EWJ Dec 2023 - Journal - Page 41
Absent Witnesses
by Carolina Cabral, Edmonds Marshall McMahon – www.emmlegal.com
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.
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 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.
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.
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)).
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.
As with all applications made under s.116 of the 2003
Act:
l 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
l 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.
EXPERT WITNESS JOURNAL
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
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DECEMBER 2023