Warning Witnesses
Updated 11/02/08
Principle
The CPS is committed to the proper care and treatment of witnesses.
Whenever evidence needs to be called in a case:
- the CPS decides which prosecution witnesses should be warned to attend court;
- the CPS notifies the Witness Care Unit (WCU) which witnesses are required;
- it is the responsibility of the WCU to warn the witnesses and ensure that they attend court;
- the CPS is answerable to the court if any prosecution witnesses fail to attend.
Guidance
Phasing of Witnesses
In appropriate cases, phasing witnesses should enable them to be warned to attend court at a specified time during the morning or afternoon sitting on a given day (refer to Phasing of Witnesses, elsewhere in this guidance).
Witnesses who are Prisoners
You should only request the production of prisoners as witnesses after very careful consideration. Only do so if you are satisfied that the witness's attendance is essential to the prosecution case.
The CPS has given an assurance to this effect to the Prison Authorities. We expect that Prison Governors will therefore recognise the necessity of the prisoner's attendance and do all they can to comply in those cases where production is requested.
Witnesses from Abroad
The decision to call a witness from abroad must be based on the fact that he or she is likely to give valuable or crucial evidence in the trial. Careful consideration must be given to the need to call witnesses from abroad. Bear in mind the inconvenience to the witness and the expense involved. Such a course should only be contemplated when there is no alternative having regard to:
- the nature and importance of the trial;
- the importance of that witness's evidence to the prosecution case; and
- the lack of alternative forms of proof or other means of taking that person's evidence.
Consider alternatives to bringing witnesses from abroad:
Section 46 Criminal Justice Act 1972 (Archbold 10-23), admissibility of written statements made outside England and Wales;
Section 32 Criminal Justice Act 1988 (Archbold 8-65), evidence through television link where witness outside the United Kingdom;
Section 116 Criminal Justice Act 2003 (Archbold 11-15), relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
Section 286 Merchant Shipping Act 1995 (Archbold 10-48), depositions of persons abroad admissible;
Section 95 Civil Aviation Act 1982 (Archbold 10-49), provisions as to evidence in connection with aircraft.
Special procedures may apply to secure the attendance of witnesses from abroad depending upon which country they are from and particular applications may be needed. For example, the attendance of witnesses from the Republic of Ireland requires the obtaining of witness summonses which must be sent via the Judicial Co-operation Unit at the Home Office for forwarding to the Department of Justice in Dublin for service by an officer of the Mutual Assistance Section of the Garda. You will have to check what procedures are applicable in the country where the witness is coming from.
Professional and Expert Witnesses
Professional and expert witnesses will often be warned on a standby basis <refer to Phasing of Witnesses - Professional and Expert Witnesses, elsewhere in this guidance>.
Try to avoid late cancellations and date changes.
Interpreters
If a prosecution witness needs an interpreter it is the CPS responsibility to ensure that one attends. Make sure you ask for the interpreter to be warned. The police keep lists of people who are willing and able to act as interpreters. They will normally be able to help you find a suitable interpreter. (Refer to Interpreters, elsewhere in this guidance)
You should include costs incurred in employing interpreters in applications for costs against convicted defendants <refer to Costs, elsewhere in this guidance>.
General
The WCU will normally need at least two weeks notice to prepare, serve and receive replies to the witness warning notices.
Procedure
Witness Availability
Procedures governing witness availability are set out in <Section 4 of the Manual of Guidance for the preparation, processing and submission of files>.
The "LWAC"
The Form CPS WE F4, List of witnesses to attend court (LWAC), is used to notify the WCU which witnesses are required.
When compiling the LWAC you must indicate the appropriate status for each witness. Remember that, regardless of the occupation or profession of the witness, it is the status in which they attend to give evidence that is important.
For more information on status see <Payment of witnesses' expenses & allowances - definitions of Ordinary Witnesses, Professional Witnesses and Expert Witnesses, elsewhere in this guidance>
The LWAC is self-carbonating and has two or four pages; if a four page form is used, only the top (green) and the bottom (blue) page are now required. (The pink and yellow pages, if any, can be discarded; consideration is being given to re-printing the future forms in a two-page version.)
- after completion page one (green) is sent to the WLO;
- the other page (blue) is retained on the CPS file for use at the court hearing. At the hearing the prosecutor or caseworker enters details of the times and dates of each witnesses' attendance on the LWAC form, and signs and dates the form.
For more information on completing the LWAC after the hearing see <Witness expenses & allowances - Release Times> elsewhere in this guidance.
If no fixed date has been set, you can still complete the LWAC and send it to the WLO. Once set, the hearing date can be confirmed by telephone. If any alteration to the LWAC is made during a telephone call to the WLO, make sure that the remaining file copy is also altered and dated.
Types of Warning
The WLO will normally send written warnings to witnesses.
Anyone identified as a vulnerable witness, either by the police or the CPS, will be personally warned by a police officer, usually the officer in the case.
- you should not ask the WLO to personally warn non-vulnerable witnesses unless: other methods of warning have been tried and failed; or
- time does not allow the use of any other method.
Child Witnesses
You should always classify a child witness as vulnerable.
When you ask the WLO to warn a child witness, remind them to ensure that the child is accompanied by a parent, social worker or other person who can give reassurance. You can do this by making a separate entry on the LWAC for the accompanying adult. Their status will be "escort", unless they are also themselves warned as a witness.
Vulnerable and Intimidated Witnesses
Witnesses may be vulnerable or intimidated for a number of reasons (Archbold 8-55e & 8-55f) and must be treated with the appropriate care. Ask the police to provide as much information as they can about these types of witnesses. See also the special measures provisions in Sections 16 - 33 Youth Justice and Criminal Evidence Act 1999 (Archbold 8-55d)
Vulnerable witnesses should be identified on the LWAC by marking a "V" in the margin, against their name
Witness Summonses and Warrants
In appropriate cases the CPS will make applications for witness summonses and warrants. The police will be responsible for service of any such summons or the execution of warrants and payment of any conduct money.
Section 169 of the Serious Organised Crime and Police Act 2005 amends the legislation. The Court may now issue a summons if two conditions are met. Firstly, if a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence for the purpose of any criminal proceedings before the court. Secondly, the court needs to be satisfied that it is in the interests of justice so to do.
Magistrates' Court Cases
Under "Pre Trial Issues" (PTI), trial dates should not normally be fixed until the CPS has received a full file from the police.
When a trial date has been fixed, the prosecutor will have endorsed the file as to which witnesses need warning, and which the defence have agreed or are likely to agree.
Complete the LWAC as soon as possible and send it to the WLO. If the adjournment is relatively short, you should do this as a matter of urgency.
Upon receipt of the LWAC the WLO will prepare and serve a warning notice. This requires the witness to attend court and asks them to confirm that they will do so.
The procedures for the issuing of witness summonses and warrants in the Magistrates' court are governed by sections 97 and 97A of the Magistrates' Courts Act 1980.
Crown Court Cases
Send the completed LWAC to the police as soon as possible after committal or transfer (that is transfers under Section 4 Criminal Justice Act 1987<refer to transfers in serious and complex fraud cases, elsewhere in this guidance> or Section 53 Criminal Justice Act 1991<refer to child abuse and child witnesses, elsewhere in this guidance>). In Section 51 cases <refer to Sending cases to the Crown Court, elsewhere in this guidance> send the completed LWAC to the police as soon as possible after the service of the prosecution case.
There is no obligation on a witness whose evidence is included in the committal evidence to attend the Crown Court unless the prosecution obtains a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The procedures upon application for a witness summons are set out in the Crown Court Rules 1982, rr.23 - 23ZC as amended (Archbold 8-7)
After the LWAC has been sent, make sure that you tell the WLO about any changes which are made to witness orders.
Once a committed or section 51 case appears in a Crown Court list, the WLO will arrange appropriate warnings for all witnesses required to attend.
Appeals against Conviction
When you receive a notice of appeal against conviction, ensure that a LWAC is completed and sent to the WLO. Ask the prosecutor who dealt with the case at the magistrates' court which witnesses to include on the LWAC.
Any evidence previously agreed under the provisions of section 9 of the Criminal Justice Act 1967 as amended should be served again for the purposes of the appeal (Archbold 10-50).
Useful Links
Disclosure of unused material
Code for Crown Prosecutors
Sending cases to the Crown Court
Child abuse
Costs