Can the defence interview prosecution witnesses?

The overriding principle in criminal proceedings is that either party i.e. the defence or prosecution may interview the other’s witness or prospective witness and take a statement from that individual. There is no property in a witness, in other words, despite one party taking a statement from an individual this does not prevent the other party from seeking to do so.

What must remain at the forefront of either party’s mind and what the court pay great attention to is to ensure that no unwarranted pressure is applied to the witness in question, seeking to ease any risk or exposure to tampering with evidence or the witness intimidation of any sort by that party.

Why might the defence seek to interview a Prosecution witness?

Circumstances as to why the defence may wish to interview a prosecution witness fundamentally could be to assess the strength of the evidence against the defence or to see whether they in fact may assist their case. It also allows the defence the opportunity to gauge how that witness may present when giving evidence in a trial setting and how credible they appear to be.

The defence must ensure whenever a request to interview a prosecution witness is made, it should be respectfully done so in writing avoiding any miscommunication. This process applies whether the witness is to be used or not by the prosecution.

If the matter remains under investigation and court proceedings have not commenced, the request should be issued to the police force investigating the matter again to avoid any misapprehension. This sort of application tends to present in circumstances following interview where the suspect has suggested perhaps by way of an account or in consultation that an individual may be a potential defence witness to their case and therefore further information is required on the defence’s behalf.

Requests to interviewing Prosecution witnesses – understanding the process

If the case has been charged, the defence’s request to interview a prosecution witness as advised should be issued in writing to the relevant prosecutor. On receiving that request, it is for the prosecutor to seek action from the police. The police following that should:

• Contact that witness to inform them that the defence have requested to interview them and
• Explain and advise the witness that it remains their choice whether they agree to the request, and they are entitled to seek independent legal advice before agreeing to speaking with the defence.

Should the witness have sought independent legal advice, having considered the defence’s request, the police should look to obtain confirmation in writing as to whether the witness has agreed to speak to the defence. Details belonging to the defence representative should be relayed to the witness to allow them to contact that individual.

In the circumstances where the witness does not agree to be interviewed, the defence should be advised of this decision and an explanation provided given that consent is granted by the witness.

When a witness agrees to be interviewed by the defence

If the witness agrees to be interviewed, the defence must maintain:

• That the witness is reminded that it is their choice whether to speak to the defence representative
• Ensure and ask that the witness is aware they are entitled to a legal representative and / or an appropriate adult during the interview itself and
• Confirm that the defendant or any other individual connected to the case is not present when that witness is to be interviewed

Should the prosecution witness be a police officer, if the defence wish to interview this witness, they cannot object to a senior police officer being present. It is preferable if the senior officer at the interview is not connected with the proceedings.

Circumstances when the defence may wish to not interview Prosecution witnesses

Defence representatives must consider each witness individually. Some witnesses may be reluctant to engage even with the prosecution and therefore it should be approached on a case-by-case basis.

Defence representatives are less likely to make any form of contact with prosecution witnesses when the evidence provided is unhelpful to the defence case, the individual is reluctant to engage, or their individual circumstances make it difficult to approach that individual such as should the person be based abroad. The defence must keep the following question at the forefront of their mind – does that witness play a crucial or valuable role to the defence case?

Olliers Solicitors – specialist criminal defence lawyers

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