Tag Archives: witness

The absent witness and the live link

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.

video link

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Section 51 does not apply to defendants and is considered somewhat out of date in other respects.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.

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

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.


What to expect as a witness in court

If you have provided a statement for the prosecution or for the defence you may be called as a witness in court to give evidence at the defendant’s trial.

Is there help available for me as a witness in court?

defence witness in courtThe Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.

If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

 When you attend as a witness in court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

 Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on the evidence you will give as a witness in court. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.

Can I speak to any other witnesses?

 If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.

If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.

The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

prosecution witness in courtYou will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.

Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to attend court?

 If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate.

A witness summons can be issued if the court is aware you do not want to go to court.  This is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.

Contact a criminal law specialist about being a witness in court

It may be that you have given a witness statement to the police and received a witness summons.  Alternatively it might be that you are thinking of doing so but worried about the potential consequences.

You might have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further.

Contact your nearest office or the office preparing the defendant’s case to discuss any of the matters further.

VHS Fletchers East Midlands offices

Alternatively please use the contact form below.


Good character evidence and trial preparation

In criminal law, we talk a lot about ‘character’.  This is, however, mainly in the context of ‘bad character’ rather than good character.  It is often the case that the prosecution will try to put previous convictions before a jury to persuade them of the defendant’s guilt. After all, the prosecution will say, if he’s done it before, he is more likely to have committed this crime too.

Of course, not all defendant’s facing criminal trial will have previous convictions.  In those circumstances the issue of ‘good character’ is likely to be important.

good character direction

This will, of course, involve a reversal of the prosecution argument.  In cases where a person is of good character it will be said, therefore, that they are less likely to have committed the crime charged.

In fact the situation is much more complicated than that.  As a result we believe it is an aspect of case preparation that can often be overlooked.  This will be to the detriment of the person of good character standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.  In more recent years, the courts have accepted that evidence of good character may be admissible:

  • to bolster the accused’s credibility; and,
  • as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is simply a matter of fact.  If a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Similarly, although a defendant may not start off with good character they may be able nonetheless to obtain a good character direction. This is often referred to as ‘qualified or effective good character’. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

Should character witnesses be called?

An essential part of establishing good character will be to consider good character evidencecarefully whether character witnesses should be called on your behalf. These will be people who know a defendant well and who will speak positively about them.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury.  They ought to be people who would not be willing to lie about a person’s character and qualities simply due to allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

Good character and appeals

If defence advocates do not take a point on the character directions at trial and/or they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. good character court of appealThis means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“…as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.”

What is the content of a ‘good character’ direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

‘You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant’s good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him.’

In the magistrates’ court, the defence advocate should ensure that the legal adviser provide the magistrates’ with the correct advice on this direction.

How we can assist as criminal trial specialists

We believe in proactive defence work.  This means that we do not merely respond to the prosecution case.  At the same time we are taking all of the positive steps possible to build a strong case for your defence.

An example of a Magistrates’ court trial where good character was important can be found here.

Considerations about character, both good and bad, will be just one aspect of this case preparation, although it may be a significant one.

Any application for legal aid is likely to be assisted where a conviction following trial will deprive a defendant of their good character.

good character direction

Please contact your nearest office to make an appointment to speak with one of our expert criminal lawyers.  The contact details can be found here.

Alternatively you can use the contact form below.


Common assault trial – not guilty verdict

Nottingham criminal solicitor Derek Brown recently represented a client charged with common assault.  In an unusual case, the alleged victim of the assault had not provided a statement.  The evidence upon which any conviction would turn was from an independent eye witness.

This witness claimed that she had seen Derek’s client slap his partner with such force that she was knocked to the ground.

Denied common assault allegation

He accepted the following:

  • that he had been the man that the witness had seen
  • that he had been arguing with his partner in the street
  • that his partner had ended up on the floor but he had fallen with her

Derek’s client had explained his version of events in police interview.  He had explained that the argument had begun at his partner’s address.  He did not wish to continue the argument so chose to leave.  His partner tried to stop him so the argument continued in the street.

His partner continued to try and get him to return to her address.  She grabbed him, and he, in turn, grabbed her.  There was shouting throughout.  During this scuffle. Derek’s client maintained that they fell on the floor but he denied that he slapped his partner as described by the witness.

After the incident, Derek’s client maintained that he helped his partner up and they parted ways, going to their separate addresses.

Cross-examination of a mistaken witness

Derek’s client denied the allegation.  The case was listed for trial.  Both the eye-witness and our client gave evidence.  Derek’s questioning was directed at showing the Magistrates that the view of the eye-witness may well have been impeded taking into account all of the circumstances.  The witness did not know either party so would have had no reason to lie.  She was simply mistaken.

In the end, following Derek’s speech, the Magistrates’ were not sure that his client had hit his partner.  As a result he was found not guilty.

Contact a Criminal Solicitor in Nottingham

Every contested case will require a criminal defence lawyer who can identify a trial strategy.  Derek Brown is an experienced Magistrates’ Court trial advocate so will help identify relevant issues in your case.  If you are under investigation by the police or face court proceedings for common assault or any other matter please contact him on 0115 9599550 or by email here.

Nottingham Solicitor Witness Request

Nottingham solicitor Louise Wright is investigating a case on behalf of a client.  Although Tesco stores in the local area have been very helpful and gone beyond what would be expected she has reached a dead end.

As a result she has taken the initiative with a view to making a plea for information through social media.

An incident occurred in the car park of the Tesco store, Carlton, Nottingham at approximately 5.45pm on the 7th July 2016. A member of Tesco staff intervened and questioned what was happening during that incident.

That member of staff may be able to provide crucial information.
They may or may not have worked at that particular store.
If anybody has information we are keen to speak to them. If you are the staff member in question or know who she is please make contact with Louise on 01159 599550 or email us here..
Any assistance will be appreciated.
UPDATE 10 August 2016
Thank you to all of those who shared the appeal.  Louise has been  successful in locating the witness and a statement has been taken helpful to her client.
VHS Fletchers Carlton Hill Tesco