QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE ROYCE
|THE QUEEN ON THE APPLICATION OF THE CROWN PROSECUTION SERVICE||(CLAIMANT)|
|BOLTON MAGISTRATES' COURT||(DEFENDANT)|
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"(1) Sub-paragraph (2) below applies where a justice of the peace for any commission area is satisfied that -
(a) any person in England and Wales ('the witness') is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings for an offence for which a person has been sent for trial under section 51 of this Act by a magistrates' court for that area; and
(b) the witness will not voluntarily make the statement or produce the document or other exhibit.
(2) In such a case the justice shall issue a summons directed to the witness requiring him to attend before a justice at the time and place appointed in the summons, and to have his evidence taken as a deposition or to produce the document or other exhibit.
(3) If a justice of the peace is satisfied by evidence on oath of the matters mentioned in sub-paragraph (1) above, and also that it is probable that a summons under sub-paragraph (2) above would not procure the result required by it, the justice may instead of issuing a summons issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant...
(5) If -
(a) the witness fails to attend before a justice in answer to a summons after this paragraph;
(b) the justice is satisfied by evidence on oath that the witness is likely to be able to make a statement or produce a document or other exhibit as mentioned in sub-paragraph (1)(a) above;
(c) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons and that a reasonable sum has been paid or tendered to him for costs and expenses; and
(d) it appears to the justice that there is no just excuse for the failure,
the justice may issue a warrant to arrest the witness and to bring him before a justice...
(7) If any person attending or brought before a justice in pursuance of this paragraph refuses without just excuse to have his evidence taken as a deposition, or to produce the document or other exhibit, the justice may do one or both of the following -
(a) commit him to custody until the expiration of such period not exceeding one month as may be specified in the summons or warrant or until he sooner has his evidence taken as a deposition or produces the document or other exhibit;
(b) impose on him a fine not exceeding £2,500."
"(1) Subject to sub-paragraph (3) below, sub-paragraph (2) below applies where in pursuance of paragraph 4 above a person has his evidence taken as a deposition.
(2) Where this sub-paragraph applies the deposition may without further proof be read as evidence on the trial of the accused, whether for an offence for which he was sent for trial under section 51 of this Act or for any other offence arising out of the same transaction or set of circumstances.
(3) Sub-paragraph (2) above does not apply if -
(a) it is proved that the deposition was not signed by the justice by whom it purports to have been signed;
(b) the court of trial at its discretion orders that sub-paragraph (2) above shall not apply; or
(c) a party to the proceedings objects to sub-paragraph (2) above applying.
(4) If a party to the proceedings objects to sub-paragraph (2) applying the court of trial may order that the objection shall have no effect if the court considers it to be in the interests of justice so to order."
"The procedure of taking a deposition from a witness who will not voluntarily make a statement, pursuant to Paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998, is a proceeding in open court. In the circumstances of a particular case, however, the Justices may exceptionally exclude persons from the taking of the deposition or otherwise modify the procedure where that will assist in the reception of the evidence or is in the interests of justice to do so. There is, however, no basis for excluding the party seeking the deposition, which will include the Crown Prosecution Service and representatives of the investigating authority."
We agreed, hence our decision to grant leave to amend to seek the first declaration.
"Where a witness who has been summonsed to give a deposition pursuant to Paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 refuses to answer questions on the ground of privilege against self-incrimination, that claim should be the subject of a proper investigation by the Justices in respect of each and every question for which it is claimed."
We granted leave to amend to seek that declaration also.
"Subject to the provisions of any enactment to the contrary, where a magistrates' court is required by this section to sit in a petty-sessional or occasional court-house, it shall sit in open court."
"(1) Where a justice of the peace for any commission area is satisfied that any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence at the summary trial of an information or hearing of a complaint by a magistrates' court for that commission area and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing"
If that section is read in the light of section 121, it is clear that the court before which the person is required to attend will be composed of at least two justices and sitting in a court-house in open court. But section 97A is different. It begins:
"(1) Subsection (2) below applies where a justice of the peace for any commission area is satisfied that -
(a) any person in England or Wales is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings before a magistrates' court inquiring into an offence as examining justices,
(b) the person will not voluntarily make the statement or produce the document or other exhibit, and
(c) the magistrates' court mentioned in paragraph (a) above is a court for the commission area concerned.
(2) In such a case the justice shall issue a summons directed to that person requiring him to attend before a justice at the time and place appointed in the summons to have his evidence taken as a deposition or to produce the document or other exhibit."
The wording of subsection (2) is such as to enable the justice to require attendance before him or her at any reasonable time or place. There is no statutory requirement that the venue should be a court, but there are, as Mr Perry submits, many reasons to conclude that almost always proceedings under section 97A or under paragraph 4 of schedule 3 to the 1998 Act should be in open court. First of all, there is the general principle set out in Scott v Scott  AC 417, R v Denbigh Justices ex parte Williams  1 QB 759, and now to be found in the European Convention on Human Rights, that justice should almost always be done in public, even if not everyone who wants to attend can be admitted. That clearly applies to a justice sitting as an examining justice, and thus to proceedings under section 51 of the 1998 Act. Proceedings under paragraph 4 of schedule 3 are ancillary to proceedings under section 51. By paragraph 4(3) a justice is empowered to issue a warrant to arrest a witness and bring him before the justice at a time and place specified in the warrant. It would be surprising if Parliament envisaged that being done anywhere except in open court. Similarly, in paragraph 4(5) there is a power to issue a warrant to arrest the witness, and again that is a power which, in accordance with the general principle, should only be exercised in open court. The same point can be made with even greater force in relation to paragraph 4(7) because that enables the justice to imprison or fine a person who without just excuse refuses to co-operate. The exercise of that power involves, in effect, the determination of a criminal charge, and it would be contrary to principle, and to the Convention, for such a determination to be made in private.
"Where a person attends before a justice of the peace in pursuance of section 97A of the Act of 1980 or paragraph 4 of schedule 3 to the Act of 1998 the justices shall ...
(c) where that person refuses to have his evidence taken ... explain to him the consequences of so refusing without just excuse, and ask him to explain where he has so refused; and
(d) cause a record of any such refusal to be made in writing."
It is not expressly stated in the rule that the justice shall investigate any explanation that may be given, but in my judgment it goes without saying that a justice charged with taking a deposition cannot simply accept a claim to privilege without investigating it. The question then becomes whether it is sufficient to ascertain that the claim is made on legal advice. In my judgment, the answer must be in the negative. The principle is neatly encapsulated in the 2003 edition of Blackstone's Criminal Practice, which states at paragraph F9.11 that before acceding to a claim to privilege the court should satisfy itself, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is a reasonable ground to apprehend real and appreciable danger to the witness with reference to the ordinary operation of the law in the ordinary course of things, and not a danger of an imaginary or insubstantial character. The duty imposed by the court is non-delegable. It cannot simply adopt the conclusion of the solicitor advising the witness whose conclusion may or may not be correct, and that does seem to be what happened in this case, which explains where I considered it appropriate to grant the second declaration sought. Mr Perry referred us to Renworth Ltd v Stephansen  3 All ER 244, but I do not consider it necessary to cite from that civil case.