APPENDIX 3.5 Use of Notebooks - Written Evidence
(Extracted and modified from South Northamptonshire Council Guidance Notes)
Officers should have regard to the matters contained in this Guidance Note when using Service notebooks.
Entries in notebooks should be:
(a) made in chronological order
(b) dated and timed
(c) legible
(d) recorded in a manner having regard to the fact that the contents may be open to inspection. Particular care should be exercised when recording matters which may be referred to during legal proceedings.
Notebook entries are not intended to be duplicates of information recorded on other Service documentation.
There is no objection to two or more officers who have acted together, refreshing their memories from one set of notes which were made in collaboration, provided that this is made clear in the notes e.g. by the corroborating signature of both officers.
During proceedings, it should be emphasised that it is not the notebook itself which is evidence. Officers may, at the discretion of the court, use their notes as an aide-memoir but this does not necessarily mean they can read them verbatim.
Where they are so used, they will be open to inspection by the court and the defence.
1.0 EVIDENCE IN COURT PROCEEDINGS
1.1 Refreshing a Witness's Memory
Before the hearing, witnesses may see the statements they made about the events which are the subject of the hearing. This applies in both civil and criminal proceedings and, in the latter, to both prosecution and defence witnesses. When giving evidence, a witness may, at the discretion of the court, refresh his memory by referring to a document made at a time when he had a distinct recollection of the facts stated therein and which was made by him or under his supervision or had been read over by him at the time he had a recollection of the facts. The document may be a copy.
1.2 Refreshing Memory from Contemporaneous Statements
Witnesses may be shown their statements before the hearing whether they asked for them or not; where they have refreshed their memories from their statements, the defence should be so informed. The defence is entitled to see documents from which memory has been refreshed. A witness can be cross-examined upon the material in his notebook from which he has refreshed his memory without the notebook being made evidence in the case, but if he is cross-examined beyond those limits the risk is taken of the document being exhibited as evidence and available for use by the court. Similarly, counsel who is cross-examining is entitled to inspect a witness's aide-memoir in order to check its contents or to cross-examine on the material used by the witness without causing the document to become evidence. However, a distinction is to be drawn between looking at notes used by a witness to refresh his memory and calling for and looking at other documents. If a party calls for and inspects a document held by the other party, he is bound to put it in evidence if required.
It would obviously be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each one had said, but there is no objection to two witnesses who have acted together refreshing their memories from notes made in collaboration. Where officers rely on their notes when giving evidence and deny collaboration in the making of the notes, the court should have an opportunity of examining the notebooks.
Whether a document used in court is sufficiently contemporaneous or not is a matter of fact and degree; it must have been written or checked either at the time of the events described or so shortly afterwards that the facts were still fresh in the witness's memory.
A copy or extract has been allowed to be used for refreshing memory in court where it was made or verified by the witness while the facts were fresh in his recollection:
- where an original was lost
- where it was substantially the same as original notes although not exact
- but not where the original document was in existence and the witness had no recollection of the facts apart from what he saw on the copy
- a log kept by an investigating officer of his own observations and what was transmitted to him over the radio, verified by other officers, is no different from other statements referred to by a witness to refresh the memory.
Accordingly the following rules apply:
(i) the usual basis of reasonable contemporaneity applies;
(ii) the document must be available for inspection by the other parties who may cross-examine, although that will not necessarily make the document evidence;
(iii) the record may be admissible to rebut allegations that it was concocted and not genuine;
(iv) the record can be admitted as evidence of its inconsistency with the witness's evidence;
(v) the record can be put before the court where it would otherwise be difficult to follow cross-examination;
(vi) the record is not evidence of the truth of its contents and will not corroborate the witness who is refreshing his memory;
(vii) it can be used as an aide-memoir where the evidence is long and involved but care must be exercised to ensure it is not regarded as evidence in itself;
(viii) exceptionally, the document can amount to evidence in the case where it provides material by which its authenticity can be assessed.
1.3 Refreshing Memory from Statements which are not Contemporaneous
The court, in the exercise of its discretion and in the interests of justice, may permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided the court is satisfied:
- that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place
- that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it
- that he has not read the statement before coming into the witness box
- that he wishes to have an opportunity to read the statement before he continues to give evidence.
It does not matter whether the witness withdraws from the witness box and reads his statement, as he would do if he had had the opportunity before entering the witness box, or whether he reads it in the witness box. It is important, if the former course is adopted, that there is no communication with the witness, other than to see that he can read the statement in peace. Moreover, if either course is adopted, the statement must be removed from him when he comes to give his evidence and he should not be permitted to refer to it again, unlike a contemporaneous statement which may be used to refresh memory while giving evidence.