Information for Defence Witnesses

Created on December 16, 2016

Information for Defence Witnesses

From 1 May 2010 the law requires the Defendant in a criminal case to give the prosecutor and the court a notice indicating whether he or she intends to call any defence witnesses at trial and giving details of those witnesses. This obligation has previously existed in relation to a witness giving evidence in support of an alibi, but now where the Defendant intends to call any persons other than him or herself as a witness at trial, he or she must give notice to the court and the prosecution of the names, addresses and dates of birth of the proposed witnesses, or provide any information which may be of material assistance in identifying or finding the proposed witness. The obligation requires the naming of all witnesses, both those giving factual evidence and character witnesses.

The solicitors will require you, as a potential defence witness to provide a full statement before they notify the prosecution or the court that you will be giving evidence. The statement will be kept on their file and will record (for the protection of all parties) the evidence that you are able and willing to give.

Once notice is given the police can seek to interview you about the evidence you will give. Such an interview is subject to codes of practice that have been published to protect you and the Defendant’s case (see below), but the decision to be interviewed by the police is voluntary. The provisions do not impose any obligations on you in this regard. This means that it is your decision whether to participate.

You are entitled to have independent legal representation at any police interview, and the Defendant’s representative may also attend with your consent. They would attend such an interview only as an observer, but they are able to intervene in the interviewing process to prevent bullying or leading questioning of you. It is vital that you appreciate that when attending such an interview they are there to protect their client’s interests not yours.

The Code of Practice requires:

  • That a reasonable notice of any interview be given to the Defendant;
  • That the witness must be asked if they consent to being interviewed;
  • That the witness is advised of their right to have an independent lawyer present, and that they must be asked whether they wish to have their own solicitor present;
  • That the witness be asked whether they consent to the Defendant’s solicitor being present;
  • That the witness be informed that a record of the interview will be made;
  • That, if the witness consents, a copy of the record of interview may be sent to the Defendant.

The cost of any attendance by an independent solicitor to protect your interests will be a matter for you to discuss with that solicitor.

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