Attendance of witnesses
1. You should ensure that you have addresses and telephone numbers for all witnesses so that you can readily contact them. You should check their availability before fixing a trial date, although you should be careful to ensure that witnesses and employees are not informed before the accused that a prosecution is to be brought.
2. When the trial date is fixed, you should send a letter to each witness:
- notifying them of the date, time and place of the hearing;
- asking them to attend the hearing;
- enclosing details of how to claim their expenses in attending court (or ‘conduct money’) - see below;
- enclosing a map showing where the court is.
Standard letters (SL7 and 8) can be found in the Letters and Forms section.
3. Witnesses should be reimbursed their reasonable expenses in attending court, including appropriate travel costs (and accommodation, if necessary). As stated above, when writing to witnesses in advance of the hearing, they should be asked to provide details of their reasonable expenses (see above). What is ‘reasonable’ will need to be assessed, and carefully managed, on a case-by-case basis.
4. If there is reason to believe that a witness will not attend voluntarily, you should apply to the court for a witness summons. You should send the appropriate application to the clerk to the magistrates’ court (see below).
5. If you propose to call a witness who requires an interpreter, you should notify the Language Services (Redgrave Court) as soon as possible, so that they can arrange for a suitable interpreter to attend.
6. A witness summons may be served by handing it to an individual, by sending it by first class post (or the equivalent of first class post) to an address where it is reasonably believed that s/he will receive it or by leaving it at that address 1, 2. The court can arrange for the summons to be served by the police if you so request.
7. The court will need to be given the name and address of the witness, and informed of any document that the witness is required to produce. You may also need to explain to the court how the nature of the evidence of the witness is material to the case. 3
8. If you have a witness who is outside the UK, you should seek to agree the statement (or necessary parts of it) with the defence as you cannot make them attend by using a witness summons. If the statement cannot be agreed, the cost of having the witness come to the UK to attend the trial should be balanced against the importance of the witness’s evidence to the case. If it is not reasonably practicable to secure the witness’s attendance in the UK, his/her statement may be admitted in evidence4 - see Cases where a witness is unavailable in ‘Exceptions to the hearsay rule’ for further guidance.
9. In preparing for trial, counsel may meet with the prosecuting inspector and any expert witness appearing for the prosecution to discuss the relevant points and bring out the essence of the case. Meetings between the prosecuting lawyer (including counsel) and other witnesses in the case should only be carried out in limited circumstances, for the purpose of clarifying or assessing the reliability of evidence5.
10. Witness training (i.e. rehearsing, practising or coaching a witness in relation to evidence) for criminal trials is prohibited and must not be undertaken. This does not preclude pre-trial familiarisation that does not involve discussions about proposed or intended evidence6, for example answering questions from a witness about court layout and procedures. Where witnesses seek advice beyond such matters, you should refer them in the first instance to the Witness Service (run by the charity Victim Support). Contact details for the Service can be obtained from the local Court.
11. Section 139 of the Criminal Justice Act 2003 allows witnesses to take their statements into court in order to refresh their memory; providing them with a copy of their statement for this purpose prior to giving evidence is permissible – see the guidance on Memory Refreshing in ‘Exceptions to the hearsay rule’ and the section Supplying statements to witnesses.
Previous convictions of witnesses
12. The Criminal Procedure and Investigations Act 1996 requires prosecutors to inform the defence of material that might undermine the prosecution case. This is an important element in ensuring that the defendant has a fair trial 7. Where a prosecution witness has a previous conviction that is relevant to the case or his/her credibility, this will need to be disclosed to the defence8 (see Key requirements of the CPIA for the definition of relevance). If there is any doubt as to whether a conviction is relevant, the advice of the prosecutor should be sought.
13. The procedure for carrying out such checks on witnesses is outlined in OC 168/6.
15. Where an HSE employee (or a member of staff of any other government department) is to appear as a prosecution witness, information relating to any disciplinary matters may need to be disclosed to the defence in addition to any criminal convictions.9
16. There is also a duty to disclose any previous adverse judicial findings against investigators involved in the case.10 This will include any finding by a court that an HSE witness has knowingly misled the court, whether on oath or otherwise. Details of any such adverse finding should be disclosed to the defence.
Vulnerable or intimidated witnesses
17. Certain witnesses may be eligible for “special measures” to help them give evidence in criminal proceedings.11 This includes child witnesses (i.e. under 17), witnesses with physical or mental disorders (including those with learning difficulties) and witnesses who are in fear of testifying.12
18. Special measures include arranging for the witness to give evidence by way of video recording and/or live link to the court. If special measures might be appropriate for a particular witness, this should be brought to the court’s attention in good time; for example, at the plea and case management hearing in the Crown Court or the pre-trial review in the magistrates’ court.
19. Special measures include arranging for the witness to give evidence by way of video recording and/or live link to the court. If special measures might be appropriate for a particular witness, this should be brought to the court’s attention in good time; for example, at the plea and case management hearing in the Crown Court or the pre-trial review in the magistrates’ court.
- Criminal Procedure Rules, Rule 4.3(1)(a) and rule 4.4(1) and (2)(a). Back to reference of footnote 1
- See Production of documents for serving a witness summons where you require the production of documents in the possession of a company defendant. Back to reference of footnote 2
- R v Peterborough Magistrates’ Court, ex parte Willis and Amos (1987) 151 JP 785. See R v Marylebone Magistrates’ Court, ex parte Gatting and Emburey  Crim LR 578, where the court held that it was not sufficient that the prospective witness could give evidence of what he saw or heard of an incident leading to the criminal proceedings; the evidence must be material to the case of the litigant. Back to reference of footnote 3
- Section 116 Criminal Justice Act 2003. If a party applies to the court to exclude a statement admitted into evidence on the basis of this condition, the party seeking to rely on the statement in court will need to provide the court with the reason(s) why it is not reasonably practicable either to secure the witness’s attendance or to arrange an alternative procedure (such as giving evidence by video link) whereby the contents of the statement could be clarified and challenged - R v C & K  EWCA Crim 197. Back to reference of footnote 4
- See the CPS Code of Practice on pre-trial witness interviews, issued by the DPP in Dec 2005: under certain conditions, a Crown Prosecutor may conduct a pre-trial interview with a witness. The witness’s attendance is voluntary and the investigating inspector should not normally be present. The interview may take place, for example, to assess the reliability of a witness’s evidence. See also the Bar Standards Board Handbook which provides that counsel ‘must not rehearse, practise with or coach a witness in respect of their evidence’ – Part 2 the Code of Conduct C2 rC9.4. Back to reference of footnote 5
- R v Momodou:R v Limani  EWCA Crim 177. Back to reference of footnote 6
- Article 6(1) European Convention on Human Rights, Human Rights Act 2000. Back to reference of footnote 7
- Vasilou  Crim LR 845. Back to reference of footnote 8
- See OC168/6. Back to reference of footnote 9
- R v Guney  2 Cr App R 242, which concerned police witnesses. Back to reference of footnote 10
- Youth Justice and Criminal Evidence Act 1999. Back to reference of footnote 11
- Sections 16 and 17 YJCEA 1999. Back to reference of footnote 12