QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
1 Redcliff Street, Bristol, BS1 6NP |
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B e f o r e :
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THE QUEEN (on the application of MR JOHN CAINE) |
Claimant |
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- and – |
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THE CROWN COURT AT SOUTHAMPTON |
Defendant |
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- and – |
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THE CROWN PROSECUTION SERVICE |
Interested Party |
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The Defendant and Interested Party did not appear
Hearing date: 9 October 2018
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Crown Copyright ©
Mrs Justice Andrews:
"1. I am not satisfied that the witness was likely to give material evidence (in the sense of assisting the appellant)2. It is not in the interests of justice to force a reluctant witness to attend who was not likely to give material evidence.
This application is, therefore, frivolous."
Mr Caine did not attend the appeal hearing on 26 February 2018, and his appeal was dismissed.
"1. Crown Court Refusal to state a case in relation to refusing a vital defence witness summons.2. Misinformation given to the Court by the CPS to prevent a pivotal defence witness summons being granted."
The second of these points was not so much the identification of a decision taken by the CPS, as a ground of challenge to the Judge's decision to refuse the witness summons, on the basis that he had been "misinformed" by the CPS.
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court."
The offence with which Mr Caine was charged was only triable summarily.
"in my view, the correct procedure for challenging the lawfulness of an interlocutory decision in criminal proceedings such as the present one is by way of an appropriate application for judicial review, although the circumstances in which that is likely to be necessary will, as it seems to me, be relatively rare and exceptional."
a) a person is likely to be able to give evidence likely to be material evidence…for the purpose of any criminal proceedings before the Crown Court, and
b) it is in the interests of justice to issue a summons under this section to secure the attendance of that person.
The statutory test is compatible with Article 6 ECHR. It provides a means by which a defendant can obtain evidence that is likely to assist his defence or to undermine the prosecution's case against him. It will usually be in the interests of justice to require the attendance at court of a witness who is likely to give evidence that is likely to be material, in that sense, unless there are some strong countervailing factors, e.g. the witness is seriously ill, in which case there may be other means of introducing their evidence under the hearsay provisions of the Criminal Justice Act 2003.
"I asked [the witness] if she had indeed been present and she confirmed she was. I asked if she'd been approached to provide an account and a statement. She confirmed that she had. She told me she was feeling somewhat harassed by the police as she'd been asked more than once. She has a number of family illnesses issues going on around her at this time and it was something she could do without. She'd spoken with a solicitor and been told she was under no obligation to provide an account and she simply did not want to.
[The witness] did witness events and she was happy to say that she felt sorry for the tyre company staff who she felt were completely in the wrong (sic). She did not hear any threat from any of the staff to put Mr Caine on his arse and the only threats she heard, which she felt may have included a suggestion that he would put one of them on their arse, came from the male member of the public.
She asks that she now be left alone and not contacted regarding this any further."