Prosecutors' Interviews with Crown Witnesses: A Socio-Legal and Comparative Analysis

Prosecution barristers traditionally do not speak to complainants and other prosecution witnesses in England and Wales. Fears of being accused of 'coaching' a witness to testify at trial have precluded virtually all direct contact between prosecution counsel and the witnesses (including victims) whom prosecution counsel will call and examine in-chief in court. A similar approach was extended to Crown Prosecutors when the Crown Prosecution Service (CPS) was created in 1986. For the first decade of the CPS's existence, prosecutors remained detached and possibly even aloof from those called to testify by the prosecution at trial. This is in striking contrast to the much closer relationship enjoyed by the accused with his solicitor and (in a somewhat more attenuated sense) with his barrister at court.

In recent times, and for various reasons, prosecutors' detachment from complainants and other Crown witnesses has come to seem inappropriate and illogical. Part of the impetus for a closer relationship comes from the Government's policy of 'placing victims at the heart of the criminal justice system', and specifically of providing victims with more information about the progress of their case, court familiarisation visits to explain the mechanics of the judicial process, and support and reassurance. A related set of initiatives has produced 'special measures' to assist vulnerable and intimidated witnesses to testify in court, requiring prosecutors to try to assess witnesses' needs in anticipation of the trial and to arrange appropriate provision. A third raft of proposals and organisational changes is focused on 'building up prosecution cases' through more proactive styles of prosecution, including efforts to procure more and better witness evidence.

Pre-trial witness interviewing reinforces all three of these overlapping initiatives, but especially the third. It is explicitly conceived as an evidentiary, if not strictly an evidence-gathering, procedure in that it is supposed to help the prosecutor to examine the witness' evidence (and her credibility as a witness) more directly, and thereby facilitate better informed decisions about the progress (or non-progression) of the case. The Attorney-General and the Director of Public Prosecutions (DPP) are both on record as firm proponents of PTWI. However, it is recognised that PTWI represents a significant departure from legal orthodoxy in England and Wales, and that there may be considerable cultural opposition to its introduction in certain quarters of the legal establishment. Rather than progress immediately to full national roll-out, it was consequently decided to proceed cautiously, by conducting an Evaluation Pilot in four CPS Areas in the north-west of England. This was conducted in 2006, and is now undergoing evaluation.

In policy terms, we still need to know: What are the theoretical and actual benefits of PTWI? What are the risks, and how could they be eliminated or ameliorated? And ultimately, on balance, is PTWI a desirable initiative, or not? Utilising a body of unique empirical information, this study will seek to shed light on these urgent questions for criminal justice policymaking, as well as on their broader ramifications for theorising contemporary criminal procedure in England and Wales.

In seeking to place this major procedural innovation in its institutional, professional-cultural and comparative law contexts, the project will also make significant contributions to socio-legal research and comparative legal scholarship on criminal process.