Warner, R, v

A competent and compellable witness must answer relevant and permissible questions unless a valid immunity or privilege applies. Even without a recognised privilege, a trial judge retains a residual discretion to consider whether compelling confidential information would do more harm than good.

Procedural fairness under Criminal Procedure Rules, rule 48.5(2), depends on the circumstances. Where a witness’s refusal rests on a genuine but outdated understanding of religious confidentiality, and an apparent waiver has emerged, the court may need to explain the position clearly and permit legal advice before requiring a final answer. A material failure to do so can require reversal of a contempt finding.

The appellant, a Jehovah’s Witness elder, gave prosecution evidence at a Crown Court trial concerning an assault outside a Kingdom Hall. In cross-examination, he refused to identify the chair of a judicial committee which had disfellowshipped the defendant. He believed that religious confidentiality prevented him from answering.

The trial judge held that the questions were relevant to the witness’s independence, directed him to answer, and later found his continued refusal to be contempt of court. The appellant was fined £500. He appealed under section 13 of the Administration of Justice Act 1960, contending that it was procedurally unfair to refuse his request for legal advice before requiring a final answer.

1. Appeal allowed. The finding of contempt and the £500 fine were quashed. The court held that the proceedings below were affected by a material procedural irregularity.

2. The appellant was a competent and compellable witness. The cross-examination questions were relevant and permissible because they bore on his independence. He was therefore obliged to answer unless he could establish a valid immunity or privilege. No recognised privilege applied. His position was materially different from that of a religious confession.

3. Nevertheless, the court applied the residual discretion described in Attorney General v Mulholland and Foster [1963] 2 QB 477. A judge should consider relevance, the useful purpose of disclosure, and whether compelling disclosure or punishing refusal may do more harm than good. That discretion required careful consideration where the refusal concerned information received under an asserted seal of confidence.

4. Procedural fairness is required at common law and by rule 48.5(2) of the Criminal Procedure Rules. There is no bright line for when the duty to permit legal advice arises. On these unusual facts, the appellant needed a clear explanation that the defendant had waived any relevant confidentiality and a reasonable opportunity for legal advice before being required to give a final answer.

5. The judge’s brief reference to privilege being the defendant’s did not make the position clear to a lay witness. The refusal to allow the appellant to contact the legal desk, without inquiry into what it was or whether another source of advice was available, was unfair. A limited and defined departure from the ordinary prohibition on a witness discussing a case was justified. Proper advice would very likely have enabled the appellant to answer without breaching his religious obligations.

6. The court exercised its power under section 13(3) of the Administration of Justice Act 1960 to reverse the order below.

• Court of Appeal (Criminal Division) — allowed the appeal in [2020] EWCA Crim 499, reversed the contempt order, and quashed the finding.
• Crown Court at Truro — found the appellant in contempt during a criminal trial for refusing to answer cross-examination questions, and imposed a £500 fine.