Procedure for Obtaining Evidence of Witnesses Outside the United Kingdom
Malcolm Simmons served at an international judge from 2004 to 2017 hearing war crime and serious organised crime cases.
Section 32(1)(a) of the Criminal Justice Act 1988 enables the court to allow witnesses outside the United Kingdom (other than the defendant) to give evidence by live link.
Section 32 applies to trials on indictment, appeals to the Criminal Division of the Court of Appeal and hearings of references under section 9 Criminal Appeal Act 1995. It also applies to proceedings in youth courts and appeals to the Crown Court arising out of such proceedings and hearings of references under section 11 of the Criminal Appeal Act 1995.
The witness does not have to fall within a special 'category' of witness (for instance vulnerable or intimidated as defined by the Youth Justice and Criminal Evidence Act 1999). It is sufficient that they are outside of the UK.
For witnesses who are in the United Kingdom and who do not qualify as for special measures on the basis of being vulnerable or intimidated, the provisions of section 51 of the Criminal Justice Act 2003 apply. See the Live Links Legal Guidance.
Matters to consider when deciding to apply
Video links can be expensive. The cost of the video link should be balanced against the costs of flights and accommodation for the witness travelling to England or Wales. If long haul flights are required it is likely that a video link will be the most cost-effective option.
If you are contemplating the use of a live video link consider carefully:
· The inability or unwillingness of the witness to travel;
· The relative cost;
· The significance of the proposed evidence; and
· Alternative ways of having the evidence admitted.
There is no restriction on the type of facility that can be used to 'host' the video link, subject to the leave of the court. You should ascertain whether or not the jurisdiction concerned recognises video links, as this may have a bearing on whether you will be able to use that country's courtrooms and whether a witness can be 'compelled' to attend court. For example, in Italy witnesses cannot be compelled to give evidence but on the basis of letters of request and orders made by an English or Welsh court, the Italian court can 'cite' a witness to attend at a time and place allocated for their evidence. This may have the effect of 'persuading' the witness to attend.
Depending upon the type of case, it may be helpful to have an officer from the investigation team present at the remote site to help witnesses with photos, plans etc.
You must establish whether the witness wishes to swear or affirm when giving evidence. This will enable you to have the correct wording/Holy Book available.
Bear in mind that for some witnesses – particularly expert/scientific witnesses – their presence at court may be preferable, for example enabling conferences with Counsel to take place.
When ascertaining a suitable venue for a live link, it will be of benefit to contact the Liaison Magistrate or the British Embassy of the country in which the witness is living or visiting. Liaison Magistrates are based in Paris, Madrid, Rome, Washington and Islamabad.
Making the application
Part 18 of the Criminal Procedure Rules, specifically rules 18.23-18.26, concern Live Links. Rule 18.23 outlines the ‘exercise of court’s powers’, 18.24 covers the ‘content of an application for a live link direction’, 18.25 covers ‘an application to discharge a live link direction’ and 18.26 covers ‘representations in response’, where a party wants to make representations about an application for a live link direction or for the discharge of such a direction.
Applications for live links should be made orally in the first instance in the magistrates' court, in line with Transforming Summary Justice, or in writing to the court, in accordance with Part 18 of the Criminal Procedure Rules – Rules 18.23-18.26 concern live links. The application should not be "badged" with the CPS logo, as it is not a CPS form, but is one prescribed by the relevant Practice Direction. Click here to download the form from the Ministry of Justice and note Part C should be completed for evidence by live link outside of the UK
There are no statutory grounds on which to make the application but prosecutors may find it useful to consider the criteria set out for live link applications under section 51 of the Criminal Justice Act 2003. The application should be made as soon as reasonably practicable, and in any event not more than 28 days after the defendant pleads not guilty in the magistrates' court, or 14 days after the defendant pleads not guilty in the Crown Court. The application must be served on the court and the defence. The time limit can be extended upon application to the court providing an explanation is given.
Applications made by the defence for one of their witnesses (other than the defendant) to give evidence through a live link should include the name, address and date of birth of the witness or as many of those details as are known to the accused when the application is made.
The court may impose a condition that the witness should give evidence in the presence of a specified person. This person can answer any questions put by the trial judge as to the circumstances in which the evidence is given.
Appeals to the Court of Appeal against Conviction or Sentence
The application must be made in writing at the same time as the application for leave to call the witness or at any time thereafter, but no less than 14 days before the date fixed for the hearing of the appeal.
Applications will be determined without a hearing unless the court otherwise directs. The parties will be notified of the decision of the court by the Registrar.
Section 1 Perjury Act 1911
A statement made on oath by a witness outside the United Kingdom and given in evidence through a live video link will be treated as having been made in the proceedings in which it is given and section 1 of the Perjury Act 1911 will apply.