Victims And Witnesses
SFO OPERATIONAL HANDBOOK
The SFO Operational Handbook is for internal guidance only and is published on the SFO’s website solely in the interests of transparency. It is not published for the purpose of providing legal advice and should not therefore be relied on as the basis for any legal advice or decision. Some of the content of this document may have been redacted.
The care and treatment of SFO victims and witnesses is of the utmost importance and is a key responsibility for all SFO staff who have any contact with them. A victim of a serious fraud or corruption may have suffered a considerable financial loss, for example, their home or pension. Employees of firms involved in fraud may have suddenly lost their jobs. The trauma an individual can experience in these circumstances can be as difficult and life-changing as a serious assault. Victims and witnesses are integral to a case. Without individuals coming forward to assist and give evidence the SFO cannot bring the perpetrators of fraud and corruption to justice.
This chapter provides guidance to Serious Fraud Office (SFO) staff on working with victims and witnesses throughout the investigation and prosecution of cases.
The SFO’s duties and responsibilities towards victims and witnesses are wide ranging. Whilst some duties are legally binding in specific circumstances, the SFO encourages application of the principles which underlie the Victims’ Code of Practice throughout the organisation – and this applies pre and post case acceptance, by case teams, the Proceeds of Crime Division and the Intelligence Unit.
Responsibilities outlined throughout this guidance may be described as being role specific, for example, a responsibility of an investigator or witness care officer. However, roles do overlap and it will be dependent upon the stage of the case, resourcing and the department dealing with the case as to who in fact has responsibility at a particular time. For example, a case administrator or member of the Intelligence Unit may initiate first contact with a victim or witness, whilst a case administrator may be allocated the keeping-in-touch role pre-charge.
The ID119 Victim and Witness Journey through the SFO gives the stages of a case and what obligations needs to be carried out with victims and witnesses at that stage. An accompanying ID120 Checklist for Victim and Witness Journey through the SFO provides a desk instruction to assist case teams.
The key reference documents that set out the specific principles that the SFO must apply to victims and witness are:
- The Code of Practice for Victims of Crime 2015 (the Victims’ Code) – sets out legal duties
- ID121 The Victims’ Code Obligations Chart
- The Witness Charter – sets out standards of service witnesses should expect from the criminal justice system
- Victims and Witnesses: Our Commitment to You – sets out SFO standards [LINK]
- Witness for the SFO – tells witnesses what they can expect [LINK]
Code of Practice for Victims of Crime
The revised Code of Practice for Victims of Crime (The Victims’ Code) took effect from 16 November 2015.
The SFO is a ‘competent Authority’ for the purposes of the European Union Victims’ Directive (2012/29/EU), and therefore legally bound by the provisions of the Victims’ Code.
Chapter 5 of the Victims’ Code specifies statutory duties and obligations which apply to the SFO when dealing with victims during investigation and prosecution; it does not formally apply before case acceptance (although the SFO has made commitments in respect of victim and witness care generally).
The Victims’ Code provides minimum standards and entitlements for victim care with regard to the provision of information and support, assessment of needs and the interview process
The Victims’ Code acknowledges that the SFO and other competent Authorities investigate and prosecute cases with high volumes of victims and so permits the provision of information, for example, case updates, on the SFO website. It also accepts that certain information should not be released if it could:
- result in harm to any person;
- affect the proper handling of the criminal investigation, or prejudice any civil or criminal case; or
- it would be contrary to the interests of national security.
Definition of a Victim of Crime
A victim of crime is defined by the Victims’ Code as a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence.
It is important to recognise that the SFO obligations to victims of crime reach further than those identified as victims under the Victim’s Code definition. The SFO is contacted by many victims of crime, for example, via our secure reporting portal, the Intelligence Unit or the Correspondence Unit. Although these victims may not be the victim of a crime that the SFO is investigating, they are victims who have suffered some loss or harm and require the same level of treatment, dignity and respect in our correspondence with them.
Legal persons (for example, businesses and companies) are excluded from the definition of victims of crime for the purpose of the Victims’ Code. However, that does not mean that a business or company cannot be a victim of crime and, in SFO cases, they often are. This definition does not prevent a business or company from being able to apply for compensation when they have been a victim of crime.
Also, the definition in the Victims’ Code does not prevent overseas states, their governments or people being victims for these purposes.
In broad terms, a witness is someone whose personal experience of events or professional expertise enables him or her to give evidence to the Court.
Identification of Victims
The identification of victims in each case will be determined by the circumstances of the criminal conduct being investigated by reference to the definition in the Victims’ Code, and the factors set out in ‘Definitions’ (above).
The legal obligations that are set out by the Victims’ Code apply to victims who have either:
- made an allegation to the SFO that they have suffered harm directly caused by the criminal conduct; or,
- been contacted by the SFO during the investigation because the SFO has identified the person as a victim.
The Victims’ Code and its obligations, as well as the SFO’s commitment in respect of victims and witnesses, apply to these identified victims whether or not they actively assist the investigation and a later prosecution.
As allegations can be made to the Intelligence Unit before case acceptance, it is important that, once a case is accepted and allocated to a case team for investigation, the case controller obtains from the Intelligence Unit contact details for these individuals and where applicable any needs assessment that has been carried out. The case controller must ensure that these records are kept securely and available for regular review.
When considering the status of a victim, and the SFO’s duties towards them, it is important to note that the Director of the SFO has discretion in deciding which cases to investigate. Where cases are not accepted for investigation by the SFO, they may be passed to other enforcement agencies for consideration. These include Action Fraud, the Police, HM Revenue and Customs and the Financial Conduct Authority. Where this happens, it may be appropriate to refer the victim to these agencies for further information and assistance.
SFO Standards – Victims and Witnesses ‘Our Commitment to You’
The SFO has set out its commitment to victims and witnesses in a document entitled ‘Victims and Witnesses: ‘Our Commitment to You’ [LINK].
This document is on our website and is also available in hard copy format, and where practicable will be sent to victims and witnesses on initial contact by a member of SFO staff.
The SFO is committed to treating victims and witnesses fairly, with dignity and respect by:
- explaining the investigation and prosecution process, and how it may affect them;
- putting them in touch with SFO staff who can answer any questions they may have;
- communicating with them in an appropriate manner, including arranging for an interpreter to help where necessary and possible;
- giving them the information they will need to access specialist support services, or referring them directly where possible;
- keeping safely the information they give the SFO and only providing it to those who have a right to it; and,
- inviting feedback on the service the SFO provides.
The SFO will minimise the disruption and cost of being a witness wherever possible by:
- ensuring communication is clear, accurately and as timely as possible;
- planning ahead to give them sufficient notice of events which affect them;
- taking into account their convenience when planning and making arrangements;
- ensuring they have access to appropriate facilities at SFO offices and at court;
- helping them claim refundable expenses;
- keeping them informed of significant developments in the case overall;
- supporting them at court if they are required to give evidence; and,
- arranging for them to be protected from undue influence or intimidation.
Victim Right to Review (VRR)
In appropriate circumstances, the SFO will look again at any decision which ends an investigation or prosecution. Sometimes, the SFO is legally bound to do this, when requested by the victim(s), as explained below.
VRR and Complaints
The SFO has a general complaints process for dealing with grievances expressed by members of the public. Where such a communication is received from a victim, the grievance may be limited to a decision not to proceed with an investigation or prosecution. If so, this may be dealt with outside the complaints process, as a request for the relevant decision to be reviewed. Where the communication contains a complaint in respect of any other aspect of SFO conduct, this part must be treated as a formal complaint. Any victim communication received that contains both types of grievance – of a decision not to proceed and a SFO conduct complaint, the victim’s request to review the relevant decision will be dealt with separately to the conduct complaint.
Reviewing a Relevant Decision
For any number of reasons, the SFO may decide that it is necessary to review the decision, “the relevant decision”, to end a formal investigation or prosecution in its entirety. The review of the relevant decision must be carried out in a manner which is proportionate and objective.
The review may be triggered by the legal right of the victim to have the decision reviewed.
The Victims’ Code confirms the law in respect of the ‘Victim Right to Review’ (VRR) as set out by the Court of Appeal in Killick (R v Christopher Killick  EWCA Crim 1608) [LINK].
The legal right to review engages only when the SFO makes a decision to end a formal investigation or prosecution in its entirety, against every suspect in respect of every allegation.
The legal duty only engages in respect of decisions made or reviewed on or after 16 November 2015.
To give effect to the right to the review, the nature and reasons behind the decision to end the investigation or prosecution in its entirety must be communicated to the victim(s) subject to the need to maintain information security (which is allowed for in the Victims’ Code).
The notification of the relevant decision to the victim(s) must include the following:
- the relevant decision;
- confirmation that this is a relevant decision which engages the victim’s right to request a review; and,
- confirmation of the deadline for requesting a review and the name of the case team member that the request for review can be sent to.
The notification will stipulate the time frame within which the request must be made to the SFO.
In this case, the victims are those persons who have identified themselves as such to the SFO, whether or not they have assisted in the investigation or prosecution.
Records of the names and contact details of such victims must be kept and made available to the person charged with notifying victims that an investigation or prosecution has been ended.
All victims should be notified of the decision to end the investigation or prosecution, including the reasons for that decision, simultaneously. In exceptional cases, (by reference to the general run of criminal cases), the SFO’s website may be used for this purpose.
On request, the SFO will conduct an independent review taking all representations received by the specified date into account.
The review of the relevant decision must be carried out in a way which is proportionate and robust. The nature of the review process will vary and depend on each case. It could range from a reconsideration of the relevant case decision log or case review panel decision, or extend as far as the reconsideration of some parts of the evidence or unused material in exceptional cases. The rationale for the approach taken must be recorded in advance in the case decision log. Where the victim’s right to review may have been engaged, the approach must be endorsed by the Head of Division.
The findings of the review must then be communicated to those who lodged the request.
The SFO is committed to following the Victims’ Commissioner’s standards for complaints handling [LINK].
The SFO’s complaints policy can be found here [LINK].
Witness Care Officers
The SFO has dedicated witness care officers who look after witnesses before, at and after a court hearing. If a witness care officer is unavailable or not allocated to a case (typically those with fewer victims and witnesses), a case administrator will be required to carry out the duties set out in this chapter. In all cases, the witness care officer will work in partnership with the case administrator, who is a member of the case team. Witness care is a shared responsibility for all SFO staff and the witness care officer, case administrator and case team have an equal duty of care towards witnesses.
All witnesses are entitled to the treatment set out in ‘Witness for the SFO’, but some professional witnesses (such as translators) are subject to the terms of their contract, which refers to matters such as witness warning.
There are a number of different types of witness in an SFO case and each type is entitled to a minimum level of service. The ID123 Definition of an SFO Witness gives a description of witness type and explains the service level case teams should be delivering.
Witnesses of fact
These are people who provide evidence on matters of fact, based on their personal experience of the event. Witnesses can (and in SFO cases often do) include victims.
Professional witnesses are witnesses who are also professionally qualified. This factual evidence is admitted when the facts in question are relevant to an issue which the court is to decide.
An expert witness is a person who is qualified by his or her knowledge, experience or formal qualification, to give an opinion to a court on a particular issue, to assist the court in deciding the matter or case before it. The court will determine if a witness is an expert.
SFO Internal Processes
During the course of an investigation and prosecution, it is important that contact is maintained with the witnesses who may have to give evidence. This should be done on a regular basis and the personal information of witnesses must be kept up-to-date.
As noted above, the SFO must comply with the terms of ‘Witness for the SFO’ and any contract with a professional witness. Subject to this, and the need to maintain information security, the SFO will generally let witnesses know when:
- the SFO decides to prosecute, or not to prosecute;
- the defendant pleads guilty or not guilty; and,
- when any trial date has been set, letting them know the date and location.
The witness care officer or case administrator assigned to the case should make contact with witnesses a minimum of once every two months to update them on case progression, obtain updated contact details, dates to avoid and further information required by the case team. This contact will differ according to whether the case is at the pre or post-charge stage.
The frequency of contact with witnesses pre-charge may be less, if so determined by the case controller and recorded in the victim and witness strategy and case decision log. Updates to witnesses can be facilitated through the SFO website.
Victim Strategy Record
To ensure consideration of victims and witnesses is embedded in important case decisions and processes, SFO case teams should create and record a formal victim and witness strategy as part of the overall case strategy. See the V&W Strategy Action Plan template found in the Operational Stock Forms.
Victim Personal Statement
A Victim Personal Statement (VPS) is intended to give victims a formal opportunity to say how they have been affected by a crime. It allows the victim to give a wider perspective of the impact of the crime than the evidential material normally included in a witness statement. This is made available to the court in the sentencing process.
Impact Statement for Business
Companies can sometimes be victims of fraud or bribery and corruption and may make an Impact Statement for Business.
Community Impact Statements
In some cases, a community impact statement may be appropriate. It is a short statement providing information about the impact of crime and the behaviours associated with the crime on a particular community.
A community impact statement’s purpose is to inform decision makers with the knowledge of the local context and can be useful for the SFO to consider when making decisions to charge, or for a Judge to consider at a sentencing hearing. The use of a community impact statement in court will be subject to judicial discretion.
The Head of Strategy and Policy must be consulted if a community impact statement in respect of international corruption is to be sought, or is received.
Witness preparation concerns providing general background information to witnesses on the trial process. All witnesses should be provided with a copy of the SFO publication “Witness for the SFO” [LINK]. It includes an explanation of court procedures and what to expect when in the court. The witness care officer must never discuss a witness’s evidence with the witness or speculate what the witness could be asked while giving evidence. Care must be taken to ensure the witness is in no way coached or ‘trained’ in how to give his or her evidence.
Witnesses should be given their witness statement(s) at least three weeks in advance of giving evidence and, if required by the case controller, any exhibits they have produced so they can familiarise themselves with the details they have previously provided. These should also be available at court.
Witnesses should be made aware that they cannot simply read from their statement when giving evidence. If a witness giving oral evidence needs to refresh their memory during their time in court, the Judge will permit the witness to refer to their statement if he or she is satisfied that the witness statement was made at an earlier time and the witness’ recollection would have been significantly better at the time of making the statement [section 139 Criminal Justice Act 2003].
Defence Interviewing Prosecution Witnesses
There is no ‘property in a witness’. Whether or not a witness has been interviewed or called as a witness by the other side, the prosecution and defence:
- may interview each other’s witnesses;
- may take statements from those witnesses; and,
- must ensure that no attempt is made to persuade the witness to change his/her account. If the defendant’s solicitor wishes to ask a prosecution witness about matters which have not been covered, the case team may offer to do this on behalf of the defence. Otherwise, a member of the SFO case team should seek to be present at any meeting between the defendant’s solicitor and the witness, and ask that the case team is copied into any correspondence.
Dealing with victims and witnesses
Initial contact with victims and witnesses
Any SFO witness is likely to be in contact with the criminal justice system for the first time. Witnesses will almost certainly be anxious about the process. While SFO staff know what to expect, much of what a witness encounters will be unfamiliar to him or her.
It will often be an investigator who makes initial contact with the witness. However, initial contact may be made before case acceptance by the Intelligence Unit, or post-conviction by the Proceeds of Crime Division, depending on the circumstances of the case.
The Victims’ Code imposes a legal obligation to carry out an assessment of victims when initial contact is made. As a matter of good practice, this obligation extends to all witnesses.
The assessment is required to ensure that victims and witnesses are given the best level of care and treatment that is suited to their individual needs, including the issues referred to below under ‘identification of vulnerable victims and witnesses’.
The responsibility for the initial assessment falls to the member of the case team who first has contact with the victim or witness.
The initial assessment should identify whether victims and witnesses:
- have particular needs in relation to a disability;
- require interpreters;
- have a preferred method of contact;
- have any special cultural or religious needs;
- require support, guidance and/or assistance from an external, specialist agency such as Citizens Advice or Victim Support; and,
- have any specific needs or requirements that may indicate the use of Special Measures during interview or whilst giving evidence.
Information on support services should be made available to all victims. To assist case teams the V&W Victim Information Sheet in the Operational Stock Forms can be provided to victims. It lists organisations who provide emotional and practical support, and organisations who offer financial advice.
The SFO (including the witness care officers, case administrators, case teams, Intelligence Unit and Proceeds of Crime Division) obtains data from witnesses which must be used by anyone making initial contact with the witness.
The information recorded about a witness will include information such as the following:
- full name and up to date contact details;
- date and place of birth (useful for PNC checks);
- whether forms and written correspondence should be provided in Welsh (only applicable to witnesses residing in Wales);
- whether it is acceptable to mention the SFO when leaving a message;
- whether there are any circumstances that the SFO should be aware of, for example any disabilities/child care/health care/transport/language difficulties/visual impairment/restricted mobility or any other concerns;
- whether the witness will require travel and/or accommodation booked by the SFO to assist his or her court attendance; and,
- dates to avoid – any dates the witness cannot attend court over the next six months.
All information in respect of victims and witnesses must be kept in compliance with the Data Protection principles. This includes the need for such information to be kept securely, and only disclosed to internal staff on a ‘need to know’ basis, in accordance with SFO information security policy.
Obtaining Medical Evidence
If a witness states that he or she cannot, or will not, attend court to give evidence owing to (a) medical condition(s), including depression and stress, further information must be obtained from the treating doctor, so that it can be presented to the court.
To obtain medical information:
- contact details for the doctor and permission to contact the doctor must be obtained from the witness or his or her carer;
- once permission and details have been obtained, the witness care officer will write to the doctor requesting further information. The letter should specifically seek to obtain details to assist the case team, counsel and the court in making a decision as to whether the witness is either physically and/or mentally able to attend court. A copy of this letter should also be sent to the witness/carer/point of contact;
- once a response has been received from the doctor, the witness care officer should forward a copy to the case controller and counsel; and,
- the case controller may ask the witness care officer to obtain permission from the witness to disclose the medical report.
It is for the Judge to decide whether the witness will be excused. If the Judge feels the witness is ‘fit’ to attend, a witness summons may be considered. ‘Witness for the SFO’ provides further guidance on facilities available at court and accessibility.
If the witness is excused from appearing in person, it may be possible to adduce their evidence through the hearsay provisions of section 116 (2) (b) of the Criminal Justice Act 2003 (CJA 03)
Identification of vulnerable victims or witnesses
The Victims’ Code places a specific duty on the SFO that, when a victim is identified during the investigation, the person must be individually assessed to identify any specific protection needs and to determine whether and to what extent the victim would benefit from specific protection measures or Special Measures (for interview or giving evidence).
The need for Special Measures is assessed according to set legal principles [see the section on Special Measures below] and any issues relating to protection must be immediately passed to, and processed by, the SFO’s Departmental Security Unit.
If the SFO becomes aware that a victim’s circumstances have changed significantly, the Victims’ Code specifies that the victim must be given the opportunity to be re-assessed. It is important to encourage victims and witnesses to inform the SFO if their circumstances change.
For some people, the process of giving evidence in court can be particularly difficult. It is important to identify vulnerable victims/witnesses in order to ensure their requirements and needs are appropriately managed so they are able to give ‘best evidence’.
Vulnerable witnesses are defined by section 16 of the Youth Justice and Criminal Evidence Act 1999 as:
- child witnesses (under 18);
- any witness whose quality of evidence is likely to be diminished because they:
- are suffering from a mental disorder (as defined by the Mental Health Act 1983);
- have a significant impairment of intelligence and social functioning;
- have a physical disability or are suffering from a physical disorder.
The initial assessment of victims and witnesses by the case team member should have identified vulnerable victims or witnesses. This information must be provided to the witness care officer. As described above, the responsibility to carry out the assessment will usually fall to the member of the case team making initial contact. The case team must ensure that a record is kept of the assessments. It is the responsibility of the witness care officer to check that an assessment has been completed for all witnesses who are later required to attend court. The witness care officer, when assigned to a case, should be informed at the earliest opportunity of any vulnerable victims or witnesses and any identified needs.
Consideration should be given to whether Special Measures are required when a vulnerable witness is to give evidence.
Special Measures Directions offer various measures which will assist vulnerable witnesses in giving their evidence. These measures include:
- screens to prevent a witness seeing the defendant(s);
- allowing a witness to give evidence by video link;
- having a witness’s evidence heard in private;
- dispensing with wigs and gowns in the courtroom;
- admitting video-recorded evidence;
- questioning a witness using an intermediary; and,
- using a device to help a witness communicate.
ID125 Vulnerable and Intimidated Witnesses Chart explains what a vulnerable and or intimidated witness is under the Youth Justice and Criminal Evidence Act 1999.
Part 18 of the Criminal Procedure Rules set out the Notice requirements for Special Measures Directions. Specials Measure Directions must be applied for using the standard Criminal Procedure Rules [FORM]. Notice in the Crown Court must be served by the party requesting the Special Measures not more than 14 days from the defendant pleading not guilty. In some cases, generally those involving serious organised crime and violence, it is possible to apply for a ‘Witness Anonymity Order’ under sections 86 to 90 of the Coroners and Justice Act 2009. This Order prevents the disclosure of any information that might lead to the identification of the witness, through the use of tools such as the use of a pseudonym, voice modulation, screening or restricted questioning. Such orders can only be made when there is a serious risk of harm to a person or their property. The Criminal Procedure Rules set out the rules around the application and the making of such orders. The Attorney General has issued guidance on the prosecutor’s role in Applications for Witness Anonymity Orders [LINK].
Ground Rules Hearings
Where there are vulnerable victims (or defendants), consideration should be given to holding a Ground Rules Hearing to plan the questioning of the victims (or defendants). These were first referred to in the Criminal Practice Directions 2013. The Criminal Procedure Rules give further details. The Practice Direction suggests that it may be helpful for a trial practice note to be created at the end of the hearing to ensure compliance with what has been agreed.
A witness who is unwilling to attend court to give evidence can be compelled to do so by the Crown Court Witness Summons Procedures under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (CP(AW)A).
The Crown Court has to be satisfied the person to be summoned meets both the following conditions:
- that they are likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court; and,
- that they will not voluntarily attend as a witness or will not voluntarily produce the document or thing. Under s2A CP(AW)A, the Crown Court may also require the person summoned to produce a specified document or thing in accordance with the terms of the summons.
The Criminal Procedure Rules set out the rules in respect of witness summonses, warrants or orders.
Application for a summons must be made to the Crown Court as soon as reasonably practicable and be accompanied by declaration of truth. Copies of both must be served on the person to be summoned at the same time as it is served on the Court Officer.
How to serve a Witness Summons
The Police serve witness summonses on behalf of the SFO. The summons may be accompanied by a payment of expenses, sometimes referred to as conduct money, to cover the travel costs of the witness’s attendance at court. Alternatively this may be sent to the witness by registered post before the trial commences. When collecting the summons from the court, the witness care officer or case administrator must check that the summons has been signed by the issuing Judge, and request an electronic copy as this will aid provision of the summons to the Police for service.
If the trial has commenced and a witness summons is to be served urgently, it should be taken to the Police Liaison Officer’s room at the court, unless there is a Police contact involved in the case and they will assist with the summons being served.
Depending on where the witness lives, for example, if the trial is taking place in London and the witness lives in Wales, the Police force covering the area he or she lives in should be contacted and assistance requested. Contact with the correct Police force can generally be facilitated through the national non-emergency police hotline: 101.
It is best practice to obtain written documentation stating the summons has been served and by whom, in case the person serving it is required to attend court.
In the first instance, case teams should contact the SFO’s International Assistance team for guidance on working with unwilling or reluctant overseas witnesses, as they will be able to advise on the best methods of obtaining the witness’s evidence.
An overseas witness may require extra support, for example, being met at the airport by an interpreter and a witness care officer. Assessment of an overseas witness’s needs is as important as that of a domestic witness.
The SFO’s International Assistance team has its own arrangements in place for working with witnesses who are, for example, being interviewed on behalf of another jurisdiction.
‘Warning’ Witnesses (notifying them that they should attend court)
The SFO must indicate which prosecution witnesses will be required at court. This will be decided by the case controller and counsel, who will liaise with any defence teams in relation to their requirements.
It is the responsibility of the witness care officer to ‘warn’ the required witnesses for trial and undertake witness care at court for as long as the prosecution witnesses are required.
Some professional witnesses (such as translators) are subject to the terms of their contract, which may refer to matters such as witness warning.
Witness Court Warning Pack
A Witness Court Warning Pack is a collection of documents which should be sent by the witness care officer to all witnesses in advance of their trial attendance.
Witness Attendance Forms
The following are forms to assist the witness care officer in the administration of attendance recording while at court:
- List of Witnesses to Attend Court (3 parts: carbonised); and,
- Court Attendance Record (2 parts: carbonised).
Securing witness attendance
The case controller [and counsel] will compile a list of witnesses who are required to give evidence, in the order in which they should give it (sometimes referred to as a ‘batting order’ or ‘running list’).
The witness care officer will complete a List of Witnesses to Attend Court (LWAC).
The LWAC is in 3 parts:
- the top copy is for the police should they require a copy;
- the second copy is for the SFO Finance team and should be forwarded to them as soon as possible; and,
- the third copy is to be retained by the witness care officer.
Its completion is straightforward, but the following should be noted:
- Case Number is the File Reference Number;
- the witness care officer should enter the next sequential number against each witness entered on the form (this will marry-up with the Witness Number on his or her Witness Expenses Form and is important as they will be matched by the Finance team);
- the witness’s current address should be verified and entered on the form;
- a diagonal line should be drawn on the form after entering the details of the last witness known to be required at the time the form is compiled;
- on the Finance team and witness care officer copies, the witness category, i.e. Expert (E), Professional (P), Ordinary (O) or other (OTH), should be recorded by circling the appropriate letter;
- after the witnesses have been listed, the witness care officer/case administrator should sign the appropriate box and have it countersigned by the senior case administrator or case controller;
- the top copy of the form is only passed to the Police when they are assisting in the warning of witnesses for court; and
- the third copy should be kept with the file as a permanent record.
The witness care officer should regularly check all witnesses’ availability for the trial duration, well in advance of the trial date. Once received, they should be recorded on the Witness Contact Log and spreadsheet of dates to avoid, which will assist the case controller and counsel in compiling a ‘batting order’.
The court will decide what is deemed an acceptable reason for non-attendance. This may include pre-booked holidays, medical operations, examinations or business trips abroad. Supporting evidence must be provided by the witness to the witness care officer. Other work commitments are not an acceptable reason not to attend court and efforts should be made by the witness to make alternative arrangements in order to attend. A witness should be made aware that having an accepted reason for not attending court does not exempt him or her from giving evidence on another suitable date.
Travel and accommodation arrangements for witnesses
The booking of travel and accommodation for both UK and foreign witnesses is the responsibility of the witness care officer through the designated travel firm in accordance with the applicable rates, bearing in mind any special needs the witness may have. In some circumstances the case administrator will carry out the bookings on behalf of the witness care officer.
It may be appropriate to book a fully flexible ticket in case their evidence overruns or there are delays. The case controller must be informed of, and authorise, all costs before any booking is made.
All forms of travel should be standard or economy class, unless there are special circumstances agreed by the case controller. If witnesses arrange their own transport, the witness expense guidelines must be brought to their attention. A refund can be claimed from the SFO using the witness expenses form.
Witnesses at court
Witness Care at Court
The witness care officer is primarily responsible for the care of witnesses at court. However, the witness care officer will be supported by the case administrator and members of the case team at court. Most Crown Courts have a Witness Service run by Citizens Advice which has an area within the main court building specifically for witnesses waiting to give evidence. The witness care officer should establish whether this service is available before the trial commences. The Witness Service should be provided with a list of witnesses attending each day and informed of any changes.
Witnesses may wish to look around the court room before giving their evidence to familiarise themselves with the layout, including where others will be located. This can be done with the assistance of the Witness Service while the room is empty and can either take place on the day the witness gives evidence or beforehand.
A record should be kept, on the witness care contact log, of those who attend a pre-trial familiarisation visit, noting when it has taken place, any comments, concerns raised and if required the information passed on to the relevant case team members. All witnesses, unless they are a returning witness or decline the invitation, receive a familiarisation talk from the Witness Service on the day of giving their evidence.
The witness care officer should:
- give witnesses an indication of how long they will have to wait before giving evidence;
- make a copy of the witness’s statement available to read while he or she waits to give evidence. This is in addition to the copy previously sent to the witness;
- inform the case controller and counsel as soon as possible if a witness brings further unseen documents to court, as this could have a significant bearing on the progression of the trial. The witness care officer should make a copy of any unseen documents and the originals should be returned unless otherwise directed by the case controller and counsel; and,
- inform the witnesses they are not to discuss their evidence with any other individuals, particularly any other witnesses or potential witnesses.
Phased Attendance of Witnesses
The following procedures are normally followed, using the ‘running order’ already compiled:
- the witness care officer should make contact with the court usher and keep the usher informed each day of the witnesses to be called;
- each afternoon, the witnesses likely to be called the following day should be reviewed with counsel;
- in the event of witnesses having to wait for more than two hours from the time they are required to attend court to the time they are called to give evidence, they should be informed of the reasons for the delay with an indication of how long the wait may be. It is good practice to explain to witnesses before they attend court that there could/will be a wait before their evidence will be heard and that they can bring a book or work to pass the time. Most Witness Services have wi-fi; and,
- If, while a witness is at court or on his or her way to court, it is decided he or she is no longer required to give evidence, the witness should be informed as soon as possible, given an explanation (for example, evidence has been agreed) and thanked for attending. He or she will still be entitled to claim travelling expenses.
Recording witness attendance
The Court Attendance Record form is used to notify the SFO Finance team of witnesses who have attended court. The form should be completed by the witness care officer once a witness has arrived at court and sent weekly to the Finance team. The form should still be completed even if the witness has not finished giving evidence, although it should reflect this.
The following points are relevant when completing the form:
- the Witness Number must match that noted on the LWAC and their Witness Expenses Form;
- details of any expense advances should be shown (travel and or hotel booked by the SFO); and,
- the time the witness arrived at court and was released must be shown, along with the number of days the witness attended court.
Video evidence from witnesses
The Criminal Justice Act 2003 (CJA 03) makes provision for witnesses in the UK to give evidence via video link. This should be considered if it would assist a witness to give evidence. The witness care officer acts as a link between the witness, SFO departments involved and the contact at the place the video link is being held.
The SFO is responsible for booking and paying an interpreter to translate the evidence of a prosecution witness in court when necessary. The SFO may also pay for the interpreter’s attendance outside court, for example, meeting non-English speaking witnesses at the airport or attending a witness in hospital.
If an interpreter attends to interpret for the defendant or a defence witness, the SFO is not responsible for the interpreter’s fees.
In Wales, any party has the right to communicate in Welsh in legal proceedings. Interpretation will be arranged and paid for by HM Courts and Tribunals Service.
Interpreters to be used in court should be selected from the National Register of Public Service Interpreters (NRPSI) [http://www.nrpsi.co.uk/] . If it is not possible to obtain an interpreter from NRPSI, one may be found from the list produced by the Association of Police and Court Interpreters or the Foreign and Commonwealth Office list. The Home Office/CPS standard conditions of contract will apply, and case controllers should contact the SFO’s Commercial and Facilities Management Section to confirm rates and subsistence allowances.
Where an interpreter is required outside of court and the SFO is paying the full costs, they must be sourced through the SFO’s current providers. A list of these providers can be obtained from Commercial and Facilities Management Section.
Interpreters for persons with hearing and/or sight difficulties should be selected from the NRCDP register, https://www.nrcpd.org.uk/.
Case controllers should have consideration for the potential need for interpreters when preparing their case budgets.
Notifying Victims and Witnesses of Results
Waiting for the result from a trial can be a particularly anxious time for victims and witnesses, whether or not they have given evidence or attended court. Often SFO trials are long and it is important to assist victims and witnesses through this time by updating them with changes to the expected timetable (for example, the expected duration of the trial has been extended).
After the conclusion of a trial, all victims and witnesses, including those who did not give evidence, should be notified of the outcome of the trial and thanked for their co-operation. The witness care officer should liaise with the case controller on drafting the letter.
Witnesses will have already received a copy of ’Witness for the SFO’ which provides detail and information about expense claims.
For witnesses attending court, the witness care officer should provide the witness with a Witness Expenses Form and a further copy of the Witness Expenses Guidance Notes, after he or she has given evidence.
For witnesses attending the SFO’s offices to be interviewed, the case controller has the discretion to authorise the reimbursement of reasonable travel and subsistence expenses, except loss of earnings or childcare costs. Examples of the factors to be taken into account when deciding whether reimbursement of expenses is appropriate include the ability of the witness to travel, the importance of the evidence provided and whether there were other more cost-effective alternatives available. Reimbursement will not be appropriate where the witness is able to claim expenses from another source, for example, their employer.
Where it is determined that reimbursement of expenses can be offered, the interviewing officer or other member of SFO staff should ask the witness whether they wish to make a claim. The rates payable will be the same as those for attending court. If the witness wishes to make a claim, they should be provided with a Witness Expenses Form and a copy of the “ID28 Witness Expenses Guidance Notes”. Any decision to offer reimbursement of expenses should be clearly recorded in the Case Decision Log.
If a witness becomes a suspect, they will no longer be entitled to expenses. This applies equally to all stages of SFO operations including intelligence gathering, cases accepted for investigation and matters being handled by the SFO’s International Assistance team.
The SFO endeavours to pay witness expenses within 5-10 days of a claim being received. All receipts must be provided and there will be delays if they are not or if the expenses claimed exceed the upper statutory limit.
The following are the general forms used to pay witness expenses:
- Witness Expenses Claim Form (Blue);
- Witness Expenses Guidance Notes; and,
- Witness Advance Claim Form (Single sheet).
Witness Expenses Claim Form
This form is to be used:
- by witnesses of fact;
- by other persons who are not witnesses but necessarily attend court – for example, a parent or guardian of a young witness, or a designated carer for a vulnerable witness; and,
- if a witness is required to attend the SFO’s offices – for example, to be interviewed or to provide a statement or further documentation at the request of the case controller or Investigator on a voluntary basis.
This form is also available in Welsh. Expert witnesses and interpreters are required to submit separate invoices to the SFO detailing their expenses and fees. The scope and fees for expert witnesses will have been agreed with the case controller at the procurement and instruction stage. The witness care officer may assist an interpreter’s claim being submitted to the Finance team.
Witness Classification and Expenses Entitlement
The case controller or senior case administrators will review any classification of professional or expert witnesses.
Witnesses of fact can claim:
- travel expenses;
- subsistence allowance – to cover food and refreshments (excluding alcohol), and lodging if overnight. There are fixed rates according to the number of hours the witness is required; and,
- financial loss allowance – this is to cover loss of earnings and other actual losses. It is intended to give compensation to, and relieve hardship for, people doing their public duty in attending court to give evidence. Proof of actual loss must be provided. There is an upper limit in relation to loss of earnings.
Professional witnesses can claim:
- travel expenses;
- overnight subsistence only (excluding alcohol) – since professional witnesses are, by definition, in remunerative work, they cannot claim day subsistence; and,
- Professional Witness Allowance, either absence allowance or locum allowance (detailed rules and maximum amounts apply).
Expert witnesses can claim:
- travel expenses;
- overnight subsistence only, as per professional witnesses; and,
- expert fees – these will have been agreed in advance for each case.
Other Discretionary Payments
Other discretionary payments over and above normal payments are permitted under the SFO’s witness regulations at the Director’s discretion. These payments do not include court attendance or the other payments outlined above.
Other discretionary payments must be supported by a full written explanation of the individual circumstances of the claim, giving clear reasons for the need to exceed the rules or amounts laid down in the SFO Witness Regulations. For a discretionary payment to be made:
- the witness must make an application in writing;
- the application should be approved by the case controller and agreed with the budget holder;
- the case controller should set out in writing the reasons for allowing payment outside the rules; and,
- the witness care officer should attach the written reasons to the Witness Expense Form or, if the claim is sent directly from the witness to the Finance team, the reasons should be made available to the Finance team as soon as possible.
A record of all discretionary payments must be kept by the Finance team. This is subject to an audit review. Discrepancies should be brought to the case controller’s attention with a view to being disclosed to defence counsel if required.
Taxi fares are not covered by the SFO Witness Regulations, unless there is a case of urgency, no public transport available, the witness is carrying heavy luggage or the witness is suffering from illness or infirmity.
Parking costs & Parking fines
If a witness has parked his or her car, for example, at a railway station to board a train, the witness should ensure the parking ticket will cover the amount of time the car will be there. If the witness is required to stay longer at court and/or overnight and a fine is incurred, the case controller must be informed and proof of the fine should be attached to the Witness Expenses Form. A copy of the parking ticket should also be included.
Advance payments of expenses
Advances may be made by the Finance team. This will be in exceptional circumstances that are approved by the case controller, for example conduct money to accompany the service of a witness summons.
Full details of the advance required must be provided to the Finance team in sufficient time for the transaction to be processed.
Compensation relates to the loss suffered as a result of the crime and is not related to the process of being a witness.
Where there has been a conviction, and where appropriate, an application will be made for compensation for the victims in a case. This will often take place at the conclusion of a confiscation investigation conducted by the Proceeds of Crime Division.
Where the Proceeds of Crime Division makes an application for compensation, it is dependent on the case teams to provide the compensation schedule which will comprise an accurate list of victims entitled to compensation and the relevant amounts. Where compensation is ordered, it may not be in the full amount of the victims’ losses, and it may not be paid in full.
Information for victims about compensation is set out in the SFO publications ’Victims and Witnesses – Our Commitment to You’ and ’Witness for the SFO’.
The Witness Charter
The Witness Charter sets out what witnesses, both defence and prosecution, can expect from the criminal justice agencies and lawyers involved in their case [See “Witness Charter”].
Version OGW 5, Published September 2018 © Crown Copyright, 2020.
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