Interviewing witnesses and preparing statements

Interview preparation

Once the witnesses have been provisionally selected for interview, it will be necessary to devise the necessary questions for each.

It will be necessary to put any allegations or documents that require explanation to witnesses and to elicit such useful information as may be possible at this stage. From the document review, it should be evident which documents need to be put to which potential witnesses for explanation and amplification.

The process of determining which documents or allegations to put to witnesses should be drawn widely. One problem that may occur is that documents may not have been available at the outset and so not put to witnesses, thus necessitating the re-interviewing of witnesses. However, while it is inevitable that some documents will only become available after the interview process has started, in some cases because of information arising out of the interviews, a full document review at the outset and resolution of PII and other disclosure issues will minimise this.

Interview teams

A variety of models of interview teams have been employed on public inquiries. The Bloody Sunday Inquiry and the Rosemary Nelson Inquiry, for example, employed a large firm of solicitors to do the interviewing and statement writing process. Doing so has the advantages of being able to identify costs and so potentially facilitate budgeting and of outsourcing the skills required to reputable professionals. Such an approach may mean the inquiry team is able to start the interview process promptly as a firm will have the staff to hit the ground running. Recruitment processes and human resource issues are accordingly circumvented.

However, it may be more expensive than an in-house team and tight quality control over the interview and statement process may be lost. Further, the learning and evidence familiarisation opportunities to for an inquiry team may be lost.

By way of procedure, the Rosemary Nelson Inquiry sought the assistance of The Procurement and Commercial Contracts team from the Treasury Solicitors Department for the purpose of selecting a firm for the Inquiry witness statement taking exercise. The Treasury Solicitors Department was asked to identify suitable firms, including firms with inquiry experience and firms which had expressed an interest in undertaking inquiry work, who would be invited to tender. Six firms were invited on a variety of pricing bases, including a fixed cost per statement. Two tenders were eliminated at this stage, primarily on grounds of cost. Four firms were invited to interview and those interviews were held at Treasury Solicitors Department. The tenders were evaluated on various grounds, including the relevant skills and experience of the firm and the team proposed, their understanding of the task and challenges involved, the resources to be made available to support the work and the overall cost and value for money of the tender.

The Victoria Climbié Inquiry asked witnesses to write their own statements. This resulted in many uniform statements and although it gave witnesses the chance to make a statement in their own words, it was problematic in that it did not result in candour.

The appropriate model will depend on the kind of evidence that is sought, whether the witnesses are professionals or civilians, and on the budget available to the process. A model involving people trained in questioning and statement writing, such as experienced police officers, has proved to be successful and relatively cost-effective.

The interview

Interviews may be held at the offices of the witnesss representative, where the witness has one, or in the function rooms of a hotel or other appropriate premises convenient for the witness. This may include the offices of the inquiry, subject to any necessary security arrangements being undertaken.

At the beginning of the interview, the interviewer may wish to set out the terms of reference of the inquiry and explain both what the interview seeks to achieve and that a statement will be drawn up from the interview transcript. The interviewer may wish to use a form of words such as:

This is an interview in relation to the X X X Inquiry. Before I ask any questions I would like to set out formally the terms on which the Inquiry is being conducted."

Set out terms of reference

The Inquiry also has the powers to make recommendations.

You have already been sent a copy of the full terms of reference and you are welcome to see another copy now or at any time during the interview.

The purpose of the interview today is to allow you an opportunity to give your full account of your knowledge of any of the matters which the Inquiry is investigating. The procedure will be that you will be asked to give your recollection of events that we think you may have some knowledge of. You will then be given the opportunity to comment on anything you may have previously said in the past and which is relevant to the Inquiry. You will also be given a chance to comment on what we know about what others have said of your involvement.

The interview will not be conducted under caution. You are free to stop the interview at any stage to seek legal advice.

No information that you give us may be used against you in any criminal proceedings. The Chairman of the Panel has obtained an undertaking from the Attorney General to that effect. The full text of it is this,

An undertaking in respect of any person who provides evidence to the Inquiry that no evidence he or she may give before the Inquiry whether orally or by written statement, or any written statement made preparatory to giving evidence or any document or information produced by that person to the Inquiry will be used in evidence against him or her in any criminal proceedings, except in proceedings where he or she is charged with having given false evidence in the course of this Inquiry or having conspired with or procured others to do so.

Shortly after the interview you or your solicitor will be sent a transcript of the interview.

This interview does not mean that you will necessarily be asked to give evidence to the Inquiry.

here may be circumstances where the Inquiry may wish to re‑interview you for example, in order to clarify a particular issue. Again, any further interviews will be conducted under the same conditions as this interview.

If after the end of the interview you recall anything else that you think may be relevant please let us know as soon as possible.

If you are happy with that, I will start the questions.

In the interview a member of the inquiry team may ask the questions in accordance with the questionnaire and raise any supplemental questions which arise in the course of the interview (albeit that these should be restricted only to those which are necessary). It is suggested that the second member of the team takes a full note of the interview on a laptop as it progresses (the questions will be on disk already).

The end of the interview

At the end of the interview the notes taken should be printed off and signed on each page by the interviewer and interviewee. The Serious Fraud Office has an interviewing team consisting of a questioner and a statement writer. The questioner will lead the interview while the statement writer will write the statement during the course of the interview. By this method the statement can be signed very promptly after the interview, thus taking a step to resolve the difficulties experienced in the Robert Hamill Inquiry where large numbers of witnesses refused to sign their statements.

If a statement cannot be prepared in the course of the interview, or shortly afterwards, each witness should be asked whether they are prepared to sign a statement based on the interview notes and whether they are willing to give oral evidence at the hearing if called to do so.

After the interview

For the ongoing interview process, and in order that information can best be shared, the interview team should draw up an internal note of interview. The interview team should review this note and, where possible, agree that it gives their impression of the witness (honest, cooperative, evasive etc) along with any other useful information. It is suggested that this information remain internal to the inquiry and will be non-disclosable

The interviewing team may usefully draw up a final detailed report including all factual details related to the section, identifying the issues and the basis for any alternative findings which could be made in relation to those issues and add to the overall chronology. This information gathering process may effectively be undertaken by one person, akin to that of a HOLMES reader, facilitating cross-referencing between information and evidences, and feeding information arising into subsequent interviews.

Order of interviewing witnesses

From the review of the issues and documents, it is likely that witnesses will clump together in terms of chronology and issues. It will be desirable that if more than one interviewing team is required, such thematic groups can be allocated sensitively between the teams, in order that information best be shared.

Transcripts

It is suggested that the interviews be recorded, and perhaps transcribed. Inquiries have in the past experienced some difficulty when witnesses have later denied what they have said and while transcription may be expensive, it will avoid costly re-interviews and other delays to the inquiry.

Witness Statements

A witness statement should be drawn up from the interview. This statement should be of wide scope, reflecting all relevant matters touched upon in the interview, rather than attempting to be overly concise at this stage the issues in the inquiry may develop.

The witness statement should contain as a minimum:

• A declaration that the witness understands that the document is their evidence and is true. This may be in the form of words:
  I, X, of an address known to the Inquiry, declare that this statement is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence at the Inquiry I will be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
• The witnesss version of the facts and events which are in their knowledge and relate to the terms of reference
• Their reaction, response or explanation to every document that has been deemed relevant to them, with page references to the inquirys final paginated bundle.

It is suggested that this be done explicitly, in the form: I have been shown document Y at page X… or I have been told that the account of my colleague is that… and I say … rather than just their competing account which covers the relevant events or issues.

Witness Dossier

For each witness, it is suggested that a dossier be prepared as part of the statement process. This should include:

• A one-line summary of who the witness is, in order that the media will be able to decide their interest.
• A couple of paragraphs describing the role of the witness and what issues the witness speaks to.
• A list of which other witnesses relate to the evidence.
• A full statement, in which, as described above, every relevant document, with page reference, is recorded as having been put to the witness and their response, however short.
• A schedule of documents, with page references that have been put to the witness.
• A folder of the documents that will be put to the witness in their oral evidence.

Witness Preparation

The dossier above should allow Counsel to the Inquiry to become quickly acquainted with the issues necessary to call a witness. Counsel may wish to consider this in light of a possible need to manage a scheme of work sharing necessary, if, as is likely, witnesses may be prepped shortly before calling them.

Representation and funding for witnesses

As previously discussed, the extent to which witnesses are funded for legal representation to present their evidence has been the subject of much discussion and some contention. By section 40(1) of the Inquiries Act 2005, the Chairman may award reasonable amounts to a person in respect of expenses properly incurred, or to be incurred, in attending, or otherwise in relation to, the inquiry. This includes by section 40(2) the powers, where the Chairman considers it appropriate, to award amounts in respect of legal representation.

Full discussion on legal representation for witnesses can be found here as well as a suggested protocol for witness funding.