Witness summons and warrants in the magistrates court


Data released by the Office of National Statistics has revealed that domestic-abuse related crimes accounts for approximately 10% of all crimes reported to the police. Around 70% of cases referred to the CPS, result in prosecutions. But, at court cases are often dropped because the complainant does not turn up. In fact, in the year ending March 2016, 53% of unsuccessful prosecutions were due to complainant retraction, complainant non-attendance or evidence that the complainant did not support the case.

The solution has been in many cases for witness summons to be issued. If the complainant does not answer that summons, a warrant can be issued for their arrest. Below are the rules on the issuing of summons and warrants in such cases in the magistrates court.

Compellability of witnesses

A witness is compellable if he or she may be lawfully required to give evidence.

Witnesses who are not compellable

Incompetent witnesses

A witness is not compellable if they are not competent. Under section 53(1) of the Youth Justice and Criminal Evidence Act 1999, all witnesses are competent regardless of age except when:

  • It appears to the court that a witness is not able to understand questions put to them or give answers which can be understood.

  • The witness is a person charged in the proceedings (unless they pleaded guilty, were acquitted, separate trials were ordered or there was an order not to prosecute by the Attorney General).

Spouses and civil partners

Under Section 80 of the Police and Criminal Evidence Act 1984 (PACE) spouses and civil partners of a defendant cannot be compelled to give evidence unless:

  • The case involves an allegation of violence against the spouse or civil partner; or

  • The case involves an allegation of violence or of a sexual offence against a person who was at the time of the offence under the age of 16.

As long as someone is married before the trial, these rules apply. In R (CPS) v Registrar-General of Births, Deaths and Marriages [2003] QB 1222, Waller J held that there is no power to prevent the marriage between a prisoner on remand and a witness for the prosecution, even if this may make the spouse a non-compellable witness for the prosecution in an upcoming trial.

When a person is no longer married to a defendant or the civil partnership has ended, they become compellable (section 80(5) PACE).

In R v Pitt [1983] QB 25, it was held that it is not a legal requirement that the judge informs a witness before they take their oath if they are not a compellable witness against the defendant and as such have a right to refuse to give evidence.

The rules on witness summons

A witness is not obliged to attend court unless a witness summons has been served.

Section 97 of the Magistrates Courts Act 1980 provides a witness summons will only be granted if:

  • The court is satisfied that the witness is likely to give material evidence; and

  • It is in the interests of justice to do so.

The court may refuse to order a summons if the court is not satisfied the application has been made as soon as reasonably practicable after the accused pleaded not guilty (section 97 2(B)).

The rules on warrants

Section 97(3) provides that if a person fails to attend court following a summons, a warrant may be issued if:

  • They are likely to be able to give material evidence;

  • The summons was duly served;

  • A reasonable sum has been tendered to pay for costs and expenses; and

  • There is no just excuse for the failure to attend.

If a witness attends court but refuses to give evidence they may be committed to custody for a period not exceeding one month or a fine may be imposed of up to £2500. Unless there is a just excuse.

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