Witness statements on video

That’s what two academics recommend — and the law is ahead of them

Police officers investigating crimes should record interviews with witnesses using body-worn video cameras rather than in writing, two leading academics recommend in a paper published today. Subject to safeguards, the video evidence would be used in court.

The recommendation is made in the Criminal Law Review by Andrew Roberts, professor of law at the University of Melbourne, and David Ormerod QC (hon), professor of law at UCL Faculty of Laws in London.

A law permitting the use of video evidence by witnesses was approved by parliament 18 years ago. But section 137 of the Criminal Justice Act 2003 — which was passed long before the police routinely wore video cameras — has not yet been brought into force. It allows for recorded evidence to be treated as if it had been given in court.

Calling for ministers to bring the provision into effect, Roberts and Ormerod say that using video-recorded evidence appears preferable to the traditional practice of producing written witness statements:

Unlike police interviews with suspects, there is little regulation of the process through which narrative evidence is obtained from witnesses… It will usually be necessary for the police officer responsible for obtaining that account to maintain some control over the process. Without a degree of prompting and interjection on the part of the interviewing officer the account provided by the witness might be partial, rambling, and/or disjointed. To serve as a useful record of events, it will usually be necessary for the officer to guide the witness’s recollection and impose some form of order on the process through which a statement is created…

The way in which a witness is interviewed can contaminate and corrupt a witness’s memory of events. We know that the words used by an interviewer when questioning a witness can affect the witness’s recollection of events. There is also a risk that information disclosed by the interviewer will affect the account of matters provided by the witness… It will be very difficult at trial to establish whether anything that was said by the interviewing officer, or the questions that were asked, could have influenced the account of events set out in the witness’s statement, or have contaminated the witness’s memory.

The two authors acknowledge that information captured in a video interview — particularly one recorded at a witness’s home — would enable magistrates or jurors to draw inferences about an individual’s lifestyle. They recommended that the interview should be filmed in neutral surroundings — and in a single “take”.

Courts also needed to understand that recordings might have an emotional impact on juries. Clear directions would be needed to guard against potential prejudice. Subject to these safeguards, they say, a strong case can be made for more widespread use of body-worn video recorded evidence.

The authors noted other potential advantages:

• incentivising guilty pleas once defendants were aware of the strength of the recorded evidence 

• reducing the length of contested trials 

• relieving the stress for witnesses who might still have to give evidence in court.

In one case, the authors said, recording the aftermath of a violent domestic abuse incident had led to a successful prosecution — even though the victim chose not to give evidence.

Ormerod, a former member of the Law Commission for England and Wales, added yesterday:

There is no doubt as to the value of body-worn video as evidence in criminal trials. It can provide powerful footage of incidents such as domestic abuse or public disorder as they are occurring. 

We also believe there would be great benefit to using body-worn video to record witness interviews that often occur days after an incident has occurred. They would provide a better quality of evidence than the traditional written statement because they should show directly the way in which a witness was interviewed, if the account was shaped by a police officer’s prompting, and whether the witness was confident or hesitant about different parts of their account.

Besides the benefits, there are also risks that need to be looked into. We need more research into the emotional responses such recordings may trigger, for instance, in cases where witnesses appear traumatised, or where upsetting events have been filmed — and how strongly these might affect people’s judgment. 

In the near future, every operational police officer is likely to be issued with a body-worn camera — so it would not be too costly or impractical to require their use in the recording of interviews.

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