Silent witness

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Could depositions be an effective tool in the fight against knife crime and the silence of gang culture, ask Narita Bahra and Sam Main

Envisage a gangland murder shortly after midnight on a quiet London street when the only witnesses to the crime are other gang members: who will tell us what happened? 


Hostile to the police, fearful of being labelled a ‘grass’ and circumvallated by the extra-judicial proceedings of the organisation, gang members are notoriously silent witnesses. Must the needless slaughter of another young individual slide beyond us into the annals of undetected crime?

The power to take a deposition

The Crime and Disorder Act 1998 (CDA 1998), Sch 3, para 4(1) and (2), empowers magistrates to take an oral statement under oath from a witness who will not voluntarily assist an investigation. This statement is known as a deposition. In order to take such an account, proceedings against the accused must have been instituted and the case sent to the Crown Court for trial. Thereafter, the identified witness need only be likely to be able to give a statement containing material evidence on behalf of the prosecution or able to produce a document or exhibit pertinent to the case. The interests of justice must also be in favour of compelling the reluctant party to attend and testify. If satisfied of these two elements, the justices will issue a summons for the identified witness to attend court to be questioned by the prosecutor. The sworn testimony is taken down by the clerk of the court and copies must be provided to the prosecution and relevant Crown Court as soon as is reasonably practicable. Failure on the part of the witness to answer the summons will render him liable to arrest; failure to answer questions will render him vulnerable to a month-long custodial sentence or fine not exceeding £2,500.

It is worth noting that the power to seek a deposition from a reluctant witness is only available to the prosecution, and the test remarkably low: the person need only be likely to give or produce material evidence. Moreover, the answers as written by the clerk and signed by the justices will act as the witness’s statement at the subsequent trial. Provision is made in CDA 1998, Sch 3, para 5, for the deposition to be read unless a party to the proceedings objects or the trial judge exercise his discretion against the reading of the account.

Tool against gang culture?

The question must therefore be posed, if the law enables the prosecution to utilise a material but otherwise silent witness, why are depositions so infrequently used? As the search for an effective tool to disrupt gang culture continues, could this investigative measure be used to force one gang member to give evidence to the detriment of another?

The best outcome is that the witness responds to the summons and, when confronted with the fact that evidence must be given, chooses instead to provide a signed written statement. The deposition then becomes unnecessary; oral evidence that must be given under oath might just as well be penned. The hovering sanction of imprisonment thus acts as an effective goad, and the statement is forthcoming without the need to go into court.

However, our experience has been less rewarding. Individuals who have been identified at the scene of a serious offence will have been subject to the best persuasions of experienced police officers to give a voluntary statement. Against such persuasions are the rest of the gang: acquaintances, friends and relations with whom the witness’s natural loyalties lie. Moreover, hostility to the police is less a considered decision among the community as a way of life. It must also be recognised that revenge attacks are an unpleasant reality, a characteristic punishment being a knife wound in the thigh. The consequences of assisting a police investigation are therefore far-reaching; fear and peer-pressure are effective tools by which to shut the mouth of any wavering observer.

Further, deposition hearings should usually be held in public and the witness allowed access to legal representation. The opinion of the Administrative Court in R (on the application of the CPS) v Bolton Magistrates Court [2003] EWHC 2697 (Admin), [2005] 2 All ER 848, was that a list of intended questions should be provided in advance so that informed advice can be given. The tribunal has a residual discretion to exclude members of the public from the hearing, but any deviation from open justice should be used sensitively and reluctantly. This raises the unpleasant prospect of the witness being monitored in the courtroom from the public gallery, for it would be impossible to identify all those who might be connected to the case. The teeth of the procedure would thus be blunted, for the summonsed party would be more concerned at the reaction of the public than of the judge.

It is also a sad reality that a significant number of gang members are more than familiar with the dock-side of a courtroom. The prospect of a four-week prison sentence may be but a brief interlude in life on the street, and a preferable alternative to a retaliatory stab wound. In one recent case that we dealt with, the witness was quick to demand of the district judge how long he needed to serve to avoid giving any evidence. It was evident that he would not be reasoned with; faced with a choice, he chose to remain silent.

Consider with care

These considerations show that the interests of justice surrounding a deposition should be considered with greater care. The seriousness of the offence is but one factor, as is the overriding objective that the guilty should be convicted. However, if one life has been lost, should others be placed at risk? Where a witness chooses to remain silent, ought we to override considerations of which we may not be aware? Should we be punishing those who choose self-preservation, or the welfare of those near and dear to them (who could become targets for revenge attacks)? When a case is so serious that consideration is given to a deposition, greater weight should be given to the possible consequences resulting upon the summonsed party.

Moreover, there are other practical difficulties that must be observed: an individual who will not provide a written statement may well resort to vague and non-committal answers when questioned under oath. Alternatively, he might simply lie. Leading or cross-examination type questions are not permitted in any of these situations, unlike in the US where the deponent is called by their own attorney and the prosecutor given the opportunity to cross-examine. In any event, such a course would be of very limited use because the answers given by the witness matter more than the questions put to him; words cannot be ‘put into his mouth’ simply to be adopted. If permitted, the advocate would become the source of the evidence. Such a course would render the resulting account vulnerable to an application to exclude.

Privilege against self-incrimination

It must also be recognised that there may be a legally recognised reason for silence, the most obvious being the privilege against self-incrimination. This latter scenario arose in the Bolton Magistrates’ Court case. CB had been at the scene of a killing, the accused parties being her partner and his friend. She had originally been arrested as a suspect, but after providing certain information in her police interview was informed that she would be treated as a witness rather than a suspect. She then refused to provide a statement, and was summonsed before the magistrates’ court for a deposition to be taken. She refused to answer questions, and the magistrates ruled that she had a just excuse for so doing. While the decision was overturned by the Administrative Court, it was due to procedural irregularity, not that the conclusion was itself intrinsically wrong. In any event, the purpose of the hearing had been frustrated. Non-committal, generalised or dishonest answers could equally frustrate this investigative tool by undermining the case for the prosecution or assisting the case for the accused.

Written record only

Were these objections insufficient to explain why deposition hearings are so rarely used, a further obstacle presents itself: magistrates’ court proceedings are not electronically recorded. In the unusual event that a witness did give evidence under oath, reliance would then be placed by a party on the court clerk’s written record. What if a challenge is subsequently made to the veracity of the clerk’s notes? The witness is not allowed the opportunity to check what has been written, nor to sign and confirm the accuracy of the account. Such a course is usually followed in the US, thereby compelling the witness to adopt in writing the oral account that has been given. Without such a procedure, the dependability of the very account upon which reliance is placed is further undermined.

Conclusion

Deposition hearings are rare because the strong arm of the law cannot be used to force words from those who choose silence. Much less can such individuals be forced to speak the truth, the whole truth and nothing but the truth when they are intent on an alternative course. It will therefore be an unusual case where street-hardened gang members deem the sharp end of a knife preferable to four weeks in Belmarsh.

Contributors Narita Bahra, 2 Hare Court and Sam Main, Senior Crown Prosecutor, Crown Prosecution Service London Rape and Serious Sexual Offence (RASSO) Team

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Narita Bahra QC

Narita is a criminal defence barrister at 2 Hare Court. She is a specialist in criminal law and fraud, an appointed committee member of the Female Fraud Forum, and winner of the Excellence in Law Award 2015. Narita has established a diverse practice focusing on complex fraud, money laundering, terrorism, murder, organised crime and serious sexual offences.

 

Sam Main

Sam is a barrister attached to the CPS Complex Casework Unit. He is experienced in the prosecution of sensitive cases including young and vulnerable witnesses, undercover policing techniques and serious sexual offences.