Dania, R. v

On an application for a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, the judge must determine whether the witness is likely to give material evidence and whether compulsion is in the interests of justice. A judge should be slow to refuse a defence application and must not substitute a view about the tactical wisdom of calling the witness for the jury’s assessment of credibility.

The interests-of-justice assessment is fact-specific. It permits a balanced evaluation of the likely value and objective reliability of the evidence, fairness to defendants, self-incrimination issues and the practical consequences of calling the witness. An appellate court will ordinarily defer to that assessment unless clear error is shown.

The appellant, aged 15 at the time of the offence, was convicted with four co-defendants at Maidstone Crown Court of murder and violent disorder. He was ordered to be detained during His Majesty’s pleasure with a minimum term of 16 years for murder.

A potential eyewitness, Ben Lee, had made a statement which the appellant wished to use in support of his defence. The prosecution later considered Lee’s account incapable of belief. Lee attended under a witness summons but left court before giving evidence. The trial judge refused to issue a warrant or a fresh summons, holding that compulsion was not in the interests of justice.

The appellant appealed against conviction and renewed an application for leave to appeal against sentence. The central issue was the proper approach to a defence application to compel a reluctant witness’s attendance under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.

1. The appeal against conviction was dismissed, and the renewed application for leave to appeal against sentence was refused.

2. The court explained that section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 imposes a two-stage inquiry. The court must first decide whether the proposed witness is likely to give material evidence. It must then decide whether issuing a summons is in the interests of justice. A judge should be slow to prevent a defendant from calling a relevant witness and should not make an impermissible advance assessment of credibility.

3. Nevertheless, the material-evidence and interests-of-justice inquiries may permit consideration of objective evidence showing that the witness is unlikely to provide useful reliable assistance. The latter inquiry requires a fact-specific balance. Relevant matters include fairness to the defendant seeking the evidence, its likely assistance to the jury, the need to warn the witness against self-incrimination, and whether a direction under R v Makanjuola [1995] 2 Cr App R 469 may be required.

4. The trial judge had not erred. Lee’s proposed evidence would have added little to points available from the CCTV evidence. Its objective unreliability, the self-incrimination issue and the potential distraction from the real issues were properly relevant. The judge was entitled to conclude that compelling his attendance was not in the interests of justice. The court would be slow to interfere with such a difficult assessment absent clear error.

5. On sentence, Schedule 21 to the Criminal Justice Act 2003 sets a 12-year starting point for murder by an offender under 18. That starting point already substantially reflects youth, although age and maturity must still be considered. The sentencing judge was entitled to assess the four younger offenders as equally culpable and to impose a 16-year minimum term on the appellant. The term was not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.

• Crown Court at Maidstone: On 8 June 2018, convicted the appellant of murder and violent disorder. On 14 June 2018, ordered his detention during His Majesty’s pleasure with a 16-year minimum term for murder and three years’ concurrent detention for violent disorder.