EWJ Dec 2023 - Journal - Page 42
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.”
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)).
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.
Author
Carolina Cabral
Edmonds Marshall McMahon –
www.emmlegal.com
The witness cannot be found
In such circumstances, short of hiring a private
investigator or proceeding without the evidence in
Dr Rebecca Slinn
Consultant Psychiatrist
MBBS MRCPsych
Dr Rebecca Slinn is a Consultant Psychiatrist
based in South West England.Dr Slinn has over
29 years’ experience practicing in general
adult and old age psychiatry;working as a
consultant for over 22 years with a wide range
of experience in hospital, the community and different jurisdictions in the UK. Dr Slinn worked
in the NHS from 1991-2012 and now practices in the independent sector. She is fully accredited
for Continuing Professional Development by the Royal College Psychiatrists and is employed
as a Second opinion approved doctor under the mental health by the CQC.
Dr Heather Harris
Consultant Radiologist MBBS FRCS FRCR
Dr Heather Juliet Harris is a Consultant Radiologist based in Chesterfield.
Dr Slinn has expertise in all areas of general adult psychiatry, psychosis, mood disorder, trauma,
personality disorder, anxiety disorders, eating disorder, addiction, older adult psychiatry
including cognitive impairment, dementia, capacity assessments including testamentary
capacity, presentations of psychiatric disorder on old age.
She has an extensive knowledge of general radiology and radiology practice including
policies, procedures, IR(ME)R, IRR 17, and day to day issues working in a radiology
department in a District General Hospital. Her specialty is Clinical Radiology.
Subspecialty areas of interest are gastrointestinal radiology, uroradiology and
non-vascular intervention. She has experience of working for an outsource radiology
reporting company from 2014 - 2019. Dr Harris is also a Radiology Technical
Expert for UKAS, assessing for the Quality Standard for Imaging.
Medico- legal experience includes:
Medical negligence cases
Personal injury cases
Capacity assessments and reports for testamentary capacity
Reports for professional tribunals for example NMC
Reports for First tier mental health tribunal service
Regular occupational health reports for Police, and British Aerospace
Appearance in Crown Court as an expert witness in a murder case
Overall instructions approximately joint 15%, claimant 60%, defendant 25%
Dr Harris has undertaken medico legal worksince 2020 and has written over
100 reports and attended 14 case conference calls. She has not made any court
appearances to date. She has attended the coroners court and either presented
evidence or a radiology overview of a case on a number of occasions. She has
considerable experience of writing reports for claims, complaints and the coroner.
Contact: Dr H J Harris
Tel: 07879 605061
Email: hhradiology@protonmail.com
Address: H H Radiology Limited, 34 Carter Knowle Road, Sheffield, S7 2EB
Area of work: UK & Republic of Ireland
Dr Slinn can undertake home visits and assessments in solicitors’ offices by arrangement.
Terms and Conditions are available on application and prior to acceptance of instruction.
Contact: Secretary, Amanda Haffner - Tel: 0117 4350070
Email: a.haffner@theprivatepsychiatrygroup.com - Website: theprivatepsychiatrygroup.com
Litfield House, 1 Litfield Place, Clifton Down, Bristol, BS8 3LS
EXPERT WITNESS JOURNAL
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DECEMBER 2023