Witness Statements Reform: Be Focused And Follow The Rules, Or Be Punished

On 6 December 2019, the Witness Evidence Working Group published its final report in relation to reforming the current practice of witness evidence. The recommendations focus on a more consistent enforcement of existing rules, which are regularly overlooked by everyone in the legal profession. There are also a handful of new measures which all lawyers should be aware of.

Why reform the current procedure?

The reason for reform is not surprising. Following a survey of lawyers and judges in 2018, the Group identified a number of problems:

Witness statements can be unreliable: with lawyers drafting witness statements, a witness's memory can become corrupt as they review multiple redrafts of the statement. The witness may therefore be led into recalling a partially inaccurate version of events. Witness statements often contain irrelevant material: there is a high temptation to include documents in a witness statement just to bring them to the attention of the judge, which typically results in irrelevant material and opinions being put forward, neither of which have come from the witness's own recollection. As a result, the page limit is regularly exceeded, and typically permitted by the court. Cross-examination of the witness is not focused: cross-examination is often focused on the detailed content in witness statements, as opposed to the witness's actual recollection. This means excessive time is spent both at trial and by solicitors in drafting witness statements to anticipate this cross-examination, and changing the witness's own words. Time and costs: this stage of the litigation process is infamously costly and time-consuming, lengthening the pre-trial timetable. The way forward

Whilst the report considered some radical proposals for overhauling the entire procedure, they were ultimately rejected in favour of focusing on compliance with the existing rules.

It was felt that relying on examination-in-chief in place of a written statement placed too much dependence on how the witness performed on the day, and lifting privilege in relation to the process of drafting statements would raise more difficulties given the number of draft statements and amendments that are typically produced.

The key recommendations focusing on the current practice are as follows:

Production of an authoritative statement of best practice: having this statement in relation to the preparation of witness statements will assist in the production of more focused witness...