STRAIN

Date: 2020-02-17

We often get asked how prosecutions can proceed in the absence of cooperation from the victim or chief witness.

The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction, but how the prosecution case is formulated remains a matter for the Crown Prosecution to decide.

These are common issues:

1. 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’, which means that they can be called to court to give evidence, under arrest if they refuse to attend voluntarily. Once in the witness box, the witness may then decide to answer questions. If a witness refuses to answer questions, they may be punished for contempt of court, and this threat is often enough to persuade them to comply. In some instances, a witness cannot be forced to answer questions, referred to in law as ‘not compellable’. We can advise further on the rules that apply to your specific case.
2. 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, and all our solicitors are well versed in their proper application.
3. The prosecution may be able to proceed without the witness’s evidence, relying on other witnesses or sources of evidence. In cases where the police attend an alleged domestic violence incidence, the officers will very often have body worn video cameras in operation, 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, which means that it may well be admissible. So 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.

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. It is therefore essential that you obtain legal representation as soon as possible. There is a right to free legal advice at the police station, and legal aid may be available if you are later charged and have to appear before a 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.

We work hard to ensure that your rights are protected, and the best outcome is secured.

How can we help?

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

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