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'TRIALS IN SECRET,WITNESSES NOT CALLED.'.
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Dennis Fallon
Our ref: 1716
Dear Mr Fallon
FREEDOM OF INFORMATION ACT 2000 REQUEST
Thank you for your Freedom of Information Act request which was received on 7 April 2009. In that request you asked for the following information:
A copy of any parts of the CPS guidelines which advises when trials should be held in public or in secret, especially in regard to the public interest aspect.
I would like to see an extract of any guidelines which advise when called witnesses can be told not to attend.
Section 1 of the Freedom of Information Act 2000 creates a statutory right of access to information held by public authorities i.e. the Crown Prosecution Service. This right is to be informed whether the information requested is held by the public authority or not, and if the information exists, for it to be communicated. A public authority must reply to such a request promptly and in any event, not later than twenty working days after receipt.
The individual's right to information is not unqualified and subject to a number of exceptions and exemptions that are contained within the Act. The majority of these exemptions are qualified, that is to say the decision whether to confirm or deny the information's existence or to disclose the requested material, will be subject to a public interest.
The Freedom of Information Act is a public disclosure regime, not a private regime. Any information disclosed under it is thereafter deemed to be in the public domain, and therefore freely available to the general public.
I can confirm that the CPS does hold information falling within the scope of your request.
In relation to part 1 of your request (hearings held in camera), the openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention of Human Rights (the right to a fair trial). As such, this means that criminal proceedings should take place in open court and be freely reported.
There are, however, certain situations where court proceedings can be heard in camera, ie. in private when the public are excluded. Excluding the public is justifiable if the administration of justice so requires. This may be for reasons of national security, to protect the identification of a witness or any other person, or because sensitive material to which public interest immunity attaches is being discussed.
For proceedings in Magistrates' Courts, if a witness is unable or willing to give evidence unless the public gallery is cleared, an application for a hearing, or part of a hearing, to be held in camera can be made by the Crown Prosecutor. It is then for the court to decide whether a sitting in private is necessary for the administration of justice. There has to be a compelling reason for a Court to decide to sit in camera. It is not justified merely to save witnesses from giving `embarrassing and intimate details' concerning their personal life. Before making an application for a hearing, or part of a hearing, to be held in camera, prosecutors must consider whether the concerns of the witness could be adequately met by the use of appropriate special measures
In the Crown Court, the procedure for applying for an order that all, or part, or a Crown Court trial to be held in camera is set out in the Criminal Procedure Rules, rule 16.10. A prosecutor can make an application for proceedings to be held in camera for reasons of national security or for the protection of the identity of a witness or any other person.
The CPS legal guidance in relation to your request is published on the CPS website and is already in the public domain. I have attached a link below for ease of reference.
In relation to part 2 of your request (witness attendance at court), witnesses, whether for the prosecution or for the defence, should not be required to attend court unless it is unavoidable. Examples of where a witness in a criminal prosecution is not required to attend courts for a trial include:
the evidence is not being relied upon by the prosecution
their written statement is admissible in evidence, under section 9 of the Criminal Justice Act 1967; and
the court has ruled that the evidence is admissible under the hearsay provisions in the Criminal Justice Act 2003.
The CPS legal guidance in relation to your request is published on the CPS website and is already in the public domain. I have attached a link below for ease of reference.
CPS guidance on “warning witnesses” is available at:
Hearsay provisions around evidence in court are provided in Chapter 2 of the Criminal Justice Act (2003) available at:
If you are unhappy with the decisions made in relation to your request from the Crown Prosecution Service you may ask for an internal review within two calendar months of the date of this letter. If you wish to request an internal review, please contact the Freedom of Information Unit (Appeals), 50 Ludgate Hill, London, EC4M 7EX.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Charlotte Keen
Information Management Unit
Crown Prosecution Service
23 April 2009
