Witness evidence is a crucial element of inquiries and an inquiry may ask for both written evidence in the form of witness statements and oral evidence at a hearing.
What does a good witness statement look like?
It provides clear, concise evidence on the matters raised by the inquiry and follows the relevant inquiry’s witness statement protocol – the Chair may have made specific decisions about how information should be referenced or documents included.
General points
- Number paragraphs.
- Remember to include your name, current position and professional address and your previous roles and background/experience, particularly during the period being considered by the inquiry.
- Deal with issues chronologically.
- Whilst you will want to use your own words, try and be concise and deal with one issue at a time.
- Remember to explain any acronyms or unusual terms.
- Add exhibits or productions where necessary to support your statement.
Additional tips for corporate witness statements
- Be clear who is making the statement and in what capacity.
- Clarify how the statement was made – what is from the witness’ own knowledge and what has been told to them by others?
- Consider if additional supplementary statements are needed from peers to deal with issues raised by the inquiry.
Issues to consider
Anyone who provides a witness statement should be aware that they may also be asked to give oral evidence. Are they prepared and able to do that? Review our tips on giving oral evidence . Also be prepared to give wellbeing support as an organisation; giving evidence can be stressful for board members and employees.
For corporate statements, consider your consistency of narrative. Was there an organisational “position” or is it less clear-cut and so requiring explanation of different themes and competing demands? Individuals may also be asked for a personal view and individual reflections of what occurred or should have happened.
Be clear about what was considered at the time; whilst reflections with hindsight are important, the inquiry will want to understand what was going on at the relevant time and what pressures or considerations were taken into account. Be aware that others may also be asked to give evidence; it is important to maintain independence, which will avoid the possibility that accusations of collusion could be made. We can support you in this process.
Safeguard sensitive information and privileged material. Note that legal professional privilege is a fundamental right and can (and often should be) maintained. Ensure you fully consider the implications before any waiver. We would be happy to discuss with you.
Consider issues such as public perception and relationships with stakeholders. Is a separate communications approach needed, to explain themes that are being scrutinised and offer reassurance and assurance to those currently using your services?
Tips for giving oral evidence
Giving evidence to a public inquiry, a non-statutory inquiry or investigation can feel intimidating. We understand that you may be anxious and we are here to help make the process as smooth as we can. These key tips and advice explain how you can prepare to provide clear, credible and calm evidence.
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Before the hearing
Know your evidence. You will likely have produced one or more witness statements in preparation for the hearing. Ensure you have re-read those and are familiar with their contents. Also consider reviewing the primary sources related to your evidence e.g. documents you may have looked at previously (such as data reports, medical records or the like) or photographs of relevant settings. Some may be produced alongside your statement or held separately. If recommended by your legal team, review other material that has already been heard in evidence or hearing bundles as requested.
Know why you are giving evidence and in what forum. Is it a fact-finding situation? Are competing considerations at stake? Will it be recorded or live streamed? Will you be asked to take an oath or affirmation (and, if so, have you expressed a preference so any necessary arrangements can be made e.g. provision of the right holy book)? Will you be asked questions by one advocate or also by your own advocate and/or the judge/chair? Will there be public or media present? Do you know how to address the judge/chair, advocates and others due to be present?
Understanding and being ready for what will happen is an important part of preparation and can help avoid last minute nerves or panic. We can help advise you on these issues.
Ensure you know where you are going and when you are expected to be there. Your legal team are also likely to want to meet with you before the hearing for a pre-meet/briefing so ensure you attend in good time for that. Please add to diaries and calendars in advance, giving yourself time for slippage. Hearings often run over and witness running order can slip so you may finish later than expected. We are also likely to want to meet with you after the hearing for a debrief which you are encouraged to attend.
Plan your journey. Give yourself plenty of time to arrive, allowing for potential issues such as inclement weather, traffic delays or issues with public transport.
Witness familiarisation. In some situations, it may be possible to ask for a witness familiarisation tour so you can see where you will wait before giving evidence, where evidence will be taken and who will be sitting where in the room. Similarly, in a hearing, it may be possible to watch the witness due to give evidence before you.
Special measures. It is sometimes possible for vulnerable witnesses to have “special measures” in place such as giving evidence behind a screen, more breaks or anonymity, subject to approval by the inquiry chair. If you have any other specific requirements such as access or for interpreters, please also ensure you make those known at the earliest opportunity so that your needs can be considered and accommodated insofar as possible.
Clothing and belongings. You are likely to be giving evidence in a formal arena. As a general rule, dress as if you are attending an interview and wish to look smart.
Consider what you need to bring with you - and what you can leave at home, particularly any valuables. Be aware that there may be security checks before entering any court setting. We can provide further advice if needed.
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At the hearing
Be aware of your behaviour.
It is important to consider the solemnity of the occasion and the topic. Whilst it is understood that you may to chat to colleagues or anyone else accompanying you at a hearing, be respectful and mindful of those around you.
Turn off or silence mobile phones and other electronic equipment.
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When giving evidence
Listen carefully to the question. Answer what you are asked, not what you want to be asked or think you should be asked. Sometimes the advocate may pause; you do not need to fill the space if you have finished answering and can simply wait for them to continue.
Ask for a question to be repeated or explained if necessary. Do not guess what you have been asked or what is wanted.
Explain if you need to refresh your memory. It is not a memory test so you can ask to see your statement or refer to a document if you need to do so.
Say if you do not know the answer. Do not guess.
Take your time. Take a breath and collect your thoughts if you need to do so. It is better to give structured and thoughtful answer than ramble.
Techniques sometimes used by advocates
- Asking leading questions – you do not have to agree with them if that is your position. .
- Asking about the same issue multiple ways – again, be clear about your position.
- Leaving pauses after you answer – do not rush to fill the gap. A pause will feel magnified when you are giving evidence but you do not need to keep speaking to fill the space. Finish your answer and wait for the next question.
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After you have given evidence
Your legal team will explain to you next steps and what to expect. They will also advise you whether you are able to stay to hear other people’s evidence and/or if you can leave if you wish. They will also explain to you any specific restrictions that may apply, such as a prohibition against discussing your evidence with anyone else. That is usually in place when your evidence is “part heard” i.e. it has not concluded prior to a break in the oral hearing.
Remember
You are likely to be questioned by a qualified legal representative who has been specifically trained to ask you questions. Sometimes, their objective will be to elicit information about what happened and will ask questions in a neutral way, such as in a fact-finding investigation. Sometimes, you may be called to give evidence in a more adversarial environment (e.g. with parties seeking to push alternative perspectives) and in this case it may feel more uncomfortable for you when giving evidence. It is possible that the questioner will try to put an alternative view of events, to see if you change your mind. This approach is common and should not be taken personally.
The key to giving evidence as a witness is to give straightforward answers to what you are asked. Do not try to second guess what the advocate is trying to do achieve or to do. Leave any legal submissions or strategies to your advocate and legal team to manage. Give clear and truthful answers.
Contributor
Senior Associate
