Witness Expenses and Allowances

Updated: August 2018|Legal Guidance

Principle

The CPS is responsible for paying allowances and expenses to witnesses who are called to give evidence in prosecutions conducted by the Service.

The CPS aims to pay 100% of correctly completed witness expense claims within 10 working days of receipt of a valid claim.

Witness expenses are calculated, approved and paid by the Finance Business Services Wakefield (FBSW).

A proportion of claims will be checked by FBSW for auditing and verification purposes. It is vital that the LWAC is accurate, and that all the case information is provided on the front of the claim form.

Guidance

The Regulations

Allowances and expenses payable to prosecution witnesses attending court are governed by Regulations made by the Attorney General (the Regulations) (The Crown Prosecution Service (Witnesses' etc. Allowances) Regulations 1985), as amended from time to time.

Classes of Witnesses

There are four classes of witnesses:

  • Ordinary
  • Professional
  • Expert
  • Interpreter

Allowances and expenses governed by the Regulations are:

  • Those payable to ordinary and professional witnesses
  • Overnight allowances and travelling expenses payable to expert witnesses and interpreters.
  • Those payable to people who have been requested to attend court, but not as witnesses, for example, parents/carers of child witnesses, people assisting witnesses with disabilities, members of a victim's family.

Allowances, expenses and fees not governed by the Regulations are:

  • Fees for expert witnesses
  • Fees and expenses for interpreters; and

In these circumstances, CPS Areas have discretion with regard to the suitability of payments.

People who cannot be paid

No allowances, expenses or fees can be paid to:

  • Police officers (from Forces in England and Wales) attending in their official capacity
  • Prison officers attending in their official capacity
  • Prisoner witnesses brought to court in custody (from within the jurisdiction)
  • Witnesses who attend court but refuse to give evidence

Payments by the CPS are limited to expenses, allowances, and fees incurred by attendance at court or elsewhere in connection with giving evidence. Areas retain discretion to reimburse expenses where evidence has not been given but attendance has been necessary, such as a visit made for familiarisation purposes.

Giving Evidence

Witnesses who attend to give evidence will be paid whether or not they actually give evidence. There is only one exception. A witness who attends but refuses to give evidence is not entitled to be paid. The fact of such refusal should be noted prominently on the List of Witnesses to Attend Court (LWAC) form. A claim form should not be given to the witness in these circumstances.

Estimating Expense Claims for Costs Applications

Crown Prosecutors and Paralegal Officers should use the ‘Current rates – WEF1B’ when advising witnesses what they are entitled to claim.

For current rates (allowances), see:

Ordinary Witnesses

An ‘ordinary witness’ is a witness to fact - a witness who is neither a professional nor expert and who gives evidence based on their first-hand knowledge of events relevant to the case.

Ordinary witnesses may receive compensation towards:

  • Travelling expenses
  • Money spent on refreshments and meals
  • Overnight subsistence
  • Financial loss (e.g. loss of earnings)
  • Other expense incurred (e.g. childcare)

There are limits on the amounts payable:

  • Bus and train fares (standard fare) should normally repaid in full
  • Travel by motor vehicle is paid at a rate per mile
  • Childcare will normally be reimbursed within a maximum daily amount. However, discretion should be applied where childcare cost exceeds the rate. An official receipt from a registered child carer must be provided.
  • Taxi fares are allowed in exceptional circumstances. Discretion should be applied for incidents such as:
    • Where this was the only form of transport available
    • If a witness is registered disabled or infirm.
    • If the witness is vulnerable

This should normally be agreed in advance and receipts must be provided.

  • Set limits apply to refreshments and meals
  • Maximum daily amounts apply to loss of earnings and other financial losses

Overnight subsistence

The CPS will normally arrange the hotel accommodation for ordinary witnesses and pay for it. The overnight allowance covers an absence of 24 hours. Where the witness has had to arrange their own overnight accommodation the CPS will reimburse actual rates up to the maximum overnight rate, where receipts are provided.

Where a meal is also included, ordinary witnesses will be entitled to a fixed Personal Incidental Allowance. If no evening meal is included ordinary witnesses are additionally entitled to a Night Subsistence Allowance. This is a fixed amount towards the cost of meals, refreshments and other expenses where a witness has had to stay away from home.

Witnesses who stay with family or friends in place of the above will receive a single fixed payment. See ‘Current rates’ for Ordinary and Professional witnesses.

Professional Witnesses

A ‘professional witness’ is defined by The Crown Prosecution Service (Witnesses' etc. Allowances) Regulations 1988 at section 3 as ‘a witness practising as a member of the legal or medical profession or as an accountant, dentist or veterinary surgeon.’

Only professionals defined in the regulation may be reimbursed as a professional witness and this is to compensate them for leaving their practice to attend court.

Accordingly, a Doctor who gives evidence in a professional capacity (e.g. regarding the extent of injuries suffered by their patient) is giving professional evidence. Whereas, if they give evidence as an ordinary witness of fact (e.g. as a witness to an assault on the way home) they can only be reimbursed as an Ordinary witness.

These witnesses may receive:

  • either a compensatory allowance
  • or a sum to reimburse the cost of employing a locum.

Both have upper limits.

Subsistence allowance is not payable, except when an overnight stay is necessary. Travelling expenses are payable.

Where a locum costs more than the stated allowance, the professional witness should provide written evidence of actual costs incurred and consideration will be given to exceed the maximum allowance.

This section does not apply to an expert giving expert evidence.

Expert Witnesses

An ‘expert witness’ is a witness whose level of specialised knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case. An expert may give an opinion by virtue of education, training, certification, skills or experience.

The Regulations do not set allowances for expert witnesses, except for overnight subsistence and travelling allowances. Expert witness fees are discretionary but should be proposed and agreed with reference to the ‘Scales of guidance’.

Expert witness fees must be agreed between the Area and the instructed expert before attendance at court.

Document Evidence Ltd (DEL) and LGC Forensics (LGC)

Expert witness fees are agreed centrally with the major providers of expert witness services, namely the Document Evidence Limited and The Laboratory of Government Chemist. Rates for these expert witness providers do not need to be agreed locally (See the annexes for rates). 

Other expert witnesses

In assessing the fees for other expert witnesses, consider:

  • the nature and difficulty of the case
  • the complexity of the evidence
  • the work necessarily involved
  • the choice of experts available
  • the market rate otherwise being applied
  • the amount of travelling time involved

Scales of Guidance

These provide a starting point to assist in assessing appropriate fees. Discretion should be used in assessing the level of fees. The scales assume a normal court day and local travel. Adjust them to reflect longer journeys and significantly longer court sittings.

Responsibility for payment

Experts' work usually falls into two parts:

  • Tasks completed as part of the investigation (e.g. post mortems, scientific tests, reports on findings).
  • Attendance at court to give evidence, including preparatory work (e.g. revision and further research) and sometimes conference with counsel.

The investigating authority (usually the police) is responsible for the payment of costs relevant to the investigation and gathering of evidence throughout the case. The CPS is responsible for the payment of costs relevant to the presentation of the case at court.  Notice should be taken to not reimburse for the same work already paid for, or likely to be paid for, by the investigating authority.

Preparation

The preparation fees will normally relate to the investigative process e.g. the provision of an expert report, and should therefore be paid by the investigating authority.  The CPS will not normally pay experts for preparation, unless it relates to refreshing the memory from notes or the preparation of jury exhibits by the expert. This should be agreed in advance.

Where the preparatory work for an attendance is one hour or less, it is usual to agree and pay an attendance fee which includes it. If preparation exceeds one hour, payment may be split. A fee can be agreed and paid for preparation, in addition to the attendance fee.

Court attendance fee and travel and waiting time

For court attendance, a daily fee and half-day fee should be agreed, wherever possible. That fee should include an element for travel time. Some experts may insist on being paid an hourly rate for court attendance. In these circumstances it should be made clear that travel time will only be paid at half the rate payable for time at court.

Subsistence and travelling expenses

Day subsistence is not payable to expert witnesses. The attendance fee includes this. Overnight allowance may be paid where attendance necessarily involves overnight absence. Standard mileage rate is payable for journeys by private motor vehicle.

Cancellation fees

When agreeing expert fees, consideration should be given to agreeing a cancellation fee. An expert may already have terms for cancellation for attendance at court and this should be requested to establish the position at the outset.

Attendance at court

The following good practice applies when an expert witness is required to attend court:

  • Courts should be requested to give fixed dates to trials where expert witnesses are being called to give live evidence
  • Engage in a timely and proactive manner with the defence regarding the potential for agreeing the expert evidence
  • Have clear confirmation from the defence that the expert witness is required to attend court
  • Agree a ‘batting order’ and a specific time for the expert witness to attend court. Typically, this will not be as the first witness and, preferably, not on the first day of the trial
  • If possible, arrange for the expert to remain at their office, contactable by telephone, until after the case has started and his/her attendance is confirmed as being necessary
  • The length of time experts are in attendance at court must be kept to a minimum
  • Stand the expert down by telephone if the trial is ineffective or cracks or the expert evidence becomes agreed
  • Release the expert from court as soon as possible after giving evidence.

Only those with the requisite financial delegation should authorise the instruction of an expert witness.

All fees should be negotiated within guidance rates, wherever possible.

The expert instruction form should be completed and this should be sent to the expert in advance of attendance at court.

The guideline figures, handed down by the Attorney General’s office, relate to the payment of court attendance fees and preparation.

Interpreters

It is for the police or other appropriate investigating agency to arrange the attendance of an interpreter when interviewing a suspect or witnesses in the course of their enquiries.

The defence is responsible for the interpreting and translating needs of all defence witnesses both during the preparation of the case and whilst giving evidence in court.

The CPS will arrange and pay for interpreters for witnesses who attend court to give evidence. In addition, witnesses can be assisted by an interpreter for other pre court meetings, such as a court familiarisation visit, if it is necessary.

It should be noted that whilst some witnesses may need an interpreter for the purpose of giving evidence they may not need one for a court visit, which is less formal. This should be assessed on a case by case basis.

CPS should approve this in advance and arrange for an LWAC to be prepared and a witness claim form to be available.

Interpreters will receive a fee based on a fixed hourly rate.

Subsistence allowance is not payable, except when an overnight stay is necessary.

Travelling expenses are payable.

Other People attending Court

Other people, in certain circumstances, may receive allowances just like ordinary witnesses. This is at the discretion of Areas where it is believed that it would assist the witness in giving best evidence. This should be agreed in advance of attendance.

Examples include but are not limited to the following:

  • Parents accompanying child witnesses
  • People accompanying elderly or infirm witnesses
  • Witnesses attending court for the purposes of familiarisation visits

Police officers, prison officers and prisoners in custody will not receive allowances.

Procedure

Provision of Claim Forms: Magistrates' Courts

Witnesses attending magistrates' court hearings will be provided with a witness expense claim form on attendance at Court. The claim form will be accompanied by a ‘Current Rates - WEF1B’ leaflet, giving information on the maximum amounts claimable.

A supply of claim forms should be available in the operational unit and at the court building.

Before sending or handing a claim form to a witness, ensure that the appropriate List of Witnesses to Attend Court (LWAC) reference number is endorsed on the claim form, as well as the full name and address of the witness. This is important and should be checked for accuracy with the witness, as it will be used by the FBSW to despatch payment. The address must be full and clear, including the postcode, or it may result in payment or postal delivery being delayed, and further queries raised. All the case information must be provided on the front of the claim form. Ensure that the ‘Current Rates - WEF1B’ leaflet accompanies the expense claim form provided to the witness.

Provision of Claim Forms: Crown Courts

Paralegal officers attending at the Crown Court are responsible for supplying claim forms to witnesses. This is usually done shortly after their arrival, but can be done after the witness has given evidence and is being released.

Before handing a claim form to a witness, ensure that the witness's name and full address are clearly endorsed, together with the LWAC reference number. This is important and should be checked for accuracy with the witness, as it will be used to despatch payment. The address must be full and clear including the postcode or it may result in payment or postal delivery being delayed and further queries raised. Ensure that the ‘Current Rates’ leaflet accompanies the expense claim form handed to the witness.

Claim forms must not be given to expert witnesses. They should send an invoice for their previously agreed fees and expenses to the CPS office that instructed them.

Return of Claim Forms

The claim form tells witnesses to complete it at the end of the case. It also tells them to send the completed form to FBSW, using the prepaid envelope provided.

Crown Prosecutors and Paralegal Officers should not offer, or agree, to receive and forward claims to FBSW on behalf of the witness. Witnesses should be asked to use the pre-paid envelope provided to submit their claim.

Release Times

As soon as the hearing is over, check that the release time for each witness has been entered on the LWAC. The time of release of every witness must be recorded on the file copy LWAC. Witnesses are usually released, if recall is not likely, at the end of their evidence. Normally the actual time of release should be recorded on the LWAC. Failure to do so, may affect the amount of expenses to which they are entitled.

Use discretion to enter a later time in appropriate circumstances.

If a witness has failed to attend, this must be marked on the LWAC.,. Any other explanatory notes relating to witnesses attendance should be added to the form, for the assistance of FBSW. This needs to be signed and dated.

Discretion to Exceed Allowances

There is discretion, under the Regulations, to pay more than the entitlement. Regulation 4(1) provides that more than the entitlements under the Regulations may be allowed. This should only be used in exceptional circumstances. Authority of FBSW, Chief Crown Prosecutor or designated officer for this purpose, with the necessary delegated financial authority must be obtained before such a payment is made. A record of all such transactions is to be maintained and reasons for making the payment are to be kept with the claim.

It is not possible to catalogue every possible circumstance in which it may be appropriate to exceed the normal allowances and in cases of doubt advice may be sought from the Head of Court Business at Operations Directorate following initial discussions with FBSW, Area Business Managers or other Area designated officers.

Annexes