Wang, R v

A witness does not commit contempt merely by failing to assist the prosecution or by evading an anticipated request to attend court. Under Criminal Procedure (Attendance of Witnesses) Act 1965, contempt requires disobedience of a witness summons or other court order of which the witness has notice. Regular postal service at a last known address does not establish that notice where the witness had already left and never received the summons.

The court left open whether a person who, knowing that a witness summons will be sought, deliberately evades its service may be liable for statutory or common-law contempt.

The appellant had made a witness statement in criminal proceedings concerning alleged assistance with illegal immigration. Shortly before the trial, a police officer, using an interpreter, told him that he would be needed at Swansea Crown Court. The appellant then left the address at which immigration conditions required him to live.

After he had left, the prosecution obtained a witness summons. It was posted through the letter box at his last known address. The appellant did not receive it. Judge Burr found him in contempt under section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 and committed him to prison for one month.

The appeal concerned whether deliberate evasion before the issue and receipt of a witness summons could amount to contempt of court.

1. Appeal allowed. The finding of contempt was not open to the judge and was quashed.

2. Witness orders in committal proceedings had been abolished. A witness’s inclusion in a committal bundle therefore created no obligation to attend. The legally enforceable obligation arose only when the Crown Court issued a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.

3. The summons was regularly served under rule 28 of the Crown Court Rules by posting it at the appellant’s last known address. However, the appellant had left that address before the summons was issued and never had actual notice of it. His earlier knowledge that the prosecution wanted him to attend did not amount to notice of a court order.

4. Section 3 of the 1965 Act punished disobedience, without just excuse, of a witness summons. On these facts, only disobedience of a court order of which the appellant had notice could establish contempt. His deliberate failure to meet a responsibility which he knew he ought to meet was insufficient.

5. The court explained R v Robert Abbott [2004] EWCA Crim. 91 as deciding that, where the circumstances covered by section 3 exist, contempt is dealt with through that statutory procedure. It did not decide that section 3 provides the only possible contempt where a witness evades an obligation to attend. The court left unresolved whether contempt might arise where a witness, warned that a summons would be obtained, went to ground to avoid service.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the finding of contempt.

• Swansea Crown Court: On 5 August 2004, Judge Burr found the appellant in contempt under section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 and committed him to prison for one month.