Witnesses: Warning and Phasing

• Principle
• Phasing of Witnesses
• Case Progression
• Witnesses who are Prisoners
• Witnesses from Abroad
• Professional and Expert Witnesses
• Interpreters
• Witness Care Units (WCU)
• The 'LWAC'
• Child Witnesses
• Vulnerable and Intimidated Witnesses
• Witness Summonses and Warrants
• Compliance

Principle

The CPS is committed to the proper care and treatment of witnesses. Whenever evidence needs to be called in a case:

• The CPS decides which prosecution witnesses should be warned to attend court;
• The CPS notifies the Witness Care Unit (WCU) which witnesses are required;
• It is the responsibility of the WCU to warn the witnesses and ensure that they attend court;
• The CPS is answerable to the court if any prosecution witnesses fail to attend.

Phasing of Witnesses

Every effort should be made to phase the attendance of witnesses in trials at both Crown Court and magistrates' court when it is appropriate and practicable to do so. The Code of Practice for Victims of Crime imposes an obligation on court staff to ensure that, as far as is reasonably within their control, victims do not have to wait more than two hours before giving evidence in criminal proceedings.

The phasing of witnesses should be considered for all trials but is likely to work best in trials involving several witnesses and expected to last 3 days or more. Prior consultation with the defence should allow arrangements to be made to inform a witness that his/her attendance is required during the morning or afternoon sitting on a given day. Close contact with the WCU about witness requirements will also be needed.

Police officers should be treated with the same courtesy as other witnesses. Prosecutors should avoid having too many officers present at court at any one time, keeping in mind police operational needs.

In Crown Court cases, a fixed date of trial must be requested in appropriate cases. For example, cases which involve:

• Sensitive issues – child abuse; child witnesses; rape;
• Expert or professional witnesses;
• Elderly, infirm or disabled witnesses;
• Witnesses from abroad, or with some distance to travel.

In sensitive cases, take particular care when liaising with the WCU over the timing of the attendance of witnesses, especially the victim.

Prosecutors must bear in mind that witnesses may have special requirements, e.g. religious observance, dietary or medial regime, which might make it difficult for them to attend court at certain times or certain days.

In the Crown Court, the need for witnesses to attend at a given time must be kept continually under review. Do so throughout the course of the trial, but especially at the luncheon adjournment and at the end of a day's hearing.

Once at court, if a case listed for trial is adjourned or a guilty plea entered, the witnesses must be told without delay. Any witnesses who are on standby must be de-warned and the file noted accordingly. They can then decide whether they wish to leave or to remain and watch the proceedings. Those who choose to remain should be informed that expenses, other than travel costs, will normally be paid only for the period up to the point at which their attendance becomes voluntary.

Case Progression

Under the principles of Transforming Summary Justice and Better Case Management, cases should be progressed wherever possible, rather than simply waiting for the pre-trial review (Magistrates' Court) or plea and trial preparation hearing (Crown Court) to come around. Once at court, prosecutors should be prepared to fully address any witness requirements, including special measures, and establish exactly what aspect within the evidence cannot be agreed so that witnesses are not needlessly called to give evidence in person.

Where relevant, consideration should be given to the order of witnesses and timing of their attendance. Particular attention should be paid to victims (especially those who are vulnerable or intimidated), child witnesses and professional or expert witnesses. The order of witnesses should be agreed with the defence. If agreement cannot be reached before or at PCMH, the advocate should invite the judge to make a direction that the defence confirm their witness requirements within seven days in writing.

Witnesses who are Prisoners

The production of prisoners as witnesses should only be requested after very careful consideration. The attendance of the witness must be essential to the prosecution case.

The CPS has given an assurance to this effect to the Prison Authorities. Prison Governors will therefore recognise the necessity of the prisoner’s attendance and do all they can to comply in those cases where production is requested.

Witnesses from Abroad

The decision to call a witness from abroad must be based on the fact that he/she is likely to give valuable or crucial evidence in the trial. Careful consideration must be given to the need to call witnesses from abroad and, in particular, the inconvenience to the witness and the expense involved. Such a course should only be contemplated when there is no alternative having regard to:

• The nature and importance of the trial;
• The importance of that witness evidence to the prosecution case; and
• The lack of alternative forms of proof or other means of taking that person's evidence.

Prosecutors should consider alternatives to bringing witnesses from abroad, for example:

• Section 46 Criminal Justice Act 1972 (Archbold 10-20), admissibility of written statements made outside England and Wales;
• Section 32 Criminal Justice Act 1988 (Archbold 8-132), evidence through television link where witness outside the United Kingdom;
• Section 116 Criminal Justice Act 2003 (Archbold 11-15), relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
• Section 286 Merchant Shipping Act 1995 (Archbold 10-11), depositions of persons abroad admissible;
• Section 95 Civil Aviation Act 1982 (Archbold 10-13), provisions as to evidence in connection with aircraft.

Special procedures may apply to secure the attendance of witnesses from abroad, depending upon which country they are from, and particular applications may be needed. It is advisable to check what procedures are applicable in the country where the witness is coming from.

Professional and Expert Witnesses

Professional and expert witnesses who can be contacted by telephone and can get to court quickly should be warned to be on standby. As a general rule, the witness will need to be able to get to court within one hour of receiving the telephone call.

If an expert witness is to be called by the prosecution on the first day of the trial, defence solicitors should be informed. This enables the defence to make appropriate arrangements for their expert to attend court and hear the prosecution expert’s evidence.

Any advocate brief should state whether the professional or expert witness is to be warned on a standby basis. The advocate should be asked to advise if the attendance of the witness is required at a different time. Late cancellations and date changes should be avoided.

Interpreters

It is the CPS' responsibility to ensure that an interpreter is warned to attend court, when required by a prosecution witness. The police keep lists of people who are willing and able to act as interpreters. They will normally be able to assist with the task of finding a suitable interpreter.

The costs incurred in employing interpreters should be included in applications for costs against convicted defendants.

Witness Care Units (WCU)

The WCU will normally need at least two weeks’ notice to prepare, serve and receive replies to the witness warning notices.

The "LWAC"

The "LWAC" (list of witnesses to attend court) is used to notify the WCU which witnesses are required.

When compiling the LWAC, the appropriate status for each witness must be indicated. Regardless of the occupation or profession of the witness, it is the status in which they attend to give evidence that is important.

Child Witnesses

Child witnesses should always be identified as "vulnerable".

The WCU should be reminded that, when warning a child witness to attend court, it is necessary to ensure that the child is accompanied by a parent, social worker or other person who can give reassurance. The accompanying adult should be included as a separate entry on the LWAC.

Their status will be "escort", unless they are also themselves warned as a witness.

Vulnerable and Intimidated Witnesses

Witnesses may be vulnerable or intimidated for a number of reasons and must be treated with the appropriate care. The police should be asked to provide as much information as they can about these types of witnesses. See also the special measures provisions in Sections 16 - 33 Youth Justice and Criminal Evidence Act 1999.

Vulnerable witnesses should be identified on the LWAC.

Witness Summonses and Warrants

Prosecutors are reminded that applying for a witness summons should be regarded as a last resort and should only be considered when all other avenues have been exhausted. Prosecutors must first ensure that they have considered whether they are able to proceed with a prosecution without the live evidence of the complainant or witness. If this is not possible, other avenues to adduce the witness’ evidence, including hearsay or res gestae provisions, must also be explored. Before any application for a witness summons is made, the prosecutor must also ensure that they have up-to-date information from the officer in the case and if applicable any organisations that are providing support to the witness.

In cases involving domestic abuse or other VAWG crimes, such as sexual assault or stalking, up-to-date risk assessments are essential. More advice around the steps to be taken in such cases can be found here.

The police will be responsible for service of any such summons or the execution of warrants and payment of any conduct money.

Section 169 of the Serious Organised Crime and Police Act 2005 allows the court to issue a summons if:

• A person 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 any criminal proceedings before the court; and
• The court needs to be satisfied that it is in the interests of justice so to do.

Compliance

It is the Prosecutor's responsibility to ensure any issues are followed up, particularly where the defence do not comply with pre-trial review directions or the advocate does not respond to instructions in the brief.