This is a little later than promised. But, following on from the Criminal Justice Alliance report last month, chronicling the collected misery of witnesses in Crown Court trials, herewith a litany of dirty little secrets masquerading as home truths, which I as a witness would want to know in advance. Just to make the heartbreak if not easier to bear, at least less unexpected:
- Your witness statement is really rather important
So you’ve given your witness statement? That’s just a document where the police jot down roughly what happened, right? As long as it’s close to the mark, it doesn’t have to contain EVERYTHING. If a couple of details are taken down wrong by the police then it’s not crazy important. You’ve spent two hours giving your account of a harrowing, fast-moving event, it’s late on a school night and you’re content to sign what’s being waved in front of you so that Pc Nosehair will get out of your kitchen and you can just sink your teeth into a Ginster’s and crash out. Any errors or snafus can be straightened out later, yeah? No harm done.
If I am defending at trial, I am going to use that witness statement against you. I am going to exploit every teensy inconsistency between the minutiae of that document and the evidence you give the court from memory 18 months later. I intend to roll it up like a newspaper and biff you metaphorically on the nose with it like the naughty unreliable puppy that I want the jury to see that you are.
Make sure your witness statement is as full and accurate as it can be. Compel the officer to redraft, amend and buff your statement until you are not just satisfied but positively giddy at its craftsmanship.
2. It’s not all about you
Our friends in McFly might say otherwise, but I’m afraid it’s not all about you. You might be the complainant, the case might hinge entirely on your evidence, but you are not a party to proceedings. As such, you have no real say. The state prosecutes. The defendant defends. You are a witness, nothing more. You are not represented. The prosecution barrister is not your barrister. And while we have such lovely-sounding concepts as a Victims Code and a Victims Commissioner and a Victim’s Netflix n Chill (possibly), the CPS have the discretion to drive your case to a disused industrial estate and surreptitiously discharge two bullets into the back of its head if the evidence starts to unravel, or, as is happening increasingly frequently, it all starts to look a bit pricey. A burglary that requires an expensive expert DNA report? Well hello there, Notice of Discontinuance. You do have a right to request a review of a CPS decision when they bin a case – and I would urge you to exercise it if you’re dissatisfied with the cut-and-paste pro forma Word document that will have been posted out in lieu of a meaningful explanation – but just be prepared for the case to collapse at any time up to and including the trial.
3. It’s all about you
Actually, our friends in McFly have it spot on. It is all about you, when it comes to doing the prosecution’s job for them. Sadly, while the Witness Care Unit should keep in regular contact to update you on the progression of the case, remind you of court dates and so forth, “should” is employed in an aspirational rather than imperative sense, because invariably there are breakdowns in communication, or, to be less euphemistic, mega explosions of bottom-shattering incompetence. The trial might be moved. Your evidence might be agreed, meaning you don’t need to attend court. The scuzzbag might plead guilty. And it’s quite possible you won’t be told. So proactively case manage. Chase regularly for updates. If something new occurs to you, ask to give a further witness statement. And for Lordy’s sake let the Witness Care Unit know if there’s a problem with your attendance.
4. Help a brother out
There is a very real chance that the prosecution barrister will have been dumped with this trial the night before. If so, it is guaranteed that they will not have all the papers in the case. Even more dangerously, they may not realise that they don’t have all the papers. The typical prosecution brief arrives from the CPS containing triplicates of empty pro-forma documents and zilch copies of the actual evidence. When the barrister comes to see you in the witness suite on the morning of the trial (and they should – if they haven’t, demand to see them) ask them whether they’ve got all of your statements. If you’ve subsequently told the police something that might be helpful, ask the barrister whether they’re aware of it. The barrister is not allowed to discuss the evidence with you (to avoid suggestions that you’ve tailored your evidence to fit the case), but they will want to know whether an avenue of enquiry remains unchartered. It’s probably too late for them to do much about it if the police/CPS have just sat on the information for months, but the poor sod can at least pull the bag from the river, tip out the stones and attempt to reinflate those tiny kitten lungs.
5. Wait there
Prepare to wait. And wait. And wait. And wait. And go away, and come back, and wait again. Ad infinitum. Participants – both defendants and witnesses – are often dysfunctional and chaotic, as well as reliant on an equally dysfunctional and chaotic public transport system. The myriad heads of the court Hydra are in the gift of provably useless private companies who will faithfully forget to bring prisoners to court or fail to send an interpreter. Trials are inevitably underprepared by an overstretched Crown Prosecution Service, meaning delays as crucial evidence or disclosure is obtained and served on the day of trial. Add to this the fact that courts list up to 9 “floating trials” (trials without an allocated courtroom) in a single day – while courtrooms sit locked and unused on account of “efficiency savings” – meaning your trial probably won’t get called on. And look forward to the probability that, even if you do have a courtroom and a full set of defendants and witnesses, there may not be enough jurors. That’s the genius of the court system.
6. Giving evidence is not going to be pleasant
Giving evidence is going to be fucking horrible. If you’ve been required to attend court, it will usually be because material parts of your witness statement are disputed by the defence, and you will be challenged. Forcefully. At best, it will be suggested that you are mistaken. Quite probably, you will be accused of outright lying. It is not nice, but this is the adversarial system. The quickest and most painless way through is to listen and just answer the questions. Don’t try to be clever and twist the knife into the defendant, because odds are his barrister is just waiting to tick off “vengeful” on her checklist of closing speech pejoratives. Don’t pick a fight with the defence advocate, because that’s often what we want. Don’t change your evidence based on what you think or know someone else has told the court before you. And don’t lie. Not just because serving a prison sentence for perjury is a ball-ache, but because you don’t know what evidence the defence have up their sleeve to demolish that lie and leave your credibility – and the case – in tatters.
It will be the last thing you feel like doing, but, if you can bear to, nip back into court after you’ve finished giving evidence, take a pew in the public gallery and watch the rest of the trial. As long as there’s been no indication that you might be recalled, you’re a fully-accredited member of the public and are entitled to sit and watch the fun unfold. And I would recommend it, because it not only allows you to see your evidence in the context of the trial as a whole, but to identify who or what is to blame if it all goes a bit Donald Trump. While the first sign of insanity is trying to second-guess the inner-workings of the jury room, there tends to be a fairly obvious reason behind most acquittals, and it’s rarely perceptible without hearing all of the evidence. So, for your own peace of mind, stay behind, absorb the rest of the evidence, the legal argument, the speeches and the summing up, and if the worst happens, you might at least understand – even if you violently disagree with – the jury’s verdict.
8. Don’t be afraid to ask questions
If you don’t stay to watch – actually, even if you do – ask for explanations if anything is unclear. While (2) above is the bottom line, the CPS should consult with you over and/or explain any significant developments in the way the case is dealt with – for example where the prosecution accept guilty pleas to some offences in return for not proceeding on others, or where the defendant pleads guilty on a certain factual basis. If a prosecutorial decision appears arbitrary or irrational, ask the barrister at court (or a CPS lawyer in writing) for an explanation. There should be one. Sometimes the dirty little secret that the prosecution will be desperate to keep hidden from you is that their hand was forced by a failure by either the CPS or the police to obtain/serve/disclose vital material. If this is the case, you deserve to know.
9. Keep the faith
In spite of the above, I implore you to stick with it. The system relies enormously on the goodwill of members of the public who are treated abysmally, but without that goodwill, one of two things happens. Either cases collapse, meaning potentially guilty people walking free, or steps are taken to compel your attendance at court. If a witness summons is issued and you fail to attend, the court can issue a warrant for your arrest and hold you in contempt of court, which could result in a prison sentence of up to 2 years. I have lost count of the number of cases where a case against a defendant has collapsed and the only person being punished is the witness for not attending. I think in particular of a vindictive judge in the north who finds sport in locking up battered women who fail to attend to give evidence against their partners.
10. Claim your expenses
You should not be out of pocket for doing your public duty. Claim for your travel, your parking, your meals, your loss of earnings, and stuff your pockets with free Digestives from the witness suite. It’s the least you’re entitled to, in my humble view.