Procedures for Video Recording Interviews with Children
This chapter was updated throughout in March 2020 in line with local practice and terminology.This chapter is urrently under review.
These instructions contain a standardised procedure for the use of recording interviews with children conducted as part of investigation under S47 enquiries.
These instructions are put together in accordance with the recommendations contained in:
- Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measure (it should be noted that a new version of Achieving Best Evidence in Criminal Proceedings is due to be published once approved by the Ministry of Justice);
- NPCC Advice on the Structure of Visually Recorded Witness Interviews (3rd Edition);
- ACPO Position Statement: Interviewing Child Witnesses in Major Crime Investigations (National Investigative Interviewing Strategic Steering Group (NIISSG);
- Judicial Protocol on the implementation of Section 28 of the YJ&CEA 1999;
- Police Scientific Development Branch "Video Recorded Interviews with Child Witnesses";
- Appendix C – POLICE ACTION – Vulnerable & Intimidated witnesses (Lincolnshire Police).
It is an essential condition that both police officers and social workers conducting interviews with children are fully familiar with Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measure (2011) and have received training in the use of video recording equipment.
The purpose of the interview is to listen to what the child has to say. The terms "therapeutic" or "disclosure interview" must not be used. However each child is unique and the effective interview will be one which is tailored to the child's particular needs and circumstances.
The Criminal justice legislation, in particular the Youth Justice and Criminal Evidence Act 1999, creates particular obligations for Courts who are dealing with witnesses under 18 years of age. These include the presumption of evidence-giving through pre-recorded interviews, as well as the use of live video links for further evidence-giving and cross examination. Cross-examination in pre-trial video hearings may also occur in relevant cases. The recording of the interviews with children is desirable to reduce the stress and burden of proceedings for the child witness whilst ensuring that their testimony can be properly tested as evidence in chief. Cross examination and re-examination, if proceedings get that far, are conducted by questioning the child live at the trial, or by or pre-recorded cross examination.
2. Interviews to be Recorded
Formal investigative interviews should not be carried out routinely in all cases, but will be appropriate in some cases, with a view to gathering evidence for criminal proceedings.
A child should never be interviewed in the presence of an alleged or suspected perpetrator of abuse, or somebody who may be plotting with a perpetrator. Consideration must also be given as to whether the child is of sufficient age and understanding to be interviewed and taking the child's or where appropriate the parent's wishes into account.
Other considerations for undertaking an interview of a child victim are outlined in Section 3 of the LSCP Policies and Procedures / Code of Practice.
It should be noted that children also have the option to opt out of providing a video statement and can elect to provide their account by written statement.
Interviews should be recorded where there is:
- An allegation or suspicion of an offence involving assault, injury, threat of injury or cruelty and the witness is a victim under 18 years of age.
- An allegation of a sexual offence where the witness is a victim.
Interviews with child witnesses may be video recorded where:
- They are under 18 years of age and are a material witness in any offence involving assault, injury, threat of injury or cruelty.
- They are under 18 years of age and are a material witness in any sexual offence.
N.B. The provisions outlined in this section do not apply to interviews with children who are the accused.
Close liaison in any investigation with the Crown Prosecution Service is essential.
3. Admissibility in Evidence
Vulnerable witnesses are defined by Section 16 of the Youth Justice and Criminal Evidence Act 1999 (as amended by the Coroners and Justice Act 2009). The Act makes all children under 18 years of age, appearing as defence of prosecution witnesses in criminal proceedings, eligible for Special Measures to assist them to give their evidence in court. Other Vulnerable witnesses are identified by Section 16 (2). These are witnesses who have a mental disorder, witnesses with significant impairment in relation to intelligence and social functioning (witnesses who have a learning disability); and witnesses who have a physical disability.
Intimidated witnesses are defined by Section 17 of the above act as those whose quality of evidence is likely to be diminished by reason of fear or distress (ABE 2011 1.10 refers).
Section 27 of the Act allows the use of video recorded interviews as evidence-in-chief.
It is essential in the interests of justice and to ensure that as far as possible video recordings are admissible as evidence, investigating teams develop a clear appreciation of the rules of evidence in criminal cases and take proper account of both the rules and the law in interviewing children.
4. Ownership of Evidence
The recording will be treated as a "document" for the purpose of criminal proceedings. The statements contained are the property of the person who made them. The medium (video tape/ DVD/digital recordings stored on video camera hard disc drives (HDD)) is the property of the police. Ownership of the DVD/ tape itself expresses certain rights and responsibilities which if properly exercised will ensure that the recording is appropriately safeguarded.
5. Interviews to be Conducted by
Interviews will only be conducted by trained police officers and/or designated social workers, i.e. those who have received ABE training in the use of recording equipment where they take responsibility for its operation.
Adequate planning is essential to the efficient conduct of any interview with a child. The strategy agreed should reflect the skills and experience represented by the joint investigating team. A child's interview plan MUST be completed in all cases.
A careful note must be made of all planning meetings. Consideration must be given to:
- The needs of the child;
- The child's development;
- The use of appropriate language;
- Social and sexual understanding;
- Concept of time;
- Understanding of trust;
- Legal aspects.
Specialist help should be sought where appropriate e.g. in the case of a child with a disability, communication problems, or whose first language is not English. Gender issues of interpreters must also be considered.
An appreciation of the child's emotional welfare at the time of the interview may assist interviewers which should also take into account the child's cultural background and any disabilities he or she may have.
Interviews will be recorded only at approved centres or using the police mobile unit. Only in exceptional circumstances will this not be the case.
The police officer must ensure the following information is recorded:
- Recording reference number;
- Venue of interview;
- Name of person interviewed;
- Name(s) of persons present;
- Time/date of interview;
- Above completed by.
Consent to talk to a child witness
Police do not require consent to talk to a child witness – but they will have to explore consent issues if a video recorded statement (evidence in chief) is being considered.
Consent to video interview a child witness
A child can consent in their own right if they are capable of understanding the implications of being interviewed as a child. If a child cannot understand these implications, the consent of a parent or guardian is required. If parental consent is not forthcoming, consideration may be given to obtaining a court Order that includes a direction in respect of interviewing under Section 44 Children Act 1989 provided that circumstances are such that the child may be at risk of "significant harm". In situations where an approach to the child without first obtaining parental consent is being considered, or where parental consent has been, or is anticipated to be, declined, then it is strongly recommended that a multi-agency strategy meeting with social care takes place.
Children, parents or accompanying adults should be given clear information regarding the form and nature of the interview. The interview plan will consider who has responsibility for this.
4.18 ABE 2011 – Accompanying and supporting children and vulnerable witnesses can be helpful during investigative interviews. The supporter may be a friend or relative provided they are not party to the proceedings and they are not involved in pre-trial support or in the role of supporter at trial.
A SUSPECTED OFFENDER MUST NEVER BE PRESENT.
9. Video Tapes/DVDs
The police will be responsible for the provision of video tapes/DVD's/digital recordings stored on video camera hard disc drives (HDD). High quality recording equipment will be used at all times.
The Criminal Justice Unit and subsequently Central Archives for Lincolnshire Police will be responsible for the registration and storage of video recordings in accordance with Achieving Best Evidence in Criminal Proceedings.
Master tapes/DVD's/HDD will be kept as long as the related crime file dictates. For full details on the procedure please refer to ABE 2011 N7 Disposal of Recordings / the Code of Practice made under the Criminal Procedure and Investigations Act 1996. The minimum period for the retention of interview records should be six months from the date of any conviction or from the date on which a convicted person was released from custody, whichever is the longer. Material must be retained for the full duration of any appeal.
10. Video Recording Equipment
The interview is recorded by two cameras, one of which is static and the other which has a pan/zoom/tilt facility. The main picture recorded is obtained from the moving camera, whilst the still camera provides a small security picture (picture in picture) in one corner of the screen.
The equipment incorporates a date/time facility which is displayed on the monitor and recorded simultaneously onto the recording medium to ensure the integrity of the recording.
11. Operation of Equipment
Wherever possible a person who is familiar with and trained to operate the recording equipment should be identified to act as operator. Where this is not possible neither the investigating police officer or social worker should assume this responsibility. Irrespective of which, the investigating police officer is responsible for ensuring the integrity of disks/HDD by compliance with sealing and storage arrangements. The police officer present will take possession of the tapes on completion of the interview.
12. Action Prior to Interview
The interviewer must check the equipment prior to recording beginning to ensure:
- Both cameras are working effectively;
- Both video recorders are functioning;
- The "picture in picture" facility is visible;
- The time/date is visible on screen.
The child should be shown the cameras, viewing room and introduced to everyone present. This should be accompanied by an explanation, at the level of the child's understanding, in relation to recording procedure, interview etc. Rapport building should be off camera.
13. Recording the Interview
Recording must begin once the child and interviewers are in the interview room. All persons present must identify themselves by name. Where the child is unable or unwilling to give their name, he/she should be introduced by the interviewer.
Once an interview has begun it is best practice that no-one should enter the interview room. Where this cannot be avoided an explanation should be given.
Where it is necessary to have a short break, e.g. toilet break, refreshments, the recording device should NOT be switched off. Best practice dictates that either the child or the interviewer should, where possible remain in the room to protect the transparency and integrity of the interview.
Where a longer break is required no questioning relating to the investigation should take place until the video recorded interview resumes and it should be clarified on the interview that no discussions of this nature have taken place. Interviews should aim to achieve all the objectives set for them while being as concise as reasonably possible.
Rapport building should be conducted off recording.
It will be the responsibility of the operator to monitor the start time of their interview and to ensure there are no issues with the recording, and inform the interviewing officer if the disk is due to run out of storage.
When closing, the interviewer must make it clear that the interview is over.
One of the key aims of interview recording early investigative interviews is to reduce the number of times a child is asked to tell his or her account. However, it may be the case that even with an experienced and skilful interviewer, the child may provide less information than he or she is capable of divulging. Another interview may therefore be necessary and this too should be recorded. Consideration should always be given as to whether holding such an interview would be in the child's interest. In no circumstances should the extra interview for evidential purposes be conducted by members of joint investigation teams unless they are fully satisfied, in consultation with the Crown Prosecution Service, that another interview is needed.
The reasons for conducting another interview should be clearly expressed and recorded in writing. More than one added interview is unlikely to be appropriate unless the joint investigating team makes the decision at the planning stage to divide the phases of an interview with a very young or a child with emotional difficulties into a number of sections to be conducted by the same interviewer on different days, with the rapport and closure being achieved each time.
14. Post Interview Procedure
The operator will select one of the three disks as a master copy, complete the master seal and affix it to the selected disk. The second and third disk will be used as the working copy and Copy A and identified as such on the disk. This label must be fully authorised before the master disk is sealed.
The interviewing officer will be responsible for the disks and to ensure they are kept securely. At the first available opportunity the working copy must be checked to ensure the quality of the recording is of satisfactory standard. If there are difficulties or concerns about this the advice of the Crown Prosecution Service should be sought without delay.
An index of the interview should be completed by the monitor – this will form part of the Unused material and should be retained with the file. Once sealed, master tapes/DVD must not be opened except in the presence of a representative of the Crown Prosecution Service.
15. Statement of Evidence
In any subsequent court proceedings - criminal or civil - the interviewer and operator or any other person connected with the interview may be questioned about the conduct of the interview and the events surrounding it. The interviewer and operator must maintain a careful record of events which, in the case of police officers, will be recorded in their official notebooks.
It should be considered good practice to obtain a written statement from any person to whom a child has disclosed to before the recorded interview.
Police will provide ROVI (Records of Video Interview) where necessary during the criminal investigation.
17. Equipment at Court
The Courts will be responsible for arranging the provision and operation of suitable equipment at Court for relevant cases including recorded interviews.
18. Child Witnesses at Court
CPS will consider and apply for all relevant Special Measures. Police should complete an (MG2 – Manual of Guidance – Special Measures form) where necessary.
19. Access to and Copies of the Recording
Great care is required to ensure that recorded interviews are seen only by those who have a need to see them. A working copy will be supplied to the Crown Prosecution Service when a file is submitted to that service for legal advice.
Where a person is charged with an offence and transfer proceedings are to be called upon, three copies of the recording will be supplied to the Crown Prosecution Service.
The purpose being that the Crown Prosecution Service may serve one copy on the court, one copy (with the appropriate undertaking) on the Defence solicitor and one copy retained by the Crown Prosecution Service for the Prosecuting Counsel.
Recordings required by the Crown Prosecution Service will be delivered by CJU to the relevant CPS office and a receipt will be obtained to acknowledge delivery.
All copies supplied must be returned without delay when no longer required and in any event at the close of the trial or after the time limit for appeal.
The receipt should be suitably authorised and retained in the Criminal Justice Unit for record purposes.
Applications from a third party to view a copy of the interviews will not be granted unless the interests of the child clearly require it and satisfactory arrangements can be made to safeguard it against unauthorised viewing. Any such viewing should be in consultation with Detective Superintendent for the relevant Crime Department.
Any viewing of a recording by an unrepresented defendant will take place under close supervision at a police station.
At no stage should a defendant be unsupervised.
Records regarding movement of recordings should be maintained within the Criminal Justice Unit/Central Archives. The record should include the name(s) of persons allowed to view or borrow a recording together with details of the specific authority granted to them and must be carefully recorded in the log.
The log should remain with the case papers.
20. Movement Record of Recordings
The responsibility for recording the movement of recorded interviews requested by a third party will be undertaken by the Criminal Justice Unit/Central Archives who should consult with the Detective Superintendent for the relevant Crime Department where necessary.
Movement of recordings will be recorded and retained until the conclusion of the enquiry before filing for future reference.
Returned recordings at the conclusion of the enquiry will be forwarded to the Criminal Justice Unit for destruction.