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Why have the adversarial and inquisitorial systems evolved so differently?
This was one of the key questions Mirjan Damaska set out to answer in Faces of Justice and State Authority (1986: New Haven, Yale University Press). Arguing that legal procedures cannot be divorced from general features of state authority, Damaska contends that inquisitorial processes are derived from a hierarchical, bureaucratised ideal of state authority, with a benevolent view of the state’s capacity to act as an independent and impartial arbiter. This is why criminal proceedings evolved as a form of judicial inquiry into the search for truth, with limited (or no) input from lay persons. Consequently, a rigid system of evidential rules was regarded as unnecessary, since there was no need to shield lay decision-makers from potentially prejudicial forms of evidence. By contrast, Damaska argued that the legal processes of common law jurisdictions have evolved from a more democratic perception of state authority. A high degree of faith was placed in the presentation of evidence by the parties leading to a just outcome. During the nineteenth century, the English criminal trial became increasingly adversarial in nature, with lawyers increasingly dominating the courtroom, with the role of the judge significantly diminishing. This was one of the key factors in the evolution of a complex and rigid regime of evidential rules (see further J.H. Langbein, The Origins of Adversary Criminal Trial (2003: Oxford, Oxford University Press).
Where on the adversarial / inquisitorial ‘spectrum’ do you think the English criminal trial lies?
It is vital to bear in mind that the adversarial / inquisitorial models do not represent a reality for any given individual jurisdiction. They have instead been devised as a means of interpreting structures and values which are commonly found in the majority of trial systems of a particular type.No single legal system– and certainly not the English criminal trial - constitutes an absolute apotheosis of either model.
The precise location of the English criminal trial on the adversarial / inquisitorial spectrum remains uncertain. Certainly, recent years have witnessed the erosion of a number of sacrosanct features of the adversarial paradigm. Evidence of hearsay and bad character is now much more readily admissible, and judges enjoy a much broader discretion in determining the form and nature of evidence that is presented in court. The advent of special measures and the willingness of the courts to accept evidence through video recording and televised links mark at least a partial departure from the principle of orality. That said, the underlying structure of the trial remains largely true to the adversarial ideal. Courts are still heavily reliant on parties to present the evidence, and ‘gladitorial combat’ still dominates the courtroom. The underlying normative assumption – that justice will result from a ‘sharp clash of proofs’ still underpins the English criminal trial today.
To what extent do the rules of evidence hang on the historical use of juries in the adversarial system?
In The Origins of Adversary Criminal Trial (2003: Oxford, Oxford University Press), John Langbeinargues that rules of evidence and procedure were developed in an exclusionary fashion as advocates came to dominate proceedings, and judges became increasingly passive. The rules of evidence are often exclusionary and complex in their nature, and serve a number of goals. Some, such as the hearsay rule, developed because of a perceived lack of reliability in certain types of testimony. Others, such as rules prohibiting the use of previous bad character evidence, can be said to be derived from the use of lay fact-finders, and the fear that they would be incapable of weighing up the probative value of such evidence against its prejudicial effect.Other exclusionary rules developed to protect the due process rights of the accused. So whilst the use of juries has certainly been a factor in the development of evidential rules, it has not been the sole driving force.
Should the criminal trial prioritise truth-finding over and above other goals?
While inquisitorial systems are generally said to prioritise truth-finding, the same cannot be said of the adversarial system. Exclusionary rules of evidence, and the system of party control, mean that information about past events does not flow freely to the fact-finder. Whilst this might be viewed by some as an impediment to truth-finding, it does not necessarily follow that the trial outcome will be rendered unjust. Thus Landsman (1984: 37) is quite happy to defend the adversarial system on the basis that truth is not its primary goal, stating that “a preoccupation with material truth may be not only futile but dangerous to society as well. If the objective of the judicial process were the disclosure of facts, then any technique that increases the prospect of gathering facts would be permissible”. He proceeds to list examples, such as the use of psychoactive drugs and / or torture as a means to produce truth. Thus, by necessity, a truth at all costs approach to criminal trials is unworkable given that exclusionary evidential rules, coupled with certain due process protections, are designed to maintain the integrity of the criminal justice process. Instead, Landsman defends the adversarial trial on the basis that truth plays second fiddle to the overriding need for justice. For Goodpaster however, truth and justice are “intimately connected” and should therefore be considered to be twin objectives of the adversarial system. He contends that fair procedures are more conducive to accurate fact-finding, unfair procedures may lead to erroneous fact-finding.
Is it true that the inquisitorial system does a better job at fact-finding that the adversarial system?
This would be an extremely difficult proposition to assess. One may certainly speculate the judge-led mode of inquiry places fewer obstacles in the way of material truth. The lack of evidential rules; the judge-led nature of proceedings; and the extent of the inquiry into the circumstances of the offence as well as the accused’s personalité are all factors which might suggest that inquisitorial courts are more effective in uncovering the truth about past events. Moreover, adversarial methods are not used outside of the law (ie, in history and science) to ascertain facts; this raises a significant question as to why they are still the preferred method of inquiry in Anglo-American criminal trials. However, it might still be contended by defenders of the adversarial system that the ‘fight theory’ has been proven to work well over the past two centuries, and interrogates witnesses and protects the rights of the accused to a much greater extent than the inquisitorial method. Nevertheless, it remains the case that it remains difficult to maintain the position that inquisitorial systems perform fact-finding in a more effective manner given the lack of empirical evidence.
The Terrorism (Further Measures) Bill 2008 [fictional] contains the following provisions:
- It shall be an offence for any person to assist another in any way whatsoever whether by act or omission in the commission, preparation or instigation of an act of terrorism.
- Where the prosecution have proved assistance in the commission, preparation or instigation of an act of terrorism by an act or omission it is a defence for the accused to prove that he either did not know or had no reason to suspect that the assistance given was in the commission, preparation or instigation of an act of terrorism.
- This offence is punishable on indictment by a maximum of ten years imprisonment.
Clause 25(1) of the Bill further provides that where, in accordance with a provision mentioned in clause 25(2), it is a defence for a person charged with an offence to prove a particular matter, if the person adduces sufficient evidence to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. Clause 25(2) lists a number of clauses but not clause 1.
Consider whether the above provision, if enacted in the above terms, would be compatible with Article 6(2) of the European Convention on Human Rights and if not, how it may be amended so as to be compatible.
This question relates to imposing a legal burden of proof on the accused. It is thus prima facie incompatible with Art 6(2) although it may be argued that it is justifiable on the basis that it is proportionate and pursues a legitimate aims.
In order to answer this question, it would be a good idea to look at the arguments that may be put forward by the prosecution and then by the defence in order to reach a reasoned conclusion. The main arguments put forward by the prosecution that the burden should lie on the defence may inter alia include:
Given the serious consequences to society of uncontrolled terrorism all states are under a positive duty to protect their citizens from terrorist acts. This means that, on occasions, states will have to put in place exceptional provisions to combat terrorism. Clause 25(2) provides the accused with a defence and thus serves to guarantee a fair trial. It was not obligatory upon the drafters to include it at all, so it should not be read as thwarting the due process rights of the accused. The overall burden still falls on the prosecution who have to prove all the elements of the offence in clause 1(1) beyond reasonable doubt. The provision is absolutely necessary, but goes no further than that, in helping to ensure that the flow of funds to terrorist organisations cease.
If the burden were evidential only, the prosecution’s task would be rendered almost impossible since they would have to prove that the defendant did know or had reasonable cause to suspect that he was dealing with terrorist property. In every case an accused could claim they had no knowledge of the contents of a package or that they had no knowledge of its links to a terrorist organisation which would be very difficult for the prosecution to refute beyond reasonable doubt. Although the offence is serious and carries a ten year custodial sentence, this maximum sentence will rarely be imposed. An accused with a clean record may only serve 3-4 years. Perhaps the offence is not quite as serious as may first appear?
It is then important to look at the opposing arguments. The defence may argue that the reverse onus is an unreasonable and disproportionate response to terrorism. Arguments that may be cited include:
The more serious the crime the less willing the court should be to impose a legal burden on the accused. This is a terrorist offence, carrying a lengthy custodial sentence as well as a huge degree of social stigma. It will blight any wrongly convicted person for the rest of their lives. It is no easier for the defendant to prove he did not know the arrangement related to terrorist property than it is for the prosecution to prove that he did. The police / intelligence services, will generally have all terrorists suspects under surveillance and, arguably, may be better placed to prove that the defendant knew that an arrangement related to terrorist property. Standard investigative procedures should suffice. The courts have a clear duty under the Human Rights Act 1998 to ensure that Convention standards are observed. Even where Parliament intended the burden to be persuasive in nature, this should not prevent the courts from exercising their interpretive obligation under s3 of the Human Rights Act 1998 (see Sheldrake).
Having considered possible arguments for the prosecution and defence, you should then arrive at a sensible conclusion. You will gain marks for any sensible discussion based on the principles discussed above. Note that the arguments listed are non-exhaustive and there are many other legitimate points that could be raised.
'No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained' per Viscount Sankey LC in Woolmington v Director of Public Prosecutions (1935).
To what extent has the principle been safeguarded in the years following Woolmington v DPP?
The essay title refers to ‘the years following Woolmington v DPP’. While it might be expected that the essay will concentrate on recent case law (and, in particular, post-Human Rights Act cases), students should not limit their discussion to these cases. Student should approach their answers chronologically and integrate some of the earlier case law too.
The principle, as originally laid down, was always subject to two exceptions: insanity and express parliamentary exceptions (students should cite some examples).
Students should also discuss the concept of implied statutory exceptions, noting the significance of s101 Magistrates Courts Act 1980 and the decisions in Edwards and Hunt. Good answers will not merely describe the legal developments in this area, but will attempt to analyse them in the context of the question. Clearly, the ‘whittling down’ of Woolmington reached something of a high point in Edwards, and it could be argued that the ‘golden thread’ was placed jeopardy. Very good answers may discuss whether the ‘golden thread’ was ever intended to include implied statutory exceptions.
Arguably, since the advent of the HRA, the courts have made some attempts to restore ‘golden thread’ to the position described in Woolmington. Students should note the relevant Convention standards Salabiaku v France). Even before the HRA took effect, the HL was prepared to take the Convention standards into account in Ex P Kebeline. Lord Hope stated that reverse burdens had to be proportionate. In order to determine whether this is so, one must look inter alia at:
- The purpose of the statute
- The seriousness of the harm it seeks to prevent
- The consequences of placing the burden on the defendant, including the ease with which he may be able to discharge it, the penalty on conviction, and the consequences of not doing so upon the state.
Students should then attempt to analyse the current state of the law. What principles can be used to determine whether a reverse burden is justifiable under Convention standards? Here, students should discuss the significance of Lambert and Johnstone, and the attempt by the House of Lords to reconcile these two cases in Sheldrake. Good answers will note that the difference may boil down to whether the offence in ‘regulatory’ or ‘truly criminal’ in nature. While a reverse burden may well be justifiable in relation to the former, it would be very rarely justifiable in relation to the latter. The approach favoured by Lord Bingham was based on the question of moral blameworthiness as per Lambert, rather than the approach advocated in Johnstone which was based on the defendant having voluntarily assumed a risk.
Arguably, Shedrake attempts to re-establish the golden thread through affirming the principle set down by Lord Steyn in Lambert, that the courts had a legitimate role in the post-HRA era of scrutinising legislation for compliance with the Convention. It seems that Lord Nicholl’s statement in Johnstone that the role of the court’s was merely to ‘review’ the Parliamentary process no longer holds water. Good answers will consider the extent to which the current state of the law (and it is arguably in a state of considerable flux) reflects the ‘golden thread’. Some may argue that these cases have resulted in it being further eroded; other students may argue that it has actually been reinstated. Providing students back up their answers with logical arguments, they will be given credit.
In conclusion, good answers will return to the original question and will give their reasoned opinion as to the approach of the courts since Woolmington
‘The presumption of innocence, one of the central tenets of a fair trial as enshrined in Article 6 of the European Convention on Human Rights, is epitomised by the requirement that the prosecution prove the guilt of the accused beyond all reasonable doubt. In practice, however, the principle has been whittled down by parliamentary intervention and judicial interpretation. It is hoped that reliance on the Human Rights Act 1998 will serve to restore the principle to its fundamental status.
Discuss the issues raised in the above statement.
This is a similar question to the one above. However, it is clearly more focused on the standards imposed by the European Convention.
It may therefore be an idea to begin your answer with reference to Article 6(2), which enshrines presumption of innocence. Discussion should focus on nature and scope of Convention right and to what extent current English law complies with this. Reference should also be made to the part of the quote that talks about the principle being whittled down by courts and by Parliament. Students should cite relevant examples – the decisions of Edwards and Hunt are worth mentioning, and in terms of legislation reference could be made to the reverse burdens contained in the Copyright Act, Insolvency Act, Homicide Act, etc.
You should discuss Salabiaku and, in particular, what is meant by ‘reasonable limits’ – to what extent are the limits imposed by domestic law ‘reasonable’?
In exploring this question, key domestic cases to be discussed include ex p Kebeline, Lambert, Johnstone, AG’s Ref No 1 of 2004, and Sheldrake. You should note the lack of consistency and lack of principles as to when a provision can be said to be justifiable or proportionate under Convention – and may make reference to relevant academic commentary. You should then come to a conclusion and may speculate as to whether the principle is likely to be restored to its fundamental status under the HRA.
Sanjay, aged 8, has witnessed a burglary at his parents’ home. The prosecution want to call him to give evidence concerning the identity of the accused. Will they be able to call him to give evidence?
There may be a question about the competence of a child of 8. Much depends upon the particular child. If a normal 8 year old of average intelligence there may be no problem, he should be able to understand questions put to him as a witness and give answers to them that can be understood. If for some reason he cannot, Sanjay will will not be competent (s 53(3) YJCEA 1999)..
Assuming he is competent he is then compellable and will give evidence unsworn (s 55(2) YJCEA 1999). He will also be compellable by the prosecution.
The prosecution wish to call David’s estranged wife, Clara, to testify against him on sexual abuse charges against his 12-year-old niece. Clara is reluctant to testify; can she be compelled to give evidence?
As a sexual assault against a child under the age of 16, the offence falls within section 80(3) of the PACE Act 1984 and is therefore a “specified offence” for which the spouse of an accused is a compellable witness. If David and Clara are actually divorced (rather than merely separated), Clara will be compellable as any other witness since former spouses are competent and compellable to give evidence as if that person and the accused had never been married (s 80(5) PACE 1984).
Pauline, aged 18, has an IQ of 70 and a reading age of 8. She is stopped on her way out of a local clothes shop by a security guard who accuses her of placing a T-shirt in her bag without paying for it. Is Pauline competent to testify in her own defence?
All witnesses are presumed to be competent unless it is shown that they are unable to understand the questions and give answers that can be understood (s 53, YJCEA 1999). If Pauline wishes to testify, it will be for the prosecution to raise the issue and it will then fall on the defence to satisfy the court on the balance of probabilities that she is competent to give evidence. This will be the case if she can understand questions put to her as a witness and give answers to these questions that can be understood (s 53(3) YJCEA 1999). As to whether Pauline gives evidence under oath, this will depend on whether she is deemed to have a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath (s 55(2)).
Why do you think special exemptions exist to limit the compellability of diplomats and foreign heads of state? Are these exceptions justifiable?
Diplomats and foreign heads are not usually compellable witnesses. This stems from the principle of diplomatic immunity, which is now considered to be a form of customary international law. The rationale behind the principle is to allow governments to maintain effective relationships with each other, particularly in the midst of international crises or armed conflict. The practical effect of compelling diplomats and foreign heads to state to give evidence would constitute a breach of this principle, since a failure to testify would render such persons criminally liable for contempt of court.
‘The rules concerning the compellability of spouses in English law are outdated and in pressing need of reform.’
Do you agree with the above statement?
In answering this sort of question, you should first of all state the law relating to the compellability of spouses, then analyse the rationale for the rules, before proceeding to evaluate whether they rules are outdated and in need of reform.
Issues that you may wish to discuss include:
- The traditional common law position and how this changed following the HL decision in Hoskyn v Metropolitan Police Commissioner
- The 1972 Report of the Criminal Law Revision Committee which evaluated a number of the public policy arguments
- Changes introduced by section 80 of PACE (and limited reforms pursuant to YJCEA 1999)
- Critiques of the current law: eg, are the exceptions contained in section 80 sufficiently broad? (Note, for example, the apparent aberration in the Fred West case) What about sexual offences against the spouse him/herself – including rape? Has the provision actually assisted in the prosecution of domestic violence cases, particularly those involving children? Could victimless prosecutions and/or the admissibility of hearsay statements work alongside s 80 to bolster its effects in this regard? (seeeg R v L). What happens where the spouse still refuses to testify: should victims of domestic violence be criminalised for contempt? Why single out the spouse over and beyond other close family members? Why treat co-habitees differently? (see Pearce) – is this evidence that the law is out of date?
- Then aim to wrap up your essay with a logical and reasoned conclusion based on your discussion.
Consider what measures, if any, the court may put in place to assist the following witnesses:
Alec, who was subject to a series of sexual assaults when he was eight years old in a local care home. He is now 16, and has just reported the incident to the police. He is likely to be 17 by the time the case comes to trial.
Under the original terms of the YJCEA 1999, Alec may not have been eligible for special measures under section 16(1)(a) if he had turned 17 by the time of the section 19 hearing at which application for special measures is made. However, following the amendments to the legislation under the Coroners and Justice Act 2009, Alec will only cease to be eligible under section 16 if he is over the age of 18 at the time of the hearing.
As things stand, Alec will be subject to the (amended) primary rule under section 21. As such, his evidence-in-chief must be pre-recorded under section 27, and, in addition, that cross-examination should take place through the live link provision under section 24. This is subject so subsection 4, which provides that the court must take into account the views of the witnesses. Thus if Alec were to express a wish to give live evidence, the rule may not apply providing the court is satisfied that not complying with the rule would not diminish the quality of the witness's evidence (s21(4)(ba). In addition, the rule will not apply if for any reason the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (s 21(4)(c)).
Alec may also be given the assistance of any other special measures (eg, the removal of wigs and gowns) depending on which measure(s) the judge determines will maximise the quality of his evidence.
Sally, who was recently physically assaulted by a leader at her youth club. She is 12 years old.
As with Alec in question (a), Sally will be automatically eligible for special measures under section 16(1)(a). The fact that she has been the victim of physical, as opposed to sexual assaults, is irrelevant since the 2009 reforms, as the primary rule now makes no such distinction. Sally’s evidence-in-chief must be pre-recorded under section 27, and cross-examination should take place through the live link provision under section 24. This is subject so subsection 4, which provides that the court must take into account the views of the witnesses. Thus if Sally were to express a wish to give live evidence, the rule may not apply providing the court is satisfied that not complying with the rule would not diminish the quality of the witness's evidence (s21(4)(ba). In addition, the rule will not apply if for any reason the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (s 21(4)(c)).
As a young child, Sally is likely be given the assistance of any other special measures (eg, the removal of wigs and gowns) depending on which measure(s) the judge determines will maximise the quality of his evidence.
Yvonne, who was raped by her step father at the age of 14. She is now 26 years old.
Yvonne is well over the age of 18, and as such has no automatic entitlement to special measures. However, as a victim of a sexual offence, there will be a rebuttable presumption of entitlement under section 17(4). This effectively means that Yvonne will be treated as an eligible witness unless she states that she does not want to be so treated. What special measures are appropriate will depend upon the opinion of the judge at the hearing under section 19. Screening the witness may suffice but the special measures could include evidence by live link or, if appropriate, video evidence-in-chief with cross-examination and re-examination by live link. As with many sexual offence cases, it is also likely that judge may decide that evidence should be given in private as per section 25 YJCEA.
Danny, who was the victim of a hit-and-run incident. He is 84 years old, and is very frail
Danny may be eligible for special measures under section 17, providing it can be established that the quality of his evidence is likely to be diminished by reason of fear or distress. The criteria under section 17(2)(a), (b) and (c) apply here and suggest that he will be eligible for the special measures under sections 23 to 28. In the hearing under section 19 to determine what special measures are likely to improve the quality of the evidence the judge will consider all the circumstances, including his age, his relationship to the accused (if any) and the complainant and the nature of the offence charged. In determining which measure(s) might maximise the quality of his evidence, the judge may consider that Danny’s evidence could be best received from either behind a screen or through the use of a video link. In making this determination, section 17(3) provides that the court must also consider any views expressed by the witness.
Paul, 15, who witnessed his girlfriend, aged 17, suffer a violent sexual assault.
As with Alec in question (a), and Sally in question (b), Paul will automatically be eligible for special measures under section 16(1)(a). The fact that he has witnessed an offence, rather than been a direct victim himself, is of no relevance. Likewise, the fact that the offence is of a physical, as opposed to a sexual assault, will be irrelevant in terms of how the primary rule is applied.
Paul’s evidence-in-chief must be pre-recorded under section 27, and cross-examination should take place through the live link provision under section 24. This is subject so subsection 4, which provides that the court must take into account the views of the witnesses. Thus if Paul were to express a wish to give live evidence, the rule may not apply providing the court is satisfied that not complying with the rule would not diminish the quality of the witness's evidence (s21(4)(ba). In addition, the rule will not apply if for any reason the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (s 21(4)(c)). Paul may also be given the assistance of any other special measures (eg, the removal of wigs and gowns) depending on which measure(s) the judge determines will maximise the quality of his evidence.
Mandy, 32, who witnessed a local gang commit a robbery at a filling station. She is fearful that she may be subject to retaliation if she gives evidence for the prosecution.
Mandy may be eligible for special measures under section 17, since the quality of her evidence is likely to be diminished by reason of fear and distress in connection with giving evidence (the factors set out in subsection 2 tend to weigh in her favour). She may therefore be offered special measures under sections 23– 28. Under section 19 the judge at the hearing to determine what special measures may be ordered will consider, inter alia, what special measures (or combination of such measures) would maximise the quality of her evidence. The judge must also take into account any opinion Mandy herself advances. In this case the special measures might include screens, which might be sufficient, to evidence-in-chief by video and cross-examination by live link. It may also be apt for evidence to be given in private.
Beyond the 1999 Act, other measures may assist. In particular, the court may decide to receive a previous statement in evidence under section 116(2)(e) of the Criminal Justice Act 2003. However, the courts will generally prefer that the witness attends court and relies on one or more of the special measures contained in the Youth Justice and Criminal Evidence Act. In exceptional circumstances, Mandy may be able to testify anonymously if the three relatively stringent conditions of the Coroners and Justice Act 2009, s 88 are met (we would need many more details about the case to be certain).
‘The courts should only resort to anonymity orders for fearful witnesses in the most exceptional of cases. If a lesser measure would suffice, then that measure should be implemented.’
Does the above quotation reflect the rules relating to witness anonymity in English law?
This question involves a very close exploration of recent changes to the law regarding witness anonymity. Particular issues you should explore include:
- Why should anonymity be a measure of last resort? Is it a case of ‘blind shots at a hidden target’? Is it fundamentally unfair to the accused? If so, why? Are there broader issues concerning the legitimacy / transparency of the justice process?
- How have the courts traditionally approached the issue of witness anonymity? Note that anonymity orders are extremely rare in criminal trials and case law does tend to suggest that they are generally used as measures of last resort. Key case law includes DJX, Ex parte Lenman, Taylor and Davis.
- How did the reforms contained in the Coroners and Justice Act 2009 change the law? Describe each of the three conditions. Are they an adequate reflection of the ECHR case law? In any event, are the safeguards contained in the legislation adequate?
- Perhaps there is a key balancing exercise that needs to be carried out here, given how widespread witness intimidation can be in cases involving serious violence? How far should the right to a fair trial trump other rights? Perhaps there are circumstances where it needs to be balanced alongside the duty of the state to protect the right to life of its citizens under Article 2 of the Convention?
- As always, provide a logical and reasoned conclusion based on your discussion.
‘While the government may well have had honourable intentions in introducing a wide range of special measures for vulnerable witnesses, ultimately such measures are unlikely to change the experience of testifying for many. Not only is the legislative framework which created the special measures unduly complex, but also the entire culture of the adversarial form of trial means that special measures can never provide an effective means of protecting vulnerable witnesses.’
Evaluate the issues raised in the above quotation.
This quotation is rather lengthy. As such, you should think carefully about the various issues that might arise within it. Make sure you deal with them all – avoid the temptation to leave part of the quotation unaddressed!
A good answer to this question might involve:
- A discussion of the background to the 1999 reforms: were the government intentions ‘honorable’? Did the government really wish to improve the experiences of victims and witnesses or was it primarily a case of responding to popular punitivism?
- What are the measures contained in the Act?
- The crucial question is how these are operating in practice. Draw on empirical data and academic commentary to support your views.
- Is the legislation itself too complex? How so? Perhaps the 2009 reforms have gone some way (all the way?) to alleviate this complexity?
- What is meant by the ‘culture of the adversarial form of trial? Why do some commentators suggest that special measures have little or no impact (see especially arguments advanced by Louise Ellison)?
- Do you agree or disagree with this critique? Perhaps it is possible to modify / reduce the excesses of the adversarial trial? Be as specific as you can.
- Wrap up your essay with a logical and reasoned conclusion based on your discussion.
Should special measures apply equally to all vulnerable witnesses, irrespective of whether they testify as part of criminal or civil proceedings?
In contrast to the comparatively rapid development of protections that have been developed within the criminal justice system, only recently has attention turned to protections for vulnerable witnesses in civil cases. A number of reasons may be cited for this apparent neglect. Perhaps, since the vast majority of issues are settled through negotiation before the court is required to decide liability or quantum, the need for witnesses to attend court very rarely arises. Even if it should, hearsay evidence is readily admissible in civil proceedings, thus avoiding the need for many witnesses to appear, particularly if they are ‘vulnerable’ or are otherwise indisposed. It might also be assumed that civil proceedings tend to be less adversarial in nature, with judges assuming a more managerial role. No jury is usually present, and procedures may thus take on a slightly less formal tone than their criminal counterparts. This could mean that judges would be more willing to intervene where cross-examination is perceived to be oppressive or vexatious. In contrast to the criminal courts, where any intervention carries a perceived risk of partisanship and a successful appeal in the event of a conviction, 1 judges may feel that there is less risk in taking a more proactive stance in regulating advocacy. Indeed, in certain types of civil cases, particularly family proceedings, judges often question children themselves.
For these reasons, it may seem that the problems facing vulnerable witnesses in civil cases are considerably less acute than in criminal cases. Yet civil justice, like criminal justice, depends upon witnesses being willing to give evidence; and being able to testifying clearly and as effectively as possible. Arguably, there is no sound basis for deeming that certain witnesses ought to be protected under a comprehensive statutory regime in criminal cases, but should be left in a much less certain position when testifying before the civil courts.
1See eg R v Gunning  Crim LR 592; R v Sharp  3 All ER 225.
Dan is charged with robbery. It is alleged that he snatched a handbag belonging to Martha, after knocking her to the ground. You are asked to address a number of questions in respect of the following witnesses who will testify at trial:
Martha, aged 62, is the alleged victim. She identified Dan as the assailant, and told police that he lives in her tenement block. Police are aware that there has been an ongoing feud between Martha’s family and Dan’s family for some years. In particular, Martha has made some twenty complaints to the police and the local council about noise emanating from the flat occupied by Dan, and has told the police that it was ‘time he was locked up once and for all’.
Can the Defence cross-examine Martha about this animosity and bring evidence in rebuttal if she denies it?
The finality rule stipulates that questions which are directed to the credibility of a witness rather than the issue(s) in the case, are subject to the rule that the questioner must accept the answer to the question and not go further and seek to show the answer is wrong or incomplete. If the question is seen as collateral in the sense of being directed to the issue of credibility rather than to a direct issue in the case the finality rule applies. However, it is subject to exceptions and such an exception applies to this situation where there is a history of animosity between Martha and Dan. That history suggests that Martha may be biased against Dan and such bias may affect the truth of her evidence. In such a case the finality rule does not apply and the questioner may explore the nature and extent of any bias so that the jury are made fully aware of the possibility that Martha may not be telling the truth and that her identification of Dan as the robber may not be accurate. (See Phillips, Busby and related cases.)
William lives in the same estate as the victim and the defendant. He will say that he saw the defendant, whom he knows by sight, knock Martha to the ground, snatch the handbag and run off. The defence has evidence that William has recently been diagnosed as a diabetic but is refusing to stick to the diet given him. He insists on eating foods with a high sugar content which, while not putting him into a hyperglycaemic coma, can affect his eyesight and balance.
Can the defence cross-examine William about his condition and bring medical evidence as to the effect of his condition on him and his ability to identify the accused?
The alleged failure by William, a diabetic, to stick to his diet and eat foods with a high sugar content which could result in a hyperglycaemic episode which may have effect his eyesight and balance, can be the subject of cross-examination to which the finality rule would not apply. The medical condition might affect the credibility of Smith’s evidence which is a positive identification of Didcot, known by sight to Smith. The effect of hyperglycaemia on the brain and eyesight is not generally known and the jury are entitled to be made aware of the medical condition and have the benefit of expert medical evidence of the possible effect on the witness of that condition - see Toohey v MPC. Note the difference between evidence that a witness is by reason of a physical or mental condition incapable of giving reliable evidence, and the witness who is capable of giving reliable evidence but is not doing so. Medical evidence is admissible in the former case but not in the latter.
Dan confessed to DC Lyons in the course of a police interview. However, the defence allege that he only did so because DC Lyons threatened to charge his brother with possession of heroin if he did not do so. D.C. Lyons was recently demoted after the acquittal on appeal of a man convicted of robbery, when it became apparent that the confession had been fabricated.
On the assumption that the confession is admitted, can the defence cross-examine D.C. Lyons about this acquittal and the subsequent disciplinary proceedings and demotion?
The leading case in this area is R v Edwards, where the question arose as to whether the defence could cross-examine police officers in the case in order to show that the officers had given evidence in other cases which had been dishonest and had been rejected by the jury. The Court of Appeal held that the mere fact that a police officer had given evidence in a previous case which resulted in an acquittal did not provide a basis for cross-examination on that prior evidence and the outcome of the trial. Such questions would be within the finality rule. One can imagine how a trial would be prolonged and confused if that were not the rule. Counsel might spend days going over previous cases in which the particular police officer had been involved and where the jury had acquitted in an attempt to discredit the police officer. Prosecution counsel might then counter with a review of case in which the police officer obtained convictions. Therein lies the rationale of the finality rule.
However, there will be cases in which the police officer’s conduct in previous cases and the verdict of the jury in those cases will relevant to the credibility of the officer’s evidence in the present case. The Court of Appeal in Edwards said that where evidence was (i) that the officer had given evidence of an admission or confession by the accused in a previous trial and it could be demonstrated that the jury had disbelieved that evidence, and (ii) the defence in the present case was that the police had fabricated evidence, the jury were entitled to be made aware of what had happened in the previous trial(s). That is the situation in the present case. D is alleging that DC Lyons had threatened to charge his brother if he did not confess and he did so in order to protect his brother. There is clear evidence of fabrication of a confession in the earlier case and the subsequent disciplinary tribunal and the demotion of DC Lyons. In the circumstances the jury would be entitled to know of the acquittal in the earlier case and the subsequent tribunal finding and demotion in order to assist them in determining whether the confession in the present case can be relied upon. As such the previous conduct of the police officer is more than a matter of credibility. It goes to the central issue in the case, the alleged guilt of the accused.
(This line of cases is seen as a form of bias which affects the reliability of the evidence. It is not confined to confession evidence but can apply to the obtaining of other forms of evidence - see for example R v Edwards (Maxine) where the police alleged they found cocaine in the possession of the accused and R v Haringey Justices, ex p DPP, where the police alleged that the accused had assaulted them. In both cases the conduct of the police officers on other occasions suggested that their evidence was less than credible).
Benjamin, a traffic warden, was on duty on the day of the robbery. He made a statement to the police later that day in which he said that he had chased the assailant, who fitted the description of the defendant. Benjamin says the assailant managed to outrun him, but claims he saw the man enter Flat 222 on the second floor, which is occupied by the defendant's family. The trial took place nearly ten months after the offence and the Prosecution permitted Benjamin to read his statement before going into the witness box. Despite having done so, once Ben starts to give evidence he states that he is unable to recall the details of his statement. The prosecution now apply for leave to allow Benjamin to refresh his memory from the statement made to the police. The defence object.
Assuming you are the trial judge, would you permit the witness to refresh his memory?
Section 139 of the 2003 Act allows a witness to refresh his memory at any stage in the proceedings from a document made or verified by him at an earlier time if he states in evidence that the document records his recollection of the matter at that earlier time, and his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence. The court should thus permit Benjamin to do so.
Elliott was engaged to be married to Christine for several months in 2001, during which time full intercourse regularly took place between them consensually. Christine broke off the relationship when she discovered Elliott was sleeping with another woman. In June 2006 they met again at a party given by a mutual friend. Christine told guests that she felt unwell, said she was going upstairs to lie down. She then alleges that Elliott entered the bedroom and raped her, despite her struggling and asking him to stop. In defence, Elliott states that Christine had asked him to resume their relationship earlier in the evening, and invited him to the bedroom where intercourse then took place with her consent.
Elliott pleads not guilty to rape. Can defence counsel adduce evidence of his previous relationship with Christine?
The defence in this case is consent and D wishes to adduce evidence of the prior relationship between himself and C during 2001 when consensual intercourse regularly took place between them in order to support his defence.
The issue is in this case is consent therefore subsection (3)(a) is not applicable. If the defence application is to succeed it will have to demonstrate relevance to the issue of consent within subsection (3)(b) or (c).
Given that the prior relationship took place some years ago, the application cannot be based on ss (3)(b) which is confined to behaviour which took place ‘at or about the same time as the event which is the subject matter of the charge’.
It follows that the application must be based on subsection (3)(c). However, it is questionable whether the circumstances of the prior relationship fit within ss (3)(c) which requires that:
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar,
- to any sexual behaviour of the complainant which (according to the evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused; or
- to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event; that the similarity cannot reasonably be explained as a coincidence.
If as is stated in the problem on the night in question Elliott forced himself upon Christine, and her behaviour at the time of the event is that of a woman who resisted the forced intercourse, there is no similarity between the events which were part of the alleged rape nor to any sexual behaviour of the complainant at or about the time of that event. If there is evidence of such resistance, bruising, scratches, torn clothing etc., then this serves to emphasise that there is not the slightest similarity between the prior relationship and what happened on the night in question. Even in the absence of physical evidence of resistance there is no similarity between forced intercourse and the consensual intercourse which takes place within the usual loving relationship of a couple engaged to be married.
It would follow that on a straightforward application of section 1(3)(b) and (c) the evidence of, and questions about, the prior relationship between C and D would not be admissible.
However, the exclusion of such evidence might endanger a fair trial as guaranteed by Article 6 of the ECHR. In R v A the House of Lords held that subsection 3(c) must be read subject to an implied provision that evidence or questioning which was required to ensure a fair trial under Article 6 should not be inadmissible. The result of such a reading would be that sometimes logically relevant sexual experience between a complainant and the accused might be admitted under section 41(3)(c).
Thus the trial judge in the present case would need to ascertain whether, in the circumstances described, the prior sexual relationship between Christine and Elliott is logically relevant to the issue of consent.
As discussed above, the mere fact that C and D had consensual sexual intercourse during a relationship some years ago is highly unlikely to be considered relevant to the issue of whether Christine consented on the occasion in question. If it was the case that previous consensual intercourse is always relevant to consent, a woman who agreed to sexual intercourse with a man previously, would never be able to give a valid answer of ‘no’.
Lord Steyn in A states that prior sexual history might be relevant in certain circumstances without indicating what those circumstances could be. Because subsection (3)(c) would admit such a history when there is a striking similarity between that history and what took place on the night in question, Lord Steyn must have been thinking of other circumstances, but it is difficult to see what those circumstances could be without such similarity.
It may be that the decision in A is more concerned with avoiding any conflict between the statute and the ECHR. The requirement to read the subsection subject to an implied provision that evidence or questions which was required to ensure a fair trial ensure no such conflict, but only the exclusion of evidence or questions which are highly relevant to an issue in the case are likely to produce an unfair trial. Excluding evidence of minor relevance would not have that effect. As Lord Steyn remarked:
‘The effect of the present decision was that under section 43(3)(c), construed where necessary by applying the interpretative obligation under section 3, and due regard always being paid to the importance of protecting the complainant from indignity and humiliating questions, the test of admissibility was whether the evidence, and questioning in relation to it, was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6. If that test was satisfied the evidence should not be excluded.’
Arguably the evidence and questions in this case about the prior sexual relationship between C and D is not so relevant to the issue of consent that its exclusion would endanger the fairness of the trial.
However, there is no reason why the jury should not be made aware of the prior relationship not as being relevant to the issue of consent but as necessary background to enable them to properly understand the issues in the case (see R v Sawonuik  and R v M(T) ).
Would your answer be any different if the following information came to light? It transpires that, during their relationship, the intercourse that took place did so in the circumstances of simulated rape. That is, Christine pretended to resist Elliott by screaming, protesting and struggling, and Elliott pretended to overcome her resistance using force.
In this case the similarity between the previous acts of intercourse simulating rape, and the act of intercourse subject of the present charge is such that D might well believe that despite the outward signs of lack of consent, C was in fact consenting. Her conduct at the time of the alleged rape and her conduct on the previous occasions was identical providing a reasonable basis for the belief that C was consenting. It follows that evidence of C’s sexual behaviour on the previous occasions which involved simulated rape would be admissible under section 43(3)(a). It is not an issue of consent, as section 42(1)(b) makes clear in the definition of “issue of consent”. However, the previous sexual behaviour of the complainant relates to a relevant issue in the case, D’s reasonable belief that she was consenting. As section 41(2) makes clear the court may not give leave unless it is satisfied (a) that subsection (3) applies, as it does, and (b) that refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
Refusing the application in this case might well lead the jury to an unsafe conclusion given that the evidence puts an entirely different complexion on the case. A man who believes that a woman is consenting, and who has a reasonable basis for that belief, cannot intend to have intercourse without consent. The belief when reasonably held means that the prosecution cannot prove an essential element of the offence.
Defendants facing charges involving sexual offences, particularly rape, often put forward the defence of consent and / or reasonable belief in consent. Had D in this case argued consent or reasonable belief in consent in the alternative the evidence of the previous sexual history between C and D would also be admissible under section 43(3)(c). It may be argued that the sexual behaviour of the complainant which involved simulated rape on the previous occasions and that her behaviour on the occasion in question is so similar that it cannot be cannot reasonably be explained as a coincidence. If so the application to adduce evidence of the previous behaviour is likely to be granted given that refusal of leave might have the effect of rendering unsafe a conclusion of the jury on a relevant issue in the case.
‘Section 41 has clearly failed in obtaining its legislative goal; the time has come to overhaul the provision as to ensure that previous sexual history can never be adduced against a complainant in a rape trial’.
Do you agree with the above statement?
The clear starting point to this question is consider what the legislative goal of section 41 was. Your answer should thus give plenty of contextual background to the legislation, and should highlight the problems facing rape complainants in court and the reasons for those problems (ie, the emasculation of previous legislation and the ambiguity concerning the concept of relevance). Next, you will need to show an understanding of how section 41 is working in practice. Good answers will go beyond giving a mere description of the central components of the legislation and case law, but will also consider the empirical evidence as to how the section operates. Neil Kibble’s studies and the work by Kelly et al are worth discussing.
Then you will need to return to the question of whether practice reflects the original objectives of the legislation. Arguably, it has had some effect in restricting the use of sexual history evidence, but perhaps it has not done enough. Has R v A created a new – and much broader – gateway for the admissibility of sexual history evidence? Good answers will attempt to locate where (if anywhere?) contemporary problems lie and will concrete suggestions for reform. Perhaps legislation in itself can only go so far – and real progress will only be made through a shift in judicial attitudes and cultures which might only be achieved through education, training and the passage of time?
‘The danger is that the less responsive an accused is, the more difficult it will be for the court or jury to make any inference which it can be satisfied is correct. They are left to speculate about what people in the accused’s position might be expected to do if guilty or innocent.’
Consider the issues raised in the above statement. Does authorising the drawing of inferences encourage a court or jury to be less cautious than it otherwise might be in such situations?
This question deals with the rules relating to those circumstances when an accused is reluctant to divulge information or to testify in court and whether the authorising the drawing of inferences as a result of those circumstances encourages a court or jury to be less cautious than it otherwise might be when making its decisions.
After introducing the topic as a starting point you may wish to consider the rules relating to competence and compellability of witnesses and how the accused differs from other witnesses and the implications of this for the accused.
Then move on to consider the related issue of the privilege against self-incrimination, explaining that this relates to the extent to which suspects and accused persons can be made to produce evidence against themselves.
Finally, you may also consider the effects of remaining silent in response to questioning discussing cases such as Argent, Webber, Murray v United Kingdom, Condron, Howell, Hoare and Pierce, Beckles: Betts and Hall, explaining how the changes made by the Criminal Justice and Public Order Act 1994 have altered the way that the court or jury consider a less responsive accused. Consideration must also be made to the impact of the jurisprudence of the European Court of Justice on this issue.
Throughout the essay the student should be referring to relevant case law and legislation as well as making reference to academic debate.
In your conclusion, remember to answer the actual question that has been asked: do you think that the drawing of inferences encourages a court or jury to be less cautious than it otherwise might be in such situations?
‘When the decision was taken in 1994 to introduce legislation formally enabling the tribunal of fact, if it thought fit, to draw an adverse inference from the defendant’s failure to respond to questioning, the act had to thread its way through a veritable minefield of motivational and procedural considerations. The relevant provisions are predictably complex’.
Critically discuss the issues arising in the above quotation.
This question primarily tests understanding of the responses to the enactment of the Criminal Justice an Public Order Act 1994 provisions on silence. The main cases discussed should include:
- R v Argent – vitally important, and should include the six formal conditions and then go on to probe / evaluate these conditions
- R v Gayle
- R v McGarry
- R v Nickolson
- R v Cowan and others – this is an important case which should be dealt with in a reasonable level of detail in all good answers. A better answer will discuss the concept of failing to give a Cowan direction
The ECHR has had a major impact upon the development of the domestic law. Key cases include:
- Murray v United Kingdom
- Condron v United Kingdom
Students should evaluate the case law and try to discern trends / overall directions. Certainly the courts have restricted the operation of ss34-35 more than a literal reading of the legislation would necessitate. Very good answers may discuss some of the reasons for this cautious approach (eg adverse reaction in some quarters and fact that sections are perceived by some as interfering with fair trial rights of accused).
Pauline is stopped outside a local clothes shop by Tansey, a fellow shopper, who accuses her of placing a t-shirt in her bag without paying for it. Pauline shrugs her shoulders, and walks on. Later that evening, the police arrest Pauline on suspicion of theft. At the police station, Pauline’s solicitor advises her not to answer any questions since she ‘will just end up in more trouble’. Pauline remains silent at the interview, but at trial testifies that the t-shirt was placed in her bag by her four-year-old daughter without her knowledge.
Discuss the evidential issues arising.
There are two parts of this question which raise a distinct issues relating to the rules on silence. Part (1) will deal with the advise to the prosecution of what use it may make of Tansey’s evidence at trial. This deals with the so-called ‘even terms’ rule, which states that the factfinder is entitled to use to accused’s failure to respond to an allegation put to him where both parties are on even terms. Since Tansey is on ‘even terms’ with Pauline, the prosecution will be entitled to elicit her evidence at trial and invite the jury to conclude that Pauline’s failure to respond to the allegation constitutes evidence against her.
Part (2) concerns what inferences, if any, can be drawn where a solicitor advises a client to remain silent. In R v Betts and Hall, Kay LJ stated that the key issue was whether the decision to remain silent was motivated by advice that was important, as opposed to the actual content of that advice. Thus the jury may still draw inferences providing the defendant could reasonably have been expected to mention facts at interview, notwithstanding any legal advice to the contrary. It was made clear in R v Howell that even if the jury consider that the defendant genuinely relied on the legal advice, that is not necessarily the end of the matter. It may still not have been reasonable for him to rely on the advice, or the advice may not have been the true explanation for his silence. In Pauline’s case, presuming she followed the advice of her solicitor, it will be down to the jury to determine whether the advice given to her by her solicitor was the true reason for her remaining silent under police interrogation.
Consider whether the trial judge should exclude the following confessions:
Aaron is a mature businessman, a director of a number of companies and former mayor. He was arrested on a charge of corruption at 6.30 a.m. on Monday in the presence of his wife and taken to a police station. He was refused access to a solicitor by a superintendent who stated that in reliance on section 58(8)(b) of the Police and Criminal Evidence Act 1984, he had reasonable grounds to believe that others suspected of involvement in the offence and not yet arrested would be alerted. He was interviewed three times. During the course of these interviews he made it clear that he knew his rights and refused to answer a number of questions. However, during the third interview he admitted that he had corruptly received money from a number of contractors in return for ensuring that council contracts went to them.
There is no doubt that it falls within the definition of a confession in section 82 of the PACE Act 1984, that is “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”. The person in authority being the police.
Generally a confession is hearsay but it is an exception to the rule preserved by s118 of the Criminal Justice Act 2003. As such it is admissible under section 76(1) of the 1984 Act subject to section 76(a) or (b). A trial within a trial will be held (Mustaq, Millard) to determine admissibility. The defence will try to show inadmissibility and the burden of proof will be on the prosecution to show that it was obtained properly and not in breach of s76.
In the case of Abel though there is impropriety in the refusal to allow him access to a solicitor there is no evidence of oppression under section 76(2)(a) of the PACE Act 1984 as defined in R v Fulling. That refusal, if wrongful, may lead to an unreliable confession within section 76(2)(b) of the PACE Act or, if not, exclusion under section 78 of that Act. Anything said or done" is extremely broad R v Barry (1992). Barry identified 3 steps. The first step is to identify what was said or done and this should include everything said or done. The next step is to decide whether what was said or done was likely to render a confession unreliable; all the circumstances should be taken into account. Finally, the judge should ask whether the prosecution had proved beyond reasonable doubt that the confession had not been made as a result of what was said or done.
There are two main reasons why the refusal of access to a solicitor is likely to be seen as wrongful. First, section 58(8)(b) and (c) of the PACE Act 1984, which provides for delay in specified circumstances and is relied upon by the police in this case, states that the authorising officer must have reasonable grounds for believing that allowing access to a solicitor (b) will lead to the alerting of other persons suspected of having committed the offence but not yet arrested for it. In this case A was arrested at 6.0.a.m. in the presence of his wife. It is therefore likely that she will have alerted any other suspects. Also see: Salduz v Turkey  ECHR 1542; Cadder v HM Advocate  UKSC 43 In these circumstances it would be difficult to claim that the officer has that reasonable belief. Second, and more importantly, the decision in R v Samuel makes it clear that the authorising officer must have reasonable grounds to believe that the solicitor in question will deliberately or inadvertently act to warn suspects and thus lead to interference with evidence or witnesses, or hamper the arrest of others or the recovery of property. The Court made the point that all solicitors are officers of the court and acting to warn suspects within section 58 would be to commit a serious offence. It is then rarely the case that the police can genuinely believe that a particular solicitor will act in that way. If they had a genuine belief about a particular solicitor they may refuse access to that solicitor but it would be a simple matter to offer the suspect another solicitor or the duty solicitor. The effect of the decision in Samuel is to turn the fundamental right provided by section 58(1) into a virtually unfettered right. It follows that it would have to be an exception case in which the refusal of access to a solicitor can be justified and this is not such a case.
Given that the refusal of access to a solicitor is unlawful one must then ask whether the prosecution can prove beyond reasonable doubt that the consequence of that unlawful refusal of access was to render reliable any confession made by Able? So was the confession still reliable?
Given that Able is a mature business man, a director of a number of companies and a former mayor and that during the three interviews with the police he made it clear that he knew his rights, and exercised them on occasions by refusing to answer some questions, there is nothing to suggest that his confession was unreliable (Seelig). It was made after only three interviews, which does not suggest that he was put under undue pressure and his exercise of his right not to answer some questions confirms this. In R v Alladice (1988) where access to a solicitor was also wrongly refused, section 76(2)(b) was not argued but exclusion was sought under section 78 on the basis that to admit the confession obtained in similar circumstance to those in this case, from an experienced former paratrooper who also knew his rights and exercised them, would have such an adverse effect on the fairness of the trial that it should not be admitted. The Court of Appeal held that the wrongful denial of access to a solicitor had no adverse effect. Had a solicitor been present he would doubtless have reminded A of his right to remain silent but A knew of that right and exercised it, therefore the solicitor’s presence would have made no difference and there was no unfairness in admitting the confession (see also R v Dunford (1990); R v Oliphant (1992)). The same argument would apply here though the case would be argued under section 76(2)(b) rather than section 78. The fact that a confession passes the section 76 tests suggests that, prima facie, its admission would not have an adverse effect on the fairness of the trial. Remember the burden of proof as not place to play in 78 R v Dhorajiwala (Bhavna)  2 Cr App R 21.
Ben is a heroin addict who was arrested for burglary. The police realised he was a drug addict and made no attempt to interview him until 18 hours after his arrival at the police station. Before being interviewed he was asked if he wanted to see a solicitor. He said he did not and signed the custody record to that effect. Ben made no complaint during the 18 hours of detention, and told the police he felt able to answer questions. He was subsequently interviewed by two police officers, having again refused a solicitor. During the interview he admitted involvement in a number of burglaries, which, he said, he did to get money to feed his habit. After the interview he complained that he was suffering withdrawal symptoms. A doctor then attended him, and, on finding a high pulse rate, prescribed medication. However, he expressed the opinion that Ben was otherwise fit to be detained. Ben now says the confession was false. He was suffering from withdrawal symptoms and was prepared to say anything in order to get out and obtain a ‘fix’.
Ben is addicted to heroin. No attempt was made to interview him until he had been in custody for 18 hours. He refused a solicitor and signed the custody record to that effect. During the interview he admitted a number of burglaries, which he had done to feed his habit. After the interview he complained of withdrawal symptoms and was seen by a doctor who found only a high pulse rate and sign in the eyes of a small amount of drug in the body. He was declared fit to be detained and tablets were prescribed. He made no complaint during the 18 hours of custody before being interviewed but now says that he admitted the burglary during the first interview because he had to get out and get more heroin.
Again there is no doubt that it falls within the definition of a confession in section 82 of the PACE Act 1984, that is “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”. The person in authority being the police.
Generally a confession is hearsay but it is an exception to the rule preserved by s118 of the Criminal Justice Act 2003. As such it is admissible under section 76(1) of the 1984 Act subject to section 76(a) or (b). A trial within a trial will be held (Mustaq, Millard) to determine admissibility. The defence will try to show inadmissibility and the burden of proof will be on the prosecution to show that it was obtained properly and not in breach of s76.
There is no evidence of oppression within s 76 (2) (a) but it might be argued that interviewing the suspect while withdrawing from his addiction was something said or done within section 76(2)(b) which in the circumstances was likely to render unreliable any confession made in consequence thereof. Again apply Barry.
In R v Goldenberg (1989) the Court rejected the argument that one should look at what was said and done by the defendant, similarly a heroin addict. It was held that the words, “said or done”, do not include anything said or done by the person making the confession. The words “anything said or done” are limited to something external to the person making the confession and to something which is likely to have an influence on him”.
In R v Crampton the police, who were aware that C was a heroin addict, interviewed C after they had been in custody for some 19 hours. He refused the offered solicitor and said he was all right. Exercising their own judgment they interviewed him and he made admissions. After interview he complained of withdrawal symptoms and was seen by a doctor who prescribed tablets. Some 5 hours later another doctor was called and repeated the prescription.
Both doctors and the police agreed that an addict withdrawing might be unreliable but the trial judge admitted the confession. On appeal the defence sought to distinguish Goldenberg on the basis that in that case G asked for an interview whereas in this case the police decided to interview C, albeit after he had been in custody for 19 hours. The C of A doubted whether the holding of an interview while the addict was withdrawing was “something said or done” within the section but were prepared to accept that it was for the purposes of the appeal. The Court accepted the decision by experienced officers who dealt with drug addicts that he was fit to be interviewed.* More important the doctor who saw C after the interview said he was fit to be interviewed. The position was, they said, that whether someone who is a drug addict is fit to be interviewed is a matter for the judgment of those present at the time. If a doctor had been called he would have certified C fit to be interviewed. The mere fact that someone is withdrawing and may have a motive for confessing does not mean the confession is necessarily unreliable. The Court also cited the judgment of the then LCJ in R v Rennie (1982) to the effect that few confessions are inspired solely by remorse and there are often mixed motives, including self inspired hope that a confession might lead to an earlier release. Such self-inspired hope is not within subsection (2)(b).
The Crampton case is on all fours with the present case and in the circumstances there was nothing said or done external to the accused by anyone which was likely to induce an unreliable confession. Any pressure to confess would have come from the accused himself, the likely motive being to get out of an unpleasant situation to a place where he had the freedom to feed his habit. Also again apply s78 as in question 1.
Julie is a 21-year-old medical student. During her training on a hospital ward, a young boy died after his oxygen equipment had been tampered with and a tube detached. Police arrested Julie on suspicion of murder. She was detained for a total period of 49 hours. Owing to an administrative error, the last thirteen hours were not properly authorised in accordance with PACE and the Code of Practice. Julie was interviewed in the presence of a solicitor six times, for periods of two hours over two days. On the tape recording of the interview the interviewing officer can be heard repeatedly telling Julie in an aggressive voice that she killed the boy. Despite Julie’s denial, the officer repeated the accusation some thirty times over the six interviews. Toward the end of the fifth interview a police officer showed Julie a picture of the little boy taken during the post-mortem and told her to take it to her cell and reflect on what she had done. During the final interview the interviewing officer could be heard shouting at Julie and demanding that she tell the truth. Julie then made a series of statements in which she accepted responsibility for the boy’s death. Julie’s solicitor said nothing during the interviews.
The facts suggest that the confession was obtained by the oppression of Julie. There is the unlawful detention of Julie for 13 hours which qualifies as “impropriety on the part of the interrogator” but given that R v Fulling suggests that the oppression must be “actively applied in an improper manner” by itself it is unlikely to be seen as oppression unless it can be shown that the police deliberately detained Julie without authority in order to apply pressure. However, when added to the manner of questioning, which can be heard on tape to be aggressive with the allegation that Julie killed the little boy repeated thirty times despite the repeated denials, there is little doubt that there is oppression as defined in Fulling. The questioning is not so obviously oppressive as that in R v Paris, Abdullahi and Miller where the were 19 interviews and some 300 accusations despite the same number of denials, and where the defendant, Miller, was a borderline mental defective with a low I.Q. and a mental age of 11. Here the defendant is a 21 year old medical student and clearly not vulnerable in the same sense as the defendant Miller but as a 21 year old medical student accused of the murder of a young boy on his ward, he would be vulnerable in the sense that he would not be familiar with police procedures and would be very concerned for his medical future. The wrongful detention, the aggressive questioning and the showing to Julie of the post-mortem photograph of the dead boy before sending him back to his cell to reflect on what he was alleged to have done, is together likely to be seen as oppression actively applied by the interrogator in order to obtain a confession. The fact that the confession came in the final interview after the post-mortem photograph had done its work and the continued aggressive demands that Julie tell the truth show that the oppression did cause the confession to be made. The presence of a solicitor should have assisted Julie and might, had the presence been effective, have countered the oppressive conduct of the police, but as in Paris, Abdullahi and Miller where the solicitor was present but ineffective, the presence of the solicitor in this case who was equally ineffective, can be discounted.
On balance, it seems that the conduct of the police here would probably be deemed to be oppressive. There also has to be a link between the oppression and the confession see Conway.
If the prosecution were, however, able to convince the judge that s 76(2)(a) did not apply, the conduct would almost certainly fall foul of section 76(2)(b). The unlawful detention, the aggressive questioning and the misuse of the post-mortem photograph, would persuade the court that the confession had been obtained “in consequence of something said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made in consequence thereof”.
Ahmed and his girlfriend were arrested on suspicion of making a fraudulent claim on their insurance in respect of an alleged burglary of their flat. Ahmed refused a solicitor and signed the custody record to that effect. During a taped interview, Ahmed asked the interviewing officer what was likely to happen to his girlfriend. The officer told him that she would be interviewed and, if found to be involved, she would be charged. Ahmed then made a confession in which he said he was totally to blame and that the girlfriend was not involved.
Would your answer to (4) above differ, if the interviewing officer told Ahmed that if he admitted the offence, his girlfriend would not be prosecuted?
In response to a question from Ahmed about the likely fate of his girlfriend, the arresting officers told him that she would be interviewed and if found to have been involved in the burglary for which they had been arrested she would be charged. To deal with pre PACE Act cases which said that proper responses to the defendant’s questions could render a confession involuntary (unreliable). In this situation, the action the officer proposes to take is proper and warranted and is therefore unlikely to be seen as “something said or done” within section 76(2)(b) which is likely to render any confession unreliable. The decision of Ahmed to confess is therefore likely to have been made for mixed motive of his own and not induced by what the police officer said. See R v Rennie (1982) cited in R v Crampton (1991).
The answer to 4 would differ if the officer told Ahmed that his girlfriend would not be prosecuted if he admitted the offence. Those words would mean the confession had been obtained “in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made in consequence thereof”. It was a clear inducement to a person concerned about what might happen to someone he cared for is likely to respond to such a statement by confessing in order to protect that other person. Such a confession may or may not be true but either way it is unreliable.
In Sang  AC 402, Lord Diplock stated that a trial judge ‘has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means’ (at 437). Is this still an accurate summary of the law?
A good point to begin this discussion is to place Lord Diplock’s quote in the context of Sang. You will thus need to show an understanding of the pre-PACE common law relating to the exclusion of improperly obtained evidence. From there, you should stress that the law has developed considered since Sang, and that the common law discretion has largely (though not entirely) been replaced by section 78.
The common law position is only partially encapsulated by the extract from Lord Diplock’s speech. The House of Lords concluded in Sang that such improperly obtained evidence may be excluded by the trial judge, but only where its prejudicial effect so outweighed its probative value as to make its admission unfair to the accused. However, the potential scope of any such discretion was seen as being extremely limited, and it cannot be used merely to reprimand the police or any other investigatory authority for reprehensible conduct.
You should then move on the compare the common law position with section 78. Parliament’s enactment of section 78 of PACE was much more certain terms the nature of the judicial discretion to exclude evidence. Under this provision a court may exclude the evidence if it appears that ‘having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’.
You should then begin your survey of the case law, focusing in particular upon the grounds on which the section 78 discretion has / has not been exercised.
It is clear that, in general, Lord Diplock’s statement still holds true today. Throughout the post-PACE era, the courts have made clear that obtaining evidence by improper or unfair means is not in itself grounds for exclusion – some adverse impact on the fairness of proceedings must result (see eg Walsh, Mason, Smurthwaite and Gill, Chalkey and Jeffries, Khan).
Remember to include a logical conclusion based on your arguments.
Critically evaluate how serious violations of PACE and the Codes of Practice have to be before evidence will be ruled out under section 78.
This question is essentially asking you to reflect upon the types of breaches that will normally trigger exclusion under section 78. Your starting point should be a summary of the scope of this provision: it is a common misconception that it can be used to exclude any evidence that has been obtained unfairly. Yet this is not quite what the statute says: the judge must be of the opinion that the evidence would have such an adverse effect on the fairness of proceedings that it ought to be excluded. From there, you should begin your survey of the case law. Try to avoid merely describing the facts of different cases. As far as you can, you should analysis relating to the essay title (ie, how serious a breach should be). Key cases concerning breaches of PACE and the Codes of Practice include Mason, Walsh, Keenan and Sanghera.Key cases concerning entrapment include Smuthwaite and Gill, Christou, Latif and Shahzad, Loosely and Moon. Key cases concerning covert surveillance include Bailey and Smith, Chalkey and Jeffries, Sutherland,Khan and Allan v UK.
Attempt to analyse the extent of the threshold for section 78 to be triggered: it could legitimately be argued that ‘seriousness’ is not really an appropriate yardstick with which the effectiveness of section 78 can be measured. Perhaps ‘unfairness’, ‘bad faith’ or ‘unreliability’ might be more appropriate ways of determining thecircumstances in which the section will be triggered. However, irrespective of the criteria adopted, ultimately the exercise of the discretion is wholly dependent on the views of the trial judge. No two scenarios will ever be precisely the same, so the value of appellate decisions will tend to carry a guiding, rather than binding, effect.
Finally, remember to include a logical conclusion based on your arguments.
Police suspect that Joe and Dave are dealing in cannabis. Having kept them under close surveillance, two officers break into the flat one night after seeing the two men leaving. Without the appropriate authorisation, they install covert listening devices in the kitchen. Over the next two weeks, a number of incriminating statements are transmitted by the devices, but police fear they still do not have enough evidence to charge them.
Consequently, Jemima, an undercover officer is sent to a local pub where the two men have allegedly dealt cannabis on previous occasions. She approaches them in the car park, and asks whether they could supply her with some heroin. Joe tells her he ‘doesn’t do hard stuff’, but Jemima says that if he could get hold of a large quantity for her, she would ‘make it worth his while’ and would pay ‘through the roof’. A week later, the two men meet Jemima and supply her with the requested amount of heroin. Both men are arrested and prosecuted.
The prosecution now seek to use both the recordings transmitted by the listening devices and the heroin offered to Jemima as evidence against Joe and Dave. Advise Joe and Dave.
As regards the evidence obtained from the listening devices, there is no automatic right to have the taped conversations excluded simply on the basis that they were obtained illegally. For section 78 to be triggered, there must be some adverse effect on the fairness of proceedings. On the basis of Chalkey and Jeffries, it seems unlikely the admissibility of these taped conversations by themselves should be excluded.
What then of the actions of Jemima and the heroin itself? The two cases that merit considerable discussion here are Looseley and Moon. It was established in Looseley that proceedings in this type of case should normally be stayed for abuse of process. While each case will turn on its individual facts, the key test is whether the officer ‘did no more than present the defendant with an unexceptional opportunity to commit a crime’. In these circumstances, Jemima arguably enticed the accused to commit an offence which he would not have otherwise committed. As in Moon, there was no evidence here that the men would have ordinarily been in the course of supplying heroin – and on that basis proceedings against them should be stayed.
‘Since the mandatory warnings have now been abrogated, the English law of evidence need no longer concern itself with the issue of corroboration.’
Discuss the issues arising in the above quotation.
- Begin by proffering the legal meaning of corroboration: see Baskerville; Kilbourne.
- Outline the circumstances in which the rule was applied and where a mandatory warning had to be issued.
- Discuss the decline of the rule and its eventual abrogation in respect of children, accomplices and complainants in sexual offences (mention Beck; CJPOA 1994 and Makanjuola).
- The key question here is whether or not corroboration still ought to be regarded as a ‘live issue’. For this reason, it is important to look at the reasons behind the abolition of mandatory warnings. Consider arguments in favour and against corroboration rules.
- Arguments in favour include the fact that the rules were applied irrespective of the circumstances of the particular case and the credibility of the particular witness – including cases where it may have been obvious that there was no danger of the ‘suspect’ witness giving false evidence.
- Since many sexual offences were committed in circumstances where corroboration was difficult, if not impossible to obtain, the requirement could lead to the acquittal of the guilty.
- The full warning had become extremely complex, and this often led to successful appeals. It seemed inconsistent on the one hand to direct jurors that it was dangerous to convict on uncorroborated evidence and then on the other to direct them that they could.
- There was some evidence suggesting that where a warning was given, far from it operating as a safeguard for the accused, the jury were more likely to convict.
- A core argument in favour of corroboration is that a warning to the jury is an essential safeguard for the defendant. However, an argument in support of the abolition of corroboration is that trial judges are already under general obligations with regard to doubtful or unreliable evidence, and these obligations will remain even if the corroboration rules themselves are abolished. Defendants would therefore be adequately protected notwithstanding the abolition of the rules.
- You should then reach a logical conclusion based on your evaluation of the arguments above.
In its 1972 report, the Criminal Law Revision Committee expressed the view that mistaken identification was ‘by far the greatest cause of actual or possible wrong conviction.’
How satisfactory has the response of the courts been in terms of addressing this problem?
- This is a question concerning identification evidence, although it is an essay-style question. As such, you will be expected to display skills of critical analysis in dissecting what the quotation is actually saying and arriving at your conclusion in a clear and logical fashion.
- The quotation here is relatively concise and straightforward: the maker of the statement is clearly suggesting that the safeguards developed by the courts to protect defendant from wrongful conviction where identification evidence used are not sufficient.
- To answer this question, you will need to identify what those safeguards are; andwhether (and on what grounds) they might be considered inadequate.
- Your answer should include a discussion of the full Turnbull direction and why such a warning is considered necessary.
- You should examine the subsequent case law which informs us of the circumstances where a full warning is necessary and when a lesser warning (or no warning) may suffice. Reference may be made to Thornton, Slater, Ryan, Andrews and Curry; Keeble.
- You should also discuss more recent case law and relevant debates relating to voice identification and facial mapping.
Having described the rules, it is vital that you then attempt some form of critique in your answer. Some points you could highlight include:
- The rule in Turnbull has been significantly developed by the appellate courts since it was first laid down by the Court of Appeal.
- Arguably they have done this in a reasonably logical way, mitigating any harsh application of the rule with some measure of common sense – eg Slater, Qadir.
- Turnbull is, however, limited in its scope: it does not cover voice identification, and is only supposed to come into play in the case of ‘fleeting encounters’ (Curry; Keeble). Neither will it apply where the witness has identified a vehicle – Browning.
- Remember to wrap up your essay with a sensible conclusion based on your arguments.
Darren, Len and Martyn are charged with causing grievous bodily harm with intent. It is alleged by the prosecution that Darren, the leader of a local criminal gang, was furious that the victim, Jeff, was having an affair with his wife. As Jeff was leaving his work at a local pub late one summer’s evening, he was set upon by three men who beat him with baseball bats and an iron bars. All were wearing balaclavas at the time of the attack.
Kitty, a witness who was standing outside the pub, informs police that she saw one of the men remove his balaclava as they ran off, and she identifies one of the assailants as Len, an ex-boyfriend.
Melanie, who was also standing outside the pub, recorded the attack on her mobile phone. During the recording, one of the attackers can be heard shouting ‘that’ll teach you to mess with my missus’. PC Brown, who has arrested and interviewed Darren on a number of previous occasions, immediately identifies the voice as that of Darren. A short distance away, Peter, who was walking his dog in the vicinity, bumped into a man whom he described as being out of breath and carrying a balaclava and an iron bar. Police ask Peter to attend the station, and show him a one-way screen, through which he can see Martyn being interviewed by detectives. PC Hunt asks ‘Was this the man who ran into you?’, to which Peter responds that it was.
Discuss the admissibility of the relevant evidence
- This question concerns identification evidence, and is a common topic for examination questions. You will be aware that judges must exercise considerable caution in directing a jury in circumstances where identification evidence forms an important component of the prosecution case.
Kitty’s identification of Len: In Turnbull, it was emphasised that a warning should be given where the prosecution case rested ‘wholly or substantially’ on identification evidence.One of the key factors for the court is whether the possibility of mistake existed in the relevant circumstances (Slater). Since we are told it was twilight, and there was a light mist in the air, it may be that the risk of mistaken identification is increased. This is notwithstanding the fact that the witness may have been previously acquainted with the suspect: Ryan.Whilst the evidence is admissible, it is imperative that the judge gives a full Turnbull direction in the following terms:
- The judge must warn the jury of the special need for caution
- The judge should remind the jury that a mistaken witness can also be a convincing witness
- The jury should be asked to consider the particular circumstances of the case before them to assess the risk of mistaken identification.
- The existence or non-existence of any supporting evidence should be taken into account. Such evidence should be identified by the judge and highlighted to the jury.
- PC Brown’s identification of Darren’s voice. This is a relatively straightforward application of the rule in R v Flynn and St John, where the prosecution had sought to rely on voice identification evidence provided by two police officers. The officers had interviewed the defendants during and after their arrest on suspicion of conspiracy to commit robbery, stated that they were able to recognise their voices from a covert recording device which had been concealed within the van which they had been driving. The Court of Appeal held that this evidence should have been excluded by the trial judge for a number of reasons, including the fact that the officers' familiarity with the appellants’ voices was gained from comparatively short periods of time; nothing was known of the ability of any of the police officers to recognise voices and there was no evidence that any of them had undergone any training in auditory analysis.
- Peter’s identification of Martyn: This is somewhat irregular; the latest version of PACE Code D lays down the rules and procedures relating to police conduct in pre-trial identification procedures. Acceptable procedures include identification parades, video identification and group identification. In all situations the witness must be shown an image of the suspect together with similar images of others who resemble the suspect. Martyn is in the process of being interviewed and is the only person whom Peter has been asked to look at. There is no evidence that appropriate procedures have been followed or that Martyn has been informed of the right to have a solicitor or friend present, or that his consent was sought (see para 3.17). While exclusion of such evidence will not be automatic, the court will carefully consider the nature of the breach of Code D and the quality of the identification evidence (see Forbes). It may be the case that the trial judge allows the evidence to be admitted but issues a direction to the jury concerning the nature of the breach and its circumstances (Quinn).
Consider whether the bad character of the defendant is admissible at his trial in the following circumstances:
Mandy is charged with theft from the person. It is alleged that she stole a handbag from a woman after showing her a purse and asking if it was hers. When the woman took her handbag out from her shopping bag to check, Mandy snatched it and ran off. Mandy has two previous convictions for theft from the person using the same trick.
The previous convictions are admissible under section 101(1)(d) – they are relevant to an important matter in issue between the defendant and the prosecution. M pleads not guilty therefore the issue is whether she is guilty of the offence charged. The fact that she committed the two offences of which she was convicted in exactly the same manner as they way in which the offence charged was committed makes the two convictions relevant to the issue of his guilt. At common law they would have been admissible under the similar fact principle – the striking similarity between the way in which the offences were committed gave the evidence its probative value and that probative value outweighed any possible prejudice to the defendant in admitting the convictions. The same principle applies under the new statutory scheme. The section 101(3) discretion applies. The defendant will apply to have the evidence of the previous convictions excluded but the similarity between the manner in which the previous offences and the present offence was committed means that the trial judge is unlikely to decide that admitting the evidence would have such an adverse effect on the fairness of the trial that it ought not to be admitted; rather that the probative value of the evidence of the previous convictions outweighs the likelihood of prejudice in admitting the evidence.
The evidence of the two previous convictions would also be admissible under section 101(1)(d) and section 103(1) and (2). The offences of which he was convicted are of the same description as the offence with which he is charged. If admitted they are highly relevant in the sense that he has a disposition to commit this kind of offence and that makes it more probable that he committed the offence charged.
Gerry is charged with causing grievous bodily harm to Julian, with whom he had an altercation after allegedly being “cut up” on a slip-road. Julian, who sustained bruises and a broken shoulder, says Gerry punched him and he fell to the ground breaking his shoulder. Gerry claims that Julian, who had stopped at the roadside, fell while trying to avoid an HGV that overtook as he was climbing out of his car. Gerry has three previous convictions for assault, one of which followed a road rage incident.
The previous convictions for assault are likely to be admissible under section 101(1)(d) as showing a propensity to commit offences of the kind charged. The assaults are probably not of the same description as the grievous bodily harm charged, but are likely to be seen as of the same category. The difference between the offence charged and the offences of which he was convicted is simply the consequences of the assault. Unlike theft and armed robbery, which are committed in very different ways, the assault in these cases could be committed in exactly the same way but the consequences make the offence more serious. The convictions for assault show a violent disposition that makes it more probable that D committed the offence charged. As such they are highly relevant to the prosecution case as showing a propensity to commit offences of violence. The judge is unlikely to exclude the evidence under section 101(3) as admission of the evidence is unlikely to have an adverse effect on the fairness of the trial.
Eric is charged with causing actual bodily harm to Victor. In his evidence Eric says that he was walking in the park when a young girl complained to him that Victor had made indecent suggestions to her. Eric claims that he then challenged Victor, who responded with violence. In his evidence, Victor said that he went to the park with his children. While in the play area other children told him that Eric, who had been hanging around, had asked several of them if they wanted to come with him to feed the ducks. When Victor approached Eric to ask him about this, Eric punched him a number of times. Eric has two previous convictions for indecently assaulting young girls and is on the Sex Offenders Register.
Although the previous convictions involve an assault, they are unlikely to be seen as admissible under section 101(1)(d) and section 103(2) to (5)) as showing a propensity to commit offences of the kind charged. The two previous convictions for indecent assault are assaults but are not of the same description or the same category as the offence charged. However, the evidence of E’s two previous convictions for indecent assault on young girls and his registration as a sex offender may be admissible under section 101(1)(d) as being relevant to an important matter in issue between the defendant and the prosecution. The prosecution case is that E (who they know to be a sex offender) was hanging around a children's playground and had sought to persuade some to go with him, not to feed the ducks as he alleged, but to satisfy his perverted sexual desires. E’s case is that V was the sexual predator and he was seeking to protect the children from him. The issue is therefore whether E was the defender of the children or a sexual predator who attacked the good citizen, V, who sought to protect the children from him. The previous convictions and the fact that E is a registered sex offender strongly supports the prosecution case and makes it highly probable that E was in the playground as a sexual predator and attacked V when challenged. This head of admissibility is subject to the exercise of the discretion under section 101(3). The defendant will apply to have the evidence of his previous convictions excluded but it is arguable that he can have a perfectly fair trial even if the jury is made aware of those convictions.
Given that E has alleged that V made indecent suggestions to a young girl and he was attacked when he approached V about the allegation the previous convictions could also be admissible under section 101(1)(g) and/or section 101(1)(f).
Accusing V of making indecent suggestions to a young girl and accusing him of responding with violence, thereby justifying E’s response as being in self-defence, is clearly an attack on V’s character within the above definition. E is accusing V of an offence of assaulting him and, in stating that he had made indecent suggestions to a young girl” he is asserting that V has behaved in a way that might be viewed with disapproval by a reasonable person.
It might also be argued that in presenting himself to the jury as a man ready to defend a young girl against a sexual predator E is presenting the jury with a false and misleading impression of himself as a man of integrity and good character who is willing to risk physical assault in order to protect a young girl.
Les is charged with assault occasioning actual bodily harm on Leeroy. The arresting officer gave evidence that, on being charged, Les said, ‘Well, he’s gay, and he told me he wanted to take me into the toilets for some fun, so I thumped him’. Les has two convictions for burglary, three for taking a motor vehicle without consent and one for indecent assault on a female.
The previous convictions are clearly within the definition of “Bad Character”. The previous conviction for indecent assault is an assault but not of the same description or the same category as the offence charged. There is a distinct difference in the wording of the charge or indictment in the case of causing actual bodily harm and indecent assault is unlikely to be seen as of the same category as the violent assaults that make up the hierarchy of offences under the Offences Against the Person Act 1861. Indecent assault is dealt with in the Sexual Offences Act 2003 and the emphasis is on the indecent touching rather than the violent battery with which the 1861 Act is concerned.
However, the evidence of Les’ previous conviction for indecent assault may be admissible under section 101(1)(d) as being relevant to an important matter in issue between the defendant and the prosecution. This would depend on the exact circumstances of the case and should be discussed.
This head of admissibility is subject to the exercise of the discretion under section 101(3). The defendant will apply to have the evidence of his previous convictions excluded but it is arguable that he can have a perfectly fair trial even if the jury is made aware of those convictions. The previous convictions are potent evidence of his guilt and the fact that he is almost certain to be convicted if the jury are told of his convictions does not mean the trial would be unfair. Rather it means that the weight of evidence of his guilt is such that a conviction is almost certain. However, if the courts adopt the probative value versus the prejudicial effect approach, they may well exclude this kind of evidence.
- Mervyn is charged with indecent assault. In his evidence-in-chief he told the jury that he was a respected member of the community, he regularly attended church and he had been a verger. There is evidence that he had attended church regularly and had been a verger until December 2002. However, following an investigation by the Church authorities into allegations that he had touched choirboys inappropriately in the vestry, he had been required to resign from his position as verger and he no longer attended church.
- Two of Mervyn’s alleged victims, Marcus and Maurice, are friends with Mervyn’s 12-year-old son, Alan. The defence alleges that the two boys have known each other all their lives and concocted their stories together as revenge against Mervyn because he had banned them from seeing his son.
By giving evidence that he is a respected member of the community, that he regularly attends church and has been a churchwarden without stating that this is no longer so, Mervyn is making an express assertion that is apt to give the jury a false impression. Section 101(1)(f) allows evidence of bad character to be admitted in order to correct that false impression and section 105 defines the expression “Evidence to correct a false impression”. Mervyn is clearly responsible for making the express statement containing the false impression since he made the statement while giving evidence (Section 105(2)(a)) and he does not withdraw it. Section 105(6) provides that evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression. There is no discretion to exclude evidence to correct a false impression but section 105(6) provides a means of limiting the admissibility of such evidence to evidence which goes no further than is necessary to correct the false impression. In the context of this case the allegations of what are in fact indecent assault on the girls and boys and the investigation leading to his resignation from his position as a churchwarden may not be necessary to correct the false impression. On a charge of indecent assault unproven allegations of indecent assault on young girls and boys within the church community may be seen as likely to have an extremely adverse effect on the fairness of the trial. Though that evidence cannot be excluded under section 101(3)*, section 105(6) allows the court to limit the evidence to that which goes no further than is necessary to correct the false impression. It may be sufficient to correct the false impression by allowing evidence that while he was a churchwarden and regularly attended church events have occurred which caused him to resign that position and he no longer attends church regularly. As a result he may no longer be a respected member of the community. While this abbreviated evidence may leave the jury wondering what it was that caused the resignation and break from the church it may be fairer than telling them about unproven allegations which, in the context of this case, may be seen as akin to convictions for indecent assault on a charge of indecent assault suggesting a disposition to commit the kind of offence charged.
(* Section 78 of the PACE Act 1984 could be used to exclude the evidence of bad character but section 105(6) permits the trial judge to exclude unnecessary evidence of bad character providing a degree of flexibility which section 78 (and section 101(3)) does not provide. By limiting the bad character evidence to that which is necessary to correct the false impression the trial judge can be fair to the attacked witness and the defendant).
‘Evidence of the accused’s previous misconduct can be highly prejudicial to the case of the defence and should only be admissible in the most exceptional of circumstances. The current rules, contained in the Criminal Justice Act 2003, too readily allow for such evidence to be admitted.’
Critically evaluate the above statement.
It is important here to look at, in particular Section 100 of the Criminal Justice Act 2003 and the allowance for the defendant to apply for leave to cross-examine the complainant in relation to convictions that will show potential to act dishonestly and therefore general credibility.
If denied, the defendant can still appeal based on the potential substantive probative value in relation to the complainant’s convictions. See R v S (Andrew) (2007). Look also at the decisions in R v Hanson (2005) and R v Brewster (Neil) (2011)
As the number of reported cases on the topic makes clear, similar fact evidence has proved a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases like that before the House. But such evidence may be very important, even decisive. It is undesirable that the subject should be shrouded in mystery.’
Critically evaluate the above statement made by Lord Bingham at  in O’Brien v Chief Constable of South Wales Police  2 AC 534.
The common law similar fact principle was abolished in criminal cases by virtue of the Criminal Justice Act 2003. However, the House of Lords has recently confirmed that it should continue to apply in civil cases, such as in O’Brien. The two-stage test in O’Brien should be looked at and considered in relation to the criminal courts.
The dangers of reform should be discussed and it follows from the very nature of the common law system that any move to relax the restrictions on the admission of such prejudicial evidence might, if not made with the utmost care, lead to the erosion, or even the destruction of the presumption of innocence.
In its report 'The Conduct of Investigations into Past Cases of Abuse in Children's Homes', published on 31 October 2002, the Home Affairs Committee responded to this memorandum and to other similar submissions by recommending that the law on similar fact evidence should be reformed. Having considered the difficulties faced by the defendant in trials involving multiple allegations of sexual abuse, it recommended that the requirement for similar fact evidence to be linked by 'striking similarities', as insisted on by their lordships in Boardman (1975), should be restored in cases involving allegations of historical child abuse. In this respect, as it acknowledged in its report (at paragraph 83) the Home Affairs Committee's recommendations run directly counter to those in the Government's White Paper Justice for All (2002), which proposes lowering the threshhold for the admission of similar fact evidence still further. Not surprisingly the Government rejected the recommendations.
Albert was killed in a brutal attack as he left a London nightclub. He was stabbed and kicked by two men and died of his injuries two days later. Duncan Davies and Eric Evans are charged with his murder. Consider whether the following statements can be admitted at their trial:
Albert’s girlfriend, Mattie, who had attended the nightclub with him, told the police that just before leaving the club on the night of his death, Albert told her he had been threatened by Davies and Evans and said he was going to leave to avoid any trouble.
Albert’s statement is clearly hearsay given that the maker of the statement is dead and the purpose of admitting his statement is to prove the truth of the facts asserted (ie. that he had been threatened by Davies and Evans). As such it is inadmissible unless it falls within one of the heads of admissibility contained in Part of the Criminal Justice Act 2003. Section 116, which applies to those cases where a witness is not available - would appear to be applicable given that Albert is now dead and unavailable. Had Albert only been wounded and survived he would have been competent to give oral evidence of the threats made to him and that evidence would have been admissible therefore subsection (1)(a) is satisfied. The person who made the statement would have been identified to the court’s satisfaction and condition (2)(a) applies – the relevant person (Albert) is dead. The statement is therefore admissible.
Albert was unconscious when the ambulance arrived but revived briefly on his way to the hospital. He told Kelly, the paramedic attending him, ‘It was Davies and Evans. Make sure they don’t get away with it.’
If Kelly seeks to give evidence of Albert’s oral statement to it would clearly be hearsay given that the purpose in doing so would be to prove the truth of what he said, rather than that he said it. However, the paramedic would be allowed to give evidence of that statement because it falls squarely within section 116. The discussion above in relation to Brown’s statement to his girlfriend applies. The oral statement of Albert to Kelly would have been admissible as evidence of the matters stated if he had not died. He is dead therefore condition (2)(a) applies. The statement is then admissible under section 116 subject to the general discretion to exclude it under section 126. Alternatively, the statement would also be admissible as an alternative to the res gestae under section 118.
Stanley, the barman at the nightclub, made a statement to the police on the night of the assault in which he said that he was taking a cigarette break outside the main entrance when he saw Davies and Evans, who were frequent visitors to the club and were well known to him, leave the club and pass between them what appeared to be a knife. The barman has since emigrated from England to Australia and in response to a request from the prosecution that he should return to give evidence wrote that he had no intention of doing so.
As the question indicates Stanley has emigrated from England to Australia and in response to a request from the prosecution that he should return to give evidence he has written that he has no intention of doing so. The prosecution must now rely on section 116 of the Criminal Justice Act 2003 if they seek to admit his written statement in evidence.
Section 116 has been considered above in parts (a) and (b). There is little doubt that the barman would have been able to give oral evidence of what he saw if he had been available and, given that he made his statement to the police, he would have been identified as the person who made the statement to the court’s satisfaction. Subsection (1)(a) and (b) would then be satisfied. The condition in subsection (2)(c) may also be satisfied – that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance. Under the previous legislation, which contained the same condition, it was held that if the prosecution relied on this or another condition, it must prove that condition beyond reasonable doubt. The defence had to prove a condition on the balance of probabilities. It is not clear why as regards conditions of admissibility there should be the different standards but the courts are likely to require the same standards of proof.
Stanley is outside the United Kingdom and it is not reasonably practicable to secure his attendance. The correspondence between the prosecution and the absent witness would be sufficient to persuade the judge of these matters beyond reasonable doubt. There is no legal process requiring the witness who is outside the jurisdiction to attend and his letter stating he has no intention of doing so voluntarily makes it clear that he cannot be persuaded to attend even if it was reasonably practicable to do so given the cost involved in bringing a witness half way around the world.
If condition (2)(c) is satisfied, as it appears to be, Stanley’s statement is admissible subject to the general discretion to exclude in section 126.
There may be an overlap between sections 116 and 117 where the statement is in documentary form and was created or received by a person in the course of his trade, business etc. If, for example, in the above situation the witness made a note of them in his work record, the note of the events contained in the work record would be admissible under section 117 as a business record as well as being admissible under section 116. However, given that the statement would have been made as much for the purposes of a criminal investigation or prosecution, as much as for business purposes, section 117(4) and (5) apply requiring that one of the five conditions in section 116(2) must be satisfied. There is then no advantage to be gained in seeking to admit the statement under section 117 when the statement was made for the purposes of a criminal investigation or criminal proceedings unless one seeks to rely on the additional condition in section 117(5)(b) – the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement.
The defence have notified the prosecution that Davies and Evans had an alibi for the night of the assault. They claim to have written statements from James and Paul Murray, who both claim they were at home playing cards with Davies and Evans at the time of the attack. Police officers have tried to contact both men but were unable to find them. The defence solicitor states that a week before trial, she received a telephone call from James Murray in which he said the police were looking for him and his brother and they were too scared to give evidence. There is no evidence of any efforts by the defence to find the two witnesses.
The defence may seek to have the two statements admitted under section 116(2)(e) of the 2003 Act. Section 116(1)(a) and (b) can be satisfied, both witnesses are likely to be competent and oral evidence by them of the matters in the statement would have been admissible had they attended court. It is also likely that they would have been identified to the court’s satisfaction. However, proof that through fear the two alibi witnesses do not give oral evidence may be lacking in these circumstances. A telephone call in which one says the police are looking for them and they are too scared to give evidence, is unlikely to be seen as sufficient evidence of fear. Assuming the defence has disclosed the alibi defence, as they are required to do by the disclosure rules, the police have a duty to interview the alibi witnesses and see if the alibi stands up to investigation. The fact that the police are looking for them is therefore unsurprising and no reason (without more) to be fearful. The telephone call was also made a week before trial and if the case of R v H is followed the court will require a more contemporaneous statement of fear. The fact that neither the court, the police or the defence solicitor has been able to interview these witnesses and see if the special measures under the 1999 Act will assist them to give evidence, also suggests that the court will not be satisfied.
If, in the unlikely event that the court was satisfied the witnesses were in fear, the court will have to decide under section 116(4) whether the statements ought to be admitted in the interests of justice, having regard:
- to the contents of the statement,
- to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give evidence),
- in appropriate cases, to the fact that a direction under section 19 of the YJCE Act 1999 could be made in relation to the relevant person, and
- any other relevant circumstances.
The contents of the statement, if true, are important to the defence given that they support the defence case that the defendant was elsewhere at the time of the offence. It would therefore be in the interests of justice that the jury hears this evidence.
There would be a risk of unfairness to the defence if the statements were excluded. The defendant’s alibi would then be unsupported, though he could tell the jury that his two alibi witnesses were too scared to attend and give oral evidence. There would also be unfairness to the prosecution, a factor that was not included in the previous statutory discretions under sections 25 and 26 of the Criminal Justice Act 1988. The prosecution will have had no opportunity to investigate the alibi and, despite the statutory provisions requiring disclosure of an alibi to enable the police to investigate it before trial, the prosecution will effectively be ambushed by defence evidence that they are not able to challenge effectively. This, together with the lack of opportunity to see if special measures would assist means that the court is unlikely to admit the statements under section 116(1) and (2)(e).
The defence could fall back on condition (2)(d) – the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken. However, the difficulty is that on the facts it would be difficult to prove that any steps have been taken let alone such steps as it is reasonably practicable to take. It follows that the statements are not admissible under section 116. No other provisions apply and this does not appear to be a case in which the inclusionary discretion in section 114(1)(d) would apply.
Akram, Boris, and Chardonnay are charged with conspiracy to evade the duty on cigarettes and tobacco. Police and Customs officers raided a warehouse, and found several thousand packs of cigarettes and tobacco on which duty had not been paid. All three defendants deny involvement in the conspiracy and each denies knowing the other alleged conspirators. Consider the following pieces of evidence which the prosecution wish to adduce at their trial and indicate whether they are likely to be admissible in evidence at their trial:
A container of cigarettes and tobacco had been taken from a bonded warehouse by two men claiming to represent the exporting agency. One had driven a tractor to which the container had been attached; the other drove a white car that followed the container. Michael, a customs officer leaving the warehouse having completed his shift, saw the container leaving and, being suspicious of the direction taken, rang Chris, his supervisor, and gave him the registration number of the white vehicle that proved to be owned by Akram. The supervisor made a note of the number on a memo pad and attached it to his statement. Michael made no note of the number and cannot remember it.
If Michael sought to give evidence of what the customs officer told him it would be hearsay given that the purpose in doing so would be to prove the truth of the facts asserted, that the registration number of the white Toyota car was that of the car owned by Albert. The simplest solution would be to allow him to refresh his memory from the note made by his supervisor Clark. However, a witness may only refresh his memory from a document made by him or verified by him. In this case the supervisor made the note, but there is no evidence that he verified it. If the customs officer did not make or verify the note made by his supervisor reliance must be place on section 117.
Section 117(1) states that -
“In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if –
- oral evidence given in the proceedings would be admissible as evidence of that matter.”
In this case oral evidence by Michael would be admissible as evidence of the matters stated in the note made by the Chris. Subsection (1)(b) requires that the requirements of subsection (2) are satisfied, and subsection (1)(c) requires that the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.
“Subsection (2) is satisfied if -
- the document or the part containing the statement was created or received by a person in the course of a trade, business etc., and
- the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with.”
Both requirements are satisfied in this case. Michael clearly created the document or part containing the statement in the course of his occupation as a customs officer. The information contained in it was supplied by Michael, who had personal knowledge of the matters dealt with in it.
Subsection (4) requires that the requirements of subsection (5) must be satisfied if the statement was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation. It is clear that Michael’s purpose in reporting what he had seen to his supervisor was to start a criminal investigation leading to criminal proceedings. It follows that the conditions in subsection (5) must be satisfied. Subsection (5)(a) refers back to the conditions in section 1169(2) none of which can be satisfied given that B is available to give evidence but cannot remember the vital registration number. However, subsection (5)(b) can be satisfied.
(5) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).
Here the supplier of the information and the relevant person for the purposes of subsection (5) cannot reasonably be expected to remember a registration number seen some months ago. In R v Carrington (1994) on which this scenario is based, it was held that a document can contain a number of statements and the fact that the witness can remember some of those statement, and testify to them, did not mean that the statements he could not remember would not be admissible under section 24 of the 1988 Act, the precursor to section 117. Section 117(2)(a) takes account of that decision by requiring that “the document or the part containing the statement was created etc.,”
Section 117(6) and (7) allows the court to direct that a statement is not admissible if it is satisfied that the reliability of the statement is doubtful for any of the reasons set out in subsection (7) (a) to (d). None of these are relevant to this case. In this case and unusually, the maker of the statement, Michael is available to give oral evidence and will do so in respect of all he saw except the registration number, that will be given via the written note of his supervisor. He will then be available for cross-examination which would doubtless deal with his reliability. It follows that the note made by Chris is admissible in order to supply the registration number that Michael cannot remember.
As with all statements admitted under the provisions of the 2003 Act admissibility is subject to the general discretion contained in section 126. However, there is nothing to suggest that the section would be called into play in the above circumstances.
The owners of the warehouse had leased the premises to a private company known as Enterprize North on the basis that gas, electricity and water supplies would be arranged and paid for by Enterprize North. Following a search of Boris’s home, police found letters addressed to Enterprize North acknowledging the request for the supply of gas, electricity and water to the warehouse and bills for their supply.
Are the documents found hearsay? The answer depends on the purpose for which they are to be adduced. If the purpose was to prove the truth of the facts contained in the documents they would be hearsay. But that would not be the purpose of adducing these documents. The purpose would be to prove a link between Boris and the company known as Enterprize North and the leasing of the warehouse in which the illegal cigarettes were found. The documents clearly show that Boris is either EnterprizeNorth or that he is a controlling figure in the operation of the company that leased the warehouse. The documents would then be admissible as real evidence from which the jury can infer that Boris was involved in the conspiracy charged (Rice; Lydon).
Telephone bills were obtained from a mobile telephone company that were automatically produced by a computer. These showed regular calls made to and from mobile telephones owned by the three defendants to each other over a period of two years.
Documents produced automatically by a computer without human interference are considered to be reliable and admissible as real evidence rather than hearsay. See R v Spiby (1990), R v Wood (1983) and Castle v Cross (1984). In this case the telephone bills prove a relationship between the alleged conspirators, which they deny, and will be admissible.
Following the arrest of Chardonnay, a police officer conducting a search of her property received five telephone calls from persons asking for her and requesting further supplies of cigarettes. The prosecution wish to call the officer to give evidence of receiving the calls in order to prove the involvement of Chardonnay in the unlawful supply of cigarettes.
In R v Kearley  evidence was admitted at K’s trial for supplying prohibited drugs that the police, who had arrested K and removed him to a police station while they searched the premises, had received a number of telephone calls from persons who asked for their usual supply of drugs. The trial judge admitted the evidence from which the jury could infer K’s intent to supply drugs. The House of Lords, by a bare majority, quashed K’s conviction and held that the evidence of the telephone calls, as an implied assertion that K was a supplier of drugs, was inadmissible hearsay. The minority thought the evidence was admissible and there was much academic criticism of the decision, which prevented the jury from drawing a common sense inference, which a majority of the community would draw. One of the purposes of the reform of the rule against hearsay was to reverse that decision. The 2003 Act does this in section 115 by defining “matters stated”. Section 115(3) states:
“A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been –
- to cause another person to believe the matter, or
- to cause another person to act or a machine to operate on the basis that the matter is as stated.”
In this case the evidence of the telephone calls requesting a supply of cigarettes would not be a matter stated to which Chapter 2 of the Act applies unless it can be shown that the purpose, or one of the purposes, of the callers was to cause the police officers to believe that Chardonnay is a supplier of illegal cigarettes. Given that the callers would not know they were speaking to police officers that would not be their purpose, or one of their purposes. It follows that the evidence of the telephone calls is admissible as direct evidence from which they jury may draw the inference that Chardonnay was involved in the conspiracy to supply illegal cigarettes.
Both the civil and criminal courts of England and Wales now admit hearsay evidence too readily.’ To what extent do you agree with this comment?
A good place to start here would be to outline the historical reasons for exclusion: maker of statement may not have perceived events correctly; his/her memory may be flawed; risk of distortion / contamination / misunderstanding.
These are the rationales for the law historically excluding hearsay automatically in both civil and criminal cases. However, over time it was shown that the rule sometimes served to uphold apparent injustices (eg Sparks) and to exclude apparently reliable evidence (Myers).
As such, the courts began to look for ways to disapply the rule through so-called hearsay ‘fiddles’ given the absence of statutory intervention or the possibility for judges to exercise inclusionary discretion.
In time, the hearsay rule became substantially eroded – first in the civil courts (through the Civil Evidence Act 1995) and later in the criminal courts (Criminal Justice Act 2003). You should then proceed to offer a concise description of the circumstances where hearsay can be omitted under these regimes.
Crucial to your answer will be your analysis as to whether such evidence is now too readily admitted. As ever, consider both sides of the argument. Proponents of a more inclusionary regime contend that it allows the trier of fact to consider a much broader range of evidence, thus allowing them to better arrive at the truth of the matter. It also means that courts can obtain evidence from those who would otherwise be reluctant or unable to provide oral testimony. Those favouring a more exclusionary approach argue that hearsay is fundamentally unfair to the accused, since it hinders his or her ability to test the prosecution evidence through cross-examination. You may wish refer to recent ECtHR cases of Al-Khawja and Tahery as well as Horncastle. Hearsay evidence arguably also undermines the principle of orality, which lies at the heart of the common law criminal trial: those who provide out-of-court statements have not taken the oath, and their demeanour cannot be observed.
You should then arrive at a reasoned conclusion based on your discussion.
‘The general rule is that expert evidence of a psychologist or psychiatrist is inadmissible where the defendant is a normal person’
To what extent does the above statement accurately reflect English law?
This statement you are asked to comment on here is fairly direct, and is concerned with a relatively narrow aspect of the rules relating to opinion evidence. The law of evidence stipulates that a witness should only testify about matters which he or she has directly observed or perceived; but an exception applies in relation to experts. However, not all matters require expert opinion – if a particular issue does not require specialist knowledge, an expert should not be called and the matter should be left entirely to the jury (Turner). One area that can prove particularly tricky is evidence relating to the state of mind of a defendant. Unless the accused is suffering from a recognised medical condition which impacts upon the state of mind or is mentally subnormal (IQ below 70, expert evidence will not usually be allowed - Hegarty; Huckerby. However, this rule has not always been applied consistently – see eg Emery and Humphreys. The rule can result in some questionable decisions – see eg Masih, where the Court of Appeal stated that the defendant should not have been able to call a psychiatrist to testify that he was immature and easily led, despite an IQ of 72. Had his IQ been just two points lower, the evidence would have been admitted. Yet the rule sits uneasily alongside the decisions in Lowery and Randall, which suggest that where D1 alleges D2 was more likely to have committed the offence, he may call psychological evidence to corroborate this defence. This will apply even where the co-defendants suffer from no medical condition and are not mentally subnormal. These cases appear to constitute an exception to the rule in Turner. Overall, the statement above is largely accurate – although it overlooks the fact that the courts seems to sidestep the law on occasions; particularly where two or more defendants are running cut-throat defences.
Graeme is called to testify against Hugh, who is on trial of causing death by dangerous driving. Graeme was at the pub with Hugh on the evening in question. They had several pints of beer together, followed by some whisky. As they left the pub, Hugh appeared unstable on his feet and fell over twice. Graeme advised Hugh that he was very drunk and should not drive home, but Hugh ignored this advice and drove off. Will Graeme be able to tell the court that Hugh was unfit to drive?
This problem concerns the use of opinion evidence by non-experts. Graeme could give his opinion to the court on his fitness to drive since it concerns a state of affairs which he directly perceived (see the similar cases of Davies and Tagg). it should be underlined that Graeme will probably be expected to substantiate why he believed Hugh to be unfit to drive. He may, for example, refer to Hugh’s unstable stance, slurred speech, smelly breath, etc. There are clear policy reasons as to why this should be so. Drunkenness in charge of a vehicle or on board an aircraft poses a significant risk to public safety, but, in the absence of a formal breath analysis, the chances of a successful prosecution are slim.
Molly has recently been diagnosed with depression. She finds it difficult to concentrate and is easily agitated. She has recently been charged with the murder of her friend, Alisa, and wishes to run the defence of diminished responsibility. Will the defence be able to call an expert to testify in connection with these matters?
Since depression is a clinically recognised condition, her defence should have no problem in calling an expert to testify about the likely effects – see eg Bailey; Dix.
Molly has recently been diagnosed with depression. She finds it difficult to concentrate and is easily agitated. She has recently been charged with the murder of her friend, Alisa, and wishes to run the defence of diminished responsibility. Will the defence be able to call an expert to testify in connection with these matters?
Since depression is a clinically recognised condition, her defence should have no problem in calling an expert to testify about the likely effects – see eg Bailey; Dix .
Andrew and Zack are charged with inflicting GBH on George contrary to section 18 of the Offences Against the Person Act 1861. Andrew alleges he kept watch while Zack beat George with a cricket bat in a nearby alleyway. Zack claims he kept watch while Andrew attacked George. Andrew’s counsel wishes to call a forensic psychologist to testify that Zack was more likely than Andrew to have carried out the attack since he had an aggressive personality and was prone to violent outbursts. Will he be allowed to do this?
In Lowery, D1 was able to call a psychologist to testify that he was naïve and easily led; whereas D2 had a much more callous and impulsive personality and was not capable of relating well to others. Neither co-defendant was mentally subnormal, and nor did either one of them suffered from a recognised medical disorder. This decision was confirmed as an exception to the rule in Turner by the House of Lords in Randall. Thus, in the scenario above, Andrew should be able to call a forensic psychologist.