The procedure under Sch.3 para.4 Crime and Disorder Act 1998 whereby an unwilling witness was forced to give a deposition should always be conducted in open court unless there were powerful reasons for deciding otherwise. Such a witness could not refuse to answer questions in reliance on a mere assertion, on the advice of a solicitor, that to answer any questions might incriminate her, rather, such assertions had to be tested by the court.Application by the Crown Prosecution Service ('CPS') for judicial review of the decisions of Bolton Magistrates' Court ('C') on 6 June 1998 during proceedings under Sch.3 para.4 Crime and Disorder Act 1998 to: (i) exclude police officers from the proceedings on the basis that they were not a "court"; and (ii) allow a witness ('B') not to answer questions on the grounds of self-incrimination. Two men had been charged with murder. B was an unwilling witness who the CPS sought to compel to give evidence in its favour under Sch.3 para.4 of the Act. C was advised by the clerk that the proceedings were not "proceedings before a court" and that police officers involved in the investigation should therefore be excluded when the deposition was taken. Moreover, C was also advised that B needed a "just excuse" not to answer questions and that advice to B from her solicitor that answering questions might incriminate her was such an excuse. The prosecution accepted that position without arguing the matter before C. On the present application the CPS argued that: (a) the proceedings were before justices of the peace and the investigating/prosecuting authorities had an interest in them; (b) there was a general rule that such authorities were entitled to be present and police officers in any particular case normally were present; (c) there was no reason to depart from that rule in the present case; (d) C had wrongly accepted that B might incriminate herself without a proper investigation of the issue; and (e) a mere assertion was not enough to establish a claim to privilege, rather, there had to be a real risk of prosecution.HELD: (1) Although the issue as to whether the proceedings had been conducted as a court and so whether the police officers had been wrongly excluded had not actually been subject to a decision by the justices that could be quashed, the issue was a general one which required determination and could be determined by a declaration. (2) Unless there were powerful reasons for deciding otherwise the procedure under Sch.3 para.4 should always be in open court. It was a general principle, as set out in Scott v Scott (1913) AC 417 and now the European Convention on Human Rights, that justice should almost always be done in public and that applied to proceedings under s.51 of the Act. Proceedings under Sch.3 para.4 of the Act were ancillary to proceedings under s.51. Moreover, there were other powers contained in Sch.3 para.4 of the Act, including that in para.4(7) to imprison or fine a person refusing to co-operate. It would be contrary to principle and the Convention to make such determinations in private. Further, under Sch.3 para.5 a deposition could be read as evidence at the trial of the accused if it was in the interests of justice, and a court would be much more likely to make such an order if the deposition had been made in open court. The conclusion that proceedings under Sch.3 para.4 should be in open court was further supported by analogy with the position under s.4 Criminal Justice (International Co-operation) Act 1990 where a court nominated to receive evidence requested by a foreign state was required to be an open court. (3) Given that the proceedings should have been in open court, B's solicitor would have had a right to be present. In such circumstances a solicitor should be informed in advance by the prosecuting solicitor of the questions proposed to be asked so that the witness and her solicitor could examine if there were any valid reasons why she should not answer those questions. The justices could then investigate. (4) Equally, lawyers representing those accused had a right to be present during proceedings under Sch.3 para.4. As regards cross-examination of the witness by those lawyers it should normally be the case that they should be told to reserve cross-examination for the Crown Court. However, it would be open to the justices to permit cross-examination if the witness was unlikely to be available or could be spared attendance at the Crown Court by being asked one or two questions. (5) A witness's refusal, on the advice of her solicitor, to answer questions on the grounds of self-incrimination amounted to an assertion of legal professional privilege. It went without saying that justices could not accept such an assertion without investigating it. The duty imposed upon the court was non-delegable. It could not simply adopt the conclusion of the solicitor. Rather, it should satisfy itself that there was a reasonable ground to apprehend real and appreciable danger to the witness with reference to the ordinary operation of the law in the ordinary course of things and not a danger of an imaginary or insubstantial nature.Appeal allowed.

[2003] EWHC 2697 (Admin)

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