The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction. How the prosecution case is formulated remains a matter for the Crown Prosecution to decide.
These are common issues:
Where a statement has been provided
If a witness will not cooperate, the prosecution has the option to apply for a witness summons to force that witness to court. Almost all witnesses are ‘competent’. This means that they can be called to court to give evidence. If they refuse to attend voluntarily then they can be brought to court under arrest.
Once in the witness box a witness may then decide to answer questions and the case will proceed as usual. If a witness refuses to answer questions they may be punished for contempt of court. This threat is often enough to persuade them to comply.
In some instances a witness cannot be forced to answer questions. Witnesses in such cases are referred to in law as ‘not compellable’. We can advise further on the rules that apply to any specific case.
Where a witness is absent
The prosecution may be able to rely on the witness’s evidence by making an application under the hearsay rules. This procedure is often used if the witness is too frightened to give evidence or cannot be found.
The rules here are particularly complex. You will wish to take legal advice and all of our solicitors are well versed in their proper application.
No statement is ever made
The prosecution may be able to proceed without any evidence from the witness. The CPS can rely on on other witnesses or sources of evidence.
In cases where the police attend an alleged domestic violence incident, the officers may well have taken footage on body worn video cameras. These record what is said and done when they arrive.
In law, this is termed real evidence and may also amount to what is referred to as ‘res gestae’ evidence. This means that it may well be admissible.
The evidence of a person who makes an accusation in the immediate aftermath of the incident may find that this account is admissible at trial even without their attendance.
Similarly, any admissions recorded at the scene, whether via video or other means,may also be admissible under normal principles. The same may well apply to ‘999’ calls to emergency services.
The wider public interest?
There is a wider public interest in pursuing some prosecutions, even where the immediate victim of the crime does not wish the matter to progress to court or trial.
Contact a criminal law specialist
If you are arrested or know that the police wish to speak to you about an allegation where there may be a reluctant witness, make sure you insist on your right to free and independent legal advice.
The legal rules outlined above give only a brief flavour of the legal framework, the legislation and case law is voluminous and seldom as clear cut as some might think. Legal representation is likely to be key to the outcome of your case.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
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A meeting is to be held on 3rd February 2020 to obtain views from ‘stakeholders’ about a plan to move the remand court at Chesterfield Magistrates’ Court to Derby Magistrates’ Court instead.
It is suggested that a low volume of prisoners mean that it will be a better use of Court resources to transfer prisoners away from their ‘home’ court and to a court room nearly an hour away, door to door by car, or 30 miles.
We have some concerns, however, that all might not be what it seems. For example, custody cases are often dealt with as part of a general plea list rather than in a specific custody court. Additionally the court has itself reduced custody cases by allowing those subject to warrants surrendering themselves to the court rather than to the police station and then the cells.
A steady trend
The process of court closures started years ago with a procession of court closures across the country. In this area we have lost Ashbourne, Matlock, Glossop, Swadlincote and Buxton for example.
Chesterfield Magistrates’ to Derby Magistrates’ door-to-door
It is hard to believe that this isn’t the first step in a ‘rationalisation’ that will see all Chesterfield Magistrates’ Court work moved to Derby. For example, if there are no longer staff in the cells to deal with remand prisoners, how can a defendant be sentenced to custody at Chesterfield, or how can a custody trial be dealt with?
Case by case more work will be removed from the court until it is declared ‘inefficient’ by HMCTS and then closed, even though it is HMCTS that has rendered a court ‘redundant’. This pattern is seen over and over again.
Entirely unsurprising?
This ‘need’ for efficiency is a direct result of the court in Chesterfield lacking staff. Since October 2019 Chesterfield Magistrates’ Court has lost 2 legal advisers on top of the 2 lost in the preceding 18 months.
Flexible working means a further 3 days have been lost as a legal adviser has been permitted to reduce from full-time to 2 days a week.
A further legal adviser has been seconded to Stafford for a ‘project’.
Salary and conditions, including the removal of most admin staff, resulting from austerity measures make the court service far less attractive than 15 or 20 years ago so there is inevitably a difficulty in recruiting.
Separately, legal advisers are no longer contractually obliged to cover Saturday or other occasional courts. As a result it was difficult for the courts to keep sitting over the Christmas period.
While we understand that trainees are being recruited this can only be a partial solution in the medium term. It seems unlikely that the Ministry of Justice will ever fund adequate staff or pay levels.
Area served by Chesterfield Magistrates’ Court
In the meantime, this failure on behalf of the court service will be subsidised by the defendant and their families, solicitors and other court users.
Where is the defendant in all this?
While prisoners will have the dubious advantage of free transportation to Derby from the police station, they will be less fortunate on the return journey should they be released on bail or because they are sentenced to a community penalty.
And of course this plan will not just affect Chesterfield residents. Chesterfield Magistrates’ Court also serves those communities even further afield such as High Peak. They already face the prospect of being brought before a Magistrates’ Court in Manchester, and may now be expected to find their way back from Derby. While only a little over an hour in a car, on public transport the journey is at least two hours.
A bail application is perhaps one of the most important hearings that a defendant will have. Understandably their family may wish to attend in support. Family may be in a position to provide an address, or surety, or useful information about the health of mental well-being of a defendant. They will have to be able to afford and make the journey to court and back if they wish to offer that support and input.
Vulnerable defendants may suddenly find themselves alone.
Additionally we assume that the court thinks that it doesn’t matter that there will be an increased likelihood that defendants will be kept in police cells over night, as the cut off time for getting a client into a remand court will inevitably be earlier than before.
And what of the solicitors?
Everybody knows that margins under legal aid are slim, and that many firms operate with marginal profitability. Fixed fees are paid sometimes with, and sometimes without, travel time as an extra payment. In any event, the hourly rate for travel does not permit any profit element.
The change will mean that for solicitors based in Chesterfield, instead of travelling to their local court they will now have to travel to Derby with a risk of no payment, or no profitable payment, being made. More time will be spent at a loss, and employers will have to compensate staff for the travel expense in any event.
For example, one of our solicitors will face an hour’s journey, more than double the travel time they currently undertake.
An additional cost will also have to be absorbed. To be at court at a reasonable time solicitors will have to set off earlier. Who pays for that in terms of salary? Does it need a change in contractual hours? Will the job remain as ‘attractive’ with additional travel in rush hour built in?
What of those solicitors with child care responsibilities who can currently juggle them successfully as they are always at their ‘home court’? Extra travel at the beginning and the end of the working day will frustrate existing arrangements.
Firms and individuals will bear more costs for the same level of fees. If firms are no longer viable, what will be the effect on access to justice for those local to Chesterfield?
No doubt a new and confusing duty scheme will be imposed on the profession as well…
VHS Fletchers office, Chesterfield
And everybody else…
Nobody might notice the extra car on the road between Chesterfield and Derby every day but they will be there.
If expenses and travel are paid there will be the extra cost to the tax payer through the Legal Aid Agency.
Will the court be able to send people to prison? Will there be custody staff in the cells waiting for new arrivals? Will those sentenced to custody be placed on trust to wait to be taken away, or chained to radiators? (Both of the latter have been tried in the past at other local courts).
Ultimately a court closure will cost not only solicitors and their clients, but also the police and witnesses in terms of time and lost opportunities to use their time better.
Any closure will also provide witnesses with an opportunity to travel on the same bus or train to court that a defendant is having to catch.
Austerity over?
Despite announcements to the contrary it appears that there is little interest from government in properly funding the justice system.
Proposals like this that prioritise convenience to the court over the inconvenience and cost to every other ‘stakeholder’ simply show that the powers that be are not listening or interested in the knock on effects.
A formal consultation will no doubt follow the meeting, and that consultation will inevitably produce a number of responses from all of those involved that suggest, with evidence, that this is a bad idea. There is always a belief that these changes will then inevitably take place despite these contributions. This will be particularly true in this case where the court service have simply been unable to recruit adequate staff.
Maybe this time it will be different?
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As businesses prepare for Christmas, it is customary to inform clients of seasonal opening hours. For many, it will simply be a case of announcing the days on which the business will be closed, but for us, as criminal defence solicitors, the position is a little more complicated than that owing to the need for emergency legal advice.
We close our offices, but of course we don’t close down our emergency services.
Our offices across the East Midlands will be closed on the following dates:
24 December 2019
25 December 2019
26 December 2019
27 December 2018
31 December 2019
1 January 2020
Emergency legal advice
However, if you need emergency legal advice in relation to a criminal law related issued, at any time of the day or night, we have a team of people to assist.
For example, the Nottingham number is 0115 9599550. You will be able to speak to one of our on call solicitors.
The work of a criminal lawyer does not lend itself to regular working hours, nor is there any time, day or night when we are not available. We offer a level of accessibility that few other professionals can match, and we are immensely proud of that fact.
When arrested on Christmas Day, as some people inevitably will be, we will be there by their side to offer timely legal advice to protect their interests.
Even the criminal courts are open for business during at least part of the festive period, allowing for bail applications and other urgent court business. Again we will provide representation at those hearings.
And of course, those in prison can experience particular difficulties as they are reminded of families far away, also impacted by the trauma of custody.
We take this opportunity to wish all of you a peaceful and restful holiday season, but if for any reason you need us, we will be there at the end of the phone and in person.
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None for The Road – the Christmas drink drive campaign
With Halloween and Bonfire Night behind us it now won’t be long before Christmas is in our sights and the Christmas party season gets underway. It means that it is now time for the Christmas drink drive campaigns from your local police forces.
We will now all be familiar with the national police initiative that coincides with this time of year. Once again the police will be targeting drink driving. Forces across the country prepare for a spike in the numbers of those tested and arrested for drink driving and drug driving offences. This in part is due to an increase in police patrols dedicated to seeking out drink drivers and part as a result of the time of the year.
The more visible presence is in order to deter those who may think about drinking and driving.
The impact of a drink drive conviction
People may not view these offences as particularly serious when judged against other types of offences. What is not often understood is the very real impact that the consequences of a drink drive conviction can have.
Research shows that the loss of a driving licence leads, in a great many cases, to loss of employment. This in turn can lead to a loss of housing as bills cannot be paid. Sometimes a disqualification from driving could be the final straw that breaks a relationship. The financial costs flowing from a driving ban will be felt for many years thereafter. Insurance premiums will be greatly increased.
Driving the morning after
As experienced road traffic solicitors we also see a great many people who come before the courts with alcohol readings that are not particularly high. This might be where offences have been detected the ‘morning after’. In such cases, offences can be said to have been committed perhaps more out of ignorance than due to a wilful disregard for the safety of others.
A single error of judgment can have devastating consequences.
What is a safe level of drinking if I propose to drive?
No alcohol at all is the safest approach to adopt. It ensures that when a driver gets behind the wheel, their reactions will not be impaired to any degree at all.
Crucially it also prevents the driver getting the guesswork wrong as to how much can be drunk before a person is over the limit. It is this mistake that brings so many people before the courts.
There are urban myths in circulation such as ‘2 pints are ok’. These have long since been proved to be false, as have back of the envelope calculations as to how long it takes alcohol to leave the body. Sleeping of a heavy drinking session will not speed up the rate at which alcohol leaves your body. A big meal may slow down the rate at which you absorb alcohol, but you will end up with the same amount of alcohol in your system.
Different people will deal with alcohol in different ways. This can even vary for one person depending on a multitude of factors. Merely feeling okay to drive is not a reliable indicator as to whether a driver is below the legal limit or not.
As we get merry, we reach a tipping point. We can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.
Think, before you drink, before you drive.
You do not hear a lawyer say this often – but we do not wish to see you this Christmas as a result of the Christmas drink drive campaign.
How we can assist with your drink drive case
If you do make a mistake and find yourself in trouble, there is a lot we can do to assist you.
The police must follow complex procedures to establish a case against you. Our lawyers will be able to analyse the evidence to ensure that the procedures have been followed. We can successfully challenge the evidence in your case.
A road traffic solicitor can also investigate issues such as ‘laced drinks’ which can raise the opportunity to avoid disqualification. We will also consider other ‘special reasons’ that could be raised on your behalf. This might include the shortness of distance that was driven.
Legal aid might be available dependent upon your means and the circumstances of your case. Alternatively, you will be able to fund your case through an affordable fixed fee.
Contact one of our drink drive solicitors at your nearest office if you are being investigated by the police or taken to court as a result of the Christmas drink drive campaign. They will, of course, be able to discuss and other driving matters that you face.
Alternatively you can use the contact form below to ask for a call about your case.
Contact
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In some instances, it is not convenient for a witness to be present in court to give evidence, generally because they live or work some distance away from the court, or some other good reason.
There are legal provisions that cater for this scenario, and while the prosecution widely uses them (notably for police officers), it is vital to remember that the defence can take advantage of the legislation in the same way.
What does the law say about the live link?
Section 51 of the Criminal Justice Act 2003 states that a witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings:
a summary trial,
an appeal to the Crown Court arising out of such a trial,
a trial on indictment,
an appeal to the criminal division of the Court of Appeal,
the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),
a hearing before a magistrates’ court or the Crown Court which is held after the defendant has entered a plea of guilty, and
a hearing before the Court of Appeal under section 80 of [the Criminal Justice Act 2003].
Can a defendant give evidence via this provision?
Section 51 does not apply to defendants and is considered somewhat out of date in other respects. In Clark [2015] EWCA Crim 2192 the court observed:
‘That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgement, befit a modern system of criminal justice. It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.
There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.
When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.
In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence. Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them. They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology. That, however, is a matter for Parliament, but, in our judgement, it is a step which requires very serious consideration.’
What factors will the court consider?
A direction may not be given under this section unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link.
In deciding whether to give a direction, the court must consider all the circumstances of the case, and those circumstances include in particular:
Those circumstances include in particular:
the availability of the witness,
the need for the witness to attend in person,
the importance of the witness’s evidence to the proceedings,
the views of the witness,
the suitability of the facilities at the place where the witness would give evidence through a live link,
whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court. Advocates in the magistrates’ court should also keep this in mind when making closing submissions.
In some cases, applications for evidence to be given via live link are not appropriate, and we will strenuously object. Where it is in our client’s interest to make such an application, we will ensure that a reasoned and strongly supported application is advanced.
Contact a criminal law solicitor
If you face court proceedings you will wish to instruct one of our solicitors to advise on witness requirements and how witnesses should give evidence. We can make a real difference to the outcome of your case.
