Can anyone help please? Important!

[mightymouse_69]

If she has no witness summons, then no, she does not have to attend. However the prosecution have up to the trial to apply for a summons.

 

The prosecution could also use her statement as evidence, so long as she signed a declaration of truth and that the statement has been served on the defence.

 

If she does not turn up, the magistrates may adjourn or dismiss the case. It is hard to say what will happen.

 

As you say, your solicitor cannot mislead the court. If you maintain your not guilty verdict, you would be hoping on A) witness not turning up and the case being dismissed. B) Witness turning up but departing so far from her statement and falling to pieces under cross examination that the defence is successful in applying for a decision of no case to answer.

 

If you plead guilty then obviously you get the criminal record... but a discount in sentencing.

[Labtec81]

Apparently she has now said she maybe withdrawing her statement, this is what she's told my fiancee, if she does that apparently she may be arrested but it's highly unlikely so my solicitor said to me on the phone yesterday.

 

So if she does withdraw her statement, does the case then get dropped? As my solicitor told me it's very likely it will, as without her statement and her as a witness their is no case against me as she would have been the only witness anyway.

 

Oh my solicitor also said if she didn't withdraw her statement (or for some reason wasn't allowed to) then she would have to attend court no matter what or she'd be arrested as she's been verbally told by someone at the court she does have to be there, but he also said if she did turn up she's under no obligation to say anything and she can refuse to be a witness and then if she was forced into it, my solicitor could then say she is a hostile witness because she didn't/doesn't want to give evidence against me.

 

It's extremely complicated, so that's the only reason I'm posting the relevant information in order to get the best possible advice.

 

Thank you

[perplexity]

Apparently she has now said she maybe withdrawing her statement, this is what she's told my fiancee, if she does that apparently she may be arrested but it's highly unlikely so my solicitor said to me on the phone yesterday.

 

A solicitor should know better.

 

It is simply not possible to deny the fact that a statement was made, which continues to exist as evidence and may be used as such.

 

What a complainant can and should do if she's changed her mind, is to make a further statement to explain herself.

 

[Labtec81]

Of course it's not possible to deny the fact that a statement was made, but it sounds to me like your saying she can't retract her statement when in fact I've been informed she can, and no one can deny that if she retracts her statement then there would be no case, surely a solicitor knows this.

 

And no statement can be used as evidence once it's been retracted, as it cannot be used as evidence (and my solicitor told me that) and if the prosecution try to use it they can't as it would be a statement that's been retracted on the grounds it's false and that she doesn't want to be a witness against me, therefore if she was forced to be (which they couldn't do) then my solicitor would simply say she was a hostile witness because she didn't want to give evidence and was only giving it under duress from the court.

 

Can you please clarify exactly what you mean when you said she would have to make a statement to explain herself?

[mightymouse_69]

The statement is not withdrawn as such. It is "amended".

 

Your mother would have to contact the police to make a further statement. She may withdraw the allegations.. i.e That no offence took place, or she may state that something did happen and express her wishes for no further action to be taken.

 

She will have to explain herself - i.e. why she said what she did in the first place. This will not be a great experience and I doubt the police will be too pleased.

 

This statement is then passed to the CPS who will decide what to do next. They will have to decide what the outcome will be now that the original statement has been changed.

[perplexity]

Can you please clarify exactly what you mean when you said she would have to make a statement to explain herself?

 

I had already posted this link (three weeks ago) to explain what the prosecution may or may not do:

 

The CPS : Croydon Protocol

 

See section 9: "Withdrawal of Domestic Violence Cases"

 

N.B. that they may indeed apply to read a witnesses statement in her absence.

 

[Labtec81]

I know what the prosecution may or may not do and I have already read the information on the website you have already linked to twice.

 

Look let me put it like this,

 

The bottom line is if she withdraws her statement (or amends it or whatever) then the prosecution you say can apply to read a witnesses statement in her absence, but not if she refuses to be a witness they can't!

 

She has been told if she attends court (which she does have to do if she doesn't amend or make a follow up statement) and says she no longer wishes to give evidence then they CANNOT use her statement as she would have made it quite clear she didn't want to give evidence against me and regardless of her statement if she says she doesn't wish to give evidence or be a witness against me then their is no witness against me, and that's the bottom line, without her as a witness to actually go on the stand and be the only witness against me (as their are no other witnesses but her) then my solicitor can and will object to her statement being used based on the fact she doesn't want to give evidence against me therefore if she is forced to or they try to use her statement against her wishes then it will be classed as a hostile action by the prosecution therefore cannot be admissible based on the simple fact the only witness refuses to be a witness.

 

And everyone should know that without a witness to give evidence against someone (in this case the only witness being her) as it's her version of events against mine then their is no case because she would have refused to give evidence regardless of her statement.

 

Also please note (and I've not posted this previously) I only slapped her AFTER she went to hit me 1st, she didn't succeed but the reaction from me was in self defence to her going to attack me in my own home!! It was an instant reaction and not intentional and regardless whether she's my mother or not I have the right to defend myself in my own home! And the fact that I slapped her (which of course I regret)would have happened regardless of who it was as it wasn't something I planned it was just a deflective blow which resulted from her going to hit me...

[perplexity]

I know what the prosecution may or may not do and I have already read the information on the website you have already linked to twice.

 

Look let me put it like this,

 

The bottom line is if she withdraws her statement (or amends it or whatever) then the prosecution you say can apply to read a witnesses statement in her absence, but not if she refuses to be a witness they can't!

 

If you already believe that you know, I fail to see what the purpose of this would be.

 

Were I to be allowed to have a say in it you would not be let to put anything, let alone a slap in the face.

 

Otherwise, discerning that you rather expect to get away with shouting down whatever you would rather not agree with, here is the chance to explain: If you sincerely believe that a complainant is entitled to refuse to be a witness, what do you think a witness summons or a witness warrant is for?

 

[Labtec81]

And what exactly is that supposed to mean? You saying if you had a say in it that I wouldn't be allowed to put anything, let alone a slap in the face, try to make what you type make some sense, I presume you can explain that comment?

 

As for shouting down whatever I apparently don't agree with, do you see me typing in all CAPS (which would infer that I was shouting by the way, just so you know) of course I believe that a complainant can refuse to be a witness based simply on the fact that she can, she may well be punished herself for refusing to give evidence BUT and this is the fact right here, no judge, no solicitor, nobody can make her be a witness if she refuses to be, and no one can physically force the words from her mouth and make her speak, you make it sound like someone will be stood there holding her mouth open putting their hand down her throat and forcing the words to come out, get real. man.

 

And a witness summons is only to force a complainant to attend court, once in court if said complainant chooses to NOT be a witness their isn't a damn thing they can do about it, as has already been said no one can force her to do something she doesn't want to, and you should know this.

[perplexity]

When a witness statement is read with the witness present, that's a validation of the statement because of the opportunity afforded to the witness to deny the evidence.

 

If the witness prefers to remain silent, that's a lost opportunity, not a gain.

 

8-)

[ErikaPNP]

If she is summonsed and refuses to go on the stand or give evidence, she may be held in contempt of court.

[mightymouse_69]

Lets get things into perspective:

 

1) Victim can go to the police to make a further statement. This is then sent to the CPS, they may:

 

a) Decide that with this further statement, there is no point in carrying on. They then abandon the proceedings. Or;

b) Decide that even with the new statement, there is evidence of a crime. They could then decide to pursue the case. It is likely they will then issue a summons for the Victim in an attempt to secure her attendance.

 

If point B occurs, it is likely that all statements made by the victim will be evidence. This is alongside oral testimony from the victim. It is likely that the victim's oral testimony will weaken the prosecution case. The victim will be cross examined, her differing statements will be highlighted.

 

Following this, the defence solicitor may be able to argue that there is no case to answer. It would be up to the magistrates as to whether the trial should continue. If it does continue, the OP will be able to tell his side of the story and obviously a decision will be made as to the verdict.

 

2) The victim does not attend the police station, does not make a further statement and no summons is made for her.

 

In this case, the date of the hearing will come. If she attends, then the above will occur (prosecution evidence, possibility of an application of no case to answer etc etc)

 

If she does not attend, a summons could be issued or the case abandoned.

 

There are some other complications - if a witness is reluctant or 'hostile' the prosecution can rely on earlier statements as evidence etc. It is my feeling that for a minor offence, this would probably not happen. However it is possible, so don't rule it out.

 

There is so much that could happen, it is impossible to predict how it will all pan out. Hopefully the above will give you some guidance on how it could turn out.

 

Also - I have used the word victim. I am not making any judgement... just that victim was easier to write rather than "the OP's mother"!

[Labtec81]

Just an update on this,

 

The victim has now withdrawn her statement on Monday of this week but I still believe it will go to court as it's taken her this long to actually withdraw her statement and the court date is the 27th of August and it's now the 18th!

 

Apparently she will here by the end of this week what the CPS decision will be, whether to drop the case or go ahead with it, I'm not holding out any hope though as it's too close to the court date so I can't see them dropping it at all.

Edited August 18, 2010 by Labtec81

[Labtec81]

Just a quick update on this thread as it's been a long time!

 

The alleged victim didn't withdraw her statement, she just made a follow up statement not a withdrawal so it seems.

 

Anyway I was acquitted on the court date due to the fact the defendant when under cross examination was found to be lying.

 

Just thought I'd update and let the people who posted advice know.

 

Thanks

[Kraken1]

time for a beer!

[Labtec81]

True Kraken but I very rarely drink if at all, just a cup of coffee for me and a biscuit lol.

[mightymouse_69]

Congratulations!

 

Enjoy that cup of coffee!

[denisek]

she should be encouraged to come clean in the court and the case will be dismissed. you MUST NOT DO THIS YOURSELF or any member of your family and friends or youll be charged with harrasment on top of it. i really hope she comes clean and gets charged for wasting resources. good luck with everything. all you can do is show up and tell the truth, dont hold anything back from your lawyer, small details can prove vital.

[mightymouse_69]

she should be encouraged to come clean in the court and the case will be dismissed. you MUST NOT DO THIS YOURSELF or any member of your family and friends or youll be charged with harrasment on top of it. i really hope she comes clean and gets charged for wasting resources. good luck with everything. all you can do is show up and tell the truth, dont hold anything back from your lawyer, small details can prove vital.

 

.....

 

Anyway I was acquitted on the court date due to the fact the defendant when under cross examination was found to be lying.