ABE interviews are the method by which children, vulnerable complainants, and complainants alleging sexual offences, are interviewed (Sections 21 and 22A of the Youth Justice and Criminal Evidence Act 1999). In this article, Mark Pritchard will discuss how to exclude all or part of an ABE when the process is not undertaken fairly.
Since the introduction of ABEs, rules regarding the questioning of vulnerable people and children by defence advocates have developed significantly to adapt to the needs of the witnesses. However, ABE interviews have not kept pace. Questions asked by defence advocates are scrutinized by intermediaries and limits on the time witnesses can be questioned are often imposed. Conversely, ABE interviews are often conducted with insufficient planning, inappropriate questioning, and they are allowed to last far too long. In some cases, witnesses are coached or led into giving interviewers the answers they want.
For cross-examination, the court will often rely upon a report from an intermediary. Intermediaries are speech and language specialists who ensure that a witness can understand proceedings and the questions asked. They can assist those asking questions in framing them in such a way that the witness gives a true account as opposed to one they feel led or forced into. Frequently though, when an intermediary report is received by the court, the ABE interview has fallen far short of the recommendations within that report. There are also cases where obvious breaches are apparent when watching the ABE interview.
The ABE Interviewing Guidelines
The police guidelines on this type of interviewing state that “…all police officers who undertake ABE interviews should receive special training to do so.” They must also comply with “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures“. That document specifies the minimum requirements for conducting an ABE interview.
Planning the ABE
In the planning phase of the ABE, police should make initial contact with the witnesses. This contact should be limited, and the guidance states that police should elicit a brief account of what is alleged to have taken place and that a more detailed account should not be pursued at this stage but should be left until the formal interview takes place. Police must make a comprehensive note of the discussion, taking care to record the timing, setting, and people present as well as what was said by the witness and anybody else present.
It is also at this stage that police are required to consider the competency and compellability of the witness. It is also essential at this stage for the interviewer to consider any impact the gender, race, culture, and ethnic background of the witness may have on the interview along with any trauma. For child witnesses, consent of the child is necessary if they are able to understand the implications of participating in the interview. The interviewers are responsible for ensuring that, as far as possible, the child is freely participating in the interview and not merely complying with a request from adult authority figures. This consent form may be key when dealing with cases where coaching or oppressive questioning is an issue.
Prior to the interview of a child, the interviewer should conduct an assessment to assess the child’s cognitive, social, and emotional development, the child’s use of language and understanding of relevant concepts such as time and age, as well as other relevant factors such as mental illness or learning disability. The guidance states that this assessment must be recorded in a section 9 statement and should be disclosed to the CPS.
For vulnerable adults, a comprehensive review process is laid out in the guidance. It is made clear to interviewers that failure to conduct this assessment and to tailor the interview to the specific needs of the witness may render the evidence unreliable.
The interviewer should have identified, by this stage, the needs of the witness and laid out a plan for how the interview will take place specific to the witness’ needs. This should include the duration of the interview session and proposed breaks.
The guidance is clear that a full written record should be kept of the decisions made during the planning process and of the information and rationale underpinning them in a section 9 statement. Those defending in cases should be asking for this record as a matter of course, as it is evidence which is capable of undermining the Crown’s case.
ABE interviews are separated into the following phases:
Phase One: Establishing Rapport
Phase Two: Initiating a Free-Narrative Account
Phase Three: Questioning
Phase Four: Closing the Interview
Given the requirements during the planning phase, significant deviation from the established plan will have an impact on the reliability of the evidence within the ABE. If, for example, a young child was assessed to need breaks every 20 minutes to assist focus and reliability of answers, an interview lasting over an hour without a break will be inappropriate.
Interviewers are warned to avoid “Forced-Choice Questions”. These questions give witnesses only a small number of alternatives from which they must choose and which may, in fact, not include the correct option. Multiple questions or compound questions are also to be avoided. The example given in the guidance is “did he come into the park, go on the swings with you, and give you some vodka“. If the witness answers ‘yes’, it is unclear if they are agreeing to all or only part of the question.
The guidance also provides a special warning in relation to leading questions: “If leading questions are judged by the court to have been improperly used during the interview, it may well be decided not to show the whole or that part of the recording to the court, so that the witness’s answers will be lost.” Given this warning within the guidance, there can be no excuse for interviewers leading witnesses in an ABE. There is a further warning that “unless there is absolutely no alternative, the interviewer should never be the first to suggest to the witness that a particular offence was committed, or that a particular person was responsible.” This is because, as the guidance states, “Leading questions can serve not merely to influence the answer given but may also significantly distort the witness’s memory in the direction implied by the leading question.”
The test for exclusion of ABE interviews
s27(2) (YJCEA) states “A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.”
The test for exclusion under 27(2) YJCEA is found in the case of R v Hanton  EWCA Crim 2009 as “Could a reasonable jury, properly directed, be sure that the witness has given a credible and accurate account on the videotape, notwithstanding any breaches?” If “Yes”, it was a matter for the jury. If “No”, the interview would be inadmissible.
In R. v K (Howard)  EWCA Crim 472, it was stressed that the primary consideration is the reliability of the video-recorded evidence itself and not the existence of supporting evidence.
Section 78 of the Police and Criminal Evidence Act 1984 gives a criminal court the power to exclude any item of normally admissible prosecution evidence where the court believes that its admission would have an adverse effect on the fairness of the proceedings. To determine whether the ABE should be excluded under s78, the court will weigh the potential prejudice to the defendant against the probative value of the evidence. Factors that may be considered include the nature and severity of the alleged breaches of the guidance, the impact of the breaches on the reliability of the evidence, and the overall strength of the prosecution’s case.
When seeking to exclude all or part of an ABE interview, defence counsel should consider both the 27(2) YJCEA test and the s78 PACE test. They should carefully scrutinize the ABE interview for breaches of the police guidance, the planning phase, and the interview itself. If these breaches significantly impact the reliability of the evidence, it may be possible to argue that the ABE should be excluded in the interest of justice.
The arguments that the defence ought to be considering are only possible if the police have disclosed the planning documents and assessments referred to above. If you are the litigator in a case where ABE interviewing has been used, please do not wait for counsel to raise these issues. Include in your workflow an automatic letter requesting immediate disclosure as soon as you are told of an ABE interview. Leaving that until after counsel is instructed may mean that the opportunity to list legal argument (especially before a s.28 cross-examination) may be lost.[/vc_column_text][/vc_column][/vc_row]