Administration of justice offences – Concept of court – Failure to attend – Service by the court – Witness summaries

R v Harish Popat: CA (Crim Div) (Lord Justice Hughes, Mrs Justice Dobbs, Judge Pert QC): 28 July 2008.

The appellant witness (P) appealed against a conviction for contempt of court.

P had been the complainant in summary proceedings in a magistrates’ court against a defendant (K), but failed to appear to give evidence. K was convicted, but appealed against his conviction. P was an essential witness in the appeal and a witness summons was issued to P, requiring him to attend the crown court on a specified date. P failed to attend and the hearing was adjourned to a new date. The judge issued a warrant for P’s arrest, but directed that it was not to be executed except at the crown court. A police officer visited P the day before the new hearing date. He showed P the warrant and informed him that he must attend court the next day. P again failed to attend and, as a result, K’s appeal was allowed. P submitted that he could not be guilty of contempt as there was no summons for attendance on the new hearing date and he had not been served in accordance with rule 4.7(2) of the Criminal Procedure Rules 2005.

Held: (1) Under section 2 and 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965, a summons could be issued requiring a witness to attend, provided that the witness was likely to be able to give material evidence and would not attend voluntarily. It was on that basis that the first summons was issued against P. The offence of contempt was disobedience to a summons rather than disobedience to a warrant. A new summons did not have to be issued for the new hearing date. The original summons required P to attend court on a specified date until released. He had not attended and had not been released – the summons had therefore remained in force. Formal service of the document was not required provided its existence was distinctly brought to the attention of the witness. The police officer had made it crystal clear to P that there existed an order of the court requiring him to attend the next day, R v Abbott (Robert) [2004] EWCA Crim 91 applied. There was no doubt that the criminal procedure rules provided for how a summons was to be served. However, it did not alter the law set out in Abbott that, in addition to service, bringing the document to the attention of the witness was sufficient to give rise to an obligation to attend so that failure to attend could be contempt of court. P had quite deliberately failed to attend, despite the summons being brought to his attention.

(2) The direction given by the judge for the warrant not to be executed was designed to give the missing witness the opportunity to attend voluntarily rather than be arrested 24 hours beforehand and kept in custody until he gave evidence. However, it was not always appropriate to give such a direction because it meant that where the witness did not attend the warrant could never be executed. Other directions could have been made, including a direction that the police officer need not execute the warrant if satisfied that the witness would attend voluntarily, or the issue of a warrant backed for bail.

Appeal dismissed.

A Jumabhoy for the appellant; A Krikler for the Crown.