1 Introduction
1.1 Who should read this practice note?
Criminal defence solicitors.
1.2 What is the issue?
On 1 May 2010 section 6C of the Criminal Procedure and Investigations Act 1996 ('CPIA 1996'), as amended by section 34 of the Criminal Justice Act 2003 was brought into force.
It requires the accused in a criminal case to give the prosecutor and the court a notice indicating whether he or she intends to call any witnesses at trial and giving details of those witnesses.
This practice note sets out the new obligations and the ethical considerations you should consider when conducting a case involving defence witnesses.
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The following sections of the SRA Code are relevant to this issue:
Chapter 4 on Confidentiality and Disclosure, outcome 4.1 - You must keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents.
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1.4 Status of this practice note
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
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1.5 Terminology in this practice note
Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors’ Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
outcome - outcome
IB -indicative behaviour
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2 The legal requirements
2.1 The legislation
CPIA 1996 sets out the disclosure duties of both the prosecution and the defendant in criminal proceedings. Section 34 of the Criminal Justice Act 2003 inserts new section 6C into the 1996 act.
This creates a requirement on the defendant to disclose in advance of trial the name, address and date of birth of any witnesses he or she intends to call at trial.
This obligation has previously existed in relation to a witness giving evidence in support of an alibi pursuant to section 6A(2) of CPIA 1996 Act.
2.2 Code of practice
Section 21A of CPIA 1996 provides that a code of practice must be issued to set out guidance that police officers and other persons charged with investigating offences must follow if they arrange or conduct interviews of proposed witnesses whose details are disclosed to the prosecution by a defendant.
This code of practice has been published as 'Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused'. See 5.1 Legal and other requirements for further information.
You should be familiar with the contents of the code of practice as well as the legislation and the regulations relating to time limits.
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2.3 When do the provisions apply?
Where the defendant intends to call any persons other than him or herself as a witness at trial, he or she must give notice to the court and the prosecution of the names, addresses and date of birth of the proposed witnesses, or provide any information which may be a material assistance in identifying or finding the proposed witness.
The obligation applies in relation to cases in both the magistrates' court and the in crown court. The obligation does not apply to Newton hearings following a guilty plea.
The obligation applies in any case in which the defendant pleads not guilty in the magistrates' court on or after 1 May 2010, or in any case which is sent or committed to the crown court for trial on or after 1 May 2010.
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2.4 Time limits
The defendant must give notification of whether he or she intends to call defence witnesses within 14 days of service of initial prosecution disclosure.
For more details see Criminal and Investigations Act 1996 (Notification of Intention to call defence witnesses) (Time Limits) Regulations 2010 in 5.1 Legal and other requirements
If an application is made to extend that time limit before that limit expires, the court has power to grant an extension of time for service of the notice.
2.4.1 When does the defence form the intention to call a witness for the purpose of notification?
In R v Ensor , a case involving the late service of expert evidence, the Court of Appeal Criminal Division (R v Ensor [2009] EWCA Crim 2519 at paragraph 30) held that:
'the effect of the Criminal Procedure Rules Parts 1.2 and 3.3 together is that it is incumbent upon both prosecution and defence parties to criminal trials to alert the court and the other side at the earliest practical moment if it is intending or may be intending to adduce expert evidence. That should be done if possible at a Plea and Case Management Hearing. If it cannot be done then it must be done as soon as the possibility [of calling expert evidence] becomes live.'
A similar interpretation is likely to apply to defence witness notification.
However, to merely have been supplied with the name and address of a possible witness is not enough - you should have taken a statement from the witness.
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2.5 Types of witnesses to which obligation applies
The obligation requires the naming of all witnesses, both those giving factual evidence and character witnesses.
The position of expert witness evidence is different, and is covered by separate provisions which require the actual evidence of the expert to be served (see Part 33 of the Criminal Procedure Rules 2010).
2.6 Amended witness notices
If the defendant's intention to call potential witnesses changes after the service of a notice, s.6C (4) imposes a duty to serve an amended notice.
This includes:
- deciding not to call a witness,
- deciding to call other witnesses, or
- the discovery of further information that may enable the identifying or finding any proposed witness.
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2.7 Sanctions for failure to comply with defence witness notice provisions
If the defendant calls a witness who was not notified the court and the prosecution may make adverse comment on either the failure to serve a notice or an amended notice, or on the late service of a notice.
The witness may be subject to cross-examination as to why the information was withheld, thus calling their credibility into question.
The defence solicitor or defendant may be subject to an application for a Wasted Costs Order pursuant to s.19 or 19A of the Prosecution of Offences Act 1985 if costs have been incurred as a result of an 'unnecessary or improper act or omission' by or on behalf of another party.
2.8 Anonymous witness applications
You should consider whether there is any reason why the provisions of the Coroners and Justice Act 2009 relating to anonymous witnesses apply to a potential witness in your client's case. If so, you should make the necessary application to the court.
For further information on the Coroners and Justice Act 2009 see 5.1 Legal and other requirements
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3 Duties to your client and witnesses, and information for witnesses
When attending a defence witness interview as the defendant's representative you must protect the interests of your client, not the witness.
Your attendance at interview will benefit your client insofar as you will be aware of anything that the witness has said to the police which differs from the statement you have obtained from them.
You should ensure the witness and the police understand who you represent.
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3.2 Duty to witness if attending on witnesses' behalf
If you are asked to attend a police interview on behalf of a defence witness you must protect the interests of the defence witness.
You should carefully consider whether a conflict of interest may arise that would prevent you from representing the witness at their interview in a case where you act for the defendant.
You must have your defendant client's consent to attend the witnesses' interview on the witnesses' behalf.
While the defendant's lawyer attends a witness interview only as an observer, the witnesses' solicitor is able to intervene in the interviewing process to prevent bullying or leading questioning of the witness.
3.3 Informing your client of the need to notify and client care letters
You should warn your client when taking instructions and in your client care letter of the need to notify any potential witness details at the earliest possible opportunity.
Where your client is privately funding the case, you should set out the additional costs that will result from compliance with the obligation, including any costs that may arise from your attendance at any interviews conducted by the police with defence witnesses.
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3.4 Information for witness
The code of practice sets out that the decision of a witness to be interviewed by the police is voluntary. The provisions do not impose any obligations on the witness in this regard.
However, you should exercise great care in explaining that their consent to be interviewed is required, and you must take care that you do not attempt to discourage a willing witness from attending a police interview, as this could give rise to criminal liability on your part for attempting to pervert the course of justice.
You should prepare a full Section 9 statement (Criminal Justice Act 1967) which would be admissible at trial.
You should send the witness a copy of the witness statement together with a letter explaining that the police may approach them for interview, and that it is their decision whether to participate. This letter should also inform the witness that they are able to have legal representation at any such interview, and that you, as the defendant's representative, may also attend with their consent.
The code of practice requires:
- that a reasonable notice of any interview be given to the defendant;
- that the witness must be asked if they consent to being interviewed;
- that the witness is advised of their right to have an independent lawyer present, and that they must be asked whether they wish to have their own solicitor present;
- that the witness be asked whether they consent to the defendant's solicitor being present;
- that the witness be informed that a record of the interview will be made;
- that, if the witness consents, a copy of the record of interview may being sent to the defendant.
Your letter to the defence witness accompanying their statement should set out these points arising from the code of practice.
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4 Payment for attendance at witness interview
4.1 Payment for defendant's solicitors attendance at defence witness interviews
4.1.1 In the magistrates' court
If your client is subject to a legal aid order, you should add the time spent attending a defence witness interview to your fee charged to the Legal Services Commission.
This could take the case into the next level of fixed fee. You will have to justify the attendance on assessment. The Law Society is of the view that your attendance at interview will be justified in the majority of cases.
4.1.2 In the crown court
If your client is the subject of a representation order, the Litigators Graduated fee structure makes no specific allowance for work attending a witness interview to be paid. It is considered to be part of the necessary work in the case which is covered by the fee.
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4.2 Payment for solicitors' attendance on behalf of witness from Legal Services Commission police station advice scheme
The Legal Services Commission police station advice scheme will not cover a solicitor's attendance at interview on behalf of a witness.
However, it may apply if the witness is at risk of prosecution themselves, arising from their being a witness. For example the witness may be at risk of an offence against justice or wasting police time, or they may be at risk of incrimination in an offence.
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5 More information
5.1 Legal and other requirements
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5.2 Further products and support
5.2.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
5.2.2 Law Society publications
5.3 Acknowledgements
The Law Society wishes to thank members of the Criminal Law Committee for their assistance in drafting this practice notice. The Committee is indebted to Anthony Edwards for his assistance. The practice note is based on his article in the Law Society Gazette of 6 May 2010.
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5.4 Amendments
This practice note has been amended to refer to sections of the SRA code.
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