Divisional Court
| Published date | 01 August 1996 |
| Date | 01 August 1996 |
| DOI | http://doi.org/10.1177/002201839606000302 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
ABSENCE OF DUTY TO CALL WITNESSES
R v Harringey JJ.
ex
p
DPP
In principle, both in the Crown Court and in the magistrates' courts the
prosecution has an unfettered discretion to decide which witnesses it will
call. Primarily, no doubt, that discretion exists in order to allow the
prosecution to avoid calling unnecessary witnesses, by confining the
witnesses to those persons it considers 'appropriate' in the sense that they
are likely to give relevant evidence. Presumably it does not exist in order
to permit the prosecution to refrain from calling a witness merely because
he may cause the prosecution embarrassment or do its case more harm than
good. The question raised in R v Harringey JJ,
ex
p
DPP
[1996]
2 WLR 114
was as to how the magistrates' court is to proceed when it is of opinion that
the prosecution has refrained from calling a witness who is central to the
incident out of which arose the issue which they have to decide.
Two defendants were charged with threatening behaviour and with
assault upon a police officer in an incident in which an attack was made
on two police officers, which had eventually involved others in the arrest
of the defendants. Subsequently, one of the officers involved in the
incident was the subject of an accusation which involved his honesty (he
was in fact accused of being concerned in the theft of money) in
circumstances which were wholly unconnected with the earlier attack. He
was suspended from duty.
It
is the policy of the Crown Prosecution
Service not to rely on the evidence
of
suspended officers if that can be
avoided; and the prosecutor therefore informed those acting for the two
defendants that it was no longer the intention to call the suspended officer,
the reason stated being that he was suspended. The prosecution indicated
that the officer would be available to give evidence, if the defence wished
to call him; and, at the trial, although the officer was not in court,
the prosecution stated that it would not oppose an adjournment for the
purpose
of
calling him, if his presence was needed. Both counsel for the
defendants applied to the court for an order that the prosecution should
call the officer or tender him for cross-examination.
It
was submitted that
a failure to call a central witness would in itself be unfair to the defendant
and that to insist on continuing a trial which would inevitably be unfair
would be an abuse of process. The justices accepted that submission and
invited the prosecution to call the officer; but it declined to do so.
Accordingly, the justices dismissed the case on the ground that it was an
abuse of process. The application for judicial review brought by the DPP
raised the questions whether the CPS had an unfettered discretion to call
or not to call a witness and whether the prosecution had exercised
whatever discretion it had correctly; and if the answer to either of those
questions was in the negative, whether it was proper for the justices, on
that ground, to dismiss the case as an abuse of process.
219
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