Production in the family 'and county courts

3 Nov 2015Feature

For some months I have been waiting for a ?large box of video link equipment to be opened and installed in my court room. ?HM Courts and Tribunals Service is following its written protocols, and no doubt before the year is out the equipment will be installed and, hopefully, fully operational.

This will avoid the unnecessary battle my ?staff have on my behalf to ‘borrow’ a court room with ?a video link facility in the magistrates’ court next door.

Witness summons

For many years, under Civil Procedure Rules 34.2, and more recently under Family Procedure Rules 24A, a solicitor has been able to issue a witness summons requiring a witness to attend court to give evidence and produce documents to a court. In both cases leave is required of the court and the application must be made at least seven days before the date of the trial. Provision must also be made for the reasonable payment of the witness for travelling expenses to and from court and a sum for compensation for loss of time.

This is all well and good ?for a witness who may cause difficulties, but what should you do when your client is in prison and your local court does not have a video link facility?

The starting point for all solicitors is Prison Service Order (PSO) 4625, entitled ‘Productions in Civil Proceedings’. This also applies to family cases. All prison officers are aware of this order and they rely upon the guidance given. It will be easier to get production of a prisoner nearing the completion of their sentence than one just starting a lengthy sentence for serious offences.

Mandatory actions

The following mandatory actions are contained in this PSO:

This order must be held by or made available to all staff who are involved in the consideration of requests for production to court in civil proceedings, and made available to all prisoners;
All staff involved in considering requests for productions must be aware of and take into account article 6 of the Human Rights Act 1998 (the right to a fair hearing) and decide cases on their own merit;
The primary consideration when dealing with a request to produce a prisoner to attend at a civil or family hearing must be whether it is in the interests of justice that they should attend;
The prisoner’s ability or willingness to pay for production must not be ?a factor in deciding whether the prisoner is produced at court. That decision must ?be based solely on whether ?it is in the interests of ?justice that the prisoner attends the proceedings, balanced with security constraints; and
When a decision has been made that the interests of justice require production at court, the normal security considerations (e.g. risk to the public) must be taken into account.

Fuller reading of the order will assist. The final decision rests with the prison governor, and this determination could be subject to judicial review. Further information can be obtained from the Association of Her Majesty’s District Judges.

If you do not know where your client or a potential witness is being held, contact the Prisoner Location Service. You must include your name, and firm name, your date of birth, your address, including the postcode, the name of the person you want to find, the reason you want to find them (e.g. you’re their solicitor), any other names they may have used, and their date of birth.

Key points

Give as much notice ?as you can of the date of the hearing and ?the reasons that a prisoner’s attendance is necessary;
Production is more likely to be agreed for a final hearing than a procedural or interim hearing;
Solicitors will have to pay a fee to the prison and for travel. The standard charge is £40 plus travel expenses;
Whether the prison produces a prisoner is discretionary; and
The only way to challenge the refusal to produce a prisoner is by judicial review.

District Judge Nigel Law sits at Blackpool County Court and Family Court