Is it illegal for criminal defendant to approach the prosecution witnesses?

Question

Is there any law that prevents criminal defendants (where they are remanded at large or on bail without corresponding conditions) or their lawyers from talking to the prosecution witnesses?

I note that s 8(1)(a)(ii) of the Bail Act 2000 says:

In considering whether there is just cause for continued detention, the court must take into account ... whether there is a risk that ... the defendant may interfere with witnesses or evidence

(emphasis added)

— which sort of implies that defendants cannot approach witnesses.

Also, the Giving Evidence guideline from the Ministry of Justice says at page 3:

If the defendant or anyone else tries to contact you or hassles you about being a witness and about your evidence, contact the police or the lawyer handling the case immediately.

Notwithstanding with all the above, I am struggling to find a law that would make it illegal for the defence or defendant to approach prosecution witnesses and talk. What am I missing?

Answer 1

Suspects and prosecution or defence witnesses may share the same household, work together or come in to contact in any number of ways, and in england-and-wales (which has a comparable criminal justice system to new-zealand) there is no law per se preventing them from talking with each other - unless it involves intimidation, harrassment, perverting the course of justice, or the suspect is subjected to specific bail conditions preventing any and all contact with a witness or witnesses.

• Witness intimidation is an offence contrary to s.51 of the Criminal Justice and Public Order Act 1994:

(1) A person commits an offence if—

(a) he does an act which intimidates, and is intended to intimidate, another person (“the victim”),

(b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and

(c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.

• Harassment falls under the Protection from Harassment Act 1997 and can be summarised to include:

conduct to persuade any person not to do something that they are entitled or required to do, or to do something that they are not under any obligation to do.

 

• Perverting the Course of Justice, under Common Law, is an offence to:

conspire, act or embark upon a course of conduct which has a tendency to, and is intended to pervert, the course of public justice.

(NB in England and Wales there is no such thing as attempting to pervert the course of justice - it's either done or it's not.)

Also, the Prosecution and Defence, the former usually via the police, may:

interview each other's witnesses or prospective witnesses; and May take statements from those witnesses. However, each party must ensure that no attempt is made to persuade the witness to change his/her story.

Interfere appears six times in the England and Wales Bail Act 1976 - five in the phrase "interfere with witnesses or otherwise obstruct the course of justice" and once in "where defendant may fail to surrender to custody, commit offences on bail or interfere with witnesses". It, or its various forms, also appears nine times in the New Zealand Bail Act 2000 in a similar context which, in my opinion, implies a nefarious or illicit action distinct from "just having an innocent chat."

Interfere is not defined by either Bail Act, so the convention applied by the UK courts is to use the common everyday meaning by reference to the Oxford English Dictionary. Such definitions include to intervene in a situation without invitation or necessity and to prevent (a process or activity) from continuing or being carried out properly.