Although victims and witnesses play an important role in the prosecution of a criminal case, many do not understand the processes. This also goes for those who find themselves charged with an offence (defendants) and have to appear in court.
The Criminal Defence department at MTG Solicitors is often asked a lot of questions as to what happens when a victim or witness has withdrawn, or intends to withdraw, their statement.
Please note that we will use the term “victim” and “witness” interchangeably in this article.
Giving a witness statement
When someone witnesses a crime happening and reports it to the police, it is often the case that they will be asked to provide a witness statement. The witness will be asked to explain what they saw, either in writing or on video and they will be asked to sign the statement to say that it is true. If the defendant pleads not guilty and if the statement is not accepted as accurate by the defence the witness may be called to give evidence.
Withdrawing a witness statement
Victims and witnesses may decide to withdraw their support for a prosecution for several different reasons. It could be because they no longer want the defendant to face proceedings, have forgiven them, reconciled with them, due to a fear of reprisals, witness intimidation, anxiety caused by a forthcoming court case or because they lack support and information about an impending court case.
Once a witness has given a statement, it is not a matter for them to decide how the case against the defendant should proceed. In practical terms they cannot make the case worse or more lenient for the defendant as the damage has already been done!
Equally, the withdrawing of support by a victim or witness is not the same as that person saying that they have lied. If a victim or witness admits to lying, they are admitting to making a false statement, which in turn can mean they may be arrested and prosecuted for perverting the course of justice.
If the witness wants to go ahead and withdraw their support for the prosecution, they will have to contact the police or Crown Prosecution Service (CPS) directly and make a request to make a statement of withdrawal. The reasons for wanting to withdraw a statement will be carefully looked at by the police to make sure that there hasn’t been any undue pressure applied on that person.
The statement of withdrawal of support should contain:
- confirmation of whether the original statement given to the police was correct (if the account given in the original statement has to be amended, an application for this should be included)
- whether the victim has been put under pressure to withdraw or has been subjected to threats or intimidation
- nature of the original allegation (if not fully covered in a previous statement)
- victim’s reasons for withdrawing support for the prosecution
- with whom the victim has discussed the case, particularly anyone who has advised them (a solicitor, for example)
- whether any related civil proceedings have been or are likely to be instigated (this is particularly relevant in domestic serious sexual offences)
- the likely impact on the victim’s life and that of other witnesses or people affected if the case continues. 1
Statements of withdrawal of support can subsequently be used as evidence in current or future criminal proceedings, or as evidence within the family court system. These statements are retained as information that might be relevant to future investigations. 2
In some cases, an application for special measures may provide sufficient reassurance to the victim/witness for them to decide to reconsider and to support a prosecution. 3
However, if after receiving a request from the investigator or prosecutor the witness refuses to cooperate, the prosecutor can consider whether to make an application for a witness summons.
The other option at this stage is that the prosecution may decide not to take it any further and drop the case.
Where the decision has been made to continue the case, the prosecution may apply for a witness summons to compel a witness to give evidence. This can be done before the court hearing or even on the day of the hearing itself, and usually when the prosecution has been made aware that the witness is unwilling to cooperate. If a witness summons is required, it will issued under section 97, Magistrates’ Courts Act 1980.
Once a witness has been summoned, they must attend Court. If the witness decides not to attend, then a warrant for their arrest may be made for them to attend court on the day. This means that the police may attend the witness’s home address, arrest them and use police transportation to convey them to court.
The witness can tell the prosecution lawyer their reasons for not wanting to give evidence and then they will decide whether to call the witness or not. Practically, if the prosecution thinks the witness is likely to be unhelpful to them, they would rather not have them there. Consequently, if the prosecution is of the view that there is insufficient evidence without the witness’s statement, then they may discontinue the case and that will be the end of the matter.
However, this is entirely the prosecutor’s decision to make and the witness will still need to attend court and discuss what will happen on the day. Contrary to popular belief, it is not a matter for the witness to decide whether or not the CPS pursue the case and the case may go on even without the witness’s consent. The case could proceed to court if the police think they have enough evidence to prosecute the defendant without the witness by using, for example, statements from other witnesses, CCTV evidence, 999 recordings and medical evidence.
If you have any questions or need expert assistance at the police station or criminal courts, MTG Solicitors are available 24 hours a day.
2. As above
3. As above