Witnesses and Victims of Crime: A Survival Guide

By Christopher Whitehouse
20 July 2020

Introduction

The overriding objective of the criminal justice system is in ‘acquitting the innocent and convicting the guilty’¹. But another core objective is that of ‘respecting the interests of witnesses, victims and jurors’².

The reality is that most cases revolve around the willingness of members of the public to step into the witness box and face cross-examination by a defence barrister. But while most complainants want to have their day in court, they approach that day with trepidation or even terror.

Unfortunately, a thousand legal dramas and American cop-shows have left us with a caricature of aggressive lawyers strutting up to the witness box barking questions, of witnesses allowed to answer only ‘yes’ or ‘no’ and judges who let it all happen. When we combine that with a natural reluctance to get involved, and the fear (real or imagined) of reprisals, it is hardly surprising that those who experience crime are reluctant to step into court. The purpose of this article is therefore to dispel some common myths about giving evidence and to highlight some legal measures that are designed to help those giving evidence. Here are some common concerns.

Will I be bullied by the defence barrister?

The simple answer is no. Judges are there to make sure that trials are conducted fairly, and that very much includes fairness to witnesses, as well as the defendant. Judges will not allow barristers from either side to bully a witness3. Nor do English lawyers have the right to walk up the witness box and ask questions at point-blank range. That is the stuff of Boston Legal and the Good Wife! That is not to say that English lawyers are softer, far from it. It is simply that careful and courteous cross-examination is often far more devastating.

What if I forget what’s in my witness statement?

The short answer is don’t worry. Judges are often heard to say that giving evidence ‘is not a memory test’.

Firstly, it is normal practice for a witness to be given their statement to re-read while they wait at court to give evidence. This is while they are in the care of Witness Service, who are neutral volunteers who look after all witnesses before they go into court. Secondly, since 2003, it has become much easier for witnesses in the middle of giving their evidence to look at their witness statements. A judge will normally let a witness do so if they need to refresh their memory about some specific detail or even more generally4.

What if I don’t want the defendants or the public to see me?

The use of screens (and other ‘special measures’5) for those giving evidence has become common-place at trial6. For a nervous witness, screens prevent them being seen by the defendant or anyone in the public gallery, whilst giving their evidence or while entering or leaving the court room. As a potential witness, this is something you can ask the police officer or CPS representative handling your case about.

What if I don’t want my identity revealed to the defendant(s) or the public?

Complainants in sexual cases receive anonymity for life; their names cannot be published. But in most other cases, a witness will be asked to state his/her full name at the start of their evidence and that will be a matter of public record, audible in the public gallery and capable of being reported by the press. But there are exceptions.
Addresses of witnesses are not disclosed to the defence, and especially great care is taken to protect the identity of those who have, for example, allowed undercover surveillance operations to take part on their premises.

But what about names? A judge may permit a witness whose identity is known to the court and to the parties to refrain from identifying themselves openly before the press and the public. For example, in a blackmail case the witness will usually be permitted to write down their name7

Section 22(2) expressly provides that anything seized for the purposes of criminal investigation may be retained for use at a trial for an offence or for forensic examination. However if a photograph or copy could be made then the property cannot be retained; and if the original must be retained rather than merely a copy, there is still a duty under section 21 to return a copy of, or allow access to, the item to the person who was in possession of it when it was seized. Code 7A guidance provides that application may be made to the Magistrates Court for return of retained property under the Police (Property) Act 1897.

Pursuant to section 22(4) Police and Criminal Evidence act 1984: Nothing may be retained for either of the purposes mentioned in subsection 22(2)(a) if a photograph or copy would be sufficient for that purpose.

Christopher Whitehouse

Chris is a leading junior with a reputation for winning cases against the odds. He is instructed in high-profile defence work and appears regularly at the Central Criminal Court. He leads other counsel in serious criminal cases as well as appearing with Queen’s Counsel or alone.

Chris’s cases often involve challenging expert evidence such as DNA, cell-site, toxicology and computer/internet use. He often represents those with complex needs, vulnerable defendants and hose suffering mental impairment.

He is trusted by those instructing him to fight their client’s corner fearlessly and to handle the most difficult situations, both inside and outside court. He engages easily with clients to put them at their ease and bring out their best evidence, even in the most serious of allegations.

In 2018 Chris delivered a lecture to the Cabinet Office at in the Treasury on “Fraud, Defence and Disclosure”.

What if I don’t want the defendant to know who I am?

A particular issue arises in organised crime and gang-related case and it is a difficult circle to square.

The general rule is that the defendant and their lawyers will be provided with the witness statements before trial and these will include the full names of witnesses. However, in very limited circumstances, there is power for the court to allow a witness’s identity to be kept secret even from the defence, though such orders will be rare.

For example, a vital prosecution witness in a gang-related murder trial may not want the defendant to know their identity and will not give evidence unless they receive anonymity. The prosecution may support them in that view. On the other side, the defence have a legitimate interest in knowing as much as possible about the witness so that they can properly test the witness’s evidence, its accuracy and truth. A large part of that may be assessing whether the witness has any motive to lie.

The Coroners and Justice Act 2009 provides for witness anonymity orders8 in strictly confined circumstances. These allow the witness’s name and other identifying details to be withheld from the defence, to be removed from documents disclosed to them, allow the use of a pseudonym and even allow the witness’s voice to be modulated to disguise it.

It is worth repeating that it is a rare case that would entail such an order and it is beyond the scope of this article to cover them in detail. In short, the witness’s evidence must be of ‘such importance’ that it is in the interests of justice that they give that evidence10. The judge could then only grant such an order where it was necessary ‘to protect the safety of the witness or another person or to prevent any serious damage to property’ or ‘to prevent real harm to the public interest’. But there is a balancing act to be struck. The judge could only make a witness anonymity order where the court was satisfied that the defendant could still receive a fair trial.

Conclusion

It is in everyone’s interests that criminal allegations are tested rigorously. For that to happen, witnesses and victims of crime must feel confident that, if they are called upon to testify at court, they will be given the breathing space to give their account. But that account must always be capable of being properly challenged by the defence.

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This article presumes the search warrant, if a warrant was necessary, was lawful and the subsequent seizure was lawful. Different principles apply where the lawfulness of the search and or seizure is challenged. For a detailed discussion of sections 15 and 16 of PACE and the lawfulness of the seizure see: Westminster College of Computing Ltd, Arasaratnam Arasilango [2020] EWCA Civ 561.

Offences under the Computer Misuse Act 1990.
2019 WL 00982124 – Westminster Magistrates Court DJ Coleman 19 February 2019.