PART 17E+WWITNESS SUMMONSES, WARRANTS AND ORDERS

When this Part appliesE+W

17.1.—(1) This Part applies in magistrates’ courts and in the Crown Court where—

(a)a party wants the court to issue a witness summons, warrant or order under—

(i)section 97 of the Magistrates’ Courts Act 1980(1),

(ii)paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998(2),

(iii)section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965(3), or

(iv)section 7 of the Bankers’ Books Evidence Act 1879(4);

(b)the court considers the issue of such a summons, warrant or order on its own initiative as if a party had applied; or

(c)one of those listed in rule 17.7 wants the court to withdraw such a summons, warrant or order.

(2) A reference to a ‘witness’ in this Part is a reference to a person to whom such a summons, warrant or order is directed.

[Note. A magistrates’ court may require the attendance of a witness to give evidence or to produce in evidence a document or thing by a summons, or in some circumstances a warrant for the witness’ arrest, under section 97 of the Magistrates’ Courts Act 1980 or under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998. The Crown Court may do so under sections 2, 2D, 3 and 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Either court may order the production in evidence of a copy of an entry in a banker’s book without the attendance of an officer of the bank, under sections 6 and 7 of the Bankers’ Books Evidence Act 1879. See section 2D of the Criminal Procedure (Attendance of Witnesses) Act 1965 for the Crown Court’s power to issue a witness summons on the court’s own initiative.

See Part 3 for the court’s general powers to consider an application and to give directions.]

Issue etc. of summons, warrant or order with or without a hearingE+W

17.2.—(1) The court may issue or withdraw a witness summons, warrant or order with or without a hearing.

(2) A hearing under this Part must be in private unless the court otherwise directs.

[Note. If rule 17.5 applies, a person served with an application for a witness summons will have an opportunity to make representations about whether there should be a hearing of that application before the witness summons is issued.]

Application for summons, warrant or order: general rulesE+W

17.3.—(1) A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.

(2) A party applying for a witness summons or order must—

(a)identify the proposed witness;

(b)explain—

(i)what evidence the proposed witness can give or produce,

(ii)why it is likely to be material evidence, and

(iii)why it would be in the interests of justice to issue a summons, order or warrant as appropriate.

(3) A party applying for an order to be allowed to inspect and copy an entry in bank records must—

(a)identify the entry;

(b)explain the purpose for which the entry is required; and

(c)propose—

(i)the terms of the order, and

(ii)the period within which the order should take effect, if 3 days from the date of service of the order would not be appropriate.

(4) The application may be made orally unless—

(a)rule 17.5 applies; or

(b)the court otherwise directs.

(5) The applicant must serve any order made on the witness to whom, or the bank to which, it is directed.

[Note. The court may issue a warrant for a witness’ arrest if that witness fails to obey a witness summons directed to him: see section 97(3) of the Magistrates’ Courts Act 1980, paragraph 4(5) of Schedule 3 to the Crime and Disorder Act 1998 and section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Before a magistrates’ court may issue a warrant under section 97(3) of the 1980 Act, the witness must first be paid or offered a reasonable amount for costs and expenses.]

Written application: form and serviceE+W

17.4.—(1) An application in writing under rule 17.3 must be in the form [F1issued under] the Practice Direction, containing the same declaration of truth as a witness statement.

(2) The party applying must serve the application—

(a)in every case, on the court officer and as directed by the court; and

(b)as required by rule 17.5, if that rule applies.

[Note. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(5). Section 89 of the 1967 Act(6) makes it an offence to make a written statement under section 9 of that Act which the person making it knows to be false or does not believe to be true.]

Application for summons to produce a document, etc.: special rulesE+W

17.5.—(1) This rule applies to an application under rule 17.3 for a witness summons requiring the proposed witness—

(a)to produce in evidence a document or thing; or

(b)to give evidence about information apparently held in confidence,

that relates to another person.

(2) The application must be in writing in the form required by rule 17.4.

(3) The party applying must serve the application—

(a)on the proposed witness, unless the court otherwise directs; and

(b)on one or more of the following, if the court so directs—

(i)a person to whom the proposed evidence relates, and

(ii)another party.

(4) The court must not issue a witness summons where this rule applies unless—

(a)everyone served with the application has had at least 10 business days in which to make representations, including representations about whether there should be a hearing of the application before the summons is issued; and

(b)the court is satisfied that it has been able to take adequate account of the duties and rights, including rights of confidentiality, of the proposed witness and of any person to whom the proposed evidence relates.

(5) This rule does not apply to an application for an order to produce in evidence a copy of an entry in bank records.

[Note. Under section 2A of the Criminal Procedure (Attendance of Witnesses) Act 1965(7), a witness summons to produce a document or thing issued by the Crown Court may require the witness to produce it for inspection by the applicant before producing it in evidence.]

Application for summons to produce a document, etc.: court’s assessment of relevance and confidentialityE+W

17.6.—(1) This rule applies where a person served with an application for a witness summons requiring the proposed witness to produce in evidence a document or thing objects to its production on the ground that—

(a)it is not likely to be material evidence; or

(b)even if it is likely to be material evidence, the duties or rights, including rights of confidentiality, of the proposed witness or of any person to whom the document or thing relates, outweigh the reasons for issuing a summons.

(2) The court may require the proposed witness to make the document or thing available for the objection to be assessed.

(3) The court may invite—

(a)the proposed witness or any representative of the proposed witness; or

(b)a person to whom the document or thing relates or any representative of such a person,

to help the court assess the objection.

Application to withdraw a summons, warrant or orderE+W

17.7.—(1) The court may withdraw a witness summons, warrant or order if one of the following applies for it to be withdrawn—

(a)the party who applied for it, on the ground that it no longer is needed;

(b)the witness, on the grounds that [F2the court received no representations by the witness before the summons, warrant or order was issued and, in the Crown Court, the witness had had no notice of any application for a summons,] and—

(i)[F3the witness] cannot give or produce evidence likely to be material evidence, or

(ii)even if [F4the witness could do so, the witness’ duties or rights], including rights of confidentiality, or those of any person to whom the evidence relates, outweigh the reasons for the issue of the summons, warrant or order; or

(c)any person to whom the proposed evidence relates, on the grounds that [F5the court received no representations by that person before the summons, warrant or order was issued] and—

(i)that evidence is not likely to be material evidence, or

(ii)even if it is, [F6that person’s] duties or rights, including rights of confidentiality, or those of the witness, outweigh the reasons for the issue of the summons, warrant or order.

(2) A person applying under [F7this rule] must—

(a)apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why [F8the court should withdraw] the summons, warrant or order F9...; and

(b)serve the application on the court officer and as appropriate on—

(i)the witness,

(ii)the party [F10(if any)] who applied for the summons, warrant or order, and

(iii)any other person who F11... was served with the application [F12(if any)] for the summons, warrant or order.

(3) Rule 17.6 applies to an application under this rule that concerns a document or thing to be produced in evidence.

[Note. See sections 2B, 2C and 2E of the Criminal Procedure (Attendance of Witnesses) Act 1965(8) for the Crown Court’s powers to withdraw a witness summons, including the power to order costs.]

Court’s power to vary requirements under this PartE+W

17.8.—(1) The court may—

(a)shorten or extend (even after it has expired) a time limit under this Part; and

(b)where a rule or direction requires an application under this Part to be in writing, allow that application to be made orally instead.

(2) Someone who wants the court to allow an application to be made orally under paragraph (1)(b) of this rule must—

(a)give as much notice as the urgency of [F13the] application permits to those on whom [F14the application otherwise should be served]; and

(b)in doing so explain the reasons for the application and for wanting the court to consider it orally.