Successful Prosecution in Arson Cases 18 th January 2011

Legal Experience Training Ltd Learning to Make a Difference Successful Prosecution in Arson Cases 18 th January 2011 Penny Harper (MA Oxon) Solicitor Director Legal Experience Training 1

Legal Experience Training Ltd - Learning to Make a Difference Legal Experience Training Ltd is a learning and development consultancy providing training across the UK. We provide legal knowledge and skills training. Our courses are fun, innovative and interactive. We work with our clients to understand the learning outcomes that they require so we can design and deliver tailored practical programmes, to provide delegates with the opportunity to evaluate and enhance their effective performance in the workplace. The courses are designed for those who need to perform to best practice legal standards in their role. At the end of the course delegates will leave equipped with a toolkit of essential legal knowledge, practical skills and the confidence to meet best practice standards back in the workplace. Our courses are designed to meet occupational, vocational and professional standards. The courses may be assessed and/or accredited courses. Legal Experience provides accredited training for those who collect, write and give evidence in court. In particular: The Advanced Professional Certificate in Legal Skills in Investigation (APCIL) which includes Legal Skills, Evidence and Practice, Case Preparation, Advanced Statement /Report Writing and Court Skills, Investigative Interviewing, RIPA/DPA, Master Class Cross Examination, and The Advanced Professional Award in Expert Witness Evidence which includes Expert Evidence: Law and Practice, Advanced Report Writing and Witness Familiariastion- Court Skills. These courses are accredited programmes with the National Awarding Body, Edexcel. Legal Experience Training runs both these courses on an in house or public course basis. We are always interested in developing new courses, so let us know if you have any ideas. We want you to have an enjoyable, interesting and informative learning experience where you learn to make a difference. Enjoy the session! Penny Harper MA (Oxon), Solicitor Director Legal Experience Training Ltd 12A Upper Berkeley Street, London W1H 7QE. T: 0207 262 3077 or Penny Harper DDL 0208 998 4030 E: Pharper.legalexperience@rosscraig.com January 2011 This study guide is offered to delegates on the understanding that Legal Experience Training Ltd is not in business as a legal advisor. The contents of any training course or document provided by Legal Experience Training Ltd are intended to be generic with the aim of apprising delegates of the relevant law and skills. Therefore, the content of any training or of any document provided by the provider does not constitute legal advice and should not be relied on as such. Specific advice should be sought about specific circumstances. 2

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1. What are the main areas to consider? What is the cost? Training and inter agency co-operation and understanding of roles and responsibilities Evidence - ensuring integrity and continuity at the scene Maintaining a detailed record at the scene Determining the origin, cause and spread of the fire to eliminate accidental causes Obtaining real and documentary evidence Collecting and analysing scientific evidence Dealing with circumstantial evidence it may be all there is! Identifying and interviewing key witnesses Identifying and interviewing suspects Evaluating possible defences Case preparation The investigative report or statement Witness preparation Checklists - Cross examination tactics and tips for survival in the witness box. 4

1. What is the cost? 2. Training and inter agency co-operation and understanding of roles and responsibilities Memorandum of Understanding Joint training: Fire Investigation Officers (FIOs), police, CSI, lawyers and others to promote a consistent approach. Knowing who is doing what and when and how. E.g. Police suspect interviews in an alleged arson will deal with mens rea. FIOs evidence on the cause or spread of the fire may be vital to assist with the effective interview of a suspect. 3. Evidence - ensuring evidence integrity and continuity at scene Create and maintain procedures to avoid contamination of evidence at the scene such as fingerprints, debris, DNA or other scientific evidence. 4. Maintaining a detailed record at the scene Records are not just red tape; they are they to establish in detail what the evidence is and to maintain the integrity and continuity of the evidence.the way that evidence is collected and recorded will affect the reliability, credibility and weight of the evidence. A court or coroners want to know the why, what, where, when, who, and how of any investigative process or procedure. All records should be kept meticulously, as this will be vital should a case be taken to any legal proceedings. The purpose of records or notes is: 1. To provide a record for the purpose of establishing the accuracy, reliability, credibility and continuity of evidence 2. To refresh the memory of the person in preparing witness statements or reports 3. To refresh the memory, in any legal process or tribunal hearing The accuracy of any notes will be tested in legal hearings. It is essential to ensure all notes are accurate and suitably retained. Notes taken during the course of employment are the property of the employer and are important in establishing continuity of evidence, writing statements/reports and if necessary giving evidence. If notes are not made at the time, the author may be asked to explain why and will be expected to offer a credible reason. In such circumstances it would be of considerable assistance if the note itself set out the when it was made. The more detailed the notes, the greater use they are likely to be. The inclusion or omission of crucial details can affect the credibility of the evidence or the witness. Failure to keep an audit trail of tapes of interview, notes, search and seizure, and exhibits may jeopardize a criminal trial and can undermine other legal proceedings. In criminal cases PACE and the codes specify when notes or records must be made and in order to comply with PACE and the codes the investigator should make notes and records. Good practice is to make notes in all and any investigations and the more detailed and accurate the notes are, the better they will assist in the process of writing statements/reports and giving evidence. 5

5. Determining the origin, cause and spread of the fire to eliminate accidental causes A systematic approach is needed, considering the relevant possible causes of the fire and providing documented evidence to rule in or rule out these possibilities. The FIO must demonstrate that the investigation allowed them to confirm or eliminate possible causes of the fire until the cause was highlighted. E.g. Evidence of smoke damage, ignition, smouldering, location of ignition sources, flashovers and length of fire burning. 6. Obtaining real and documentary evidence Photographic evidence can be vital. As far as possible try to take photos, to give a complete picture. Pictures of burn patterns etc can be particularly powerful. 7. Collecting and analysing scientific evidence The continuity of evidence in samples is absolutely vital. Record keeping is an essential part of maintaining continuity of evidence. 8. Dealing with circumstantial evidence it may be all there is! Due to the nature of fire and water, and in the absence of eye witness evidence, circumstantial evidence may be all that there is. Think about how to build this up effectively. E.g. A suspect admits to being at the scene of the fire, but says that it was not him who started the fire, but that a fire bomb was thrown though the window. In evidence if the prosecution is able to demonstrate that the only broken glass was the window glass and that no curved bottle glass was found at the scene and if the prosecution can also demonstrate that the ceiling tiles were burnt from the top rather than the bottom, indicating that they had been pulled down to facilitate the spread of the fire, before the ignition, this will also provide evidence that the defendant s version of events was untrue. E.g. Building up evidence of motive. Examples might include: Bank accounts, insurance policies, value of assets, personal relationships, business accounts and other accounts. 9. Identifying and interviewing key witnesses Aim to obtain witness evidence while the events are fresh in the witnesses minds and before they might become reluctant to give evidence, or before they have time to set up alibis. E.g. Fire fighters, eyewitnesses, property owner, passers by, neighbours, business associates, employees. 10. Identifying and interviewing suspects Do not fall into the trap of getting an early confession and thinking the job has been done. A confession is the icing on the cake, it is not the cake! Careful preparation before the interview to put the available evidence to the suspect and to obtain further evidence. PEACE and PACE Code C and E. 6

11. Evaluating possible defences At all stages in the investigative process think about possible defences or explanations, that might be put forward by the defence. This can assist with seeking more evidence at the scene, with interviewing witnesses and suspects and/or explaining the possible cause/spread of fire in the written evidence, by demonstrating how possible explanation put forward by the defence are not plausible. It is important to establish a foundation of factual evidence as to the most likely explanation for the fire and as to whether or not there was deliberate ignition. 12. Case Preparation Step 1. What is the legal framework? Step 2. What are the issues in the case? What is the charge? Criminal Damage Act 1971 1. Destroying or damaging property. (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson. Actus reus s. 1 (1) Property, destroy or damage, belonging to another c/f s. 1(2) does not have to belong to another. Men rea s. 1(1) intention or recklessness. S.1(2) intention or recklessness as to the damage to property AND intention or recklessness as to whether that damage will endanger life. The witness must be able to identify and address the main issues in their own evidence. Consider the origin, cause spread of the fire and in particular consider any possible defence or explanation that might be put forward and how this can be dealt with. Step 3. What are the facts in the case? It is essential to be familiar with the facts in the case A witness must advance the main facts in support of the issues In particular distinguish between facts and assumptions. The lighter belonged to D. Has there been a fair and full investigation of the facts? E.g. Can it be demonstrated that the cause was an accelerant by reference to the burn pattern, how can this be demonstrated in the evidence? 7

E.g. A naked flame will ignite modern fabrics almost on contact, whereas a smouldering cigarette will require 20 minutes or more, and then only if other factors are favourable. Look out for gaps and ambiguities in the facts. Are there any gaps in the facts? Which facts are agreed or in dispute? Identify the different sources of fact - documents, notes, reports, witness statements, interviews, examination, assessment and others Identify strengths and weaknesses in your evidence Identify strength and weaknesses in the evidence for the other party e.g. their alibi, their account of what happened Consider if you need more information Consider doing a chronology of the key facts to assist you in giving evidence Step 4. What are the opinions in the case? What is the range of opinion and what is the basis for the opinion? Make effective use of qualifications/experience to demonstrate the credibility of you as a witness and the reliability and credibility of the evidence. Need to explain the possible causes or origin of fire, including the one that the defence will put forward and then give a full evidential basis for why you say that the cause is deliberate ignition (fire investigations) and why it was the defendant (police). Step 5. What are the essential strengths to get across during your evidence? You should analyse the strengths and weaknesses of your evidence and the other party s evidence What are the strengths/ main message in your evidence that you have to get across to the decision makers? Be proactive in getting across the essential strengths in their evidence. Identify and advance the evidence that supports the key areas in issue. Ensure that you prepare to make effective use of the evidence that supports these points, be familiar with the notes, documents or other evidence that are relevant to these key areas in issue Consider possible lines of questioning you may have under cross examination. This will help you to anticipate and control your evidence giving and to deal with attacks on evidence facts and /or yourself and to advance the strengths in your own evidence. Remember the cross examiner will attack the wo/man as well as the evidence ball. 8

13. The essential elements in the fire investigation report Think like a lawyer as the report is prepared. Consider what evidence will be required in examination in chief and also consider how the evidence will be challenged under cross examination. In particular what might the defendant s defence be? 1. Introductions 1.1 The author of the report 1.2 Background /synopsis/summary 1.3 Purpose of the report 1.4 Summary of conclusions 1.5 The main characters 1.6 Technical terms and explanations 1.7 Statements/documents relied on 2. Issues 2.1 Statement of instructions 2.2 The purpose of the report 2.3 Issues and key questions concerning the cause of the fire 3. Facts 3.1 Facts obtained by the author Casualties Description of the premises Inspection/Scene examination/investigation Witness evidence Damage caused (fire, heat, smoke, other) and area damaged Interviews 3.2 Assumed facts 3.3 Facts in documents 3.4 Facts obtained by others e.g. other officers 3.5 Other information 4. Opinion/Analysis/Cause of Fire 5. Conclusions Appendices 1 Knowledge, experience, qualifications/training of author of report 2 Experience, qualifications, training of any other person assisting in investigations/calculations/research 3 Statement of methodology 4 List of documents considered (copies of key ones) 5 Details of any literature or other materials which have been relied on in making the report (copies of key extracts) 6 Photos, plans, research, experiments etc. 7 Record of Fire 8 Contemporaneous notes 9 Statements 10 Chronology 11 Glossary of technical terms 9

14. Witness Preparation What documents do they need to refer to? Will photos, plans, models, notes help them to explain the evidence? Make effective and proper use of supporting evidence. Build the wall brick by brick tell the story so that it is easy for the decision maker to follow and understand. Build a foundation of fact. Explaining the scene from the outside to the inside doors/windows, entry, breakage, burns this may come from the fire fighters. Explaining fingerprints or DNA CSI. How to explain the principles of fire behaviour, burn patterns, smoke colour, heat intensity, possible sources and location of ignition from the FIOs Advance the facts that support the issues e.g. Ones that suggest mens rea ( police) ones that suggest actus reus( FIOs) Facts win cases- get the evidence and the facts to support the main message. Do not lose credibility by going outside that circle of fact or outside the circle of expertise. Remain objective in giving evidence you are there to say what you have investigated/analysed/found/ researched. Not there to win the case. Deal with attacks on evidence and self and be proactive in getting evidence over by anticipating the weak areas ( you may even have to concede some!), but prepare to set out the supporting evidence in the strong areas of your evidence. 10

Checklist: Cross examination tactics Cross examination is when evidence gets tested. Here are some examples of cross examination tactics. Consider how you would handle these tactics. Attack relevance of qualifications Attack relevance of experience Attack the factual basis/interpretation of facts Highlight failures to comply with the Part 35 PD and/or Protocol Highlight any change of opinion Unfavorable comparison with other witnesses/expert(s) Attack the area of expertise Get you to validate other witnesses credentials/experience Attack methodology, procedure, investigations, data etc. Suggest bias Undermine accuracy Make assertions Interrupt/cut off Restrict answers to Yes/No Closed questions Open questions Hypothetical Silence Patronise/bully Sarcasm Contradict Use of jargon Attack inconsistency Ask you to agree Is it possible Repeat questions Criticise basis of calculations Attack opinion Traps Personal interest in outcome of case 11

Checklist: Tips for survival in the witness box and do s and don ts for witnesses Speak clearly, at a measured pace, pause, and breathe Speak to the decision maker when giving evidence Listen carefully to the questions. Ask if you need the question repeated Do use your statement/ report /contemporaneous notes effectively and properly to assist in answering questions Make effective use of your qualifications and experience Answer what is asked (don t go too far) Don t be biased, be objective Avoid jargon/technical terms and make the evidence easy to understand Don t avoid answering questions Do not answer a question Yes / No unless you choose to Correct incorrect assertions Correct mistakes/apologise Do not argue or shout Do not ask the lawyer questions Do play to the strengths in your evidence and be proactive in getting essential strengths across Do stay within your knowledge/expertise, stay within the circle of your evidence, don t speculate Acknowledge professional limitations Ignore rudeness, stares, silence and dealt with attacks on them and /or their evidence Do help the decision maker by making the evidence easy to follow and understand Do build a foundation of fact Remember to be honest, objective, clear and helpful 12