This chapter deals with the conditions where an accused can plead guilty by post for certain summary offences, the procedure in dealing with offenders for summary either way and indictable offences, and the law in relation to witnesses.
2.4.2 Plea of Guilty by Post
The procedure for a defendant to plead guilty by post is provided by the Magistrates’ Courts Act 1980 and applies to proceedings for summary offences started by way of summons (or requisition) in the magistrates’ court (s. 12(1)), or in the youth court for persons aged 16 or 17 (s. 12(2)). The summons (or requisition) is served on the defendant together with a ‘statement of facts’ and a prescribed form of explanation. This allows the defendant an opportunity to plead guilty and put forward any mitigation in his/her absence. The magistrates’ designated officer informs the prosecution of any written guilty plea.
Where a guilty plea has been received from the defendant, the ‘statement of facts’ and any mitigation are read out by the magistrates’ clerk in open court. Failure to read out any mitigation submitted by the defendant will nullify the proceedings (R v Epping and Ongar Justices, ex parte Breach  RTR 233). No further facts or evidence can be given by the prosecution. In fact neither the prosecution nor the defendant need attend when the court deals with the case, but if the defendant is present they must be given an opportunity of giving any mitigation in person (s. 12A).
The magistrates have the discretion to decide that a case is not appropriate to be dealt with under the ‘statement of facts’ procedure and may adjourn the case for the defendant to appear in court. In these circumstances the guilty plea entered by the defendant is disregarded (s. 12(9)).
At any time before the hearing, a defendant may withdraw his/her guilty plea by notifying the magistrates’ clerk in writing. Also the court may allow a defendant to change his/her plea at the hearing and contest the case (R v Bristol Justices, ex parte Sawyers  Crim LR 754). In Rymer v DPP  EWHC 1848 (Admin) there was a postal plea of guilty and after conviction the hearing was adjourned to consider disqualifying the defendant from driving. At the adjourned hearing the defendant appeared and wished to change his plea to not guilty. It was held that there was no automatic right allowing the defendant to change his plea and that he would need to show good reason why this should be allowed.
This section is most commonly used for driving offences, and provision is made for a printout from the DVLA to be admissible as evidence of previous convictions for traffic offences without the need to give an accused notice of intention to refer to these previous convictions (Road Traffic Offenders Act 1988, s. 13).
Trials on indictment take place in the Crown Court; summary trials take place in the magistrates’ court. The classification of the offence determines in which court the trial takes place; generally, summary offences in the magistrates’ court and indictable offences in the Crown Court.
In the case of an either-way offence the magistrates must determine whether a person who has attained the age of 18 should be tried summarily in the magistrates’ court or be sent to the Crown Court to be tried (ss. 17A to 21 of the Magistrates’ Courts Act 1980). (Mode of trial is dealt with in more detail in para. 184.108.40.206 (Determining Mode of Trial: Adults) and para. 220.127.116.11 (Determining Mode of Trial: Juveniles.))
18.104.22.168 Pre-trial Hearings
In the magistrates’ court there is a system of pre-trial hearings. These are known as an ‘Early First Hearing’ where a guilty plea is anticipated or an ‘Early Administrative Hearing’ where a not guilty plea is expected. Section 8A of the Magistrates’ Courts Act 1980 provides that at a pre-trial hearing, once a not guilty plea has been entered, the court may make rulings on any question as to the admissibility of evidence and any other question of law relating to criminal cases to be tried in the magistrates’ court. However, such rulings can only be made if the accused is legally represented or he/she has been offered and granted or otherwise the right to representation by the Legal Services Commission as part of the Criminal Defence Service.
These rulings are binding and will continue to be so until the case is disposed of by the accused being acquitted, the prosecutor deciding not to proceed with the case, or the information is dismissed (s. 8B).
2.4.4 Summary Trial
Summary trials take place in the magistrates’ court before at least two lay justices or a single District or Deputy District Judge (Magistrates’ Courts).
The prosecution and defence may conduct their own case in person or be represented by counsel or solicitor (s. 122(1) of the Magistrates’ Courts Act 1980). In the Crown Court the prosecution must appear by legal representative, but the accused may still conduct his/her own case and may be allowed a friend to accompany him/her as an adviser, though such an adviser may not question witnesses or address the court (McKenzie v McKenzie  P 33).
Where there is a ‘guilty’ plea in the magistrates’ court, the hearing starts with the prosecution stating the facts of the case and introducing the offender’s relevant previous convictions. The defence then put any mitigation to the court before sentence is passed.
Where there is a ‘not guilty’ plea the prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute. To help the members of the court to understand the case and resolve any issue in it, the court may then invite the defence concisely to identify what is in issue (Criminal Procedure Rules 2015, r. 24.3). The prosecution will then present their case to the court. Following this the defence may then call their evidence and finally address the court in a closing speech.
Following the prosecution evidence, if the defence consider that a case to answer has not been established, they may make a submission to the court of ‘no case to answer’. There is no clear direction as to what would constitute ‘no case to answer’ in the magistrates’ court, and if the prosecution have provided the necessary minimum amount of evidence on which a reasonable court could convict, the trial should continue. In Moran v DPP  EWHC 89 (Admin) it was held that the justices are not required to give reasons in rejecting a submission of ‘no case to answer’.
2.4.5 Trial on Indictment
Trials on indictment take place in the Crown Court before a judge of the High Court, circuit judge, a recorder or a qualifying judge advocate.
Where there is a ‘guilty plea’, which must be entered personally by the accused (R v Ellis (1973) 57 Cr App R 571), the only evidence which the prosecution needs to call is details of the accused’s antecedents and criminal record. Occasionally, where there is disagreement about the precise facts of the offence, the prosecution may be required to call evidence to support their version of the facts; known as Newton hearings (R v Newton (1983) 77 Cr App R 13).
Where there is a ‘not guilty’ plea, the prosecution are required to satisfy the jury beyond reasonable doubt that the accused committed the offence. Where the prosecution fail to provide sufficient evidence as to any element of the offence, the accused is entitled to be acquitted. This acquittal would take place on the direction of the judge, at the end of the prosecution case, following a defence submission of ‘no case to answer’.
There are occasions where an accused may plead not guilty to the offence charged but guilty to a lesser offence (s. 6(1)(b) of the Criminal Law Act 1967). If the prosecution accept the plea of guilty to the lesser offence, the court proceeds to sentence the accused for that lesser offence and treats him/her as being acquitted of the original offence charged (s. 6(5) of the 1967 Act). However, if the prosecution refuse to accept the plea of guilty to the lesser offence, the case proceeds as if the accused had pleaded not guilty (R v Hazeltine  2 QB 857).
An accused may be allowed to change his/her plea from not guilty to guilty as long as this occurs before the jury returns its verdict. The judge then directs the jury to return a formal verdict of guilty (R v Heyes  1 KB 29). Similarly, an accused may be allowed to change his/her plea from guilty to not guilty and the judge has the discretion to allow this at any stage before sentence is passed (R v Plummer  2 KB 339).
The Criminal Justice Act 2003, s. 44 provides that a trial on indictment in the Crown Court may be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering (R v Twomey  EWCA Crim 1035).
2.4.6 Defendant’s Non-appearance
Where an accused fails to appear in the magistrates’ court in answer to bail the court may:
• issue a warrant for the accused’s arrest under s. 7 of the Bail Act 1976 (see para. 2.3.10);
• appoint a later time when the accused has to appear in accordance with s. 129(3) of the Magistrates’ Courts Act 1980;
• proceed in the accused’s absence under s. 11(1) of the Magistrates’ Courts Act 1980.
Where the accused’s appearance was by way of summons, the court must be satisfied that the summons was served in the prescribed manner before commencing in the accused’s absence (s. 11(2)).
Where an accused is under 18 years of age the court may proceed in his/her absence (s. 11(1)(a)), and if the accused has attained the age of 18 the court must proceed in his/her absence unless it appears to the court to be contrary to the interests of justice do so (s. 11(1)(b)). The court is not required to inquire into the reasons for the accused’s failure to appear (s. 11(6)). In James v Tower Bridge Magistrates’ Court  EWHC 1500 (Admin), where the accused was two hours late for trial, the decision to proceed in the absence of the accused was held to be unlawful as the court failed to inquire as to why the accused was late or consider an adjournment. On occasions where a person is deliberately absent, and indifferent to the consequences of their absence, the court may proceed without the accused being present (R v Allad  EWCA Crim 421).
If the court imposes a custodial sentence the accused must be brought before the court before commencing the custodial sentence (s. 11(3A)).
Where the court proceeds in the defendant’s absence, a not guilty plea is entered and the prosecution are required to prove the case to the normal criminal standard. If the prosecution evidence is insufficient to reach the standard, the defendant should be acquitted. Where the case is proved, the court may pass sentence or adjourn for the defendant to be present, either giving the defendant notice that he/she should attend or issuing a warrant for his/her arrest (ss. 10(3) and (4), and 11(3) and (4)).
The Crown Court does have the discretion to conduct a trial in the absence of the defendant and the seriousness of the offence is not a matter which is relevant to the exercise of this discretion. It is generally desirable that the defendant is represented by counsel during the trial, even where he/she had voluntarily absconded (R v Jones  UKHL 5). Where the accused is absent involuntarily, for example through illness, the court may adjourn the trial, but it is in the public interest not to allow the trial to be put off for an indefinite period (R v Taylor  EWCA Crim 680). In R (On the Application of Davies) v Solihull Justices  EWHC 1157 (Admin) it was held that even where the accused had been excluded from the court premises due to his disorderly behaviour, this misbehaviour did not justify excluding him from his own trial. The European Court of Human Rights has held that it is for the authorities to satisfy the court that the accused was aware of the proceedings and adequate steps had been taken to trace the accused (Colozza v Italy (1985) 7 EHRR 516). In Re X  Dalloz Jur 1899, the European Court held that where a judgment was made in the absence of the accused the court must hear the defence counsel and any written plea from the accused.
2.4.7 Adjournments and Remands
A magistrates’ court may need to adjourn proceedings for a variety of reasons: where an accused wishes to obtain legal advice; the preparation of advance information for the defence; where an accused pleads not guilty and more time is required for the hearing; for reports, etc. In R (On the Application of DPP) v North and East Hertfordshire Justices  EWHC 103 (Admin) it was held that an adjournment should not be refused to punish the inefficiency of the CPS or the failure of a witness to attend court. Where an adjournment is necessary, the court may have the power to remand an accused in custody.
Section 10 of the Magistrates’ Courts Act 1980 provides that a magistrates’ court may adjourn a summary trial at any time before or after beginning to try an information or written charge. It need not remand the defendant unless one of the following conditions apply:
• the defendant has attained the age of 18 years; and
• the offence is triable ‘either way’; and
• the accused has been remanded at any time during the proceedings.
Where a person aged 18 years or over is charged with an offence which may only be tried on indictment, the magistrates’ court may adjourn the proceedings but must remand the defendant (s. 52(5) of the Crime and Disorder Act 1998).
‘Remands’ can be either by committing the defendant to custody or to remand on bail in accordance with the provisions of the Bail Act 1976.
Section 128(6) of the Magistrates’ Courts Act 1980 provides that a magistrates’ court shall not remand a person for a period exceeding eight clear days except where the person is:
• remanded on bail and the prosecution and defendant consent;
• remanded for inquiries to be made or for determining the most suitable method of dealing with the case; but, if the person is remanded, the remand can be no longer than four weeks on bail or three weeks in custody (s. 10(3) of the 1980 Act);
• remanded for a medical report (s. 11 of the Powers of Criminal Courts (Sentencing) Act 2000); or
• remanded where the court is to try an either way offence summarily and needs to be constituted for that purpose even where the remand is for a period exceeding eight clear days.
A magistrates’ court may also remand an adult defendant in custody by committing him/her to detention at a police station for a period not exceeding three clear days (s. 128(7) of the Magistrates’ Courts Act 1980), or 24 hours for persons under 18 (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 91(5)).
‘Eight clear days’ in s. 128(6) means, for example, from Monday (when the court remanded a person) to Wednesday of the following week.
22.214.171.124 Custody Time Limits
Under regs 4 and 5 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299), unless the court extends the time limit, the maximum period during which the defendant may be in pre-trial custody is:
(a) in a case which can be tried only in a magistrates’ court, 56 days pending the beginning of the trial;
(b) in a magistrates’ court, in a case which can be tried either in that court or in the Crown Court:
(i) 70 days, pending committal for trial proceedings or the beginning of a trial in the magistrates’ court, or
(ii) 56 days, pending the beginning of a trial in the magistrates’ court, if the court decides on such a trial during that period;
(c) in the Crown Court, pending the beginning of the trial:
Under s. 22(3)(a) of the Prosecution of Offences Act 1985, the court cannot extend a custody time limit that has expired unless satisfied:
(a) that the need for the extension is due to:
(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;
(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition.
A witness is a person called by a party in court proceedings with a view to proving a particular matter material to the case. This section examines the key issues in relation to witnesses.
126.96.36.199 Attendance of Witnesses at Court
The prosecution or defence can apply for a summons, warrant or order requiring a witness to attend a magistrates’ court (s. 97 or 97A of the Magistrates’ Courts Act 1980, or para. 4 of sch. 3 to the Crime and Disorder Act 1998) or the Crown Court (s. 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965). Where appropriate, such an application can be used as a pre-emptive measure to secure the attendance of witnesses.
The conditions that must be satisfied before a court issues a summons, warrant or order are:
• what evidence the proposed witness can give or produce;
• why it is likely to be material evidence;
• why it would be in the interests of justice to issue a summons.
There are two conditions that must be satisfied before a court issues a summons:
• that the person is likely to be able to give evidence which is likely to be material evidence, or produce any document or thing likely to be material evidence for the purpose of any criminal proceedings; and
• that it is in the interests of justice.
The Criminal Procedure Rules 2015, r. 4.7(1) provides that a witness summons may be served:
(a) on an individual, only under rule 4.3(1)(a) (handing over) or rule 4.4(1) and (2)(a) (leaving or posting), and
(b) on a corporation, only under rule 4.3(1)(b) (handing over) or rule 4.4(1) and (2)(b) (leaving or posting).
In R v Popat  EWCA Crim 1921 it was held that a witness summons did not have to be served in accordance with the Criminal Procedure Rules if the date of the court hearing was actually brought to the attention of the witness.
Where witnesses are summoned but refuse to give evidence or to answer questions asked of them, they may be in contempt of court. The court has a range of powers to deal with contempt and these include imprisonment (R v Haselden  All ER (D) 56).
The European Court has taken the view that where repeated and unsuccessful attempts have been made to bring a witness before the court—and in this case where he was forcibly brought before the court but absconded before giving evidence—it is open to domestic courts to have regard to any statement the witness made to the police, particularly where it is corroborated by other evidence (Doorson v Netherlands (1996) 22 EHRR 330).
In looking at witnesses, it is crucial to consider two related questions:
• whether there are any restrictions to a witness being called to provide testimony. This question is frequently one of whether a witness is competent;
• whether a witness may be compelled or made to provide testimony. This is a question of whether a witness is compellable.
Competence in its simplest interpretation is whether in law a witness is allowed to be a witness. For a witness to be compellable two aspects must be considered:
• the witness must be competent; and
• the law requires the witness to give evidence even if the witness would rather not do so.
188.8.131.52 General Rule of Competence and Compellability
At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence (Youth Justice and Criminal Evidence Act 1999, s. 53).
184.108.40.206 Exceptions to the Rule of Competence and Compellability
The exceptions to the general rule of competence and compellability are set out in various statutes.
The European Court of Human Rights has accepted that some categories of witness may not be compellable under a country’s domestic law to give evidence, for example, spouses, cohabitees and family members. In Unterpertinger v Austria (1991) 13 EHRR 1, the Court held that the Convention:
. . . makes allowance for the special problems that may be entailed in a confrontation between someone ‘charged with a criminal offence’ and a witness from his own family and is calculated to protect such a witness by avoiding his being put in a moral dilemma . . .
220.127.116.11 The Accused
Evidence on Behalf of the Prosecution
The competence of the accused to give evidence on behalf of the prosecution is dealt with under s. 53 of the Youth Justice and Criminal Evidence Act 1999, which states:
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
However, a person charged in criminal proceedings will be competent to give evidence for the prosecution at such time as:
• he/she pleads guilty;
• he/she is convicted;
• the charges against him/her are dropped (referred to as entering a nolle prosequi—a promise not to prosecute) (s. 53(5)).
It follows from the application of s. 53(4) and (5) of the 1999 Act that should the prosecution wish to use the testimony of an accused against a co-accused, they must first make that person competent to be able to give that evidence. The person can only give evidence if that person pleads guilty, or he/she is convicted of the offence or the charges are dropped against him/her. In R v McEwan  EWCA Crim 1026 it was held that where the accused pleads guilty, they are competent for the prosecution even if they suggest in their evidence that they were not a participant in the offence, unless the plea is set aside.
The Criminal Evidence Act 1898 sets out the position of whether an accused person is competent and compellable for the defence. Section 1 of the 1898 Act states:
(1) A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application.
(4) Every person charged in criminal proceedings who is called as a witness in the proceedings shall, unless otherwise ordered by the court, give his evidence from the witness-box or other place from which the other witnesses give their evidence.
When an accused elects to give evidence, s. 72 of the Criminal Justice Act 1982 requires that such evidence be given on oath and that the accused is liable to cross-examination.
In being cross-examined, an accused may also be questioned by the prosecution about a co-accused (R v Paul  2 KB 183).
18.104.22.168 Competence and Compellability of Accused’s Spouse or Civil Partner
The Police and Criminal Evidence Act 1984, s. 80 states:
(2) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.
(2A) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable—
(a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or
(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.
(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if—
(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.
(4) No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings.
(4A) References in this section to a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
In relation to s. 30(3)(c), ‘inciting’ is to be construed as ‘encouraging or assisting crime’ (s. 63 of the Serious Crime Act 2007).
The Marriage (Same Sex Couples) Act 2013 extended marriage to same sex couples, where marriage has the same effect in law in relation to such a couple as it does in relation to an opposite sex couple (s. 11(1)).
These provisions include persons where the marriage or civil partnership (wherever celebrated) would be recognised by English law (R v Bale  EWCA Crim 560).
In relation to subsection (3)(b) above, ‘sexual offence’ means an offence under the following legislation: Sexual Offences Act 1956; Indecency with Children Act 1960; Sexual Offences Act 1967; s. 54 of the Criminal Law Act 1977; Protection of Children Act 1978; part 1 of the Sexual Offences Act 2003; s. 2 of the Modern Slavery Act 2015 (human trafficking and sexual exploitation).
There is no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected. A statement obtained from the wife in such circumstances could be admitted in evidence even though the wife refused to give evidence against her husband, provided it did not lead to an injustice (R v L  EWCA Crim 973). However, the prosecution’s hand is likely to be strengthened if it were shown that she was told that there was no obligation for her to make a statement (R v Horsnell  EWCA Crim 227).
A person who is no longer married or in a civil partnership with the accused is compellable to give evidence as if they had never been married or been in a civil partnership (Police and Criminal Evidence Act 1984, s. 80(5) and (5A)). The person must have been divorced, or where it was a voidable marriage this must have been annulled.
The failure of the spouse or civil partner of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution (s. 80A).
Cohabitees are not afforded the same concessions as a spouse or civil partner and are both competent and compellable to give evidence (see R v Pearce  EWCA Crim 2834 and R v Suski  EWCA Crim 24).
22.214.171.124 Child Witnesses
Children acting as witnesses in criminal proceedings may be sworn for the purpose of giving evidence on oath if they have attained the age of 14 (s. 55(2) of the Youth Justice and Criminal Evidence Act 1999). This statutory provision requires that no witness under the age of 14 is to be sworn.
Witnesses of 14 or over are only eligible to be sworn if they understand the solemnity of a criminal trial and that by taking the oath they are responsible for telling the truth. The witness shall, if he/she is able to give intelligible testimony, be presumed to have sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (s. 55(3)). Whether a witness is able to give intelligible testimony may be determined by expert evidence (s. 55(6)), or where the court consider the witness is able to understand questions put to him/her and give answers to them which can be understood (s. 55(8)).
The 1999 Act provides that a person of any age who is competent to give evidence, but by virtue of s. 55(2) is not permitted to be sworn, may give unsworn evidence (s. 56(1) and (2)). A child under the age of four years could still be a competent witness as long as he/she displays such competence throughout the whole of his/her evidence (R v P  EWCA Crim 3).
126.96.36.199 Issues of Age
The time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his/her birth (s. 9(1) of the Family Law Act 1969).
Section 150 of the Magistrates’ Courts Act 1980 states:
(4) Where the age of any person at any time is material for the purposes of any provision of this Act regulating the powers of a magistrates’ court, his age at the material time shall be deemed to be or to have been that which appears to the court after considering any available evidence to be or to have been his age at that time.
A birth certificate is usually accepted as evidence of age. A statement from a person present at the birth may be useful in difficult cases. If a certificate of birth is produced to prove age, evidence must also be provided to positively identify the person as the person named in the certificate (R v Rogers (1914) 10 Cr App R 276).
In R v Viazani (1867) 31 JP 260, it was held that where the statement of an accused as to his/her age is in conflict with his/her appearance the statement of the accused may be disregarded.
As with child witnesses, the law in relation to witnesses with a disorder or disability of the mind is contained in s. 55 of the Youth Justice and Criminal Evidence Act 1999.
In determining whether such a witness is competent to give intelligible testimony, expert evidence is allowed, or the court may consider whether the witness is able to understand questions put to him/her and give answers to them which can be understood.
Clearly, there is no inherent reason why a person suffering from a disorder or disability of the mind would not make a reliable witness. In R v Barratt  Crim LR 495, a witness was suffering from a psychiatric condition and the court considered that her evidence was as reliable as that of any other witness save for certain aspects affected by her condition. The videotaped interview of a witness suffering from Alzheimer’s disease was admitted in evidence where she was deemed unfit to attend trial (R v Ali Sed  EWCA Crim 1294).
In a sexual abuse case the court illustrated a number of ways in which special measures directions, including electronic communication devices and the assistance of intermediaries, can be used to enable seriously handicapped witnesses to give intelligible evidence (R v Watts  EWCA Crim 1824).
Where a person with a disorder or disability of the mind gives evidence it is for the jury to attach to the evidence such weight as they see fit (R v Hill (1851) 2 Den CC 254). It is not for the court to direct a jury to regard such evidence as unreliable in the absence of supporting medical evidence. Such a direction would amount to an improper invitation to irrational and stereotypical prejudice (Milton v R  UKPC 42).
188.8.131.52 Other Groups
In addition to the main exceptions outlined above, other people and groups may be incompetent or not compellable as witnesses. These situations are likely to be less frequent than the earlier exceptions:
• The Sovereign and Heads of State are competent but not compellable.
• Diplomats and consular officers may have total or partial immunity from being compelled.
• Restrictions also apply in respect of bankers and judges.
184.108.40.206 Witness Anonymity
The Coroners and Justice Act 2009, provides for witness anonymity orders and s. 86 of the Act states:
(1) In this Chapter a ‘witness anonymity order’ is an order made by a court that requires such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.
(2) The kinds of measures that may be required to be taken in relation to a witness include measures for securing one or more of the following—
(a) that the witness’s name and other identifying details may be—
(ii) removed from materials disclosed to any party to the proceedings;
(b) that the witness may use a pseudonym;
(c) that the witness is not asked questions of any specified description that might lead to the identification of the witness;
(d) that the witness is screened to any specified extent;
A ‘witness anonymity order’ may only be granted on the application of the prosecutor or defendant if the following three conditions, contained in s. 88, are satisfied:
• Condition A: the order is necessary to protect the safety of the witness, or another person, or the prevention of serious damage to property or to prevent real harm to the public interest;
• Condition B: having regard to all the circumstances, the taking of these measures would be consistent with the defendant receiving a fair trial; and
• Condition C: it is in the interests of justice that the witness ought to testify and the witness would not testify without the order being made, and there would be real harm to the public interest if the witness were to testify without the proposed order being made.
In making an order, the court must have regard to any reasonable fear on the part of the witness that he/she or another person would suffer death or injury, or that there would be serious damage to property, if the witness were to be identified (s. 88(6)). In R v Powar  EWCA Crim 594, it was emphasised that regard must be had to the fear of the witnesses and the circumstances of the case. A different form of necessity, which the court recognised was equally valid, was the protection of witnesses such as undercover officers and agents of the security services.
In R v Sardar  EWCA Crim 1616 the court refused to grant an anonymity order for two defence witnesses. The defence were prepared to reveal the identity of the witnesses to the court but not to the prosecution. They submitted that to do so would deprive the defendant of a fair trial (contrary to Article 6(3) of the European Convention on Human Rights and s. 3 of the Human Rights Act 1998). It was held that the failure to reveal the identity of the witnesses would deprive the prosecution of the essential ability to do the same research in relation to defence witnesses, as they have to do in relation to any witness whom they wish to call anonymously.
The Director’s Guidance on Witness Anonymity (December 2009, updated 28 February 2013), published by the CPS, suggests that if the evidence provided by a proposed anonymous witness is truly the sole or decisive evidence against an accused, the application for an anonymity order is likely to fail.
2.4.9 Live Links for Witnesses
Witnesses will ordinarily give their evidence from the witness box. However, some witnesses may give their testimony by other means, e.g. through a live television link. The statutory developments in this area are summarised below.
220.127.116.11 Criminal Justice Act 1988
Section 32(1) of the Criminal Justice Act 1988 provides that a witness outside the United Kingdom (other than the accused) may give evidence through a live television link. This provision applies to trials on indictment, proceedings in the youth court, appeals from the youth court and Crown Court, and in extradition proceedings.
Requests for assistance to hear witnesses outside their jurisdiction can be made by judicial authorities and designated prosecuting authorities under s. 7 of the Crime (International Co-operation) Act 2003.
There is no presumption in favour of using a television link under any of the legislative provisions, and its use has to be justified for displacing the general rule that a witness should give evidence in the presence of the defendant (R (On the Application of DPP) v Redbridge Youth Court  EWHC 209 (Admin)).
A court has no inherent power to permit evidence to be given by telephone, even with the consent of the parties (R v Hampson  EWCA Crim 1807).
Section 51 of the Criminal Justice Act 2003 provides that witnesses, other than the accused, may give evidence through a ‘live link’ from another location in the United Kingdom, rather than from just overseas. ‘Live link’ means a closed circuit television link, but could apply to any technology with the same effect such as video conferencing facilities or the internet (s. 56(2)).
A court may only authorise the use of a live link if it is satisfied that it is in the interests of the efficient or effective administration of justice for the person to give his/her evidence in this manner (s. 51(4)).
2.4.10 Special Measures
The Youth Justice and Criminal Evidence Act 1999 contains a range of measures designed to help young, disabled, vulnerable or intimidated witnesses to give evidence in criminal proceedings.
18.104.22.168 Eligible Witnesses
The Youth Justice and Criminal Evidence Act 1999 provides that both prosecution and defence witnesses are eligible for special measures, and the categories of eligibility include:
• all witnesses under the age of 18 at the time of the hearing or video recording (s. 16(1)(a));
• vulnerable witnesses who are affected by a mental disorder, impairment of intelligence and social functioning (s. 16(2)(a));
• vulnerable witnesses who are affected by physical disability or disorder (s. 16(2)(b));
• witnesses in fear or distress about testifying (s.17(2));
• any witness to a ‘relevant offence’, currently defined to include homicide offences and other offences involving a firearm or knife (s. 17(5)–(7), sch. 1A);
• adult victims of domestic violence who are vulnerable or intimidated;
• adult complainants of sexual offences (as defined by s. 62 of the 1999 Act), human trafficking offences (s. 59A of the Sexual Offences Act 2003 or s. 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004), indecent photographs of children offences (s. 1 of the Protection of Children Act 1978 (take, permit to be taken or publish etc. such a photograph), s. 160 of the Criminal Justice Act 1988 (possession of such a photograph)), and slavery and trafficking offences (ss. 1 and 2 of the Modern Slavery Act 2015).
While the primary rule is that all witnesses under the age of 18, regardless of the nature of the offence charged, are eligible for their evidence to be given by video interview and the use of live link, this does not prohibit a child witness who wishes to testify in court (ss. 21 and 22).
Regulation 2 of the Special Measures for Child Witnesses (Sexual Offences) Regulations 2013 (SI 2013/2971) amended the 1999 Act so that a complainant of a relevant offence whose age is uncertain will be presumed to be under the age of 18 if there are reasons to believe that person is under the age of 18. The effect is that a complainant to whom the presumption applies will be eligible for ‘special measures’ under s. 16. This provision also applies to a victim of human trafficking who is believed to be under 18 (s. 51 of the Modern Slavery Act 2015).
In relation to the category ‘any witness to a “relevant offence” involving a firearm, offensive weapon or knife’, the ‘relevant offence’ is an offence specified in sch. 1A to the 1999 Act that includes murder, manslaughter, wounding, assault, etc. All witnesses involved in such cases, including police officers, are automatically eligible for a special measures direction unless they decline (s. 17(5)).
Generally, special measures directions in the case of vulnerable and intimidated witnesses apply to proceedings in relation to anti-social behaviour injunctions (s. 16 of the Anti-social Behaviour, Crime and Policing Act 2014) and criminal behaviour orders (s. 31 of the 2014 Act).
22.214.171.124 Special Measures Directions
There is a range of special measures available to the court for eligible witnesses which is provided by the 1999 Act and includes:
• screening the witness from seeing the defendant (s. 23);
• allowing a witness to give evidence by live link, accompanied by a supporter (s. 24);
• hearing a witness’s evidence in private in a sex offence case, a trafficking for exploitation case, or where there is a fear the witness may be intimidated (s. 25);
• dispensing with the wearing of wigs and gowns (s. 26);
• admitting video recording of evidence-in-chief (s. 27);
• admitting video recording of cross-examination and re-examination (s. 28) (currently only in force in proceedings before the Crown Court sitting at Kingston-upon-Thames, Leeds or Liverpool (Youth Justice and Criminal Evidence Act 1999 (Commencement No. 15) Order 2016 (SI 2016/1201));
• questioning a witness through an intermediary in the case of a young or incapacitated witness (s. 29);
• provision of aids to communication for a young or incapacitated witness (s. 30);
• an investigation anonymity order or a witness anonymity order (s. 86 of the Coroners and Justice Act 2009).
The wide range of special measures has not altered the overall responsibility of the court for the fairness of the trial. The court is expected to deal with any communication problems faced by any witness or defendant as part of the ordinary control of the judicial process (R v Cox  EWCA Crim 549).
2.4.11 Refreshing Memory
The Criminal Justice Act 2003 provides for the use of documents and transcripts by witnesses to refresh their memory.
Section 139 of the 2003 Act states:
(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if—
(a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
(a) a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,
(b) his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.
In relation to the condition set out in s. 139(1)(b), ultimately it is a matter for the assessment of the judge, whatever the witness’s view of the matter (R v Chinn)  EWCA Crim 501).
For the purposes of s. 139, a ‘document means anything in which information of any description is recorded, but not including any recording of sounds of moving images’ (s. 140). However, under common law a document includes a tape recording (R v Bailey  All ER (D) 185 (Mar)). In the case of video recordings witnesses are entitled to and should view the interview before trial to refresh their memory but not immediately before giving evidence (R v R  EWCA Crim 2469).
The fact that the witness refreshed his/her memory from a document or transcript before going into the witness box does not affect the presumption contained within s. 139.
The Court of Appeal made clear that training or coaching witnesses in relation to a forthcoming criminal trial is prohibited (R v Momodou: R v Limani  EWCA Crim 177).
2.4.12 Evidence of Oral Statement Made through an Interpreter
It is inadmissible for a police officer to give evidence of a conversation held through the use of an interpreter. The only valid witness would be the interpreter (R v Attard (1959) 43 Cr App R 90).
2.4.13 Victims’ Personal Statements and Code of Practice
Victim Personal Statements are statements by the victims of a crime or crimes, or Family Impact Statements by families bereaved by homicide and other criminal conduct. The police may also prepare a Community Impact Statement providing information to the court about the impact of offences on the community (including that which the defendant has been convicted of) that may result in an offender being treated more severely because it demonstrates harm to the community caused by the offence. These statements are limited to expressing the effect of particular crimes upon a particular community and should not be used as character assassination of offenders (R v Skelton  1 Cr App R (S) 265 (34)). Similarly, a Businesses Impact Statement can be prepared for a business that has been the victim of crime. This provides an opportunity to set out the impact that a crime has had on the business such as direct financial loss and wider impacts, such as operational disruption or reputational damage.
The purpose of these ‘victim’ statements is to allow people a more structured opportunity to explain how they have been affected by the crime or crimes of which they were victims. They provide a practical way of ensuring that the sentencing court will consider ‘any harm which the offence caused’, reflecting on the evidence of the victim about the specific and personal impact of the offence or offences or, in the cases of homicide, on the family of the deceased. The statements may, albeit incidentally to the purposes of the sentencing court, identify a need for additional or specific support or protection for the victims of crime, to be considered at the end of the sentencing process. In Attorney-General’s Reference (No. 64 of 2014); H v R  EWCA Crim 1555 the principle that victims cannot determine the appropriate level of sentence, even when calling for mercy, was reaffirmed.
Police officers are required to inform victims of the scheme, and a statement may be made or updated at any time prior to the disposal of the case. The decision about whether or not to make a statement is entirely for the victim.
The Domestic Violence, Crime and Victims Act 2004 introduced a Victims’ Code setting out the services to be provided to victims of criminal conduct (s. 32(1)). The Domestic Violence, Crime and Victims Act 2004 (Victims’ Code of Practice) Order 2015 (SI 2015/1817) provides a revised Code of Practice implementing parts of the European Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime.
The Code details the entitlements that victims of all criminal offences should expect from the police or other public agencies. These entitlements include: a written acknowledgement that the victim reported a crime; an enhanced service for a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim; to be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed; the making of a Victim Personal Statement; to be informed if the suspect is to be prosecuted or not or given an out of court disposal.
In some instances the ‘victim’ might include the relative of a deceased victim or the parent/guardian of a juvenile making a victim personal statement. A person can be a ‘victim’ even where no person has been charged with or convicted of an offence in respect of criminal conduct (s. 32(6) of the 2004 Act). ‘Close relative’ refers to the spouse, the partner, the relatives in direct line, the siblings and the dependants of the victim. Other family members, including guardians and carers, may be considered close relatives at the discretion of the service provider.
Where a person is convicted of a sexual or violent offence, and a relevant sentence has been imposed, victims may make representations through the local probation service as to any licence conditions or supervision requirements in the event of an offender’s release from custody. The local probation board is also required to keep victims informed of any such conditions or requirements (s. 35).
2.4.14 Oaths and Affirmations
It is the general rule that every witness who gives evidence must be sworn, that is, take the oath or make an affirmation.
The manner in which the oath is administered is provided by s. 1 of the Oaths Act 1978. This requires the witness to hold the New Testament (Old Testament in the case of a Jew) in his uplifted hand and repeat, after the person administering the oath, the words ‘I swear by Almighty God that …’, followed by the oath prescribed by law.
Where the witness is neither a Christian nor a Jew he/she can object to taking the oath in the prescribed manner. Alternatively, the witness may affirm or take an oath upon a holy book appropriate to his/her religion or belief. For example, Hindus are sworn on the Vedas and Muslims are sworn on the Koran (R v Morgan (1764) 1 Leach 54).
An affirmation may be made by a witness who objects to being sworn or where his/her request for an alternative form of oath is not reasonably practicable and would delay or inconvenience the proceedings (s. 5 of the 1978 Act). The witness repeats after the person administering the affirmation, the words ‘I [name] do solemnly, sincerely and truly declare and affirm’, followed by the words of the oath prescribed by law (s. 6 of the 1978 Act).
There are two exceptions to the general rule:
• witnesses merely producing a document need not be sworn (Perry v Gibson (1834) 1 A & E 48).
Where a compellable witness refuses to take an oath or make an affirmation in the Crown Court, he/she can be held in contempt of court and where appropriate face a penalty of imprisonment (s. 45(4) of the Senior Courts Act 1981).
Where a witness refuses, without just excuse, to be sworn or give evidence in the magistrates’ court, he/she can be committed to custody for a period not exceeding one month and/or be fined (Magistrates’ Courts Act 1980, s. 97(4)).
The party who calls a witness (prosecution or defence) is entitled to examine the witness by asking questions with a view to providing evidence which is favourable to that party’s case. This is known as ‘examination-in-chief’.
All witnesses are examined in chief with one exception: where the prosecution determine not to examine their witness in chief but allow the witness to be cross-examined by the defence. This is common in the case of police officers whose evidence-in-chief will be identical. Consequently, one police officer can give the evidence-in-chief but other officers involved may be required for cross-examination by the defence.
126.96.36.199 Leading Questions
The general rule is that, during examination-in-chief, witnesses may not be asked leading questions. These are questions that are framed in such a way as to suggest the answer sought or to assume the existence of facts yet to be established.
However, leading questions are admissible to refresh a witness’s memory, where the witness is deemed ‘hostile’, for identification purposes, in matters accepted as being uncontroversial, and in cross-examination.
Under Article 6(3)(d) of the European Convention on Human Rights, everyone charged with a criminal offence shall be entitled:
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him . . .
Cross-examination is the process by which one party may ask questions of the other party’s witnesses. This examination is usually focused on either undermining their evidence or supporting that of the party’s own witnesses. In R v Shah  EWCA Crim 2326, a trial was held to be unfair if the defence were not afforded the opportunity to cross-examine key witnesses, where either through gross incompetence or as a deliberate act by the prosecution the witnesses were not present in court.
Where a party decides not to cross-examine an opponent’s witness, this is held to be an acceptance of the witness’s evidence-in-chief. Consequently, it is not open to the party that failed to cross-examine to criticise, in a closing speech, the unchallenged evidence of the witness (R v Bircham  Crim LR 430).
In R v Bingham  1 WLR 598, it was held that a defendant who goes into the witness box and is sworn thereby exposes him/herself to cross-examination by the prosecution and any co-accused, even if he/she does not give any evidence-in-chief. The prosecution are entitled to cross-examine the defendant even where no questions have been put to him/her by the defence counsel and adverse inferences can be drawn if the defendant does not answer those questions. It was held that in a summary trial, where the prosecution fail to cross-examine an accused, the trial is not to be considered unfair as the magistrates are entitled to reject the accused’s evidence (R (On the Application of Wilkinson) v DPP  EWHC 865 (Admin)).
188.8.131.52 Protection of Complainants from Cross-examination
The Youth Justice and Criminal Evidence Act 1999, ss. 34 to 39, protect three categories of witness from cross-examination by an accused person.
Section 34 Complainants in proceedings for sexual offences
No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
Section 35 Child complainants and other child witnesses
(1) No person charged with an offence to which this section applies may in any criminal proceedings cross-examine in person a protected witness, either—
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.
(2) For the purposes of subsection (1) a ‘protected witness’ is a witness who—
(a) either is the complainant or is alleged to have been a witness to the commission of the offence to which this section applies, and
(b) either is a child or falls to be cross-examined after giving evidence in chief (whether wholly or in part)—
(i) by means of a video recording made (for the purposes of section 27) at a time when the witness was a child, or
(ii) in any other way at any such time.
Section 36 Direction prohibiting accused from cross-examining particular witness
(1) This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—
(a) the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b) the court of its own motion raises the issue whether such a direction should be given.
(2) If it appears to the court—
(a) that the quality of evidence given by the witness on cross-examination—
(i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and
(ii) would be likely to be improved if a direction were given under this section, and
(b) that it would not be contrary to the interests of justice to give such a direction,
The offences to which s. 35 apply are part 1 offences under the Sexual Offences Act 2003 and include: kidnapping, false imprisonment or an offence under ss. 1 or 2 of the Child Abduction Act 1984; any offence under s. 1 of the Children and Young Persons Act 1933; any offence which involves an assault on, or injury or threat of injury to, any person; ss. 1 and 2 of the Modern Slavery Act 2015.
The restrictions on cross-examination of a vulnerable young witness are appropriate provided the defence case is understood and the jury are advised of any disadvantage caused to the defence (R v Wills  EWCA Crim 1938 and R v E  EWCA Crim 3028).
184.108.40.206 Cross-examination of Witnesses about Previous Sexual Behaviour
The Youth Justice and Criminal Evidence Act 1999, s. 41 states:
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of the accused at the trial, about any sexual behaviour of the complainant.
‘Sexual behaviour’ means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding anything alleged to have taken place which is the subject matter of the charge against the accused (s. 42(1)(c)).
‘Sexual behaviour’ and ‘other sexual experience’ may refer to acts or events of a sexual character, as opposed to the existence of a relationship, acquaintanceship or familiarity. The phrases are wide enough to embrace the viewing of pornography, or sexually charged messaging over a live internet connection or answering questions in a sexually implicit quiz (R v Ben-Rejab  EWCA Crim 1136).
A defendant’s right to cross-examine must support the inference that the complainant’s statement is false and not be to undermine the complainant’s general credibility (R v Evans  EWCA Crim 2668).
The House of Lords considered that it is common sense that a prior sexual relationship between a complainant and a defendant could be relevant to the defence of consent (R v A  UKHL 25). Formal admissions by the prosecution as to the existence of a previous sexual relationship between the appellant and the complainant made it unnecessary to permit cross-examination of the complainant as to certain details of that previous relationship (R v MM  EWCA Crim 1291).
Where a complainant claimed to have been sexually assaulted on four previous occasions but there was no evidence to suggest that any of the allegations were false, it was held that the number of allegations alone does not entitle the defence to explore the possibility that they were false (A  EWCA Crim 1273).
Following cross-examination, the party calling the witness is entitled to re-examine. The questions put to the witness should be confined to matters arising out of cross-examination and no leading questions may be asked.
A witness may refresh his/her memory in re-examination (see para. 2.4.11).
2.4.18 Further Evidence
It is the general rule that the prosecution must call the whole of their evidence before closing their case (R v Francis  1 WLR 1264).
However, there are three well-established exceptions to the general rule:
• evidence in rebuttal of defence evidence, that is, matters arising ex improviso (i.e. evidence which becomes relevant in circumstances which the prosecution could not have foreseen at the time when they presented their case) (R v Owen  2 QB 362 and Malcolm v DPP  EWHC 363 (Admin));
• evidence not previously available (R v Pilcher (1974) 60 Cr App R 1).
New evidence may be admitted in appeals for criminal cases as provided by s. 23(1) of the Criminal Appeal Act 1968. Section 23 allows the Court of Appeal, ‘if they think it necessary or expedient in the interests of justice’ to receive the evidence, if tendered, of any competent but not compellable witness or to order any compellable witness to attend for examination, whether or not that witness was called at the trial. In R v Ahluwalia  4 All ER 889, s. 23 was used to admit fresh evidence of the accused’s alleged endogenous depression which, if put forward at the trial, may have provided an arguable defence to the charge of murder. Similarly, in R v O’Brien  Crim LR 676, expert psychiatric evidence was admitted as fresh evidence to show that a defendant’s abnormal disorder might render a confession or evidence unreliable. However, in R v Horsman  EWCA Crim 3040, the Court of Appeal held that generally, at a retrial, a defendant could not adduce as fresh evidence a statement which he/she had withheld for tactical reasons during his/her first trial.
2.4.19 Contempt of Court
Section 12 of the Contempt of Court Act 1981 deals with criminal contempt in the magistrates’ court and states:
(1) A magistrates’ court has jurisdiction under this section to deal with any person who—
(a) wilfully insults the justice or justices, any witness before an officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both.
The magistrates’ court may also deal with any person for contempt where they are attending or brought before the court and refuse without just excuse to be sworn or give evidence, or to produce any document or thing (s. 97(4) of the Magistrates’ Courts Act 1980). In addition, a magistrates’ court can also punish as contempt the use of disclosed prosecution material in contravention of s. 17 of the Criminal Procedure and Investigations Act 1996 (confidentiality of disclosed information) (s. 18(1) of the 1996 Act).