may be other rare occasions where it becomes necessary to interview a juror.

30. No interview of a juror should be conducted without having first discussed the matter with a Commissioner and a Legal/Investigations Adviser. The Commission has issued guidance on this subject in the Formal Memorandum: Jurors – Interviewing jurors.

Interviewees who might admit offences

31.The Police and Criminal Evidence Act 1984 (PACE) does not apply to Commission interviews. It will never be appropriate, therefore, for the Commission to administer a PACE caution. There are, however, occasions where it is suspected that a criminal offence may have been committed by the person whom the Commission seeks to interview. In most cases this is likely to be perjury or perverting the course of justice. An Investigations Adviser should always be consulted about the appropriate method of conducting such interviews.

32. Where it is suspected that the interviewee might admit an offence the following points must be considered:

It would not be appropriate for the Commission to ask questions about an offence, which it would clearly be in the public interest to prosecute should there be sufficient evidence (e.g. perjury by a police officer). In such cases a section 19 investigation should be considered. Reference should be made to the Formal Memorandum.

On very rare occasions an adult witness is prepared to admit perjury in circumstances in which the public interest would normally require prosecution, but the witness has indicated that any admission will be conditional upon there being no risk of this. In such circumstances, the prosecuting authority may be prepared to give an undertaking that any disclosure or statement made by the witness to the Commission will not be used in any prosecution against that person. The Director of Casework should be consulted before any such approach to a prosecuting authority.

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In some cases a child or young person victim of a sexual offence is alleged to have retracted their evidence or has indicated a wish to do so. In such cases, it may be felt that the risk of prosecution is very low and that the public interest is best served by a Commission interview to test whether the witness is actually retracting their evidence and, if so, whether the retraction is credible.

There may also be occasions where it is felt that there is some possibility that what a witness might say could be self-incriminating. Any such interview should be conducted carefully with the Commission’s interviewers being prepared to stop the interview at the point at which it would be inappropriate to continue.

Interviews/Meetings with Police Officers

33.As a general rule, interviews with police officers are to gather general information about a case. It may be appropriate to speak to one or more officers together and this might be best described as a meeting rather than an interview. When interviewing or meeting with police officers it may be necessary to ask for further research of police records to discover or confirm particular facts. It may be appropriate to confirm (in advance and in writing) the questions or issues to be raised in order, for example, to provide an opportunity for appropriate paperwork or information to be collected by the police.

34.The Commission cannot conduct interviews under caution under PACE. On that basis it will never be appropriate to interview a police officer who is suspected of wrongdoing.

35. In cases where a police officer is not suspected of wrongdoing it may be necessary to put specific questions to the officer and record the answers given.

36.The Investigations Advisers should be consulted to advise on or assist in interviews with police officers.

37.This section applies equally to interviews with Customs officers, SOCA, or members of other investigative agencies.

Recording of Interviews

38.The interviewer must be clear about the purpose of the interview and consider in advance how the interview is to be recorded. Set out below are the methods which may be used.

39.The interviewer may choose to take rough notes or minutes of a meeting where the interviewee is providing background information. It is good practice

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for the interviewee to initial those notes/minutes on completion of the interview. A record of the interview may then be produced from those notes/minutes.

40.The completed record should normally be forwarded to the interviewee for agreement and signature. Where the interviewee is a serving prisoner and the content of such an interview is of a sensitive nature, care must be taken to ensure that the sealed envelope containing the interview record is delivered to the prisoner and subsequently securely returned to the Commission.

41. Where the interviewee is able to provide evidence, which will assist the Commission in its review of a case, a signed witness statement or a signed record of interview should normally be obtained as set out below

A signed witness statement .

42.Whilst it takes time to record a written statement the Commission will have a signed record of what the witness can say. Some staff will be able to use a laptop computer, which may save time. Since on many occasions there will be specific questions to put to a witness it is helpful to use expressions such as ‘I have been asked by the Commission...…’ Blank Commission statement and statement continuation forms can be found at the end of this document. Commission statement forms now include the section 9 Criminal Justice Act 1967 declaration which witnesses should be asked to sign. Templates to enable typing up of handwritten statements are available under the Casework tab in Word. These templates are also available on laptop computers.

Contemporaneous notes of interview signed by the interviewee

43. It is not normally practicable to record contemporaneously all that is said in an interview. It is however possible, after some discussion of the facts, to write down questions and then allow a witness to dictate his or her answers thus providing a contemporaneous record of what the witness is prepared to say in answer to the Commission’s questions. The record is dated and signed by the witness.

44.A contemporaneous record of questions and answers signed by the witness is similar to a signed witness statement but has one clear advantage in that the witness can literally use his or her own words in response to the Commission’s questions, whereas a statement taker normally drafts the witness’s statement. Blank record of interview forms for the taking of contemporaneous interview notes can be found at the end of this document. Templates to enable typing up of records of interview are available under the Casework tab in Word. These templates are also available on laptops.

Tape-recording

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45.The Commission does not normally tape-record interviews. However, in exceptional circumstances it might be appropriate to do so. For example:

A police officer might ask to be interviewed using police tape-recording facilities.

A witness could indicate that he/she is only prepared to answer the Commission’s questions if the interview is to be tape-recorded.

An applicant or his/her legal representative may request that the applicant’s interview be tape-recorded.

An interview where an interpreter is used. Where it is considered important to maintain the flow of conversation so that it

is not interrupted by the need to record questions and answers at writing speed.

Where there is considerable ground to cover and the interview might be unduly long if a hand-written record were to be made.

Where there is reason to believe that the interviewee poses a particular risk to the integrity of the Commission and it is advisable that a full and definitive record of the interview is kept.

46. In considering any such circumstances, the following matters should always be borne in mind:

The consent of the interviewee to tape-recording must first be obtained. It is particularly important to carefully prepare interview plans/strategy when a

tape recorded interview is to take place. Staff conducting such interviews should be alert to the fact that an interview could unexpectedly change course. For this reason it is particularly important that tape recorded interviews are conducted with the assistance of (and in the presence of) an Investigations Adviser.

It may be necessary to produce a full transcript of any tape-recorded interview. Such transcripts have a resource implication inasmuch as they are invariably lengthy. It may be appropriate to provide a summary of the interview.

47.Those conducting tape-recorded interviews must ensure that the conditions exist to enable a good quality recording to be made. Details of the tape-recording equipment to be used and the procedures to be followed are set out in Appendix A.

Witnesses produced from prison at the request of the Commission

48. In very exceptional circumstances the Commission has asked the police to arrange and facilitate the production of a prison inmate to a police station for the purpose of an interview with the Commission. Circumstances under which this extraordinary step has been taken include where an interview was so long and complex that it would have been impossible to complete in prison facilities and in a case where there was a real risk to the prisoner if interviewed in prison.

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49.An Investigations Adviser must be consulted if this course of action is considered.

Recognising and managing potentially hostile 3 witnesses

50.Commission staff should always be alert to the possibility that witnesses may not be prepared to cooperate with the investigation. Such witnesses may react in a manner unforeseen to the applicant or the case reviewer which may include antagonism towards Commission staff. Such an inquiry would need careful handling and an Investigations Adviser should be consulted beforehand. Only by proper and sensible preparation can such risk be minimised or reduced. Consideration should be given to a formal risk assessment. In such an event the Departmental Security Officer must be consulted.

Interviewing witnesses about sensitive matters

51.There will be occasions when an interview is required with a witness in relation to matters of a sensitive nature including matters subject to Public Interest Immunity (PII). These may include informants, undercover officers, informant handlers, members of the Security Services etc. It is important to establish before seeking such interviews the nature of the material or information sought and the security level of access necessary. In all such cases an Investigations Adviser must be consulted.

Telephone interviews

52.Before contemplating a telephone interview the advice of an Investigations Adviser must be sought. Such interviews should be considered only in exceptional circumstances and as a final resort in the event that it is not practicable to interview the witness personally.

53.There is a distinction between speaking to a potential witness on the telephone to gain general or background information and conducting an interview. Care must be taken when seeking information from a potential witness not to stray into the realm of an interview when it would be proper to arrange an appointment to see the witness personally.

54. In the event that a telephone interview is unavoidable then steps must be taken to verify the identity of the person being interviewed.

3 In this context ‘hostile’ has a dictionary meaning as opposed to a legal definition.

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Appendix A

Procedure for tape-recorded interviews

The Commission has a tape-recorder specially designed for the recording of interviews. Interviews are recorded on two tapes, one of which will be the master and the other will be the working copy.

IT will issue the tape-recorder when required, together with tapes and seals for the master tapes.

The tape-recorder should be loaded with clean tapes in the presence of the interviewee. The tapes must be unwrapped in the presence of the interviewee. The tape-recorder should then be set to record.

Persons conducting an interview, the interviewee and any other person present should introduce themselves at the start of an interview. The interviewer should also state for the record the time, date and place of the interview.

At the end of an interview each master tape must be sealed in the presence of the interviewee. All persons present must first sign the seal.

The interviewee should be told that he/she would be provided with a copy of each tape (unless this is not required).

Sealed master tapes should be handed to the Records Manager who will give each master tape a tape reference number.

A sub copy tape will be made from the working copy tape. The working copy will then be handed to the Records Manager who will store it with the master tape. The working copy tape will have a red label on which the tape reference number should be endorsed.

The sub copy tape will have a blue label that should also bear the tape reference number. The sub copy will be used for transcription etc. When the sub copy tape is no longer required it should be handed to the Records Manager for storage with the master and working copy tapes. A separate sub copy will be made for supply to the interviewee.

If there is a need to produce any further sub copies the Records Manager must be informed so that records can be updated.

The seal on a master tape must not be broken without the authority of a Commissioner or the Director of Casework. The reason for doing this must be recorded.

Criminal Cases Review Commission

Witness Statement

(CJ Act 1967, s.9; MC Act 1980, ss.5A(3)(a) and 5B; MC Rules 1981, r.70)

Statement of:………………………………….

Age if under 18: ………..(if over 18 insert ‘over18’) Occupation:…………….

This statement (consisting of….pages each signed by me) is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it, which I know to be false, or do not believe to be true.

Signature: ……………………………………………… Date: ………………….

Criminal Cases Review Commission

Record of interview with:

Date of birth:

Conducted by:

Other person(s) present: