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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 19: CITING WITNESSES
19.1 Ensuring that witnesses are aware of their obligations to attend court - and that parties are clear about the attendance of their witnesses - is critical to effective trials.
19.2 In summary procedure witnesses are cited by the Crown after the initial pleading diet. Traditionally citation has been executed personally by police officers, but the Crown Office and Procurator Fiscal Service has been piloting a system of postal citation and return in relation to civilian witnesses in summary cases.
19.3 National roll out of postal citation in relation to summary cases commenced in September 2003. From that date all procurator fiscal offices have had the ability to cite witnesses through the post, and COPFS began to implement a joint protocol with the Scottish police and the Scottish Court Service to cite witnesses in summary cases according to agreed targets (see paragraph 19.8 below). Postal citation is not rigidly employed in relation to every witness in a summary case; personal citation is still used, for example, for child witnesses and for witnesses who will require an interpreter.
19.4 There has recently been considerable interest in witness citation at two levels - whether the current system is operating as efficiently as possible and, more radically, whether citation should no longer lie with either the Crown Office and Procurator Fiscal Service or the police, but instead with a single body created for that purpose and working under the management of one or the other.
19.5 Lord Bonomy's review of the High Court examined the options in relation to solemn cases, and took the view that:
"Management of the citation process would be greatly improved if there existed a body with the sole responsibility of arranging the attendance of witnesses at court. Such a body would be answerable directly to the Crown, or might even be a branch of the Crown Office and Procurator Fiscal Service. They could develop systems which could be applied throughout the country. I would expect them to cite police officers and forensic scientists by sending citations to the relevant divisional police office and to police headquarters. They would deal direct with other professional witnesses such as pathologists. Most importantly they would trace and cite civilian witnesses, report difficulties to the procurator fiscal and return citations timeously to the procurator fiscal."
19.6 Despite this strong personal view, he concluded that he had not in the time available been able to investigate the options in sufficient depth to make a formal recommendation for a witness citation body under the control of the Crown. His report simply recommended that a working party be set up immediately to report urgently on a national system for the citation of witnesses and the appropriate body to undertake the task.
19.7 There has been a working party involving ACPOS and the Crown examining the issues on citation. It has, however, worked on the basis that every attempt should be made to create greater efficiency and certainty within the existing framework for citation, and particularly in the context of the roll out of postal citation, rather than moving directly to a radical restructuring of the system.
19.8 As already noted, the working party has agreed new protocols to be in operation from 1 September 2003. They provide that COPFS will issue postal citations and initiate personal citations within 7 days of the pleading diet. The police will serve the initial personal citations and return the written executions to the Crown no later than 10 working days before the Intermediate Diet. There will also be clear arrangements to ensure that where postal citation fails the police can serve personal citations and return executions to COPFS no later than 3 working days before the Intermediate Diet.
19.9 The Committee recognised the significance of those protocols, which represent the first clear targets set jointly by and for COPFS and the police in this area. The targets are intended to allow the police more time to serve citations and to allow COPFS to be better prepared for intermediate diets (and first diets in cases which proceed by way of solemn procedure). Adequate evaluation and monitoring arrangements should be put in place to establish how effectively the new protocols are working, and to identify what further changes to the system may be required.
19.10 Whilst noting these positive developments, we recommend that detailed consideration be given by COPFS, in liaison with the police, to establishing a national centralised system (though not necessarily a national agency) for the citation and countermanding of witnesses, making best use of IT. Lessons will no doubt be learned as the protocol beds in, and these will inform the decision on a centralised system.
19.11 Further consideration needs to be given in a case which has reached the stage of trial. If not all the witnesses appear, the court has to decide whether to part-hear the trial or to adjourn it. Often if there are more cases going to trial than can realistically be dealt with that day, the court at a relatively early stage in the day will be tempted to accede to a motion by the procurator fiscal or the defence or both to adjourn the trial, unless the trial has been adjourned at least once before. The court will adjourn the case to a new date which will often be several weeks later. Witnesses have to be re-cited for the adjourned date.
19.12 We recommend that, when an adjourned trial date is to be fixed, before the witnesses who are present leave the court that day, they should be cited for the adjourned date. That procedure would have the added advantage that many witnesses will be able to say there and then whether or not they will be available for the proposed adjourned date. Then the only witnesses for whom formal citation to an adjourned trial would be necessary are those who did not answer their citation. In cases in which civilian witnesses are countermanded in advance of a trial in which it is known that there will be an adjournment, it is worth considering whether information could be gathered at the time of countermanding as to their availability for likely adjourned dates.
19.13 We also recommend that the competent means of citation be extended to allow citation by e-mail. We accept that there would require to be an acknowledgement of receipt of an e-mail citing the witness to attend court at a particular time, in order to meet the requirement of section 141 of the 1995 Act, i.e. to establish that the person concerned was duly cited. For this reason we have not proposed the use of other means of contacting witnesses for the purpose of citation, as we do not see how a satisfactory proof of receipt could be obtained. However, our view is that the purpose of citation is to inform the witness when he or she is required to attend court and simple means of conveying the necessary information should be used where possible in the future, provided that the citation can be verified later. A witness could be contacted by telephone and informed of the need to attend. If the witness attended no difficulty would arise. But it is not likely to be possible to prove citation by that means, unless the conversation was recorded.
19.14 Other measures require to be taken to make sure that potential witnesses can more easily be contacted with a view to informing them of the progress of cases and countermanding them when the cases are not to proceed. We believe that the police have an important role to play in improving the ability of the system to contact witnesses. At the point of first contact between a police officer and a potential witness (or an accused) we believe that information should routinely be collected on a number of different ways in which that person might be contacted. We would expect the police to obtain the home and work address, the home, work and mobile telephone numbers and home and work e-mail addresses of the person concerned so far as that person has such means of contact. We note that ACPOS have suggested this might be a reasonable task for the police and that a national database of witness details could be established which could be accessed by both COPFS and the police (and by any new citation agency, were one to be created).
19.15 We believe it may be necessary to provide in legislation that failure to comply with a reasonable request by a police officer for such information should be an offence, punishable by a modest penalty. And there would have to be clear protocols for the deletion of witness details from any national data base once the case is concluded. This could be done simultaneously with the provision of similar information to SCRO.
19.16 The process of citation and countermanding witnesses can leave witnesses uncertain whether they will be required, particularly if their case has already been adjourned at least once. It is worth considering whether more convenient arrangements could be made for witnesses and victims to be kept up to date about the progress of cases in which they are involved, e.g. by enabling them to get access to a database to check whether their case will be going ahead on the date and at the time fixed for it. In jury trials it is not uncommon for arrangements to be made for prospective jurors to phone out-of-hours to hear a message telling them when they will be required.
We recommend that the operation of the new protocols for ACPOS/Crown handling of witness citation should be carefully monitored to establish whether they deliver timely and efficient witness citation.
We recommend that detailed consideration be given by COPFS, in liaison with the police, to establishing a national centralised system (though not necessarily a national agency) for the citation and countermanding of witnesses, making best use of IT.
We recommend that when a trial is adjourned witnesses present at the trial should be re-cited for the adjourned trial before they leave the court, leaving only those who did not attend to be re-cited formally by post or in person.
We recommend that the police routinely obtain the home and work address, the home, work and mobile telephone numbers and home and work e-mail addresses of either accused or witnesses so far as that person has such means of contact, for the purpose of providing information and countermanding witnesses.
We recommend that, provided a satisfactory system of proof of receipt is put in place, it should be competent to cite a witness by e-mail, where an e-mail address has been provided.
We recommend that legislation should provide that failure to comply with a reasonable request by a police officer for citation details should become an offence.
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