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May 06, 2010

A Licence to Bully: Jan Davies on new rules for defence witnesses

Posted by Jan Davies

New rules regarding defence witnesses will make it more difficult to obtain a fair trail, argues criminal solicitor Jan Davies.

The period just before an election is obviously a good time to bury bad news so it is no surprise that a draconian measure which will inevitably reduce the chance of trials in our Crown Courts being fair should be brought into force just now. Since 1 May the solicitors acting for Crown Court defendants have been obliged to include in their Defence Statements, lodged on behalf of their clients, details of all witnesses the defence intend to call to give evidence.

A notice will have to be served giving a witnessi name, date of birth and address and

any information in the accused's possession which might be of material assistance in identifying or finding any such proposed witness
so presumably where the person is homeless or shifts around between different friends' flats (a mode of living known as "sofa surfing"), details of which pubs the person drinks in or which park benches he has been known to sit on during the day should be included. Where the accused has no information at the time of a preliminary court hearing, the details should be provided subsequently.

It was, of course, too much to hope that criminal trials would escape the attentions of those who would saddle them with the same bureaucracy that bedevils all other professional activity these days. There is an intense preoccupation with procedure, rather than product, in many professions: doctors, dentists, financial advisors, teachers, university professors – all are complaining that the incessant demand for information and form filling and the constant questioning of their professional decisions have reduced the amount of time they can work effectively and drained them of all creative energy. Criminal law was a sitting duck. When I first started in practice, you saw what needed to be done and you did it. Now every move must be justified and documented, yet the work itself is not improved.

The Criminal Justice Act 2003 is a monstrous piece of legislation, with 339 sections and 38 Schedules. I wonder whether those who passed it into law actually thought carefully about what they were doing. The Defence are now required to draft a Defence Statement in every case, irrespective of whether the defendant has answered every conceivable question in the police station.

The Statement is deemed to have been written by the defendant and it may be picked over in cross-examination even though the defendant may barely be able to manage to read The Sun without help. The Statement should also give "any point of law" which he intends to argue

…and any authority on which he intends to rely for that purpose.
Naturally, those who drafted this nonsense must have assumed, defendants will have been trawling through the law reports as part of their general education. There is a very real risk that a confused jury will be prejudiced in favour of convicting a defendant on the basis of a Defence Statement drafted by an incompetent lawyer.

But the decision to force defendants to reveal the contact details of their proposed witnesses is more sinister than this. As Section 34 of the Criminal Justice Act 2003 is brought into force imposing this requirement, a code has been produced for police officers to follow when they are interviewing defence witnesses. There is nothing in this code to make it clear when it will be considered appropriate for such interviews to take place. Only lack of police time will prevent this happening in the most trivial of cases.

The proposed witness will have the right to have a solicitor present, but there is no legal aid funding in place for an independent solicitor to be paid so the safeguard is not much use for most of the people that become involved with the criminal courts. (Witnesses tend to be from the same social milieu as defendants.)

The witness has the right to refuse to be interviewed, but there is nothing to say that the request for an interview has to be made in writing, and if a police officer simply knocks on the witness' door and gives the impression orally that an interview is required and expected, it will be quite impossible to prove that this has happened. The accused's solicitor will be informed of the interview and given a "reasonable time" (conveniently undefined) to see if he can attend, but there is nothing to say that the interview should be arranged at a time convenient to all, and the pathetic fee now paid to solicitors for crown court cases is unlikely to include any special attendance fee. If the solicitor does not turn up, the interview will just go ahead anyway.

The proper place for the examination of witnesses is the Crown Court with a jury, not behind closed doors so that the police can tidy up their case. I have experience myself of trying to persuade reluctant people to give evidence. It can be very difficult indeed. Appealing to a person's sense of public duty often does not work, and my task is going to be made much more difficult if I have to say "… I am afraid I cannot keep any of your details private. Yes, the police are quite likely to come and knock on your door I am afraid… no, there is nothing I can do about it… If PC So-and-So stops you regularly as you come home from the pub, then just co-operate with him… Yes, he probably is trying to make life difficult for you because he knows you are giving evidence for X, but it would be impossible to prove that this is what is happening…"

I cannot even promise the person that no one in their neighbourhood will find out that he has agreed to give evidence: some police stations are as leaky as sieves.

I have no objection to asking a witness to provide me with his date of birth on the morning of a hearing. As was pointed out in the case of Kelly v Warley Justices, there need be no penalty in costs for such a late discovery of dates of birth since the prosecution can find out from the police national computer at the touch of a button whether the witness has previous convictions, a matter which I appreciate is of legitimate interest.

The forcing of defence lawyers on pain of sanctions, which may include penalties in costs, to reveal their witnesses' details is shadowed by a proposed change to CPS rules which would enable crown prosecutors to hold pre-trial interviews with prosecution witnesses. While these would be ostensibly for the purposes of "clarification" it is hard to avoid by the very questioning of a witness revealing the questions likely to be asked by the defence barrister in the witness box. Surprise in criminal trials is important. The less chance witnesses (except expert witnesses) have of practising their evidence the more chance the court has of finding the truth.

Maybe this is one of those rare situations in which Europe may ride to the rescue. Judges may threaten to exclude the evidence of witnesses whose details have not been notified in advance, but Article 6 of the European Convention will be lurking in the background with Strasbourg ready to pounce.

The defendant has the right to a fair trial, with the right to examine witnesses on the same terms as the witnesses brought against him - which could be interpreted as meaning that if the prosecution have the right, through the police, to interview witnesses pre-trial the defence need to call, then the defence should also be able to examine pre-trial the prosecution witnesses. The right to what was known as an oral Old Style Committal, with prosecution witnesses required to attend the magistrates court in person before the case could be sent to the Crown Court, was abolished many years ago. Perhaps we should now be campaigning for its return.

Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).


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Interesting thought that we are moving back to old-fashioned committals but on an informal basis. Can the author really be suggesting that our police officers' motives are not always to be trusted?

Posted by: Brian Bushell at May 7, 2010 03:44 PM
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Having lived in a number of countries round the world, I can say from my own observation that the British police do a wonderful job with their hands tied. Surely it is unnecessary to handcuff them completely?

Posted by: C Dawson at May 10, 2010 10:08 AM
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It is easy to forget that defendants in criminal trials are supposed to be innocent until proven guilty and indeed some of them have done nothing wrong. Hence the need for a fair trial and "equality of arms". These are the latest in a number of measures eroding our Article 6 rights and as such should concern all of us.

Posted by: Harriet Balcombe at May 12, 2010 05:51 PM
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Police officers, like most people, are generally decent people trying to do a job. However, it is always tempting to take short cuts and to do a job in the easiest way possible. Having been born and raised near Rochdale, I can never forget the case of Stefan Kiszko (Google it if you don't know it). What could be a safer conviction than a man who confesses? The relevance of this to the article? Well, you will get police officers who won't directly intimidate and threaten defence witnesses, but will come very very close to it. The Court is there to decide on Guilt or innocence and the Court should be allowed to do that with untainted witnesses

Posted by: J H Smith at May 12, 2010 07:26 PM
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