Prosecution Interviews of Witnesses: What More Will Be Sacrificed to ‘Narrow the Justice Gap’?
| Author | Laura McGowan |
| DOI | 10.1350/jcla.70.4.351 |
| Published date | 01 August 2006 |
| Date | 01 August 2006 |
| Subject Matter | Article |
Prosecution Interviews of
Witnesses: What More Will Be
Sacrificed to ‘Narrow the
Justice Gap’?
Laura McGowan1
Abstract It seems that prosecutors will be entitled to interview complain-
ants and other prosecution witnesses in criminal cases. How these inter-
views will be conducted and at what stage of proceedings is not clear.
This article considers what effect prosecution interviews may have on
various stages of a criminal investigation and prosecution. It concludes
that interviews for the purpose of screening out weak charges may be
welcome, but great caution should be exercised when interviewing wit-
nesses later in prosecution proceedings and that the objectivity of prose-
cutors and prosecution counsel should not be sacrificed in an attempt to
‘narrow the justice gap’.
After the first Damilola Taylor trial the Attorney-General, Lord
Goldsmith QC, considered the possibility of permitting prosecution
counsel to conduct interviews of witnesses. In 2004 he proposed that
prosecutors should be permitted to speak to witnesses about matters of
evidence.2The conclusions included:
1. Prosecutors should be permitted to speak to witnesses—including
children and vulnerable witnesses—about matters of evidence.
2. Prosecution witness interviews should be conducted for the pur-
pose and the extent that, in the view of the prosecutor, such an
interview is necessary in order to assess the reliability of or clarify
a witness’s evidence.
3. Prosecutors should be permitted to hold witness interviews at any
stage of proceedings.
4. Interviews should be conducted in the absence of the defence.
5. Pre-trial witness interviews should be recorded by way of a written
note and be conducted in the absence of the defence.3
These proposals were not implemented in full. However, the Director of
Public Prosecutions, Ken Macdonald, has discussed the issue of permit-
ting prosecutors to interview witnesses again to ‘increase the number of
1 Criminal Law tutor at University College, London, of King’s Inns (Dublin) and
Gray’s Inn (London); e-mail L.J.M.McGowan.03@cantab.net. I would like to thank
Dr Jonathan Rogers for his helpful comments on an earlier draft of this article. Any
mistakes are entirely my own.
2 Lord Goldsmith QC, Pre-trial Witness Interviews by Prosecutors Report, 20 December
2004, 39–40, available at www.lslo.gov.uk/pretrial.htm, accessed 14 May 2006. There
were 20 conclusions in all but I wish to focus in particular on five.
3 The recording of the interview only by written note was not welcomed by the Bar
Council. The Bar Council proposed that there should be an unchallengeable video
recording of what had taken place: see ‘Attorney-General’s Report on Pre-trial
Interviews with Prosecution Witnesses’, Bar Council comment, 20 December 2004.
351
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