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Absent Witnesses
  • Jan 8, 2024
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by Carolina Cabral, Edmonds Marshall McMahon –

No one working in the criminal justice system was  surprised, back in June of this year, to learn that 10% of the Crown Court backlog had been delayed for more than two years. It has become so commonplace to be told at PTPH that a case will not be heard until the following year, that there was something of a dull inevitability when “next year” slowly started to become “the year after next”, as cases continued to come out of the list due to a lack of court time, or there being no judge or counsel available. Last month, a case prosecuted by this firm was adjourned for the sixth time and given a new listing in August 2024; it has been six and a half years since the alleged offences took place.

In addition to the devastating effect these delays are having on victims of crime, who face an interminable wait for justice, they also have a catastrophic impact on the ability properly to prosecute or defend a matter, because witnesses will inevitably die, move away, withdraw their co-operation or simply disappear. It seems inevitable that the government’s target of reducing the backlog (which stood at 60,898 cases in February of this year) to 53,000 cases by March 2025 will be missed, and as such it is worth reviewing what can be done in cases where delay leads to difficulty with witnesses.

The witness is dead
Under s.116(2)(a) of the Criminal Justice Act 2003 (“the 2003 Act) the statement of a witness who is dead is admissible if the evidence is such as would be admissible if the witness were present to give it orally (s.116(1)(a)) and the witness is identified to the court’s satisfaction (s.116(1)(b)).

As with all applications made under s.116 of the 2003 Act:

• The court has a general discretion to exclude evidence if it is satisfied that “the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.” (s.126(1)(b)), and

• Where an application requires proof, the burden of proof lies on the party making the application. If the application is made by the prosecution, the standard is beyond a reasonable doubt; if by the defence it is on the balance of probabilities. Further, when making an application under s.116 of the 2003 Act, if the circumstances leading to the need to make the application are caused by the person in support of whose case it is made, or by a person acting on their behalf, then the conditions are to be treated as not satisfied (s.116(5)) e.g. if the defendant is responsible for putting a witness in fear, and then wishes to adduce that witness’s evidence as hearsay, this will not be permitted.

The court may also exclude evidence under s.78 of the Police and Criminal Evidence Act 1984 (“PACE”).

The witness has moved
If the witness is still co-operative and it is simply a question of location, then the most straightforward option is to make an application for the witness to attend via video link. Section 51 of the 2003 Act empowers the court to permit a witness’s attendance via video (or audio) link in eligible criminal proceedings (which, under ss.51(3)(b) and (d), includes trial in the Magistrates’ or Crown Courts) provided that (i) it is in the interests of justice and (ii) the parties (and, if applicable, the relevant youth offending team) have had an opportunity to make representations. Section 52(1)(c) of the 2003 Act allows an application under s.51 to be made in respect of a witness who is outside of the UK.

In determining whether to grant the application (which must be made as soon as reasonably practicable – see 3.36 of the Criminal Procedure Rules (“CrimPR”)) the court will consider all the circumstances of the case, including in particular those listed in s.51(6)(f) of the 2003 Act, which include (i) the importance of the witness’s evidence to the proceedings, and (ii) whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

If the witness giving evidence via a live link is not suitable then an application can be made for their evidence to be adduced under s.116(2)(c) of the 2003 Act, on the grounds that it is not reasonably practicable to secure their attendance. However, given the ubiquity of video link evidence post pandemic, one would expect an application under this section to be hotly resisted, and for the party making the application to have a good reason why the witness cannot use a video link. See the case of C and K [2006] EWCA Crim 197, where it was said that whether it would be fair to admit a statement under this subsection would depend in part on what efforts should reasonably be made to secure the attendance of the witness or, at least, to arrange a procedure whereby the contents of the statement can be clarified and challenged.

The witness is reluctant
After a long delay it is regrettably common for witnesses to no longer wish to be involved with a case; often they simply wish to put the matter behind them. Assuming efforts at persuasion have failed, and the case cannot proceed without the evidence of the witness in question, an application can be made for a witness summons. Section 169 of the Serious Organised Crime and Police Act 2005 amended s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 and s.97 of the Magistrates’ Courts Act 1980 so that in either case the court must be satisfied (i) that the witness is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of the proceedings and (ii) it is in the interests of justice to issue a summons. Part 17 of the CrimPR covers the requirements for making an application for a summons and requires that it be made as soon as practicable after the maker becomes aware of the grounds for doing so.

If the witness’s reluctance stems from fear that cannot be assuaged by way of an application for special measure for the witness (such as screens or giving evidence via a live link) under s.19 of the Youth Justice and Criminal Evidence Act 1999, then arguably a summons would be counter-productive, and consideration can be given to making an application under s.116(2)(e) of the 2003 Act. Fear is widely construed under s.116(3) and includes fear of the death or injury of another, as well as fear of financial loss. Section 116(4) provides that as well as finding that the admission of the statement would be in the interests of justice, the court must consider the contents of the statement and the risk of unfairness to any party, as well as the question of whether providing special measure would not be sufficient (emphasising the need for this to be covered in any application under this section). The court is also entitled to consider “any other relevant circumstances” (s.166(4)(d)).

The witness cannot be found
In such circumstances, short of hiring a private  investigator or proceeding without the evidence in question, an application to adduce the witness’s evidence as hearsay is, realistically, the only option. Section 116(2)(d) makes it a requirement of an application under this section that “such steps as it is reasonably practicable to take to find him have been taken”. On the question of when this can be said to have been done, in the case of Adams [2007] EWCA Crim 3025 Lord Justice Hughes observed (at para 13): “All the experience of the criminal courts demonstrates that witnesses are not invariably organised people with settled addresses who respond promptly to letters and telephone calls and who manage their calendars with precision. They often do not much want to come to court. If they are willing they may not accord the appointment the high priority that it needs. Even if they do both of those things, it is only too foreseeable that something may intervene either to push the matter out of their minds or to cause a clash of commitments. Holidays, work, move of house, illness of self or relative and commitments within the family are just simple examples of the kind of considerations which day in, day out, lead to witnesses not according the obligation to appear at court the priority that they ought to do.”

Interestingly, in Adams the court went on to find that whilst the statement in question was inadmissible under s.116(2)(d) of the 2003 Act it was admissible “in the interests of justice” under s.114(1)(d) – a useful reminder that many applications under this subsection, or any of the other subsections of s.116, may benefit from an alternative argument under this provision.

Carolina Cabral

Edmonds Marshall McMahon –