Witnesses in Criminal Trials

What is a Witness

A witness is an individual who has seen a crime being committed and can as a result give evidence in court if the accused is prosecuted and the case eventually goes to court.

Who is considered able to give evidence

Under the Youth Justice and Criminal Evidence Act (YJCEA) 1999 s.53 (1), all persons are competent to give evidence at any stage of the trial unless:

  • they don’t understand the questions put to them and;
  • they cannot give answers to those questions which can be understood (s.53 (3) YJCEA 1999)

The above exceptions apply to all witnesses but most commonly affect children, persons of unsound mind and, the defendant himself. Children and individuals of unsound mind are subject to be tested to ascertain their competence if their testimony is necessary. It is important to note that, as a rule, the accused will always be deemed incompetent as a witness for the prosecution.

Can a person be forced to give evidence

A person can be compelled (forced) to give attend court and give evidence if they have been deemed competent to do so. The exceptions to this rule are the accused himself, the accused’s spouse and other individuals who are not deemed competent to give evidence.

The accused’s spouse can only be compelled to give evidence against him on the Prosecution’s behalf in limited circumstances, as follows:

  • If the offence the accused is being tried for involves an assault or threat of injury to the spouse (PACE 1984 s.80 (3) (a));
  • In the offence involves an assault on or threat of injury to an individual under the age of 16 (PACE s.80 (3) (a));
  • If the offence is a sexual offence committed in relation to an individual under the age of 16 (PACE s.80 (3) (b);
  • If the offence is an offence that consists of attempting or conspiring to commit or of assisting, instructing, appropriating or encouraging the commission of any of the aforementioned offences (PACE s. 80 (3) (c)

If the accused is not being charged in relation to any of the above circumstances then the accused’s spouse is only compellable to give evidence on behalf of the accused and not against him. It is to be noted that cohabitees and former spouses are compellable if they are competent as the rules applicable to spouses to do not apply.

What happens if a compellable witness refuses to give evidence

In the circumstances where either party to the proceedings believes that a witness may not attend court voluntarily, they can apply for a witness summons to be issued (an order issued to a person outlining the specific date for their appearance in court). A witness summons can take 2 forms namely, a witness summons requiring a person to give evidence and a witness summons requiring a person to produce documents that are needed as evidence. If a witness fails to attend court or give evidence or produce the required documents, they can be punished for contempt of court. The punishment can take the form of a prison sentence of up to 3 months duration and/or a fine of up to £2500.

What if a witness is too frightened to give evidence or has been intimidated

In the event that a witness feels too frightened or distressed to give evidence, special measures may be taken. An order called a special measures direction may be made by the court following either an application by either party to the proceedings or by the judge’s own volition. In order for a special measure direction to be made, the court must be satisfied that the quality of the witness’ evidence may be lessened by their fear and distress (YJCEA 1999 s.17 (1)). There are a number of factors that a court must take into account when deciding whether to make a special measures direction relating to fear, these are:

  • the witness’s age;
  • what type of offence the accused is being tried for and the alleged circumstances surrounding the offence;
  • the ethnicity of the witness and their social and cultural background;
  • the witness’ religious and political beliefs and opinions and;
  • the accused’s behaviour towards the witness as well as that of his family or anyone he associates with

If a witness has been intimidated in connection with giving testimony in legal proceedings or an investigation, the person who has intimidated them may be prosecuted for perverting the course of justice as well as for contempt of court. A judge also has discretion to determine the matter without it having to go to the Crown Prosecution Service. If found guilty, a person who intimidates a witness faces up to 5 years imprisonment and/or a fine. In the event that a witness has already given evidence and they are then retaliated against, the individual who retaliates against them can also be punished for contempt of court.

What protection can witnesses be given

A witness’ details will never be given to the defendant or his legal representative and details such as addresses will not be mentioned out loud in court. If a witness feels threatened at any point they should tell their witness care officer or, if they feel seriously threatened, ring 999 for immediate assistance. While in court, witnesses are given separate waiting areas where possible. In special cases a witness may be relocated to a house in another area to ensure their safety; this is arranged by the police. 

When a criminal is released from prison, in very serious cases, a witness will continue to be protected. They will be told when the offender is about to be set free and can liaise with a specially allocated victim liaison officer who, in certain circumstances, will arrange for an injunction (legal order forbidding a person to come within a certain distance of another named individual) to be made in order to ensure the offender stays away from the former witness.