In criminal cases, witness evidence plays an integral role in establishing the facts. However, witnesses are often reluctant to testify, whether due to conflicting loyalties, fear of repercussions, or apprehension about being involved in the criminal justice system. Prosecutors are under an obligation to consider all reasonable lines of inquiry, including evidence that could be obtained from reluctant witnesses.
A traditional witness summons is often used to secure a witness’s attendance at trial. But what happens when that witness refuses to engage with the process altogether[JW1] and their evidence is unknown? One tool that prosecutors can utilise to obtain testimony effectively prior to trial is the rarely used deposition witness summons.
Deposition witness summonses are an underutilised yet valuable means for prosecutors to gather information, evaluate the credibility of witnesses, assess available evidence, and, in many cases, strengthen the prosecution’s case. In this article, we will explore what deposition witness summonses are, how they function, and the strategic advantages they offer to prosecutions.
What Is a Deposition Witness Summons?
A witness summons is a formal order issued by a trial court requiring a witness to attend and provide their evidence. If a witness fails to attend as required by the summons, a warrant may be issued for the witness’s arrest to secure their attendance. A deposition witness summons is a type of witness summons issued to compel a witness to attend a deposition, where they provide their testimony under oath, pre-trial. An advocate can ask questions of the witness, and the Court will record the answers in statement format in real time.
The provision allowing depositions is found in Part 4, Schedule 3 to the Crime and Disorder Act 1998. It stipulates that a Magistrates’ Court, in any case which it has sent to the Crown Court, may issue an order requiring witnesses to attend before a justice at a specified time and place to have their evidence taken as a deposition. The test for whether the Court will issue the summons is whether it is “in the interests of justice to issue a summons to secure the attendance of the witness.” The deposition may then be used as evidence at trial.
How Deposition Witness Summonses Works
The process begins when the prosecution identifies a potential witness who may possess relevant information or could offer important evidence. If the witness is unwilling to provide their evidence voluntarily at trial, they can be summonsed to attend. This is particularly useful when the prosecution is already aware of the evidence the witness may provide, such as when there is an existing witness statement.
If a witness has failed to engage at all, their evidence is largely unknown. In these circumstances, issuing a traditional witness summons may not always be appropriate or beneficial to the case; indeed the witness might undermine the prosecution case. Obtaining a witness summons for the witness to attend trial in those circumstances would be a risk. Instead, the prosecution can apply to the Magistrates’ Court, once the case has been sent, but prior to trial, for a deposition witness summons. The Court will decide whether to issue such an order, considering whether it is in the interests of justice. Whether it is in the interests of justice will depend on a case-by-case basis.
If the Court decides it is in the interests of justice, the witness will be directed to appear for questioning under oath. The witness’s answers to the prosecution’s questions will be transcribed into a statement by the Court Clerk or Legal Advisor. This statement is then signed by the presiding judge or magistrate and the witness.
The statement is provided to the Crown Court and the prosecution, and it may become part of the evidential case against the accused.
This pre-trial evidence gathering serves multiple purposes: clarifying details about the crime, identifying potential inconsistencies in other witness accounts, or directing further lines of inquiry. Prosecutors can use these statements to guide their trial strategy, identifying strengths and weaknesses in their case.
Strategic Advantages of Deposition Witness Summonses for Prosecutions
There may be many reasons why a witness is reluctant to provide their evidence. It could be due to fear, personal circumstances, external pressure, or an apprehension to be involved in the criminal justice system. The witness may be unwilling to cooperate voluntarily. In such cases, the prosecution could apply for a deposition witness summons, particularly if it is understood that the individual witnessed the crime and that their testimony is crucial to the case.
If the witness is also proposed by the defence as a witness in support of the defendant, the prosecution can still apply for a deposition summons to compel their testimony under oath, even if the witness is initially unwilling. This ensures that the prosecution has access to key evidence ahead of trial. By obtaining this evidence before the trial, the prosecution can evaluate the evidence and decide whether to call the witness at trial, or whether the statement should form part of the unused material of the case.
Should a witness who has provided a deposition not be called by the prosecution but instead by the defence, any subsequent changes in their testimony can be highlighted to the jury, potentially undermining the credibility of the witness, and strengthening the prosecution’s case.
Sometimes, witnesses may be unavailable to testify at trial due to illness, relocation, or other factors. In such cases, depositions preserve the witness’s evidential account, ensuring their testimony remains available, even if they cannot attend trial. This is especially valuable in cases where witness testimony is critical to the prosecution’s case, but there are concerns about whether the witness will be available for trial.
Conclusion
Deposition witness summonses are an under-utilised tool at the disposal of prosecutors. By using depositions strategically, prosecutors can gather valuable information, assess the credibility of witnesses, and strengthen their case before trial. While there are challenges involved, the advantages make deposition witness summonses a powerful component of the prosecution’s strategy. When utilised effectively, they can increase the likelihood of a successful outcome in criminal trials.

Nicole Jennings – Feb 25