Popat, R v

A witness summons requiring attendance on a stated date and thereafter until release remains effective where the hearing is adjourned and the witness has neither attended nor been released. A fresh summons is not required for the adjourned date.

Under Criminal Procedure (Attendance of Witnesses) Act 1965, contempt consists in disobeying the summons, not a warrant issued to secure attendance. Formal service is unnecessary where the existence of the court’s requirement is distinctly brought to the witness’s attention. Criminal Procedure Rules governing service do not displace that rule.

The appellant was the complainant and a necessary prosecution witness in proceedings in the Magistrates’ Court. After the defendant in those proceedings appealed his conviction to the Crown Court, a witness summons required the appellant to attend on 23 October 2007 and on subsequent days until released.

The appellant failed to attend. A warrant was issued and the appeal was adjourned. A police officer told him on the day before the resumed hearing that he was required to attend the Crown Court the next day. He deliberately failed to do so. A Crown Court judge found him summarily in contempt.

On appeal, the appellant contended that the factual finding about the officer’s visit was perverse and that there was no effective summons for the resumed hearing, or sufficient service of one.

1. Appeal dismissed. The judge was entitled to prefer the police officer’s evidence over that of the appellant. A conflict between two witnesses does not prevent a judge from making a finding to the criminal standard of proof. The proposed approach would wrongly introduce a general requirement for corroboration.
2. Sections 2 and 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 distinguish the witness’s obligation from the enforcement mechanism. A witness summons is directed to the witness. A warrant is directed to police officers and is issued to assist enforcement. Contempt is therefore disobedience of the summons, rather than disobedience of the warrant.
3. The summons issued for 23 October remained in force. Its terms required attendance on that day and thereafter until the court released the witness. The appellant had neither attended nor been released. The adjournment to 31 January 2008 did not require a new summons.
4. Formal service was not indispensable. The court applied R v Abbott [2004] EWCA Crim. 91: it sufficed that the existing court requirement was distinctly brought to the appellant’s attention. Rule 4.7(2) of the Criminal Procedure Rules prescribed a method of service but did not alter that principle. R v Yan Tong Wang [2005] EWCA Crim. 476 was distinguishable because no summons there had been issued until after the default.
5. The appellant knew of the requirement to attend on 31 January and deliberately failed to attend. His conduct was contempt under section 3.

The court added that a direction preventing execution of a witness warrant except at the Crown Court may defeat the warrant if the witness elects not to attend. More suitable humane directions may permit non-execution where voluntary attendance is assured, or use a warrant backed for bail.

• Court of Appeal (Criminal Division): dismissed the appeal against the summary finding of contempt.
• Crown Court: a judge summarily found the appellant in contempt for failing to attend as a witness after being notified of the continuing witness summons.