Who may take part in questioning a witness, and what must be told to them beforehand about when and where it will happen?
General information · Not legal advice
Material to check
In a practice file we read the record of the witness examination itself, any notice setting out the date and place of that examination, and any paper in which the prosecutor, the accused or defence counsel stated that they would not attend, since each of these bears on the conditions the provision attaches to participation.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading treats participation as belonging to three named persons only: the prosecutor, the accused or defence counsel may participate in the questioning of a witness, and the date and place of that questioning must be notified in advance to those who may participate, unless they expressly state that they will not.
Another reading focuses on the exception, which applies only where the person 'expressly states' non-participation, so an unnoticed or unanswered letter would not fall within it; the provision also leaves open how notice is to be given and what follows if a witness is examined without the notice the provision requires.
Your judgment
If the record shows no notice and no express statement of non-participation, what in the file could show whether the examination nevertheless went ahead lawfully?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to set how notice must be given or what remedy follows an examination held without it, or if a court decision rules on the effect of a witness examined without prior notice.