This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how subpoena procedures work in criminal cases in England and Wales, including what witness summonses are, how they are issued and served, the legal tests and rules that apply, and the obligations of witnesses and practitioners in criminal proceedings.
In the criminal justice system of England and Wales, the term “subpoena” is often encountered in everyday language and in legal systems such as the United States, but the modern statutory framework does not use “subpoena” as a distinct procedural tool in criminal cases. Instead, what is commonly meant by a subpoena in this jurisdiction is a witness summons - a formal legal instrument issued by the criminal court to compel attendance or production of evidence. This article explains how these procedures work, the legal framework that governs them, and what individuals and practitioners need to know about enforceability, rights and obligations in criminal proceedings.
What Is a Subpoena in the Context of Criminal Law?
The traditional legal definition of a subpoena is a writ commanding a person to attend court or produce evidence under penalty for non‑compliance (“under penalty”). Historically, this term originates from Latin and has a long history in common law jurisdictions.
In England and Wales, however:
- The formal procedural term used in criminal cases is a witness summons.
- Subpoena is effectively another name for a witness summons, but “subpoena” is seldom used in current criminal procedure practice.
A witness summons is a court order requiring a person to attend a criminal court (magistrates' court or Crown Court) to:
- Give oral testimony;
- Produce specified documents or items as evidence; or
- Both.
When people refer to subpoenas in criminal contexts in England and Wales, they usually mean witness summonses issued under the statutory framework.
Legal Framework: Statute and Rules
The legal procedures relating to witness summonses in criminal cases flow from a combination of written law and procedural rules:
- Statute – witness summons powers arise under:
- Section 97 of the Magistrates' Courts Act 1980 for magistrates' court cases; and
- Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 for Crown Court matters.
- Criminal Procedure Rules (Part 17) – these rules set out the process for applying for, issuing, serving, varying and withdrawing witness summonses. The rules apply to both magistrates' courts and the Crown Court.
These provisions allow the court to compel attendance when evidence is likely to be “material” (important to a fact at issue) and in the interests of justice.
When Are Summonses (Subpoenas) Used?
In criminal matters, witnesses are normally expected to attend court voluntarily when contacted by police, the Crown Prosecution Service (CPS) or defence representatives. However, a witness summons may be sought when a witness is reluctant to attend voluntarily or when evidence is difficult to obtain without a formal order.
Typical situations include:
- Reluctant or inaccessible witnesses – someone unlikely to attend without a legal obligation;
- Production of documents or items – where important physical evidence is held by a non‑party that might not otherwise be provided; and
- Ensuring attendance despite logistical challenges.
Issuing a summons is treated as a last resort in criminal practice because compelling witnesses should be done only when necessary and after careful consideration of the risks and benefits.
Step‑by‑Step: Issuing a Witness Summons
1. Application to the Court
A party (typically the prosecution, but the court itself can act) must apply to the relevant court to issue a witness summons. The application must explain:
- The identity of the proposed witness;
- What evidence they can give or documents they can produce;
- Why that evidence is likely to be material to the case; and
- Why it is in the interests of justice to issue the summons.
Applications may be made orally or in writing, depending on the circumstances and the discretion of the court. Written applications must follow the Criminal Procedure Rules and include a declaration of truth.
2. Issuing the Summons
Once an application is approved:
- The court issues the witness summons, which specifies the date, time and place for court attendance, and details any documents to be produced.
- A summons can require attendance on the trial date or on another date fixed by the court.
Although in civil procedure there is a standard minimum service period (often seven days), in criminal cases the timing is governed by the rules and judicial directions, based on what is appropriate in the circumstances.
3. Service of the Summons
The summons must be served on the witness. In practice, service may be carried out by:
- Court staff;
- Police or process servers;
- Parties to the case, if authorised by the court.
The Criminal Procedure Rules specify how and when service must occur and include provisions for ensuring the witness receives the order and any related expense offers.
4. Expenses and Compensation
When serving a witness summons, the issuing party (or court) must offer or pay sums to cover travel expenses and loss of earnings to the witness. This ensures that attendance does not impose unreasonable financial burdens.
Rights and Obligations of Witnesses
- A person served with a witness summons is legally required to comply. Refusal to do so can constitute contempt of court, a serious offence that can result in fines, imprisonment or an arrest warrant.
- Individuals may apply to set aside or vary a summons on statutory grounds, including if the evidence is not material or there are competing legal rights (such as confidentiality), but the court will decide based on the law and interests of justice.
Practical Considerations
For prosecutors and defence teams, subpoenas (in the sense of witness summonses):
- Require careful planning and early identification of witnesses;
- Are not routinely used - voluntary arrangements are preferred where possible;
- Must balance the necessity of compelling evidence with witness care, safety and legal obligations.
For witnesses, understanding a summons is a court order with enforceable force is essential. If attendance poses difficulties (for example, financial hardship or travel challenges), contacting the court or witness care team promptly is crucial.
Key Takeaways
In the criminal law of England and Wales, formal procedures to compel witnesses to attend court or produce evidence are carried out through witness summonses, which are sometimes referred to colloquially as subpoenas. These are issued by the court under statute and regulated by the Criminal Procedure Rules (Part 17). A summons must be properly applied for, issued, served and complied with. Failure to comply may lead to serious sanctions. The use of summonses is governed by the principle that they should only be used when necessary and in the interests of justice, with appropriate consideration of witness rights and obligations.
