Pre-trial interviews for barristers are not far off, but the reforms bring potential hazards alongside welcome benefits. Polly Botsford reports


In keeping with its stealthy revolution of the English legal system, the government is sweeping away another centuries-old practice. There has always been a ban on prosecuting counsel talking to witnesses before a criminal trial – until now.



The bar on such contact has come under increased criticism in the light of cases collapsing because of untested, unreliable testimony. By changing the rules and allowing counsel access to witnesses, the government hopes to avoid wasted costs on trials that do not convict, and to ‘narrow the justice gap’, as the Crown Prosecution Service (CPS) likes to put it.



The ban on prosecution counsel communicating with witnesses in criminal cases was first introduced during the 19th century. At that time so-called ‘men of straw’, identified by pieces of straw tucked into their shoes, hung about outside courtrooms, available to act as witnesses – for a fee. They were hired to say whatever needed to be said. The ban was intended to bring an end to the straw man’s trade. The no-contact rule stuck, and became part of the Bar Council’s Code of Conduct.



The ban was partly to protect counsel from any accusation of coaching witnesses or otherwise contaminating the evidence, as Rodney Warren, director of the Criminal Law Solicitors Association, explains: ‘It has always been felt essential to allow witnesses to come in and give evidence without being “coached”, because the memory needs to be real and not influenced by anybody.’ It was also partly because the prosecution process developed in such a way that it was the police who became the main point of contact for witnesses, having overall responsibility for them as well as taking their statements.



In recent times, however, the ban on contact has been criticised for leading to unreliable witnesses giving evidence, cases collapsing and the taxpayer picking up the bill, as happened very publicly in the Damilola Taylor murder trial of 2002. Damilola Taylor, a young boy from Peckham, was stabbed with a broken bottle and left to die on an estate in November 2000.



During the trial, a 13-year-old girl known as ‘Bromley’ was the prosecution’s key witness, but the judge ruled that her evidence was too unreliable to be considered by the jury. This was due to doubt as to whether or not she had actually seen the stabbing, and to questions raised over whether her real motivation for coming forward was a financial reward. Without its key witness, the case collapsed. Subsequently, the then Director of Public Prosecutions, Sir David Calvert-Smith, investigated how problems with evidence such as Bromley’s could be tested before being presented at trial. In his report of December 2002 he stated that ‘it might now be desirable to allow prosecutors direct access to witnesses in order for their credibility to be assessed’.



Aside from the Damilola Taylor trial, the issue of interviewing witnesses has been examined in the context of difficult rape cases, where it is often one person’s testimony against another’s. Roy Morgan, of Cardiff-headquartered Morgans Solicitors and Advocates, says that of the criminal defence cases he has experienced that have collapsed owing to unreliable witnesses, ‘many were rape and indecent assault cases’. Fraud cases also feature markedly in terms of witness unreliability. Conviction rates are very low in rape cases – 6%, according to figures from the Child and Woman Abuse Studies Unit – and interviewing alleged rape victims and other vulnerable witnesses could improve those conviction rates.



The ban on prosecution barristers contacting their witnesses has also moved increasingly out of step with the practices of solicitor-advocates, who have no such ban in their own codes of conduct. ‘They have never had a problem with working with witnesses, because they have always done it,’ explains Morgan. ‘And given that more and more solicitor-advocates are taking their place within the CPS, it seems natural to change the rules.’



The government decided to act and, following a consultation process and a regional pilot scheme, the national pre-trial interview witness scheme is expected to be finalised next month. The Bar Council has amended its Code of Conduct, and all interviews are to be undertaken in accordance with a CPS Code of Practice.



The legal profession is in general support of the scheme, says Morgan, though for different reasons. ‘It may save defendants from the ordeal of a trial which may be unnecessary, and defendants may have had to spend a long time in custody,’ he says. ‘So as a safeguard it is good news.’



Certainly the pilots were successful, according to Robert Marshall, Chief Crown Prosecutor for Lancashire. Marshall is running the national roll-out of the scheme, and says the interviews have assisted the CPS in making informed decisions as to whether or not to continue with a prosecution.



‘We had a case of a woman who made allegations of rape against a man who she had been away with for the weekend; they had taken cocaine together. He had then come to her house when a friend was sleeping over in the next-door room, and raped her. On paper, her story had all the elements which would not normally persuade a jury, and it was touch and go as to whether we’d pursue it,’ he explains.



‘We decided to interview her and we found her to be an impressive witness. She was asked, for example, why she didn’t scream to alert her friend and she explained she was a very nervous individual who had seen someone get shot. We decided to go to trial, and the defendant got seven years.’



But the new scheme raises some important issues: first, the question of coaching witnesses or otherwise tainting the evidence. The government believes it has guarded against this by directing that any interview be taped, and that the tape be disclosed to the defence. But, even if this happens, this does not stop the defence raising concerns over influence, as David Allan, an experienced prosecuting barrister at 23 Essex Street in London, explains: ‘It’s not unusual for the defence to suggest that a witness’s account has been influenced by the questions they have been asked by the police officer taking their statement, [so] where there has been a pre-trial witness interview there is the potential for the defence to suggest that the questions asked by the prosecution lawyer were improper and have influenced the witness.



‘That puts the prosecution lawyer in a very difficult position since, whereas the police officer who took a witness statement can go into the witness box and answer any such accusations, it is not convenient for the lawyer who is conducting the prosecution to be presenting the case one minute and then stepping into the witness box to defend him or herself the next.’



Another concern about the new scheme is the timing of the interviews. If failed trials, such as Damilola Taylor’s, are to be avoided, an interview ideally needs to take place before charges have been brought, to work out early on whether or not the case should proceed. ‘But, of course, this is not always practicable’, says Marshall, ‘but even up to almost the day before the trial it should be considered, because it will be time- and cost-saving in the long run.’



Allan, on the other hand, does not believe it will be possible to conduct these interviews later than a fortnight before the trial. ‘More likely,’ he says, ‘it will need to be a month before the trial to be practical [not least because] it has to be tape-recorded, that tape copied and the defence given the opportunity to listen to it.’ The timing, it seems, is going to be a crucial element in the effectiveness of the interview process.



Of course, not all witnesses will be interviewed in all cases – this will be reserved for only the most key witnesses and in the more serious cases, which means the prosecutor will sometimes have to rely on the unreliable. As Allan says: ‘Often the very people who witness serious crimes are unreliable people, because, say, they are associated with the suspected criminals or they have had some involvement in the criminal enterprise that is the subject of the case.’



It appears that, as a result of the introduction of the witness interview, some prosecutions will change while others will stay much the same – an English sort of reform.



Polly Botsford is a freelance journalist