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Prosecuting without a victim

We often get asked how prosecutions can proceed in the absence of cooperation from the victim or chief witness.  The recent sad case of Caroline Flack’s  has brought such issues into the eye of the public.

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.

You can read about the issue of ‘res gestae’ here.

You can read about a recent case illustrating the point here.

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 advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

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 solicitors offices
VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.


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