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Selection of Prosecution Witnesses

Principle

The CPS is committed to the proper care and treatment of witnesses.

The prosecution has discretion about the selection of prosecution witnesses.

The principles governing which witnesses the prosecution should call at trial are different for the Crown Court and the magistrates' court depending upon the type of case.

Guidance

The Crown Court

The principles for the calling of prosecution witnesses are set out in R v Russell-Jones [1995] Cr App Rep 538 (Archbold 4-275) and are set out below:

  • The prosecution must have at court those witnesses whose statements have been served on the defence and upon whom the prosecution intend to rely on evidence if the defence want those witnesses to attend;;
  • The prosecution have a discretion whether to call and examine a witness or to call and tender them for cross examination;
  • This discretion is fettered; the prosecutor has a duty to act in the interests of justice so as to promote a fair trial;
  • The prosecution ought normally to call or offer to call the witnesses who give direct evidence of the primary facts of the case unless there is good reason to regard the witness's evidence as unworthy of belief;
  • It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case and which are marginal;
  • The prosecutor is the primary judge of whether a witness is unworthy of belief. The fact that a witness gives an account at variance with a larger number of other witnesses and one which is less favourable to the prosecution case does not necessarily affect the witness's credibility.

Where witness statements have been served on the defence as unused material, the prosecution are not under any duty to call the makers of those statements as witnesses (R v Richardson, 98 Cr.App.R. 174 CA).

The Crown Court retains a power to issue a witness summons of its own motion should it need to do so (Archbold, 8-3c).

The judge has the power to call a witness who has not been called by either the prosecution or the defence, and without the consent of either, if it is necessary in the interests of justice. This power should be exercised rarely (Archbold, 4-345).

The Magistrates' Court

The principles for the calling of prosecution witnesses are set out in R v Haringey Justices, ex p. DPP [1996] QB 351; (Stone's Justices' Manual 1-642).

  • The same general principles apply in the magistrates' court as in the Crown Court;
  • In summary only cases the prosecution have an unfettered discretion as to which witnesses to call until the case has been opened, irrespective of the service of statements by way of advance information;
  • In either way cases the prosecution's discretion becomes fettered once statements have been served as advance information.
  • The service of section 9 statements arguably fetters the prosecution's discretion in both summary and either way cases

Where a fettered discretion not to call a witness is exercised, the prosecution has a duty to ensure that the witness attends court. However, the prosecutor cannot be compelled to call such a witness.

Where the prosecution decides not to call a witness neither a judge nor a magistrate can compel the prosecution to call that witness.

If the witness is a police officer and the defence wish him or her to be called, but do not wish to call the officer as a defence witness, a judge or magistrate has power to rule that in the interests of justice the officer should give evidence. The prosecution cannot, however, be compelled to call the witness. If the prosecutor declines to call the witness, magistrates have the same discretion as a judge to call the witness themselves, and should do so in preference to dismissing the case as an abuse of process (R v Russell-Jones).

If the witness is not a police officer, each case should be judged on its merits.

Where the magistrates' court exceptionally calls a witness that the prosecution do not wish to call you should suggest that the court legal adviser conducts the questioning as if examining the witness on behalf of an unrepresented defendant. Witnesses should only be called at the end of the defence case if no injustice or prejudice is caused to the defendant and if some matter arises on the part of the defendant ex improviso, R v Harris (1927) 2 K.B. 587, 20 Cr.App.R. 86. If the matter does not arise ex improviso you should suggest that the witness be called after the close of the prosecution case. The order of cross-examination of such a witness may vary according to the nature of the evidence given and the circumstances of the case.

Suspended Police Officers

The procedures governing the calling of suspended police officers were reviewed following the obiter remarks in R v Haringey Justices, ex p. DPP [1996] QB 351.

Where an officer is suspended pending the completion of enquiries and his or her evidence is peripheral or merely corroborative of other evidence not in dispute, consideration should first be given as to whether the officer's evidence is needed. Where the officer is effectively the complainant or a main witness then the officer should be called unless the alleged wrongdoing is closely associated with the case itself.

The officer should be called to give evidence by the Crown and should not merely be tendered for cross-examination.

There should be no cross examination relating to the suspension except to clarify anything which is not clear, since it does not detract from a witness's credit that allegations which are denied have been made against the officer.

The disclosure of information concerning the officer's suspension must be considered whether or not the officer's evidence is to be used by the prosecution (refer to Chapter 18 of the Disclosure Manual for further guidance).

Where a suspended officer is called as a prosecution witness and it is appropriate that suspension be revealed, the officer should be asked at the outset of his or her evidence whether or not he or she is suspended, the reason for the suspension and, where appropriate, whether or not the officer admits or denies the allegation.

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Procedure

Where there are a large number of eyewitnesses to an incident, it is neither always desirable nor necessary to call all of them. Only serve the statements of those witnesses you wish to call at trial. Consider disclosing other statements as unused material (refer to Disclosure of Unused Material further guidance).

Witnesses that the prosecution choose not to call will generally fall into two categories:

  • Those who contradict the prosecution case and are helpful to the defence. The defence will usually call them as part of their case;
  • Those whose evidence supports the prosecution case but it is decided not to call them. A defence challenge may arise.

Fresh information may change your view about calling a prosecution witness whose statement has been served and the prosecution discretion is fettered e.g. new information brings into question the credibility of the witness. In these circumstances you should inform the defence in writing that the witness will no longer be called by the prosecution but will be warned to attend court and will be available for the defence.

If you have served a witness statement and your discretion not to call that witness has thus been fettered, that witness must be available to attend court although you cannot be forced to call the witness. It is for the Witness Care Unit to warn the witness to attend court, although you should consider whether it is possible to have the witness on standby and available to attend at short notice, to avoid unnecessary attendance. The Service will have to bear the witness's costs. So only serve the statements of witnesses you wish to call at trial.

Useful Links

Disclosure of unused material

Code for Crown Prosecutors

Interpreters

Sending indictable only cases to the Crown Court

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