Criminal: defence witness notices

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A new obligation has been placed on defence lawyers by the implementation of section 34 of the Criminal Justice Act 2003, introducing a section 6 C into the Criminal Procedure and Investigations Act 1996.

Under these provisions, the accused must give to the court and the prosecutor a notice indicating whether he ‘intends’ to call any person, other than himself, as a witness at his trial. If so, he must give their name, address and date of birth, or provide any information which might be of material assistance in identifying or finding that proposed witness.

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The notice is not part of a defence case statement and so must be served both in the magistrates’ court and in the Crown court.

The obligation arises in relation to all trials. It does not arise at Newton hearings following a guilty plea.

The obligation arises in any case in which the disclosure provisions of part 1 of the Criminal Procedure and Investigations Act apply on or after 1 May 2010, regardless of when the accused was charged or the underlying investigation began. In effect, this means any case in which the accused pleads not guilty in the magistrates’ court on or after that date, or in a case which is sent or committed to the Crown court for trial on or after that date. The obligation to serve a defence witness notice is triggered by the service of initial prosecution disclosure.

Under the Criminal Procedure and Investigations Act 1996 (notification of intention to call defence witnesses) (Time Limits) Regulations 2010, the obligation must be met within 14 days of service of initial or purported initial disclosure. That time may be extended on an application to the court, provided that the application is made prior to the expiry of any previous time limit. Once the time limit has expired, there is no ability to apply to the court for an extension.

Clearly, these provisions will cause considerable concern to defence solicitors. Defence witnesses are already often reluctant to provide assistance, and the greater pressure that will be placed on them by contacts from the police will only discourage those who might have given valuable evidence.

The obligation is to name all witnesses whether as to fact or character. Expert witnesses are covered by separate provisions. For expert witnesses whom it is intended to call their actual evidence must be served. This is not the case in relation to defence witness notices.An issue arises as to when the defence form the intention to call a witness. In reality, this is often not until late in the trial process. A final decision to call a witness will frequently be made after the close of the prosecution case. However, in R v Ensor [2009] EWCA Crim 2519, considering the provisions in rule 33 of the Criminal Procedure Rules in relation to the service of details of expert evidence, the court held that intention meant when the defence ‘intend or may intend to call’. It seems likely that this interpretation will be given to these new provisions as well. The defence will not therefore be able to wait until the end of the prosecution’s case. However, just because the defence know the name and details of a potential witness does not mean that they have formed an intention to call them. It will be essential that they hold a witness statement, showing that there are issues relevant to the trial before that intention can arise.

If the defence intention in relation to witnesses changes there is a duty to serve an amended notice. There is no sanction if a witness who is named by the defence is not then called by them. However, there is in reality a concern as the police may well choose to interview such witnesses and they could become witnesses for the Crown. If the defence call a witness who is not named in any notice the reasoning of R (Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin) confirms that the court cannot prevent the witness’s evidence being given. However, disadvantages do arise. The inference provisions of section 11 of the Criminal Procedure and Investigations Act 1996 have been transferred to these new procedures. The Crown and the judge may therefore comment on the late service of a notice and the absence from that notice of a witness whose evidence was called. In real terms this is unlikely to prove an effective sanction. There are, however, two matters of greater concern. The more important is in relation to the witness themselves. If their name has not been included in the notice they are likely to find themselves subject to hostile cross-examination as to why that information was withheld, with the Crown raising serious issues about their credibility. There may also be concerns about wasted costs orders in relation to the defence team. This issue would have to be resolved at the end of the trial when privilege would not require the defence to withhold relevant information.

Duties to the clientIt will be essential that in client care letters clients are warned of the need to notify the details of potential witnesses at the earliest possible opportunity so that they do not suffer an unnecessary disadvantage. It will also be essential that defence lawyers take full section 9 statements (Criminal Justice Act 1967), which would be admissible at trial, from each witness as they interview them. In the worst case scenario, where the police take a statement containing significant differences, this statement could then be put to the witness as a prior inconsistent statement admissible as to its truth under the provisions of section 119 of the Criminal Justice Act 2003.

The defence team must explain what obligations the witness has under the new procedure. Great care will be needed in how this explanation is given. Any serious attempt to discourage a willing witness from seeing the police could be interpreted as an attempt to pervert the course of justice. In any event, the witness will be cross-examined as to why they were not willing to allow the police to interview them. This could work substantially to the disadvantage of the defendant. It is suggested that a checklist should be kept and a suitable letter written to the witness when they are sent their witness statement.

The funding position in relation to the attendance by defence solicitors at interviews of a witness by the police is deeply unsatisfactory. In a magistrates’ court, the attendance by the defence representative is fee-earning work and the value of the time will therefore be added to the core costs of the case and may increase the actual costs received.

However, in the Crown court the position is very different. There has been no amendment to the litigator fee regime to cover this additional work. Yet it is unthinkable that a defence lawyer would choose not to attend at such an interview. There is far too great a risk that the police will discourage a witness from making a copy of the record of that interview available to the defence, and this would create real problems at trial if a copy could not be obtained by another route. To call a witness who might be cross-examined on a statement not seen by the defence will be a very dangerous course to follow. If such a statement assists the Crown, it is not disclosed under the CPIA regime.

Defence witnesses are themselves entitled to take an independent lawyer with them to any interview by the police. In one sense this is a new business opportunity for criminal lawyers, as it is work that has not previously been available to them on this scale.

The issue is one of funding. Few defence witnesses will wish to spend their own money on instructing a lawyer merely because they are providing a statement for the defence. The availability of legal aid, however, needs careful consideration. For a witness to receive free legal advice and assistance under the police station scheme there must be some complicating factor or circumstances that make it reasonable, for example, if the witness is at risk of self incrimination (contract specification B.1.1.5).

In reality, this will often be the case. Restrictions on police resources are likely to restrict interviewing of defence witnesses to only the most major of casework. In major case work, experience proves that undue pressure may often be placed on witnesses. Should a witness change a statement at a later stage, they would render themselves at risk of an allegation of perjury, or attempting to pervert the course of justice, or of wasting police time. If the charge is of some seriousness and such risks can be demonstrated, an independent solicitor should attend with the witness at any interview by the police. That lawyer will have significantly greater influence at the interview. The defence solicitor attends only as an observer. The witness’s solicitor would, on the other hand, be able to intervene to prevent leading or bullying questions.

A Code of Practice for arranging and conducting interviews of witnesses notified by the accused has been published to come into effect on 1 May. This code also applies to the interviewing of alibi witnesses who rather anomalously are still dealt with under the defence case statement procedure. The code provides that potential witnesses must be asked if they consent to being interviewed and points out that they are not obliged to attend. They are advised of their right to an independent lawyer, but the code makes clear that there is no guarantee of funding for such attendance. It confirms that a record of the interview will be made. If the witness consents to be interviewed they must be asked whether they wish to have their own solicitor present, whether they consent to the solicitor of the defendant being there, and whether a copy of the record of interview may be sent to the defence.

Reasonable notice of any interview must be given to the defence.

The police must make a record of any interview of a defence witness. The best method of recording is confirmed as by audio or video tape. In the alternative a written statement may be taken at the time, or in the least preferred situation sent on later. Defence solicitors may feel that a fully recorded interview is the best approach. Written statements often hide the way in which the questions were put and the evidence obtained. To be able to hear the questions as well as the answers is often a significant advantage. Few defence solicitors will want these interviews to take place at a police station; it creates an entirely unsatisfactory atmosphere. Historically, alibi witnesses were interviewed at a solicitor’s’ offices. In this situation, defence solicitors will wish to ensure that they have suitable recording equipment available so that the police cannot object because of its absence.

The effect of these new rules will be that careful tactical decisions need to be made in each case. Where a defence witness is strong, there may be some advantages in choosing to serve their full statement as well as their details. In some cases, this may persuade the Crown of the weakness of their original case and it is likely to provide the defence witness with good reason for indicating that no further interview with the police is required.

Anthony Edwards, TV Edwards

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