Witnesses and Hostile Witnesses

THE REST-1

Witnesses can be forced to give evience by a witness summons or warrant.

Refusing to give evidence can lead to a jail sentence - with exceptions of spouses. That is, if you're married, you cannot be forced to give evidence.
What about a domestic violence case? A few years ago, you couldn't make the wife give evidence, however there have been changes in the law recently. One of the main things that they're doing now is prosecuting against the wife's wishes regardless.

If you refuse to testify or go back on a statement made to polics or investigators you can be declared a 'hostile witness'.

What will happen is that the prosecution can tell the judge that you're a hostile witness. What this means is that a solicitor or barrister can ask you leading questions, ie questions which suggest what the answer might be. For example..." is it right that you saw x covered in blood in the corridor with a knife? "

In a normal case the lawyer cannot ask leading questions of the witness. But if the judge declares a hostile witness then leading questions are permissible.

If there's a 6 month or year lag between your first statement and the date of the trial. Passage of time may mean a difference in recollection especially of details.

During a sentence reference can be made to previous convictions

Be clear about the difference between previous conviction and asking for offences to be taken into account.

Admission to Courts:

-Press and public
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Lord Atkinson: "The hearing of a case in public may be], and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."

eg. Scott v Scott (1913) or Reigate Mags vs Argus newspapers

Under Common Law exclusion to press extends only to:
You will hear the phrase "Heard in chambers" or "Heard in Camera"

-Where presence defeats the ends of justice
-Secret process is subject to evidence (Trade Secrets)
-Matters affecting children
-Security of State
-Lunacy

Even with restrictions, over riding rule is still open justice.

- Lord Diplock and the Leveller case (1979)
-Restrictions should only apply when the nature or circumstances of the particular proceeding are such that the application of the general rule in it's entirety would frustrate or render impracticable the administration of justice.
-Open justice is key to the system - there are lots of good reasons for it, and what the courts accept is that occasionally it may be necessary (for national security or because someone is mentally incapable) to hold private hearings, but these are very much the exceptions.

Do not ignore a court order - an invalid restriction has to be obeyed until a court rescinds it.

But press have a right to be heard in most cases when reporting restriction/plan to sit in private is being imposed (McKerry v Teesdale)

Lord Bingham said in 2000 : "A reporter does not enjoy... "

What to do:

- Approach the clerk to query/challenge - either before case, in adjournment, by passing a note

- The Clerk can be asked to provide:

-Written form of order
-Written reason why it was made
-Written details of statute and which section


Addressing the court has the advantage of resolving problems quickly and saving money on lawyers.

You're unlikely to be made to pay costs but it is important to challenge as early as possible because there is a risk, even if you're successful.

You can challenge magistrates decisions at Queen's Bench division of the HIgh Court

For reporting restrictions made by crown court judge can be challenged in the court of appeal

BUT

It may be expensive, and may take some time.