Can you be forced to give evidence as a witness? Know your rights

With the recent increase in violent crimes where there has been a reluctance for witnesses to give evidence in these cases. This could give rise to the increased use by prosecutors of an obscure procedure under the Crime & Disorder Act 1988 (CDA 1988) to compel witnesses to give evidence. The Act empowers the Magistrates’ Court to issue summonses for witnesses to attend court to give evidence under oath – or in the parlance of the Act to give “depositions” – about what they have seen. The CDA 1988 also ultimately empowers the court to impose sanctions should witnesses unreasonably refuse to answer questions.

What is a deposition?

The Crown Prosecution Service (CPS) can seek a deposition under Paragraph 4 of Schedule 3 of the CDA 1998 (CDA 1998) which empowers the Magistrates’ Court to take an oral statement under oath from a witness who is unwilling to assist an investigation. This statement is known as a “deposition” and can only been taken once an accused has been charged and the case sent to the Crown Court. Any statement provided is taken down by the court clerk and becomes sworn testimony which is then provided to the prosecution and the Crown Court.

What does the law say about this?

Sub-paragraphs (1) and (2) of Schedule 4 of the CDA 1988 state as follows:-

1. Sub-paragraph (2) below applies where a justice of the peace is satisfied that—
   (a) any person in England and Wales (“the witness”) is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings for an offence for which a person has been sent for trial under section 51 or 51A of this Act by a magistrates’ court; and
   (b) it is in the interests of justice to issue a summons under this paragraph to secure the attendance of the witness to have his evidence taken as a deposition or to produce the document or other exhibit.
2. In such a case the justice shall issue a summons directed to the witness requiring him to attend before a justice at the time and place appointed in the summons, and to have his evidence taken as a deposition or to produce the document or other exhibit.

Can a witness be summonsed to attend Court?

A reluctant witness can therefore be summonsed to attend the Magistrates’ Court to be questioned by a prosecutor. Failure to attend can result in a warrant being issued for their arrest. The test for summonsing a witness to court is relatively low: the witness need only be likely to be able to give a statement containing material evidence or able to produce a document or exhibit pertinent to the case. It must also be in the interests of justice to compel the witness to attend. The CPS must set out in their application to the court why they consider the identified witness is able to provide material evidence.

Depositions are held in open court which can make it extremely uncomfortable for a reluctant witness when faced with a public gallery comprised of people who are potentially connected to the case. The court can choose to exclude members of the public if there are exceptional reasons that make it in the interests of justice to do so, for example if the presence of the public would hamper the quality of a witnesses’ evidence.

Does a witness have the right to remain silent in Court?

Each individual summonsed to court may refuse to answer the prosecutor’s questions if they have a “just excuse” for doing so.

A couple of reasons why someone would be:

• A genuine fear of reprisals
• That the answer to the question might incriminate the witness.

In the latter example it could be argued that compelling an answer to the question might violate the privilege against self-incrimination enshrined in Article 6 of the European Convention on Human Rights.

Who judges whether you cannot give evidence as a witness to protect against self-incrimination?

It is a matter for the court whether or not the privilege against self-incrimination can reasonably be invoked. The test, established in the case of R (CPS) v Bolton Magistrates Court, is whether there is a “reasonable ground to apprehend real and appreciable danger to the witness with reference to the ordinary operation of the law in the ordinary course of things, and not a danger of an imaginary or insubstantial character”. A witness who refuses to answer every question on the basis of the privilege against self-incrimination, no matter how innocuous (for instance, “Do you know the defendant / complainant?” “Were you present at the scene of the incident?”) will probably not be found to have a just excuse.

A refusal to answer more direct question might attract the privilege if the answer could lay the foundation for criminal liability, for instance in joint enterprise. It is difficult to give general guidance however because much will depend on the circumstances of the case. Representations on this point should be made at court, ideally by a defence advocate.

What are the penalties for not giving evidence in Court without “Just excuse”?

Pursuant to Sub-paragraph 7 of Paragraph 4 of Schedule 3 of the CDA 1998, where a person capable of providing material information refuses without “just excuse” to have his evidence taken as a deposition, the court has the power to commit them to custody for up to one month or to impose a fine not exceeding £2,500.

Legal advice

Any witness summonsed for a deposition has the right to be represented by an advocate at the depositions hearing and legal aid is available providing the applicant is financially eligible. Expert legal advice should be sought by anyone who has been summonsed to court as a witness under this procedure due to the sanctions that can be imposed for a refusal to give evidence. As specialist criminal solicitors this is an area where we are well versed in supporting those who have been deposed as a witness.