12. Preliminary issues relating to Witnesses. Issue of a witness summons and warrant of arrest. Flashcards
Securing the Attendance of Witnesses: Witness Summonses
The attendance of witnesses for purposes of criminal proceedings in magistrates’ courts may be secured by the issue of a summons or warrant under the MCA 1980, s. 97 which applies equally to proposed prosecution and proposed defence witnesses. It provides that, where a magistrate is satisfied that:
(a) any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and
(b) it is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing,
the magistrate may issue a summons requiring the person to attend before the court on the date specified in the summons (s. 97(1)). A similar power is given to justices’ clerks by the Justices’ Clerks Rules 2005.
If a magistrate (but not a clerk) is also satisfied by evidence on oath that it is probable that a summons issued under s. 97(1) would not procure the witness’s attendance, an arrest warrant may be issued instead.
Should a person summoned under s. 97(1) fail to attend as required, the court may issue an arrest warrant.
It must, however, be satisfied that:
(a) the witness is indeed likely to be able to give material evidence or produce a material document or thing;
(b) the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses; and
(c) there is no just excuse for the failure to attend.
Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed. By virtue of CrimPR Part 4 a witness summons may be served in one of the following ways:
(a) by handing it to individual
(b) by leaving it at, or sending it by first class post to, an address where it is reasonable to believe that the individual will receive it.
It should be noted that the Criminal Procedure (Attendance of Witnesses Act 1965), s. 3, which provides that a person who, without just excuse, disobeys a witness summons is guilty of contempt of court, applies to magistrates’ courts as well as the Crown Court
Attendance of Witnesses
Securing the Attendance of Witnesses
In most cases, it is the responsibility of the police to secure the attendance of prosecution witnesses, and that of the defence solicitor to ensure that defence witnesses attend. The steps taken will depend on the sensitivity of the witness and whether there is a fixed date for trial, or whether the case is in a warned list in which case an accused, for example, would need to keep in daily contact with solicitors during the period in which the case might be called on.
Compelling Attendance
Where the prosecution or defence wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily, they can apply for a witness summons.
The same provisions are used to secure the production of documents, rather than the attendance of a witness, as evidence. The use of the provisions for this purpose is particularly pertinent to the disclosure of material in the possession of third parties.
Punishment for Failure to Attend
A person who ‘without just excuse’ disobeys a witness order or summons requiring the person to attend court is guilty of contempt of the court that the person fails to attend.
The person may be summarily punished as if having committed a contempt in the court’s face (ibid.); it is desirable and appropriate for the judge who issued the warrant to deal in person with the witness.
The maximum penalty is three months’ imprisonment
