A police investigation will usually arise following a complaint by the alleged victim. The prosecution’s principal form of evidence is therefore likely to be a witness statement made by the complainant. Such evidence can be extremely damaging to the defendant and demands special attention. Further information may be obtained by the police from various third parties and additional witness statements obtained. Third parties who can assist the prosecution may include medical personnel, hospital admission records, forensic examinations, etc.
Achieving Best Evidence
The complainant in a sexual offence case is first recorded on video answering questions asked by the police. A code of practice, known as Achieving Best Evidence (ABE), should be followed by the police during any interview. This means that the police should not ask questions that are leading or forced-choice or otherwise contaminate the interview process and the complainant’s account. The police are also under a duty to identify evidential inconsistencies or omissions.
A serious problem arises where the police may not have followed the ABE code but try and stop you from finding out. The evidential issue of ‘special measures’ becomes particularly important to the defence. Where a case goes to trial, special measures are available in court for those giving evidence who are considered vulnerable or allege a sexual offence by the defendant. Special measures include;
- giving evidence from behind a screen
- giving evidence via video link
- giving evidence in private.
Video recorded statements or interviews may also be, and usually are, admissible as evidence-in-chief, meaning they can be used as part of the prosecution’s case. In deciding whether to allow special measures the court must ask itself whether measures are likely to improve the quality of the evidence given by the witness and the interests of justice. The ABE code and special measures has been introduced to support complainants but can have profound implications for those accused of sexual offences. A longstanding principle of English law is the right to a fair trial. This includes the right for a defendant to properly challenge and question a witness. However, special measures may diminish the effectiveness of cross-examination, putting a defendant at a substantial disadvantage. Assume for a moment that a video recorded statement has been obtained by the police without following the ABE code. This is admissible as evidence-in-chief but it may not be possible for a meaningful cross-examination to take place, because the complainant will not personally be in court. At PCD Solicitors we are aware of these potential problems and will minimise, through expert representation, the chances of the defendant suffering prejudice.