Giving evidence in a criminal trial

Attending court as a witness to give evidence in a criminal trial can seem like a daunting prospect. This guidance will provide you with a practical steer so that you know what to expect and what you should be doing. There are hundreds and hundreds of different criminal offences. You may be asked to give evidence in any hearing considering any type of crime. However, the types of hearing that health and social care professionals are most likely to be required to attend to give evidence in are:

11/06/2015

Introduction

Attending court as a witness to give evidence in a criminal trial can seem like a daunting prospect. This guidance will provide you with a practical steer so that you know what to expect and what you should be doing. There are hundreds and hundreds of different criminal offences. You may be asked to give evidence in any hearing considering any type of crime. However, the types of hearing that health and social care professionals are most likely to be required to attend to give evidence in are:

  • Murder – this can include infanticide;
  • Manslaughter – this can include gross negligence manslaughter and corporate manslaughter;
  • Rape or other sexual offence;
  • Assault – this can include actual bodily harm, grievous bodily harm and common assault;
  • Wilful neglect or improper treatment of a person lacking mental capacity/patient – under the Mental Capacity Act 2005 or the Mental Health Act 1983;
  • False imprisonment;
  • Prosecutions by the Health and Safety Executive;
  • Misuse of drugs – this can include possession, production or supply of controlled drugs
  • Offences against children – there are a vast range of offences against children, but this could include abduction, kidnapping and abuse.

However, health and social care professionals are often required to give evidence where either the Defendant or the Victim is:

  • A Patient/service user;
  • Another health or social care professional;
  • A Family member of a patient/service user.

Do I have to attend court?

You will have been asked to attend court to give evidence at the trial either on behalf of the Prosecution (usually the Crown Prosecution Service) or on behalf of the Defence. The Defence and the Prosecution are known as the Parties to the proceedings.

Whether you have to attend court depends upon whether you have been issued a formal Witness Summons. This is a document that is issued by the court (this means that it has the court's formal seal on it); and it compels you to attend the trial to give evidence. If you have received a Witness Summons and you do not attend court, you will be "in contempt of court." This is a criminal offence in itself. If you are found to be in contempt of court, this could result in your being put in prison (up to 2 years in a Crown Court or 1 month in a Magistrates' Court) or fined (an unlimited amount in a Crown Court or up to £2,500 in a Magistrates' Court).

You might want to show your Witness Summons to your employer – it can often be helpful when asking for time off of work to attend court.

Where will the trial be?

You should have a single point of contact for all enquiries or concerns that you might have. If you are a Prosecution witness, this will either be a Witness Care Officer or a police officer. If you are a Defence witness, this will be a Defence lawyer.

You will be told in advance where the trial will be; either in writing by the Party calling you to give evidence or it will be written on your Witness Summons.

Criminal trials are held in either the:

  • Magistrates' Court:
    • Summary offences – these are less serious cases such as motoring offences and minor assaults;
    • Either-way offences – these can be dealt with either in the Magistrates' Court or the Crown Court and are offences such as theft. The Defendant can require the trial to move to the Crown Court and the Magistrate can decide that the trial should be heard in the Crown Court
  • Crown Court – deals with the more serious cases such as murder, rape, kidnapping, burglary, grievous bodily harm and robbery.

Court usually starts at about 10:00am – so it is best to aim to be there for 9:30am (unless you have been given a specific time to arrive by your single point of contact).

Do I need to do any preparation?

Yes! If you are called to give evidence in a criminal trial, you will usually already have provided a witness statement. This is the evidence that you will be asked to explain to the court. You need to be familiar with your witness statement and anything that you refer to within it; for example, any processes, policies or protocols.

If you do not have a copy of your witness statement, ask the party that has called you as a witness to provide you with a copy.

You should also be familiar with any relevant health and social care records; those made by yourself and those made by others. Make sure you read through all of this at least a couple of times.

In some cases, you might be called to a conference with the barrister for the party who has called you as a witness. This does not happen with every criminal case. If it does, it is usually shortly before the trial starts. At the conference, the barrister will make sure that everyone understands what the issues are. He/she will want to ensure that you have read your statement and that you are happy with the content; he/she may also ask you details about other issues which may have arisen and may arise during the trial.

You must not talk to anyone about your evidence – this includes other witnesses who are called to give evidence. You can take legal advice yourself, and speak to the lawyers and barristers involved in the case.

If you think that it might help, you can visit the Court before the trial. Just contact the Court that you are due to be giving evidence at and ask to speak to the Witness Service; they will be able to arrange a time for you to be shown around.

What do I do when I arrive at court?

Firstly, make sure that you arrive at the court in good time. Make sure you take the letter asking you to come to court.

Report to the Witness Service – they will show you to the waiting room. Bring something to do – you can be waiting for some time!

They will let you know when it is time for you to give evidence and will take you to the court room.

What happens in court?

Make sure that you turn off your mobile telephone before you go into the court room – do not simply turn it on silent as the signal can interfere with the recording equipment.

You will be asked to stand in the witness box (or sit if you prefer). The witness box is at the front of the court room, near the Judge.

The trial is recorded – so there is likely to be a microphone in front of you/near your. That microphone does not always amplify your voice; so make sure that you speak clearly, loudly and slowly. Your evidence is important, so make sure that people can hear it!

You will begin by swearing an oath (on the bible or any other holy book) or affirming to tell the truth. You should decide beforehand whether you wish to swear or affirm. This is you promising to tell the truth. This is very important; any wilful failure to tell the truth would mean you were in contempt of court and could be charged with a criminal offence.

Your witness statement will form the basis of your evidence; it is known as your evidence in chief. The barrister for the party that has called you as a witness will ask you questions first. At the outset, you will usually be asked a series of preliminary questions to establish who you are, what your qualifications are and whether you have read your witness statement recently. You will be asked to confirm that it is your signature at the end of your witness statement and that its content is true.

You will then be asked questions by the barrister for the party that has not called you. This is known as cross-examination.

At the end, the barrister for the party that has called you can ask you some follow up questions. This is known as re-examination.

If you are in a Magistrates' Court the Judge can ask you questions. If you are in a Crown Court, the jury can write questions on a piece of paper for the Judge to ask.

There will probably be a lever arch file (or a number of them) in front of you. These will contain copies of all of the evidence in the case. This might include your witness statement and the health and social care records (or extracts of them). During your evidence, you might be asked to turn to a particular page; there are usually page numbers at the bottom of the pages. Take your time and make sure that you have the right page. Don’t worry if you get a little bit flustered, the person asking you the question will be able to direct you to the right page.

Once you are giving evidence, you are not allowed to speak to anyone about the case or your evidence until you have finished giving evidence. This can be over lunch or overnight. You are allowed to speak to people about things other than the case and your evidence.

Tips for giving evidence

  • Address your answers to the Judge, or the jury where there is one, rather than the person asking the question.
  • Listen carefully to the question – it may be suggested that you did or did not do things that you should have done. You may not necessarily agree with what is being suggested; it is right and proper for you to disagree if that is the case.
  • Make sure you only answer what is asked of you.
  • If you do not understand a question ask for it to be repeated or rephrased.
  • If you do not know the answer or cannot remember – say so. Do not guess the answer.
  • Keep answers short and direct.
  • Do not be unnerved by silence.
  • Remember lawyers have a habit of asking the same question twice if they don’t like your first answer. Stick to your guns.
  • Do not be led into answering questions on issues which are not your responsibility or not within your expertise.
  • Keep calm and do not become upset or angry by questions.

Most importantly, do not feel responsible for the Judge/jury's decision. This will be based on ALL the evidence that they have heard.

Who else will be there?

The following people will be in the court room:

  • The Judge and his/her clerk
  • Barrister and solicitor for the Prosecution
  • Barrister and solicitor for the Defence
  • The Defendant
  • Court usher (his/her role is to make sure that everyone is in the right place)

The following people may be in the court room, depending on the case and the circumstances:

  • A Jury
  • The press
  • Victim
  • Family members/carers for the Victim or the Defendant

Criminal trials are heard in public; therefore, there may be people in the public gallery of the court room.

What do I call the Judge?

This depends upon which court you are in and what type of Judge you are in front of.

If you are in the Magistrates' Court, it is very likely that the Judge will be a Magistrate. Sometimes, it might be a District Judge. Either way, you should address him or her as Sir or Madam.

If you are in the Crown Court, it depends on the seriousness of the case as to the level of Judge. If it is a:

  • High Court Judge you should address him or her as Mr Lord or My Lady;
  • Circuit Judge you should address him or her as Your Honour;
  • Recorder you should address him or her as Your Honour.

The Witness Service will be able to tell you what type of Judge you are in front of on the day.

What do I need to wear?

You want to give a good impression and thought to be credible. You should wear something smart; a suit if you have one.

What if it is going to cost me money to attend court?

If you have to attend court you will have your reasonable out-of-pocket expenses paid. This will include things like reasonable travel, accommodation and food expenses and can include compensation for lost wages or income (although your expenses are usually subject to a statutory cap). You should keep receipts of all of these things.

Your employer does not have to pay you for time off when you appear as a witness.

Ask a court official for an expenses form when you go to court.

For further information check "The Witness Charter", published in 2013 by the Ministry of Justice.

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