It doesn't seem unreasonable to imagine that if it were legal to pay material witnesses we would have many cases of:
- material witnesses deciding against coming forward or testifying because of insufficient reward (complainants and defendants in poverty would be particularly vulnerable to this)
- people exaggerating, lying or otherwise falsely testifying (perjury) in return for money or some other benefit
- sufficient suspicion that any of the above occurred (even if in fact it hadn't) to cast doubt on a particular case (risking a mistrial) or the entire civil or criminal justice system
In some jurisdictions persuading people to commit perjury is a specific criminal offence called inducement or 'subornation of perjury'. In other jurisdictions such behaviour might come under the umbrella of a more general offence such as 'perverting the course of justice', 'witness tampering' or such.
england-and-wales
Section 1(1) Perjury Act 1911:
If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury ...
Section 7(1) Perjury Act 1911:
Every person who aids, abets, counsels, procures, or suborns another person to commit an offence against this Act shall be liable to be proceeded against, indicted, tried and punished as if he were a principal offender
Solicitors and barristers are regulated professions and must act in accordance with their codes of conduct.
Solicitors:
2.3 You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.
Barristers:
C9.6 you must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case;
In the past several decades there have been a number of demands to create a duty for newspapers to report payments made to witnesses (or people claiming to be witnesses) or to outright ban such payments. This is because of some notorious examples. I mention this in support of my speculation at the beginning of my answer.
In March 2002 the Lord Chancellor's Department produced a consultation paper on "A proposed criminal offence of making, or agreeing to make, or receiving, payments to witnesses or potential witnesses in criminal proceedings."
This paper sets out for consultation the form of the legislation needed to implement the Government's commitment to introduce legislation to prevent risks of interference with the administration of justice from payments, or agreements to make payments, to witnesses or potential witnesses in criminal proceedings.
The consultation is aimed in particular at the media, especially at newspaper reporters and editors. It is also aimed at the judiciary, the legal professions, the police and the general public in England and Wales. ...
This Government is committed to ensuring that the media maintains its reporting freedoms. It is also committed to ensuring that the accused has a fair trial and that the administration of justice is not undermined. Unfortunately, in recent years activities of some of the media in relation to a number of high profile criminal cases has prompted serious debate, in Parliament and elsewhere, about the effect those activities may have had on the outcome of the proceedings.
The most pernicious practice is the payment of witnesses, or potential witnesses, for their stories. These payments are most dangerous when they are made conditional on the accused being found guilty. It matters not whether the story is to be published after the trial has ended or that the witnesses have told the truth. Once the jury is aware that payments are in hand, the witnesses and their evidence lose credibility and justice is undermined. [my emphasis]
The risk arises not only from approaches made by the media but also when witnesses themselves actively seek payment for their stories. Witnesses and potential witnesses therefore need to know how the law applies to the agreements they may make for their stories. ...
On such case was the trial of Ian Brady and Myra Hindley (the Moors murderers) in April 1966. During the trial, the judge and defence barristers repeatedly questioned David Smith, brother-in-law to Hindley and the chief prosecution witness, about the nature of his arrangement with the News of the World. Among other things, he had been receiving weekly payments from the newspaper and had agreed to be paid £1,000 (some £15,000 in today's money) if Brady and Hindley were convicted.
The judge said there had seemed "to be a gross interference with the course of justice" although eventually decided that Smith's testimony had not been substantially altered by this arrangement. Attorney-General Sir Elwyn Jones promised an investigation, questions were raised in the Houses of Parliament and the Press Council (a voluntary press organisation formed under threat of statutory regulation) published its first Declaration of Principle (not law), which banned paying witnesses in advance of trials.
Parliament has been generally loathe to regulate the press and has tended to prefer the press self-regulate under threat of being regulated by law. In 2002 the government shelved its plan to make it a criminal offence for witnesses to benefit from 'chequebook journalism'.
Other examples:
- 1979 trial of Jeremy Thorpe - witness Peter Bessell's testimony was undermined when his financial arrangements with the Sunday Telegraph came to light (serialisation rights of his memoirs, doubling of his initial £25,000 if Thorpe were convicted)
- 1981 trial of serial murderer Peter Sutcliffe - concern that his wife and others connected to the Sutcliffes were benefiting from their association with his crimes
- 1995 trial of serial murderer Rose West (wife of serial murderer Fred West) - witness Janet Leach had a stroke in the witness box after falsely claiming she had not sold her story to the press (for which she had in fact agreed to £100,000 - nearly £200,000 in today's money)
- it emerged that at least 19 witnesses had received money from or signed contracts with the media, ranging from £750 to £30,000, including members of the West family
- Rose West was convicted, she appealed partly on the basis that press payments to key prosecution witnesses precluded a fair trial and rendered her conviction unsafe, Court of Appeal ruled against her
- 1999 trial of Paul Gadd (aka Gary Glitter) in which his defence lawyers cast doubt on evidence because the press had promised payments to witnesses, he was acquitted, the judge opined that payments by the News of the World to a witness and an offer of £25,000 on conviction were "highly reprehensible" and "not illegal but it is to be greatly deprecated"
- 2002 trial of a teacher acquitted of indecent assault of under-age pupils, during which the press offered teenagers money for their stories
The (edited) question asks:
Would it have been legal for that witness to, instead of trying to get £25k from the NotW had said to the police "My evidence will be key to the trial, I will give it to you now for $25k or I will wait until compelled by a judge"? In the instance the police refused, would it be legal to make the same offer to the defence or prosecution lawyers?
I haven't found a law against a person offering testimony in return for money. However, as I wrote above, solicitors and barristers (including members of the Crown Prosecution Service) are not allowed to offer or pay money for testimony.
A person could be ordered to testify - disobeying a 'witness summons' without a reasonable excuse is a 'contempt of court'.
A comment says:
While material witnesses aren't paid, they do often receive immunity, so they can testify against someone else without having to incriminate themselves. Doesn't that count as "some other benefit"?
Yes, in some circumstances prosecutors have powers to secure intelligence or evidence from offenders to assist the investigation or prosecution of an indictable or either way offence.
My understanding of the question is that it imagines a jurisdiction in which offering testimony for reward or vice versa is an entirely normal behaviour regardless of the circumstances.
The Crown Prosecution Service guidance for England and Wales says that "It is only in the most exceptional cases that it will it be appropriate to offer full immunity [from prosecution]."
A person might be offered immunity from prosecution for a given offence on the basis of their confession but not immunity for the same offence on the basis of other evidence that came to light.
The available numbers support the claim that use of the above four powers is rare - see CPS website, Information on agreements made under Sections 71 to 74 of SOCPA 2005 and Sentencing Act 2020. For example, for the period 1 May 2022 to 30 April 2023:
- Immunity from prosecution: 1
- Restricted use undertakings: 0
- Reduction in sentence for assistance to prosecution: 6
- Review of sentence following subsequent agreement for assistance by offender: 1
