Crown Prosecution Service, R (on the application of) v Bolton Magistrates' Court

Proceedings to obtain a reluctant witness’s deposition under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 should ordinarily take place in open court. Public access may be restricted only exceptionally, where necessary to assist reception of the evidence or in the interests of justice. Interested parties, including the prosecution and investigating officers, cannot be excluded merely because the procedure is ancillary to a criminal trial.

A claim by the witness to privilege against self-incrimination requires proper investigation by the justices in relation to each question. The duty is non-delegable. It is insufficient that the witness has received legal advice asserting that an answer might incriminate her.

The Crown Prosecution Service sought judicial review of the handling by Bolton Magistrates' Court of proceedings under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998. The proceedings concerned a reluctant witness in a forthcoming murder trial.

The justices treated the deposition procedure as private and excluded investigating police officers. They also accepted, without investigating each question, that the witness had a just excuse to refuse answers because her solicitor advised that answering might incriminate her. The central issues were whether the procedure should have been conducted in open court and how a claim of privilege against self-incrimination should be determined.

1. Declarations granted. The proceedings on 6 June 2003 were flawed. The deposition was irregularly obtained, but the prosecution remained entitled to seek a further deposition in properly conducted proceedings.
2. Proceedings under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 should, unless powerful reasons justify another course, be treated as proceedings in open court. The procedure is ancillary to the committal-for-trial process under section 51 and includes coercive powers to issue warrants, imprison or fine a witness. Those features, together with the general principle of open justice recognised in Scott v Scott [1913] AC 417 and R v Denbigh Justices ex parte Williams [1974] 1 QB 759, supported that conclusion.
3. The absence of a statutory requirement that the deposition be taken in a designated courthouse did not alter the normal rule. Unusual circumstances might justify a different venue or restricted access. Any restriction had to be exercised sensitively and reluctantly, and the prosecution and other interested parties could not be excluded without a special reason.
4. Lawyers for persons sent for trial were entitled to attend, although cross-examination should normally be reserved for the Crown Court. A justice could permit limited cross-examination where the witness might be unavailable or attendance at the Crown Court might be avoided.
5. Under rule 4A of the Magistrates' Courts Rules 1981, a justice could not simply accept a claim of privilege against self-incrimination. The justices had to investigate the claim in relation to each question. They had to satisfy themselves that there was a reasonable ground to apprehend a real and appreciable danger of incrimination in the ordinary operation of the law, rather than an imaginary or insubstantial danger. That duty could not be delegated to the witness’s solicitor.