GETTING YOUR EVIDENCE RIGHT
An ASB officer (by which I mean any officer who has responsibility for managing cases of ASB) needs a wide (and seemingly ever-growing!) range of skills in order to do their job to best effect. One such skill is the ability to draft a civil witness statement, those which are used as evidence within many legal actions to address ASB such as tenancy matters, injunctions or closure orders. The best statements not only comply fully with the civil procedure rules but also paint a clear picture, proving that the incidents have happened, showing the impact that the behaviour has had and justifying the need for the order sought.
There are many reasons why we should take particular care and attention when completing these documents. Well-crafted witness statements will not only increase the likelihood of the order being granted (in the best possible terms) but may also mean that the order is agreed without hearing, reducing the cost, time and burden on witnesses. Complying with all court rules in relation to witness statements will also show you to be professional, competent and respectful in the eyes of the court.
Whilst an important skill to have, I still see lots of cases where witness statements are not prepared in a way that complies with the regulations or presents the evidence in the best possible form. The tips below draw together my observations from reviewing statements over the years, highlighting some of the key areas that I see being overlooked.
Make sure you follow the civil procedure rules
The civil procedure rules (CPR) govern all applications made through civil processes. Practice Direction 32 contains a checklist of points that need to be included in a civil witness statement and how these need to be presented. As legal rules go, it is fairly reader-friendly and acts as a helpful guide for officers to refer to, ensuring that their statements comply with all requirements.
The issue I find, however, is that often officers have never heard of the practice direction, even those who are routinely drafting witness statements. It means that they might not be doing things in quite the right way, for example, not exhibiting documents in the correct manner or including the most current version of the statement of truth.
My advice would be to read practice direction 32 (where it relates to witness statements) and highlight from it some of the practical points that apply to drafting statements, including the wording that should be used for exhibiting documents, the information that needs to go at the top of a witness statement and the form of words for the statement of truth.
Create a corporate template
For consistency and accuracy, I believe that it is important for organisations to have a template that they use for witness statements. This template should be created with reference to the CPR, to ensure that it complies with everything required. In addition, it must be updated every time there is a relevant change to the CPR.
I would recommend getting on the mailing lists of some of the law firms who specialise in ASB, as well as using social media (LinkedIn and Twitter are the best platforms for business) to follow some of leading lawyers. You will then be notified where there are any changes required, which you can then make to your corporate template, ensuring it remains current at all times.
Tell a story
It is vital that a witness statement tells the full story. I often find when reading through witness statements that I am left with a feeling of only knowing half the story, with many, many questions that I need answering. Your job as an officer is to try and draft a statement that answers all of these questions. Perhaps you use The Noise App and refer in the statement to recordings that a witness has made – do not assume that the person reading the statement knows what The Noise App is. Explain its purpose, how it is used and what it shows.
Make sure where witnesses describe incidents of ASB, the account is clear, setting out how the incident started, exactly what was said and done by all parties and how the incident came to an end. Where there are gaps in an account, it is far more likely that the witness will get grilled in the witness box, something that you wish to avoid as far as possible.
As the case officer, you will know the case inside and out but your intended audience will not. Make sure that you are giving them all the information that they need to be able to understand the case fully, the severity of the behaviour and the reason why it is necessary to grant the order being asked for.
Don’t hide things
I often see officers withhold things from a witness statement, for fear that it will hinder their case. Examples might be where the witness has retaliated, perhaps storming around to the perpetrator’s property, banging on the front door and shouting at them to turn the music down. The officer may be concerned that including this in the witness statement might show the witness in a bad light, making them appear just as much to blame as the perpetrator.
I would never hide this information. If the defence raise it and it has not been mentioned by the witness, then it can look like there was something to hide and it is more sinister than it was in reality. Instead, I would include it in the statement of the witness but explain why it happened. Perhaps the witness was being prevented from sleeping and had to get up the next day for work? Perhaps this incident was one of a long line of nights where their sleep had been disrupted? Perhaps their children were being kept awake and their maternal instinct to protect their child had kicked in? We are all human beings and some responses are understandable when we explain the context. In reality, it may end up supporting your case because the gravity of the impact that the behaviour has had on the witness, such that it has caused them to act so out of character, will be clear.
Finish the job
The witness statement up to the point of the statement of truth is only part of the completed document. There also needs to be an exhibit sheet produced for each exhibit that the statement refers. Exhibits also need to be prepared appropriately: documents need to be read through and any personal information (such as email addresses/telephone numbers for the witnesses/victims) redacted; any photographs need a date, signature and short description of what they are showing; written letters may need a typed version completing if they are difficult to read; a back-sheet needs preparing for the end of the statement.
It can be argued that the legal officer will do the above. Whilst this is the case, if you are paying an external solicitor it may save you some legal fees if you are fully completing the statement before referring it over. Alternatively, if you use internal legal teams, they are usually very busy and anything you can do to save them some time will be greatly appreciated and also mean that they may be able to deal with a greater volume of cases for you.
The importance of your witness statements when making a legal application should never be underestimated – those relatively short documents are incredibly powerful weapons in ensuring that you can resolve the ASB being caused and protect the victims. I hope the suggestions above prove useful as you continuing to develop your drafting skills.
I have created an e-learning package that provides officers with all the information required to draft a witness statement that complies with the civil procedure rules, as well as covering best practice. The course provides template documents and purchase gives life-time access, so the delegate can refresh their knowledge at any stage. The course can be purchased here. Using the code “BLOG” will also save you 10% on the cost of the course.
This blog was originally produced for the Communities ASB forum, a secure place for officers to ask questions and share best practice. It is free to use and can be accessed here