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Being a witness of ASB

Being a witness of ASB, and having to give evidence can be daunting but we are here to help you.  Below is some advice about being a witness. 

If you are asked to stand up in court as a witness read our being a witness guide.

If you need further information or support please contact the ASB team or call 01305 216090 or 0800 358 6025

Court action

We only consider starting Court action against an individual as a last resort. The Court, good practice guidance and our own policies require us to have attempted to resolve the matter by other means before issuing any Court proceedings.

Before we can start any Court action against an individual, we need to have enough evidence to satisfy the requirements of the Court. The Court has to be satisfied on the balance of probabilities that the individual has committed conduct which has breached the tenancy and is capable of causing a nuisance and annoyance. If we cannot prove this to the Court’s satisfaction, then the Court action would not be successful. As a result of these requirements, the evidence gathering process may continue for some time before we issue proceedings. It is also important for us to show the impact the behaviour is having on witnesses.

Providing evidence

We have to be satisfied that the allegations are valid and that any action commenced is proportionate. We have to provide our evidence to the Court in the form of a witness statement. We will usually want evidence to be corroborated, but we appreciate this is not always possible. The fact that evidence is not corroborated, will not always prevent us from proceeding with a Court application. In these circumstances we may require a larger quantity of evidence.

If you do provide evidence:

Someone from our legal department will meet with you, take a statement from you and prepare this into a witness statement.

If you have any questions about the Court process, you can ask the legal department.

It is really useful if you have completed log books or made a note of the incidents as it is important to show dates, times and details of any incidents which have occurred to show the Court the level of nuisance which you are experiencing.

You will be asked to check that the contents of the witness statement are true as it is an offence to make a false statement in Court.

If you make a statement but do not wish to attend Court:

If you make a formal witness statement but do not wish to attend Court, your evidence can still be used but less weight will be attached to it, as you will not be available to answer questions about it.

If you do not wish to make a statement and do not wish to attend Court:

If you do not wish to make a formal witness statement because you are fearful of reprisals, then we could provide your evidence anonymously as hearsay evidence. This means that you would report any incidents to your housing officer and then they would provide your evidence which will be given in a way which will not directly identify you by name. However the nature of the allegations may make you identifiable. We will do all we can to protect witnesses who are fearful for their own safety.

The next stage

Once we have issued proceedings we will be provided with a date for a hearing. This initial hearing will become a directions hearing if the individual indicates that they will be defending the matter. At the directions hearing, the Court will set out a timetable for the Court process leading up to a trial. The length of time we may need to wait for a trial window depends on the complexities of the case and the number of witnesses who will be giving evidence. It can be anything between 6 weeks and 6 months.

Whilst waiting for a hearing date it is important to carry on recording incidents in your log book, so that you can provide up to date information to the Court and if necessary, show that the nuisance is continuing despite Court action having started.

We have to provide copies of witness statements to both the Court and defendant before the date of the hearing. This means the defendant will have a copy of the evidence you provide and the allegations you have made, sometime before the appearance at Court. We will be given a date on which all witness statements have to be exchanged. We will notify you in writing prior to the exchange date to inform you that we are exchanging statements.

Attending court

We will let you know the date, time and venue of the hearing once we have received it from the Court. You should dress appropriately for the Court appearance. A legal representative from Magna will usually be in attendance along with your housing officer. They will meet you at the Court, but if they are not already in the waiting room, you will need to report to the usher. Give him/her your name and state the name of the case which is usually Magna v the name of the individual. The usher will advise you where to sit. You may be asked to attend before the start of the trial so that a small meeting can take place before the start of the case.

There are two rooms at Court which may be used for the hearing, depending on how many people are involved:

One option is the Judge’s room which is called Chambers. This is a fairly small room with a simple layout. The Judge will sit at the head of the room with two tables facing each other, one for the person bringing the action (Claimant) and one for the individual (Defendant).

The other room is the main Court room. The Judge sits at the front of the room at a bench and there are rows of tables which face the Judge’s bench. The first row is used for the legal representatives, the table behind for the Defendant and Claimant’s representative and the witnesses sit at the back of the room in the public seating area where they wait to be called forward to give evidence.

If you wish, you may be able to attend the Court prior to the hearing to see the layout of the Court room, where you will be sitting and where you will be giving evidence. If you wish to do this please let the Association know in good time before the hearing date so that we can arrange a suitable time with the Court.

The hearing

The Judge will normally want to hear from Magna first and then the individual or their representatives. You, and any other witnesses, will then be called to give evidence.

You will be asked if you wish to swear (take an oath) or make a promise (make an affirmation). You may be asked which of these you prefer before going into the Court room.

If the hearing is taking place in Chambers, you will just need to stand up to give your evidence. If the hearing is taking place in the main Court Room, there is a witness box which you will be asked to stand at. You will have to remain standing until you are released from the witness box. If you are unable to stand for long periods of time, please advise us prior to the hearing so that seating may be arranged.

Sometimes you may be asked to wait outside the Court Room and then be called into the Court Room to give your evidence. This may be the case where there are lots of witnesses.

When giving evidence you will be asked questions by Magna. This is usually confirmation that your name, address, occupation and the contents of your witness statement are true. It is important that you re-read and familiarise yourself with your statement on the day on the hearing. If incidents have occurred since the day of your statement you may be asked to provide details of these. You will usually have discussed this prior to entering the Court Room.

You may then be asked questions by the defendant’s representatives. Here the defendant’s representative may seek to discredit your evidence or prove that it is incorrect. If you cannot answer any of the questions, or do not know the answer, you should say rather than try and guess. If you do not understand a question ask for it to be repeated or rephrased. Never provide false or untrue evidence or answers to the court as this is an offence.

The Judge will also be able to ask you questions. From your evidence he will have to decide whether or not you and the other witnesses are telling the truth. Answer the questions as precisely as you can and if you do not know the answer, please say so. If you need to refer to any written papers please ask the Judge before you do so. When you address the Judge you must call him Sir, or if the Judge is female, Ma’am.

After hearing all the evidence Magna and the defendant’s representatives may be given a chance to sum up the case and make closing statements. The Judge will then be required to make his decision. He may make this straight away and tell us the outcome there and then but usually he will retire to consider the evidence. Depending on how much time is left, he may give his decision in writing or a further hearing may be listed for the Judge to give his decision orally.

Possible outcomes

It should be noted that the Court first has to decide whether any of the grounds have been proved. If they have, the Court must then consider whether it is reasonable to make an order and whether or not that order should be outright, suspended or postponed.

It is unusual for an outright order to be granted in the first instance and suspended or postponed orders are more common. These require Magna to go back to Court following a breach and prove to the satisfaction of the Court that a breach has occurred. Even if this is proved our application can still be suspended or postponed further.

If a postponed or suspended order is made, it is important that you continue to record evidence of incidents.

If an outright order is made, the tenant must leave their home on a specified date. If the tenant does not leave on a date given in an order, Magna must make an application for a bailiff to evict the tenant. Again the tenant is able to appeal this which may result in the matter being suspended or postponed.

GLOSSARY

Balance of probabilities – the most probable outcome
Claimant – A person applying for relief against another person in an action
Corroboration – Evidence that confirms the accuracy of other evidence
Defendant – the person against whom the Court proceedings are brought
Directions hearing – initial Court hearing where the timetable for the case is set and where the Judge details the information which will need to be obtained prior to the trial
Proceedings – any step taken in a legal action
Proportionate - appropriate, necessary and not imposing an excessive burden on those affected by it
Trial – The hearing of a case before the Court

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