Witnesses in criminal trials

What is a witness?

A witness is an individual who has perceived a crime being committed (by seeing, hearing, smelling or other sensory perception) and can, as a result, give evidence in court if the accused is prosecuted.

Who is considered able to give evidence?

Under the Youth Justice and Criminal Evidence Act 1999 (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 can’t 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 and persons of unsound mind. Children and individuals of unsound mind are tested to ascertain their competence if their testimony is necessary.

A person charged in criminal proceedings is also not competent to give evidence in the proceedings for the prosecution.

Can a person be forced to give evidence?

A person can be compelled (forced) to attend court and give evidence if they have been deemed competent to do so. The exceptions to this rule are the accused themselves, the accused’s spouse or civil partner and those not deemed competent to give evidence.

The accused’s spouse or civil partner can only be compelled to give evidence against them on the prosecution’s behalf 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));
  • involves an assault on or threat of injury to an individual under the age of 16 (PACE s.80 (3) (a));
  • is a sexual offence on an individual under the age of 16 (PACE s.80 (3) (b);
  • involves 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, the accused’s spouse or civil partner is only compellable to give evidence on behalf of the accused and not against them. Cohabitees and former spouses are compellable if they are competent as the rules in relation to spouses to do not apply.

What happens if a compellable witness refuses to give evidence?

Where either party to the proceedings believes 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 two forms:

  • 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 with a fine and/or a prison sentence.

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

If a witness feels too intimidated or distressed to give evidence, a special measures direction may be made by the court following an application by either party to the proceedings, or by the judge’s own volition. 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 a court must take into account when deciding whether to make a special measures direction relating to fear, these are:

  • the witness’s age;
  • the 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’s religious and political beliefs and opinions and;
  • the accused’s behaviour towards the witness as well as that of their family or anyone they associate 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 or contempt of court. If found guilty, a person who intimidates a witness faces up to five years imprisonment and/or a fine. If a witness has already given evidence and they are retaliated against, the individual who retaliates against them can also be punished for contempt of court.

What protection can witnesses be given?

A witness will usually be required to give their name before they start giving evidence, and their names will have been given to the defence team before the case begins. In certain cases (eg, blackmail), the trial judge will allow the witness to not state their name in public and write it down instead.

Under s 74 to 85 of the Coroners and Justice Act 2009, witnesses can apply for an investigation anonymity order at the beginning of an investigation, to ensure that their identities are not disclosed. These are only available if:

  • a qualifying offence has been committed (murder or manslaughter where the death was caused by being shot with a firearm or injured with a knife);
  • the person likely to have committed the offence was at least 11, but under 30 years old when the offence was committed;
  • the person likely to have committed the offence is a member of a group engaging in criminal activity and most of its members are at least 11, but under 30 years old; and
  • the witness has reasonable grounds to fear intimidation or harm if they were identified as assisting the investigation.

A separate application must be made for a trial anonymity order under ss 86 to 90 of the Coroners and Justice Act 2009 to ensure the witness remains anonymous throughout the trial.

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 very serious cases, a witness may be relocated to a house in another area to ensure their safety or even given a different identity; this is arranged by the police.