Processes: Calling witnesses Flashcards
What principles should a defence solicitor adhere to?
The solicitor must act in the best interests of their client but also in a way that upholds the proper administration of justice and public confidence in the profession. Where there is a conflict between these principles, those that relate to public interest and confidence override those to the client.
What are the main examples of a defence solicitor’s ethical duties?
- Not to mislead the court;
- Not to misuse evidence or tamper with evidence, generate false evidence or persuade witnesses to give false evidence (e.g. calling a witness whose evidence you know to be untrue, paying a witness to give false evidence or telling a witness what to say)
- To put forward properly arguable assertions (e.g. advancing submissions which you know, as a matter of law, cannot be sustainable)
- Not to waste the court’s time (e.g. calling irrelevant witnesses)
- To draw the court’s attention to relevant and material law
- Not acting where the solicitor has a conflict of interest or significant risk of such (e.g. representing multiple defendants whose accounts of the incident undermine the defence of the other defendants represented by the same solicitor)
What factors are considered when witnesses are called to trial?
Calling of witnesses: It is necessary to look at circumstances under which a person is:
- [competent] competent to act as a witness;
- [compellable] can be compelled to do so and;
- [special measures] whether special measures should be put in place to help them testify usefully
What is the general witness rule?
General witness rule: All competent witnesses are compellable. This simply means they can be forced to give evidence.
Witnesses may only give evidence if they are competent to do so. This means they are allowed to give evidence. Therefore, a witness who is able to give sworn testimony is competent to give evidence.
How is witness competence determined?
It is necessary to determine the competence of witnesses to give evidence.
Witness competence depends on their ability to understand and answer questions. To be deemed competent to testify, there is no requirement that the witness has any appreciation of the significance of court proceedings.
The person does not need to understand every single question to be competent. Matters of the reliability of evidence are matters for the tribunal of fact, not issues of competence.
Is a defendant a competent witness?
A defendant is not competent to give evidence for the prosecution or a co-defendant in any proceedings in which they stand to be convicted.
However, once a defendant has ceased to face the risk of conviction (for example, by pleading guilty to the matters charged), they will become a competent (and, in fact, potentially compellable) witness for the prosecution and the defence.
How are witnesses compelled to attend court?
Witness Compellability: Competent witnesses are usually compellable. A witness who does not want to attend can be compelled by the issuing of a witness summons by a judge magistrate or authorized court office (Magistrates’ Court clerk).
When can an arrest warrant be used to compel a witness to court?
Where a person subsequently refuses to attend, a further summons can be backed by an arrest warrant but only if they are:
Able to produce material evidence;
Have been established to have been properly served with a summons and;
Have no ‘just excuse’ for their failure to attend
Is the defendant a compellable witness?
A defendant is not compellable for any party in that case. This means that the prosecution or a co-defendant may not force a defendant to enter the witness box to testify. A defendant can also choose not to give evidence on their own behalf. However, a failure to do so without good reason can lead to an adverse inference.
Compellability rules
Is the defendant’s spouse / civil partner a compellable witness for the defence?
Compellability of the defendant’s spouse / civil partner - for defendant = compellable
A spouse or civil partner (but not a person in an informal relationship) is competent and compellable for the defendant (unless jointly charged).
Compellability rules
Is the defendant’s spouse / civil partner a compellable witness for the prosecution or co-defendant?
Compellability of the defendant’s spouse / civil partner - for prosecution or co-defendant = not compellable except in relation to particular offences
Exceptions
The spouse or civil partner is competent for the prosecution or a co-defendant (unless jointly charged) but not compellable (in other words, they are allowed to give evidence but cannot be forced to) unless the:
- defendant is charged with an offence that involves an actual or threatened assault or injury to them
- defendant is charged with an offence that involves an actual or threatened assault on a person under the age of 16 at the relevant time, or
- person is charged with a sexual offence against a person under the age of 16 at the relevant time.
When do the compellability rules for a defendant’s spouse / civil partner not apply?
Exceptions to the defendant spouse / civil partner compellability rule for prosecution
These provisions do not apply to ex-spouses and ex-partners: they are treated as ordinary witnesses for the purposes of competence and compellability. However, this applies only where a divorce has been finalised; it does not apply where there the parties are separated or living apart.
Why are special measures directions issued by the court for certain witnesses?
Witnesses may have special measures directions issued for them to put in place additional provisions in order to assist them to give reliable evidence. Intended to either improve the quality of evidence or solve obstacles in getting the witness to attend court.
** typically for child witnesses, complainants in sexual offences - presumed to need special measures directions
What are the main examples of special measures for all types of cases?
Special measures for all types of cases:
Giving evidence behind a screen (screened from D);
Giving evidence through live link;
Giving evidence in private;
Removal of wigs and gowns;
Video recording of evidence-in-chief;
Video recording of cross-examination and re-examination;
Other measures for children and witnesses suffering from disabilities:
Examination of a witness through an intermediary
Provision of aids to communication
What are the particular special measure arrangements for children?
Particular special measure arrangements for children:
The “primary rule” is that all witnesses under the age of 18 will receive particular special measures directions unless this would not be likely to maximise the quality of the evidence as far as practicable. These default directions are:
- the evidence-in-chief will be video recorded, and
- cross-examination and re-examination will be given by means of a live link.
The child witness may be allowed to opt out of these measures, so long as the court is satisfied that this would not diminish the equality of their evidence.
What are the particular special measure arrangements for sexual complainants?
Particular special measures in sexual cases:
An adult complainant to a sexual offence is presumed to be in fear and, therefore, is eligible for particular special measures unless they decline them.
In such cases, the recorded video interview to the police is presumptively admissible in Crown Court trials unless not in the interests of justice.
Pre-trial videoed cross-examination is now available. It must happen in the presence of the judge but not in the presence of the defendant. Cross-examination will take place behind a screen if there is no pre-trial cross-examination.
What are special measures put in place for defendants?
Special measures for defendants:
A vulnerable adult defendant may be permitted to give evidence over a live link if this is in the interests of justice and it is shown that the defendant suffers from a mental disorder or significant impairment of intelligence or social function so that a live link would enable them to participate in proceedings more effectively.
For a defendant under the age of 18, the test is simply whether their level of intellectual ability or social functioning is compromised so that a live link would enable them to participate more effectively.
What directions are given to the jury re special measures?
Directions given to jury of special measures:
Where special measures are granted in the Crown Court, the judge should consider explaining special measures to the jury when the witness starts to give evidence, to ensure that the defendant is not prejudiced by the measures.
What are other possible options if special measures do not resolve the issue?
Other options if special measures do not resolve the issue:
Special measures are available for all witnesses, whether called for the prosecution or defendant. If measures will not resolve the issue, compelling attendance is an option but so is seeking leave to adduce the statement as hearsay evidence under the Criminal Justice Act 2003 on the grounds of fear.
When is an anonymous witness order made by the court (three conditions)?
Anonymous witness orders: Can be made by the court in a wider range of circumstances where the court feels it is not appropriate to disclose the identity of the witness based on 3 conditions -
→ Condition 1: [Protection from harm] Order is necessary to protect the safety of the witness or another person, prevent serious damage to property, or prevent harm to a public interest
→ Condition 2: [Right to fair trial] The order is consistent, in all the circumstances, with the defendant’s right to a fair trial
→ Condition 3: [Important testimony] The witness’ testimony is important and either the witness will not testify, or the public would be harmed if an order was not made
