Last May barrister Mark Saunders was killed by police after he repeatedly fired a shotgun out of the window of his Chelsea flat.

During the subsequent Independent Police Complaints Commission investigation, the officers involved conferred in recording their accounts. Although the practice was still permitted by the Association of Chief Police Officers, judicial review was sought on the grounds that, in permitting joint note compilation, the commission had breached article 2 of the European Convention on Human Rights by making an effective investigation into the death impossible. The conferring process, it was argued, must have contaminated, and therefore stultified any realistic scrutiny of, each officer’s account.

The Administrative Court rejected this on the basis that the proposed prohibition on conferring would have been likely to induce non-cooperation by the officers and would therefore have led to the investigation being less effective than that which was actually conducted: R (on the application of Saunders) v IPCC [2008] EWHC 2372 (Admin). Nonetheless, in his judgment Judge Underhill acknowledged the very real risk that conferring might result in cross-contamination of individual written accounts with purported adoption of a conferee’s memory of some fact not actually remembered by the witness, or even collusive agreement of a joint account not reflective of individual recollection (paragraph 13).

In the wake of that stricture, ACPO has amended the conferring provisions of the Manual of Guidance on Police Use of Firearms to state that, in general, there is no need for officers to confer with each other before writing up their notes about what happened and what was in their minds at the time force was used. However, it goes on to state that where conferring is necessary officers must, to ensure transparency and maintain public confidence, record the fact that some discussion has taken place, highlighting the time, date and place of conferring, the issues discussed and with whom, and the reasons for such discussion. To what extent this may have potential consequences for evidence gathering in other contexts – as the IPCC has acknowledged it may – is uncertain for the time being.

History – law and psychologyIn conferring on the preparation of their notes police officers customarily rely on R v Bass [1953] 1 QB 681, in support of what they jealously cling on to as an inalienable right. Indeed, Judge Underhill (paragraph 59) noted that the ‘right to confer’ in the context of police shooting inquiries had become ‘something of a talisman’. In fact, Bass involved ex post facto notes of an interview with a suspect (now compulsorily tape-recorded under the Police and Criminal Evidence Act) rather than an observed incident. More recently pre-trial conferring, at least by civilian witnesses, has been judicially deprecated through a number of cases culminating in the landmark decision in R v Momodu and Limani [2005] 1 WLR 3442, at p.3453, in which Lord Justice Judge, as he then was, stressed ‘the well-known principle that discussions between witnesses should not take place and proofs of one witness should not be disclosed to any other witness’, in order to prevent witnesses collusively or unconsciously tailoring their evidence in the light of what others are saying, or the perception that this has occurred.

The benefits of conferringIn Saunders, Judge Underhill (paragraph 16) pointed out that ‘the advantages of a blanket prohibition on ­collaboration in the production of notes might very well involve disproportionate disadvantages’ and a ban ‘not only would be difficult to enforce in practice but would in many cases have serious operational disadvantages [as where the] prompt exchange of information between officers in the immediate aftermath of an incident is often essential [although] that objection might not apply to collaboration in the ­production of notes’.

We would add that the very obvious benefit of conferring is that, as a matter of everyday experience, the memory of a certain detail, initially not recalled at all, can be instantly evoked in all its richness and colour by the bare cue of hearing someone else mention it. Routine conferring by the police in compiling their notes has presumably been tolerated as an exception to the general ban on mutual comparison of statements because, unlike civilians – who will usually be recalling events which for them are unique – officers are witness to so many similar incidents that their apparent memory of an event may derive from the generality of their experience rather than the particular.

Given that, for the time being, police officers are likely to continue conferring over their evidence in criminal cases, it will be necessary to formulate: (i) suitable procedures for optimising the efficiency of the practice in retrieving genuine memory and for avoiding either innocent cross-contamination or collusive purported adoption; and (ii) appropriate forensic sanctions to attain compliance.

TransparencyIf conferring is to continue in all criminal cases its efficacy necessitates a two-stage process. First, witnesses must be required initially to record their account (either in writing or onto a sound-recording machine) before any conferring with a co-witness. This will preserve the unadulterated or ‘pure’ state of their memory before the influence of anyone else’s memory is brought to bear on their minds, ‘so that in cases where a real dispute emerges as to the precise sequence of events the extent and significance of any subsequent revisions in the ­witness’s account can be assessed’ (Saunders, paragraph 15).

Second, the court must be afforded an unassailable means of scrutinising the actual conferring process so that the exact course of the process of mutual memory cueing is comprehensively transparent. Self-evidently this must involve, at the very least, sound recording of the session of ‘pooling recollections’. The process must be formalised – ‘canteen conferring’ should be history.

Safe conferring without sound or video monitoring – safe for whom?In the absence of video or sound recording is there anything which can be done to refine the existing conferring process? What of a compromise – a ban on oral conferring but allowing officers, once they had completed their initial accounts, to read those of their colleagues? If this stimulated or further refreshed their memory, they would then write out a supplementary account explaining what had caused their earlier expressed memory to change or to be enlarged – and how.

Such an approach is unlikely to be more transparent (and anyway would offend the general rule against mutual inspection of witness statements). An officer who reads a colleague’s note might easily be tempted to adopt an assertion missing from his own initial account if he appreciated its importance to the prosecution case or naively supposed that an exact identity of accounts would be more convincing than mild differences (rather than less). Such an officer could, with impunity, feign a spurious reason for having had his memory jogged. With conferring, the defence can at least cross-examine the conferring witnesses on their methodology. Better to leave things as they are if we can’t have an audio recording.

Forensic strategiesIf preliminary lone-composed accounts and audio recording of subsequent conferring sessions became standard practice, applications for exclusion of the evidence in question might be made in non-compliance cases under section 78 of PACE on the grounds that it was incapable of realistic scrutiny. Even if exclusion were unwarranted, non-compliant conferring could still be a matter for comment to the jury.

ConclusionBy underscoring the risks to justice involved in conferring, the Saunders case may have opened the way to importing reliable procedures into this highly controversial and much-neglected area. There is no need to panic – the solutions to the problems created by conferring are not as elusive as might be feared.

Anthony Heaton-Armstrong and David Wolchover are practising barristers. This is an edited version of an article first published in Counselem/ this month.