Abbott, R v

Where a witness, without just excuse, disobeys a witness summons, section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 creates a statutory contempt. It displaces any parallel common-law contempt jurisdiction for that non-attendance. Clear and precise oral notification of the obligation to attend can suffice; personal service of the summons is unnecessary.

The statutory maximum of three months’ imprisonment applies even where the witness deliberately avoids service or the conduct is contumelious. A sentence founded partly on conduct which the court did not find to be contempt must be reduced accordingly.

The appellant was an essential Crown witness in a wounding trial. He failed to attend the original July 2003 trial and a later August hearing fixed for the return of witness summonses. The July trial was aborted. The trial judge did not determine whether the July absence was contempt because the appellant might have been told that his attendance had been cancelled.

At the August hearing the appellant had clear notice of his duty and the date of attendance, but did not attend. The Crown Court at Southend found him guilty of contempt and sentenced him to six months’ detention in a young offender institution.

By section 13 of the Administration of Justice Act 1960, he had an automatic appeal to the Full Court. The central issue was whether the six-month sentence was lawful and, if not, what sentence should replace it.

1. The appeal against sentence was allowed. The court held that section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 had converted a witness’s failure to attend from a common-law contempt into a statutory contempt. Where section 3 applied, there was no parallel common-law jurisdiction capable of supporting a higher sentence.

2. Section 3(1) required disobedience of a witness summons, but did not require personal service. Clear and precise oral notification could suffice. The court applied Abdulaziz [1989] Crim LR 717 and Mohammed Yusef [2003] EWCA Crim 1488. The appellant’s deliberate unavailability for service therefore did not remove his conduct from section 3.

3. Section 3(2) imposed an absolute maximum of three months’ imprisonment. The six-month sentence was unlawful. Neither non-service of the summons nor the allegedly prolonged and contumelious character of the conduct entitled the Crown Court to exceed that limit.

4. The court further held that three months should not be substituted. The finding of contempt rested only on the August non-attendance, but the sentencing judge had been materially influenced by the supposed persistence of the conduct, including the July absence on which no finding had been made. Although non-attendance by an important witness was serious, a reduction was required.

5. Having considered the early-release provisions, the court quashed the six-month sentence and substituted ten weeks’ imprisonment. Lord Justice Pill confirmed that the operative priority was a sentence permitting the appellant’s immediate release.

• Court of Appeal (Criminal Division) — in [2004] EWCA Crim 91, allowed the appeal against sentence, quashed six months’ detention and substituted ten weeks’ imprisonment.

• Crown Court at Southend — on 21 November 2003 found the appellant guilty of contempt for failing to attend the August hearing; on 22 December 2003 imposed six months’ detention in a young offender institution.