Criminal evidence

Fundamental Concepts And Principles

Please read this handout in conjunction with the following chapters of Keane, The Modern Law of Evidence (7th ed, 2008): 1, 2, 4. Bear in mind that the module is concerned with the law of evidence as it applies to criminal (and not civil) proceedings. NB: you do not need to take detailed notes from the textbook. This handout sets out essential knowledge; the textbook reading will further your understanding of these fundamental aspects of criminal evidence law. It is recommended that you read this handout first. When reading the textbook, you should only take the occasional note: the aim is to supplement this handout with brief notes which help you understand the fundamental concepts and principles discussed below. Don't worry if you find some of the concepts difficult: they will make more sense to you as we go through the course. In sum: please put a decent amount of effort into this introductory reading, but do not spend ages on something you don't understand. By the end of the first seminar, you should have an understanding of the fundamentals.

Handout contents:

  • The right to a fair trial

  • The nature of the law of criminal evidence

  • Types of evidence

  • Facts which may be proved

  • Relevance, admissibility and weight

  • Judicial discretion to exclude evidence

  • Burdens of proof explained

  • Which party bears a particular burden?

  • The standard of proof

The Right To A Fair Trial

The right to a fair trial is given by the Human Rights Act 1998 (HRA), which came into force on 2 October 2000. The Act makes most of the rights contained in the European Convention on Human Rights (ECHR) enforceable in domestic (UK) courts. The right to a fair trial is found in Article 6 of the ECHR, which refers to a number of specific rights within the broad term of ‘right to a fair trial'.

Note: ‘ECHR' denotes the European Convention on Human Rights; it is incorrect to use this abbreviation to refer to the European Court of Human Rights (the abbreviation for which is ECtHR). Further, the ECHR is not part of European Union law; the European Court of Human Rights is entirely separate from the European Court of Justice. To confuse these bodies of law, and the courts which administer them, is to make a fundamental error.

Key provisions of the HRA

  1. The ‘Interpretative Obligation'

Under s 3, courts must, so far as is possible, interpret legislation in such a way as to make it compatible with the Convention rights included in the HRA. This applies to all legislation, regardless of the date of enactment.

  1. Strasbourg Jurisprudence

Under s 2 HRA, UK courts when determining a human rights issue, must take into account any relevant decision of the European Court of Human Rights (which is based in Strasbourg). This obligation applies regardless of when the Strasbourg case was decided.

NB: Strasbourg jurisprudence is not binding on UK courts, but it will be strongly persuasive.

  1. Duty To Observe Convention Rights

By virtue of s 6 of the HRA, it is unlawful for ‘public authorities' to act in a manner inconsistent with Convention rights (unless primary legislation effectively prevents them from doing otherwise). Breaches of section 6 can occur not only where a public body does something which is inconsistent with a Convention right, but also where a body fails to act (an unlawful omission).

The definition of ‘public authorities' includes the courts, the police and the Crown Prosecution Service. So judges must respect the Convention rights; specifically, they must:

  • Interpret legislation in such a way as is consistent with the rights (so far as is possible)

  • Apply the common law in such a way which does not violate the rights

  • Exercise their discretion (e.g. in ruling on the admissibility of particular evidence) in such a way as is consistent with the Convention rights.

In sum, judges must not adopt any procedure or make any decision or order which unlawfully restricts a Convention right. The HRA is, then, highly significant for the law of criminal evidence.

  1. Reliance On The HRA

If a prosecution raises human rights issues, the defendant can raise the HRA at trial (s 7(1)).

There is a right of appeal against any judicial order which, it is claimed, violates a Convention right (ss 7, 9).

Note, however, that the House of Lords in R v Lambert [2001] 3 All ER 577 ruled that defendants convicted before the HRA came into force (2 October 2000) could not rely at appeal on alleged breaches of Convention rights at trial. The House of Lords in R v Kansal [2002] 1 All ER 257 criticised this aspect of Lambert but nevertheless did not overturn the ruling.

  1. Remedies

According to s 4 of the HRA, the High Court, Court of Appeal, and the House of Lords can declare primary legislation to be incompatible with the HRA if they are unable to interpret it in such a way as to be consistent with the Convention rights. However, a declaration of incompatibility has no legal effect, and the offending legislation will continue to be enforced (which means that a defendant can be convicted under legislation which violates her rights).

S 8 HRA gives courts a wide power to award remedies for breaches of the Act – for example, damages, injunctions, and – in relation to the High Court and above - judicial review remedies. However, the most useful ‘remedy' for defendants will generally be the exclusion of evidence where it was obtained unlawfully, or where its use at trial would breach Convention rights.

  1. Article 6 ECHR

  1. Introduction

Article 6 is the most litigated Convention right at Strasbourg (over half the cases heard since the establishment of the ECrtHR in 1959 have involved Art 6 issues). It is regarded by the Court as one of the most important rights in the ECHR.

Art 6 is a procedural, rather than a substantive, right. So the ECtHR looks at the procedure and conduct of a trial and considers whether the trial, taken as a whole, was fair. The right is not fairness in every aspect of a decision-making process, but that the process was overall fair. If defects in the initial hearing can be remedied on appeal, this might satisfy Article 6 (in, for example, R v Craven [2001] Cr App R 12, the Court of Appeal examined evidence which the prosecution failed to disclose at trial).

The Court rarely holds that domestic law in itself violates the Convention: rather, it looks at how the law was applied in the applicant's case. For example, the Court reached different conclusions in two cases brought by applicants whose silence during police questioning had been used against them at their criminal trials: in Murray (John) v UK (1996) 22 EHRR 29, it gave judgment for the UK but in Condron v UK [2001] 31 EHRR 1 it found a violation of Art 6. Because the Court is concerned with the procedure of the trial, the strength of the prosecution case is generally irrelevant (though it was a factor in the Murray judgment).

  1. When Does Art 6 Apply?

Art 6 covers the pre-trial stage: it starts to apply when the suspect is affected by the criminal investigation (e.g. upon arrest or being informed that a charge will be made). It also applies to the trial, up to the point of conviction.

Art 6 also applies to appeal hearings against conviction or sentence. Note: Art 6 does not give a right to an appeal (this is given by Article 2 to Protocol 7, which has not yet been ratified by UK). However, remember that s 9 HRA gives a right to appeal against any judicial act which allegedly breaches the duty to act compatibly with Convention rights.

  1. What Rights Does Art 6 Give?

Article 6 provides:

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

  3. Everyone charged with a criminal offence has the following minimum rights:

    1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    2. to have adequate time and facilities for the preparation of his defence;

    3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

A Fair Hearing

This is an open-ended right: the ECtHR can – and has – ‘read into' Art 6(1) specific essentials of a fair trial which are not explicitly mentioned in the text of the Art. (An example of this is the ‘equality of arms' principle': there must be fairness in the respective opportunities afforded to each party. However, ‘fairness' is a question of degree here - in a criminal trial the state has far more resources at its disposal than does a defendant. Art 6 would require some counterbalancing safeguards for the defence, but does not require the state to ‘level the playing field' in terms of resources).

Independent & Impartial Tribunal

‘Independent' means free of the executive and of the parties to any case. Art 6 requires not only actual independence, but also that the tribunal is seen to be impartial (i.e. free from bias or prejudice). Strong judicial comment adverse to the defendant might, depending on the circumstances, fall foul of the requirement of impartiality.

The distinction between actual and perceived impartiality is a meaningful one, as is illustrated by Sander v UK (2001) 31 EHRR 44, [2000] Crim LR 767. During a criminal trial, suspicion arose that one or more of the jurors trying an Asian defendant held racist views. The trial judge admonished the jury to reflect on their oath, and to try the case on the evidence and without racial bias. One of the jurors admitted to making comments which could have been construed as racist, but avowed, as did all the jurors, his commitment to trying the case without prejudice. The ECtHR concluded that it had not been established that the juror(s) were actually racially prejudiced (partly because of the inability, as a matter of law, to enquire into matters which take place in the jury room). So it could not be said that the jury was subjectively biased. However, the Court concluded that the events provided grounds for any objective observer to have legitimate doubts about the impartiality of the jury, that the judge's response had been inadequate, and (by a majority of 4:3) that there had been a violation of Article 6.

Presumption Of Innocence

This is a fundamental principle of criminal justice, which has implications for a number of areas of criminal evidence law, such as ‘reverse' burdens of proof, (see below), the right to silence, and the use of previous convictions at trial.

Minimum Guarantees

They are just that – the minimum to which the defence is entitled. The ECtHR has read in additional rights not explicitly contained in paragraph 3 of Article 6. (E.g. the right to effective legal representation, which might require, for instance, the state to pay for a defence lawyer who is an expert in a particularly complex area).

Article 6 is profoundly important to the law of criminal evidence and to the conduct of investigations and prosecutions, so you need to be familiar with the Article and with the key provisions of the HRA.

II The Nature Of The Law Of Criminal Evidence

Evidence developed over centuries as a common law subject, with piecemeal statutory reform. The law has fairly recently undergone significant statutory reform (particularly with the Criminal Justice Act 2003), as will be examined during the module.

Civil law systems generally reflect the notion of ‘free proof': that all available evidence should be admitted. But in common law systems, such as that of the UK & the USA, a much more restrictive approach is adopted. So in England and Wales the law of criminal evidence is essentially characterised by exclusionary rules - those which prevent the reception of some types of evidence or which exclude particular evidence in certain circumstances. Under these rules, the usual starting point is that certain evidence is not to be used at trial, but the judge will then consider whether any exception to the rule applies – in which case, s/he may allow the evidence to be received. The recent statutory reform of the law of evidence in England and Wales arguably represents a move away from a restrictive approach, enlarging the scope for the admission of evidence and broadening the use to which it may be put.

III Types Of Evidence

Direct evidence: testimony from a witness who has first-hand knowledge (s/he actually saw or heard) of the events in question.

Hearsay evidence: The layperson's understanding of ‘hearsay' is that it is unsubstantiated claims made by a third party – that it is essentially ‘gossip'. But hearsay has a different meaning in the law. Hearsay evidence might consist of third party assertions, but a claim by a first-hand party can also amount to hearsay. The legal meaning of hearsay evidence is:

An out-of-court statement which asserts the truth of its contents.

For example, A tells B, “I saw D steal a car.” B cannot testify about the conversation with A if the purpose of doing so is to assert that D did in fact steal the car.

Hearsay evidence is generally inadmissible, but there are exceptions to the rule (a notable one being confession evidence). Crucial to the question whether hearsay evidence is admissible is the purpose for which it is sought to use the evidence. – Such evidence is forbidden if the purpose is to assert that the statement is true, but may be permitted if it is to be used for some other purpose. Suppose, for example, that D is charged with the murder of V. A fortnight prior to the murder, D and V had a loud argument in a pub. Witnesses heard D shout at V, “I'll kill you for this!” Whether this statement is admissible depends on the purpose for which the prosecution seeks to use the evidence:

  • It is inadmissible hearsay evidence if it is to be used to claim that because D made the threat he did in fact carry it out. (The prosecution would here be attempting to use the statement to establish its own truth: D said he would kill V, therefore he did kill him).

  • But the evidence will be admissible if the purpose is, for example, to show D's state of mind (i.e. his hostile feelings towards V). If used for this latter purpose, the statement would be supporting the argument that D wanted to kill V. In effect, the statement would be used to show that D had the mens rea of murder.

The above example shows that the hearsay rule can produce subtle distinctions which might not exert much influence in reality. The prosecution is not allowed to use the statement to argue that D killed V (but of course can use other evidence to make this argument), but is permitted to use the statement to show that D wanted to kill V! The jury is unlikely to make this distinction.

The rules relating to hearsay evidence have been significantly reformed by the Criminal Justice Act 2003. The relevant provisions entered into force on 4 April 2005. The Act has liberalised the rules relating to hearsay, making much more evidence admissible. A novel and notable provision is s114(1)(d) CJA 2003, which permits the admission of hearsay evidence in the interests of justice. When determining whether otherwise inadmissible hearsay evidence should be admitted under this provision, the trial judge must have regard to several factors listed in s 114(2), such as the reliability and importance of the proposed evidence. This is not an exhaustive list, so the judge will be free to take account of additional factors.

Hearsay is not considered as a topic in its own right in the module, but we will be considering some of the relevant provisions of the Criminal Justice Act 2003 at places in the syllabus. This will be clearly indicated in lectures.

Documentary evidence: this is defined very widely to include not only typed or written documents, but also visual representations such as digital images or photographs. Such evidence can be used simply to show that the specific document exists, or (by way of exception to the hearsay rule) as evidence of the truth of its contents.

Real evidence: objects that the court can look at (the much-loved, ‘Exhibit A'!).

Circumstantial evidence: evidence of a relevant fact. For example, D is seen running away from the scene of the crime – this is circumstantial evidence that she was present and in that sense had the opportunity to commit the crime.

Circumstantial evidence is often referred to in a dismissive way (e.g. ‘the case against him is purely circumstantial'), but this might be unwarranted. - A number of pieces of circumstantial evidence can combine to create a compelling case. Circumstantial evidence is sometimes likened to pieces of string which form a rope: one piece of string is weak, but several pieces bound together can form a strong rope. Circumstantial evidence should be treated with care, but it should not invariably be dismissed as weak and unreliable. Examples of circumstantial evidence:

  • Motive (e.g. evidence that the defendant had hostile feelings towards the victim)

  • Plans (e.g. purchase of a weapon)

  • Opportunity (e.g. presence at or near the scene of the crime)

  • Identity (e.g. the defendant in R v Voisin [1918] 1 KB 531, when questioned upon arrest, spelled ‘bloody Belgian' as ‘Bladie Belgium'. This was the same spelling as was used in a note attached to the body of the murder victim, so it was circumstantial evidence that the defendant was the killer).

  • Refusal to provide evidence (e.g. a sample of body fluid for forensic analysis)

IV Facts Which May Be Proved

  1. Facts in issue: also known as ‘material facts'. These are all the facts which each party to a case must establish in order to win. Take, for example, a murder trial, in which D claims that he acted in self-defence. For the prosecution to secure a conviction, it has to prove:

  • The actus reus

  • The mens rea

For the defence to boost its chances of an acquittal, it has to bring evidence (as opposed to proving) that:

  • there was a threat to D

  • D's use of force was necessary, or D genuinely believed that such force was necessary

  • the force used was reasonable

Note that D does not have to prove self-defence – it is for the prosecution to prove guilt, not for the defence to prove innocence. This is explained further below, in relation to burdens of proof.

  1. Relevant facts: facts relevant to facts in issue. For example, the identity of the culprit will, if disputed, be a fact in issue. Evidence that the defendant was present at the scene of the crime would be a relevant fact. Essentially, relevant facts are those which make it more - or less – likely that a fact in issue is true.

  1. Collateral facts: these affect the admissibility of evidence. For example, the fact that B was dying when he named his attacker means that his statement is admissible in exception to the hearsay rule. (This is because it can be presumed that someone who is dying will not lie, and so the evidence is more reliable). Collateral facts also affect the credibility of a witness – we'll look at this further during the module.

V. Relevance, Admissibility And Weight

NB: It is vital that you keep in mind throughout the module the difference between the concepts of relevance, admissibility and weight. Relevance and admissibility in particular are fundamental to the law of evidence, and will be encountered in every topic on the syllabus. You will be encouraged to make your own assessment of whether some types of evidence are generally (ir)relevant (e.g. when we study cross-examination, you'll be asked to think about whether, in a rape trial, it is relevant that D and V have on previous occasions had consensual sex).

Generally, judges decide questions of law, and jurors decide questions of fact.

  1. Relevance

The first test when considering whether particular evidence is admissible is to decide if it is relevant. Clearly, if the evidence is irrelevant, it will not be admissible. Whether evidence is relevant is a question of law for the judge, who will determine the issue on the basis of common sense and experience.

Essentially, something is relevant if it assists in proving or disproving an issue in the case.

There are degrees of relevance: some evidence will be cogent; the relevance of other evidence might be so remote that it will be excluded (in the interests of avoiding over-long, expensive trials).

Relevant evidence can be - and often is – excluded because it is too prejudicial to the defence (e.g. photographs of horrific injuries; previous convictions), or because it is considered unreliable (e.g. hearsay evidence).

  1. Admissibility

The trial judge must decide whether particular evidence is admissible - whether any rules of evidence operate to exclude it. Questions of admissibility are dealt with on a voir dire (‘trial within a trial'), in the absence of the jury.

Some evidence may be admissible for one purpose but inadmissible for another (as with hearsay evidence, for example). In such circumstances, the judge must give careful direction to the jurors, instructing them as to how they may use the evidence.

  1. Weight

The weight (or persuasiveness) of evidence is a question of fact for the jury. There are degrees of weight. The force of evidence may be affected by, for instance, how convincing the witnesses are, the existence of other evidence, differing expert opinion. A single piece of evidence might carry very little weight or it could be overwhelming.

VI Judicial Discretion To Exclude Evidence

The trial judge has a discretion to exclude admissible prosecution evidence (but not defence evidence). In general, the Court of Appeal is reluctant to interfere with the exercise of this discretion.

The discretion exists at common law and in statute. It was recognised in R v Christie [1914] AC 545, endorsed in Selvey v DPP [1970] AC 304, and established beyond doubt in R v Sang [1980] AC 402. In Sang, the House of Lords declared a general exclusionary discretion which arises from a judge's duty to ensure a fair trial: if the prejudcial effect of evidence outweighs its probative value, the judge should exclude the evidence. (‘Probative value' is the degree to which the evidence helps to prove or disprove something). We'll be considering this common law discretion in detail during the module.

Two sections of the Police and Criminal Evidence Act 1984 provide judges with the discretion to exclude evidence. Section 82 (3) preserves a general discretion:

Nothing in this part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.

Section 78 gives a more specific discretion, based on the notion of fairness in a criminal trial. - Where evidence is admissible, but it could be unfair to admit it, the judge can use the s 78 power to rule the evidence out:

  1. In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all 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.

  2. Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

We'll be looking at section 78 in a number of topics on the syllabus.

VII. Burdens Of Proof Explained

The rules relating to burdens of proof determine which party bears the obligation to prove particular facts in issue.

  1. The Legal Burden

This is the obligation placed on a party as a matter of substantive law to prove/disprove a fact in issue. To work out in detail what the legal burden requires, one would look to the substantive criminal law for the elements of the offence.

For example, if a jury convicts D on a charge of theft, then the prosecution has discharged the legal burden on each of the following facts in issue:

  • D (if identity is in issue)

  • dishonestly

  • appropriated

  • property

  • of another

  • with the intention of permanently depriving that person of it

Whether a party has discharged this obligation (whether it has succeeded in (dis)proving the fact in issue) is decided by the tribunal of fact (magistrates or jury). If the prosecution fails to discharge the legal burden, it will lose the case.

  1. The Evidential Burden

This is essentially an obligation to produce enough evidence. What does ‘enough' mean? The test is: has the party brought enough evidence of a particular issue for that issue to be considered by the jury?

This is not an obligation to prove one's case. If a party has discharged its evidential burden on a particular issue, this does not mean that the jury will decide in its favour. It simply means that the party has brought enough evidence for the jury to consider the matter.

If the judge decides that there is insufficient evidence on a particular issue for it to be considered by the jury, she must withdraw the issue from the jury. This test of ‘sufficiency of evidence' applies not only to individual issues, but to the prosecution case as a whole. If the judge decides that the prosecution has not produced sufficient evidence on each element of the crime (and on identification if that's in issue), she must direct an acquittal. The prosecution will have failed to show a prima facie case (a ‘case to answer').

Sometimes, the defence bears an evidential burden. Take, for example, where the defendant claims provocation on a charge of murder. He bears the burden of bringing evidence that something happened to cause a sudden and temporary loss of self-control. This is not a legal burden: the defence does not have to prove that the defendant suffered such a loss of self-control (this would amount to him defending himself against a presumption of guilt). The prosecution retains the legal burden of proving that he killed intentionally, and of disproving his claim of provocation. If the defence fails to bring sufficient evidence of provocation, the judge will withdraw this defence from the jury; if the defence succeeds in discharging the evidential burden, the judge will direct the jury on what may, in law, amount to provocation.

  1. The ‘Tactical Burden'

It can be tempting to think that the evidential burden passes back and forth between the parties - that once the defence, for example, has discharged an evidential burden, the prosecution then has an evidential burden to bring evidence to counter the defence assertion. But this is not the case - the prosecution has a ‘mere' tactical burden: it is wise to adduce evidence to counter the defence assertion, otherwise the jury might accept the defence.

Confusion can be avoided by remembering that the evidential burden is the obligation to adduce sufficient evidence for an issue to be considered by the jury: once this has been done, the evidential burden has been met and ceases to apply.

VIII. Which Party Bears A Particular Burden?

  1. The Legal Burden

The general rule is that legal burdens rest on the prosecution. This was firmly established in Woolmington v DPP [1935] AC 462: “Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt…” (Sankey LC at 481).

The defendant in Woolmington was charged with the murder of his wife. He claimed that his aim was to persuade her to resume their relationship, by threatening to kill himself with a shotgun if she did not, but that he accidentally shot her. The trial judge directed the jury that once the prosecution had proved that the defendant had shot his wife, it was for the defence to prove an absence of malice – in effect, it was for the defendant to prove that he did not have the mens rea of murder. The House of Lords held that the trial judge had made an error of law; the conviction was quashed.

There are 3 categories of exceptions to the general rule that the prosecution bears the legal burden: the defence of insanity, express statutory exceptions, and implied statutory exceptions. Where a case falls within one of these categories, the defence bears the legal burden on the particular issue(s).

Where the prosecution bears the legal burden, it must discharge it to the standard of beyond reasonable doubt. Where the defence bears a legal burden, it must discharge it on the balance of probabilities.

  1. Insanity

If insanity is pleaded as a defence, the defendant bears the legal burden of proving (on a balance of probabilities) that he was insane at the time the offence was committed.

  1. Express Statutory Exceptions

This category covers situations in which an Act of Parliament states that the defence bears a legal burden. Section 2 of the Homicide Act 1957, which governs the defence of diminished responsibility, is an example:

  1. Where a person kills…he shall not be convicted of murder if he was suffering from such an abnormality of mind…as substantially impaired his mental responsibility for his acts and omissions in doing…the killing.

  2. On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

There are many statutory crimes in relation to which a legal burden is placed on the defence. For example, under s 57 of the Terrorism Act 2000 it is a crime to possess an item in circumstances which give rise to a reasonable suspicion that it is possessed for terrorist purposes. The prosecution bears the legal burden of proving possession; the defence has the legal burden of proving that the item was not in the defendant's possession for terrorist purposes. If the defence cannot prove this, the defendant will be criminally liable. Such provisions are often referred to as ‘reverse burdens'.

Placing a legal burden on the defence might be contrary to the Human Rights Act 1998: it could violate the requirement, under Article 6 of the ECHR, that the accused is innocent until proven guilty. Whether a reverse legal burden violates the HRA will depend on the particular legal provision. A solution which has found support in the House of Lords, is to use the power given by s 3 of the HRA (see p 1 of handout) to interpret reverse burdens as imposing only an evidential, not a legal, burden on the defence. The defendant in R v Lambert [2001] 3 All ER 577 was charged, under s 5 of the Misuse of Drugs Act 1971, with possession of cocaine. He claimed that he did not know that the bag he was in possession of contained cocaine. Under s 28 of the MDA 1971, it is for the defence to prove that the accused did not know that he was in possession of drugs. On appeal against conviction, the House of Lords held that the burden imposed by s 28 was incompatible with the presumption of innocence in Article 6. Using its power under s 3 of the HRA, the House of Lords construed s 28 so as to impose an evidential, rather than legal, burden. (However, Lambert's conviction was not quashed, as the HRA does not apply retrospectively).

The leading cases on reverse burdens were heard together by the House of Lords: Sheldrake v DPP; Attorney General's Reference (No 4 of 2002) [2004] UKHL 43. The House of Lords has confirmed that:

  • a case-by-case approach is appropriate when determining whether reverse burdens violate Art 6 ECHR

  • the courts may use s 3 of the HRA 1998 to ‘read down' a reverse legal burden as an evidential burden in order to maintain compliance with Article 6 ECHR.

  1. Implied Statutory Exceptions

This category of exception to the general rule that the prosecution bears the legal burden involves statutory offences which are subject to qualifications or excuses. For example, under the Highways Act 1980 it is an offence to deposit an object on the highway which endangers users of the highway, unless D had lawful authority or excuse for doing so. The prosecution bears the burden of proving that D deposited an object on a highway and endangered others. The defence bears the burden of proving that D had lawful authority or excuse for his actions. So, the defendant will be guilty unless he can show lawful authority.

This is a complex area, because the relevant Acts of Parliament do not make it clear which side bears the legal burden in relation to the qualification or excuse. So the courts have to decide the question. The courts' approach to the issue depends on whether the trial is summary or on indictment.

Summary trials: the position is governed by the Magistrates' Courts Act 1980, s 101: where D relies on an exception, proviso, excuse, qualification, or exemption (regardless whether that exception etc is contained in the description of the offence), she bears the burden of proving that exception etc. E.g. it is an offence to drive a vehicle unless the driver has a valid licence; if charged with this crime, it is for D to prove he has a valid licence. S 101 applies to many regulatory offences – e.g. selling alcohol without a licence, possession of a firearm without a certificate.

Trials on indictment: the position is governed by R v Edwards [1975] QB 27 and R v Hunt [1987] AC 352. The rules apply where a statute imposes a general ban on certain activity but permits the activity to be carried out in specified circumstances, or by certain classes of persons (e.g. doctors), or under licence. In relation to such statutory offences, the general principle is that the defendant bears the burden of proving that he was entitled to do the normally prohibited act (e.g. that he possessed a licence). However, where this burden would be particularly difficult for the defence to discharge, the court might decide that the defence does not bear the burden. This was the case in Hunt, where the defendant was charged with unlawful possession of morphine. The defendant was required, at trial, to prove that the substance in his possession was less than 0.2% morphine (in which case, possession would not be unlawful). The House of Lords upheld the general principle, but in relation to this particular offence ruled that the defence could not be expected to bear the legal burden.

Where an Act of Parliament is silent on which party bears the legal burden, it is particularly serious for the courts to infer that the defence should bear the burden. In light of the HRA, it is likely that judges will be more cautious before coming to such a decision.

  1. The Evidential Burden

The general rule is that the party bearing a legal burden on an issue also bears the evidential burden on that issue. (Because the legal burden will obviously not be discharged if insufficient evidence is adduced). These burdens mean that the prosecution is obliged to establish a prima facie case (a case for the defence to answer).

For example, in a trial for murder, the prosecution bears the legal and evidential burdens on these issues:

  • the defendant (if identity is in issue)

  • killed the deceased (actus reus)

  • with intention to kill or cause serious bodily harm (mens rea)

If the prosecution fails to adduce sufficient evidence of identity, for instance, it will have failed to discharge the evidential burden.

Most defences impose an evidential burden on the defendant. For example, provocation: the defence must adduce evidence that the defendant suffered a sudden and temporary loss of self-control. If the defence fails to satisfy this burden, the issue will be withdrawn from the jury. But if the defence succeeds in discharging the evidential burden, then the prosecution bears a legal burden to disprove the defence.

Note that an evidential burden on the defence may be discharged on evidence adduced by the prosecution. So if there is evidence of provocation, for example, that issue must be put to the jury – even if the defence has not raised provocation in answer to the charge.

Where the defence does not mount a ‘positive defence', but simply denies the prosecution case (‘puts the prosecution to proof'), there is no evidential burden on the defence. It relation to some offences, it can be difficult to draw the distinction between a positive defence and a mere denial of the prosecution case.

IX. Standard Of Proof

The standard of ‘proof beyond reasonable doubt' originated in academic writings. The notion gradually spread from legal scholarship to be used by judges in criminal trials in the USA and in the UK. In the USA, it was commonly used from the mid 19th century, when Chief Justice Shaw gave what became a classic direction to jurors:

“It is not merely possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt…[T]he evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgement…This we take to be proof beyond a reasonable doubt.” (Commonwealth v Webster 59 Mass. (5 Cush.) 320 (1850)).

Lord Denning gave an influential explanation of what is required by ‘proof beyond reasonable doubt':

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt…If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.” (Miller v Minister of Pensions [1947] 2 All ER 372, at 373-4).

There was a further attempt at simplification, made by Ld Scarman in Ferguson v R [1979] 1 WLR 94: “It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure of the defendant's guilt.”

 

Criminal Evidence

Witnesses: Competence And Compellability

I. Introduction

Definitions – Competence and Compellability

Significance of oral witness testimony

II. Competence – The Legal Rules

(a). General Rule

  • Ex parte Fernandez (1861)

  • Youth Justice and Criminal Evidence Act 1999 (YJCEA) – section 53(1)

(b). Intellectual Competence - YJCEA 1999 sec. 53(3); sec. 54

(i). Adult witnesses – R v. Sed (2005) 1 Cr App R 4

(ii). Child witnesses – YJCEA 1999 sec 53(1)

  • R v. MacPherson (2006)

  • R v Powell (Michael) (2006)

  • DPP v R (2007)

(iii). Sworn and Unsworn Evidence - YJCEA 1999 ss. 55, 56, 57

  • R v Hayes (1977)

  • R v D (1995)

  • R v Hampshire (1995)

    • R v Sharman (1998

(c). Formal Competence:

(i). The defendant –

  • Criminal Evidence Act 1898, sec. 1

  • YJCEA 1999 sec. 53(1) & (4)

(ii). Defendant's Spouse or Civil Partner

  • Civil Partnership Act 2004 – sec. 208

  • YJCEA 1999 – sec. 53

  • PACE 1984 – sec. 80

III. Compellability

(a). The defendant:

  • Criminal Justice and Public Order Act 1994, sec. 35

(b). Defendant's Spouse or Civil Partner

  • PACE, s 80 (as amended by YJCEA & CPA)

  • Hoskyn v Metropolitan Police Commissioner [1979] AC 474

(i). For the Accused:

PACE, sec. 80(2)

(ii). For the Co-Accused:

  • PACE, sec. 80(2A)(a)

  • Article 6, European Convention on Human Rights

  • Human Rights Act 1998, sec. 3

(iii). For the Prosecution:

  • PACE, s 80(2A) & (3)

  • R v Khan (1986):

  • R v Pearce [2002] 1 Cr App R 39

  • R (on application of CPS) v Registrar General of Births, Deaths and Marriages [2003]1 All ER 540

  • R v Pitt [1982] 3 All ER 63

  • Dwyer, “Can a marriage be delayed in the public interest so as to maintain the compellability of a prosecution witness?” (2003) 7 E & P 191(Case comment on R (CPS) v Registrar General, 2003)

  • Munday, “Sham Marriages and Spousal Compellability” [2001] J.C.L. 338

  • Ellison, “Prosecuting Domestic Violence without Victim Participation” (2002) 65(6) MLR 834

Police And Criminal Evidence Act 1984

80.— Competence And Compellability Of Accused's Spouse Or Civil Partner.

(2) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.

(2A) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable—

(a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or

(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.

(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if—

(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;

(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or

(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.

(4) No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings.

(4A) References in this section to a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).

(5) In any proceedings a person who has been but is no longer married to the accused shall be compellable to give evidence as if that person and the accused had never been married.

(5A) In any proceedings a person who has been but is no longer the civil partner of the accused shall be compellable to give evidence as if that person and the accused had never been civil partners.

(6) Where in any proceedings the age of any person at any time is material for the purposes of subsection (3) above, his age at the material time shall for the purposes of that provision be deemed to be or to have been that which appears to the court to be or to have been his age at that time.

(7) In subsection (3)(b) above “sexual-offence” means an offence under the Protection of

Children Act 1978 or Part 1 of the Sexual Offences Act 2003.

80A. Rule where accused's spouse or civil partner not compellable.

The failure of the spouse or civil partner of a person charged in any proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution.

Youth Justice And Criminal Evidence Act 1999

Chapter V Competence Of Witnesses And Capacity To Be Sworn

53.— Competence Of Witnesses To Give Evidence.

(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.

(2) Subsection (1) has effect subject to subsections (3) and (4).

(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—

(a) understand questions put to him as a witness, and

(b) give answers to them which can be understood.

(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).

54.— Determining Competence Of Witnesses.

(1) Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised—

(a) by a party to the proceedings, or

(b) by the court of its own motion,

shall be determined by the court in accordance with this section.

(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.

(3) In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give, in relation to the witness.

(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).

(5) Expert evidence may be received on the question.

(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.

55.— Determining Whether Witness To Be Sworn.

(1) Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised—

(a) by a party to the proceedings, or

(b) by the court of its own motion, shall be determined by the court in accordance with this section.

(2) The witness may not be sworn for that purpose unless—

(a) he has attained the age of 14, and

(b) he has 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.

(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party).

(4) If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b).

(5) Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one).

(6) Expert evidence may be received on the question.

(7) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.

(8) For the purposes of this section a person is able to give intelligible testimony if he is able to—

(a) understand questions put to him as a witness, and

(b) give answers to them which can be understood.

56.— Reception Of Unsworn Evidence.

(1) Subsections (2) and (3) apply to a person (of any age) who—

(a) is competent to give evidence in criminal proceedings, but

(b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings.

(2) The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.

(3) A deposition of unsworn evidence given by a person to whom this subsection applies may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.

(4) A court in criminal proceedings shall accordingly receive in evidence any evidence given unsworn in pursuance of subsection (2) or (3).

(5) Where a person (“the witness”) who is competent to give evidence in criminal proceedings gives evidence in such proceedings unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of any of sections 2(1), 13(1) and 16(1) of the Criminal Appeal Act 1968 (grounds for allowing appeals) by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath).

57.- Penalty For Giving False Unsworn Evidence

(1) This section applies where a person gives unsworn evidence in criminal proceedings in pursuance of section 56(2) or (3).

(2) If such a person wilfully gives false evidence in such circumstances that, had the evidence been given on oath, he would have been guilty of perjury, he shall be guilty of an offence and liable on summary conviction to—

(a) imprisonment for a term not exceeding 6 months, or

(b) a fine not exceeding £1,000, or both.

(3) In relation to a person under the age of 14, subsection (2) shall have effect as if for the words following “on summary conviction” there were substituted “to a fine not exceeding £250”.

Spousal Compellability

Criticisms Of The General Exemption

  1. The argument could be made that it should be for the Court, not the potential Witness - i.e. the spouse - to determine whether or not the witness should testify.

  1. It is morally repugnant to place the protection of marital harmony above the public interest in the prosecution of offenders.

  1. Marriage used to be difficult to dissolve, so historically the special concern about disrupting marital harmony was appropriate. Spouses whose relationship was damaged would be condemned to live in hostility or would have to live apart and would not be able to remarry. Nowadays, however, divorce is relatively easy to obtain.

  1. The exemption preventing spouses from being compellable witnesses for the prosecution shows excessive concern for an institution – marriage – which is in decline. There are, today, increasingly fewer marriages, divorce rates are higher, and many people choose to cohabit rather than to get married.

  1. Leaving a spouse with a choice whether to testify, rather than compelling him or her to do so, could make the witness more vulnerable to intimidation from his or her spouse, who may try to pressure her into not testifying, and who would probably be more incensed if he or she does choose to testify.

  1. The concern that a spouse who is compelled to testify might lie cannot justify the exemption from compellability. It is not only spouses who might be reluctant to testify. Parents, brothers, sisters and others concerned about the welfare of the defendant may also wish not to testify. So why should spouses alone be exempt?

  1. Also, it is not only relationship ties which might induce someone to lie on oath: there are many reasons why a Witness might give false testimony, such as for example, intimidation, bribery, or hostility to the legal system, an intention to ‘frame' someone or simply a desire to keep something secret.

The law does not take a similarly defeatist stance where there are these risks of untruthful testimony. Further to this, there are strategies to deal with reluctant or untruthful Witnesses, such as for instance the rules that allow the Witness to be treated as an unfavourable or a hostile Witness.

  1. Finally, the question may be asked - Might not marital harmony be disrupted by a police investigation into a spouse's suspected involvement in a crime? The logical extension of the rationale for exempting spouses from compellability is that they should also be exempt from police investigation!

Criminal Evidence

Examination-In-Chief

Durston, “Previous (In)consistent Statements After the Criminal Justice Act 2003” [2005] Crim LR 206

I. Introduction

II. Leading Questions

III. Previous Consistent Statements

Birch, “Criminal Justice Act 2003: (4) Hearsay - Same Old Story, Same Old Song” [2004] Crim LR 556

  1. General Rule

R v Ali [2004] 1 Cr App R 39

R v Roberts [1942] 1 All ER 187

  1. Exceptions

  1. Rebuttal of allegations of recent fabrication

R v Oyesiku (1971) 56 Cr App R 240

R v Tyndale [1999] Crim LR 320

Criminal Justice Act 2003, s 120(2)

  1. Statements made on accusation

Criminal Justice Act 2003, s 118

R v Storey (1968) 52 Cr App R 334

R v Pearce (1979) 69 Cr App R 365

R v Tooke (1989) 90 Cr App R 417

R v Duncan (1981) 73 Cr App R 359

  1. Complaints in sexual offence cases

R v Lillyman [1896] 2 QB 167

R v Islam [1998] Crim LR 575

R v SB (2003), unreported, 2 October 2003, CA

R v S [2004] 3 All ER 689

R v Camelleri [1922] 2 KB 122

R v Valentine (1996) 2 Cr App R 213

R v Birks [2003] 2 Cr App R 7; [2003] Crim LR 401

R v K (Corroboration) [1999] Crim LR 980

R v Osborne [1905] 1 KB 551

R v Wallwork (1958) 42 Cr App R 153

White v R [1999] 1 AC 210

Criminal Justice Act 2003, s 120

R v Openshaw [2006] 2 Cr App R 27

III. Unfavourable And Hostile Witnesses

  • Pattenden, “The Hostile Witness” (1992) 56 J Crim L 414

  • Newark, “The Hostile Witness and the Adversary System” [1986] Crim LR 441

  • Munday, “Calling a Hostile Witness” [1989] Crim LR 866

  • Munday, “Hostile Witnesses and the Admission of Statements under Section 23 of the Criminal Justice Act 1988” [1991] Crim LR 349

Greenough v Eccles (1859) 5 CBNS 786

R v Honeyghon & Sayles [1999] Crim LR 221

R v Khan [2003] Crim LR 428

Criminal Procedure Act 1865, s 3

R v Thompson (1976) 64 Cr App R 96

R v Darby [1989] Crim LR 817

R v Golder [1960] 1 WLR 1169

R v Thomas [1985] Crim LR 445

R v Maw [1994] Crim LR 841

R v Greene [2009] WLR (D) 285

Criminal Evidence

Cross-Examination In Sexual Offences Cases

Introduction - Preliminary Issues

1). What Is Cross-Examination?

(a). As you will remember from the previous series of lectures, Examination-in-Chief is designed to lead a party's own witnesses through their testimony in a facilitative manner, eliciting from them, an account which is favourable to the party calling them.

  • Examination-in-Chief is generally witness-friendly.

(b). Cross-Examination on the other hand, is the questioning of a witness, immediately after his or her Examination-in-Chief, by the opposing party or any other party in the proceedings, in order to complete and correct the story told by the witness during their Evidence-in-Chief.

  • Cross-Examination can be vigorous, and is not always witness-friendly.

2). Who is liable to be Cross-Examined?

The General Rule is that all witnesses are liable to be Cross-Examined, except those witnesses who fall into one of the following three categories:

  1. Witnesses who are called for the sole purpose of producing or verifying documents;

  2. Witnesses who are not Examined-in-Chief because they have been called by mistake;

  3. Witnesses who have been called by the Judge, and who therefore cannot be cross-examined without the leave of the Judge.

You Need to Note, however, that, as indicated in the case of:

  • R v Mahmood (2005):

The trial judge has a discretion to refuse cross-examination if, in his view, there is no relevant matter upon which the Witness can contribute.

3). Which Of The Parties To The Proceedings May Cross-Examine The Witness?

a). It was established in the 19th Century case of Allen v Allen (1894) that any witness who is not covered by the exemptions noted above is liable to be cross-examined, not only by the opponent of the party calling him, but also by all the other parties.

(b). This means in general that a witness may be cross-examined by the following:

  • The opposing party in person (subject to restrictions in Sexual Offences trials);

  • The legal representative of the opposing party;

  • Any other party to the proceedings in person ;

  • The legal representative of any other party to the proceedings.

(c). Normally cross-examination is undertaken by legal counsel where the defendant is represented.

d). However, in exceptional circumstances cross-examination can be taken over by the Judge. An example of this happening was the case of R v. Cameron (2001) where the Judge took over cross-examination after the 14 year old victim in a rape trial refused to answer any further questions from the defence counsel.

e). Generally, though, Judges should exercise their right to ask questions sparingly and courteously to elicit information and to clear up ambiguities. A judge who intervenes too often runs the risk of descending into the arena and thereby being perceived as partisan – appearing to favour one party over the other.

4). What Is The Purpose Of Cross-Examination?

There are at least three points to Cross Examination.

a). The first is to weaken the opponent's case. This may be done in the following ways:

  • Testing and challenging the unfavourable testimony that the witness has given in his Evidence-in-Chief;

  • Getting the witness to modify their Evidence-in-Chief;

  • Getting the witness to admit that their Evidence-in-Chief was either a lie or a mistake.

b). The second point is to weaken the credibility or standing of the opposing party's witness in the eyes of the jury by asking questions which show that the witness is not worthy of belief.

c). The third is to elicit from the witness any Evidence or Facts:

  • that are missing from the Evidence-in-Chief and;

  • that are favourable to the case for the cross-examining party.

5). What Is The Rationale And Justification Of Cross-Examination?

a). Traditionally, the Common Law has regarded Cross-Examination as an effective tool in eliciting the truth and exposing falsehoods through the following methods:

  • Asking questions about inconsistencies in the witnesses' testimony;

  • Exposing any lack of corroborating detail to the witnesses' claims;

  • Prompting a nervous response or “guilty” demeanour from a dishonest witness.

b). The Notion of Fairness:

  • This is the general philosophical and political idea that an accused person should have the right to confront his accusers and the evidence against him.

c). This idea is also articulated and protected in the Right to a Fair Trial which is guaranteed by Article 6 of the European Convention on Human Rights.

Article 6 (3)(d) provides that:

  • “Everyone charged with a criminal offence (has the right) to examine and have examined witnesses against him…”

The specific wording of this Article does not appear, on the face of it, to admit to any exceptions. However, as we shall see in the course of the lectures on this topic, there are exceptions to this right.

For these and other reasons, Cross-Examination has historically been regarded by some as the foundation of a fair trial. For example, John Henry Wigmore, a 19th Century Evidence scholar, described Cross-Examination as:

  • “the greatest legal engine ever invented for the discovery of truth”.

Jeremy Bentham, the 19th Century English legal philosopher regarded cross-examination as:

  • “a grand security against mendacious testimony”.

6). General Criticisms Of Cross-Examination

There have also been quite a few criticisms of Cross-Examination as an element of the adversarial trial in Common Law systems. These include the following:

a). Compared to other methods of eliciting testimony in court, it does appear that cross-examination produces a fairly large number of errors;

b). Distortion is also produced by putting leading questions to a witness concerning matters which are really peripheral to the facts in issue;

c). Perhaps most importantly for our purposes, as we shall be looking at the use of Cross-Examination in Sexual Offences Trials, Cross-Examination is designed to put the witness in a state of stress and inevitably, distress.

        Criminal Evidence

Cross-Examination In Sexual Offence Cases

General References

  • Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims – Justice for Victims of Rape, Consultation Paper, Spring 2006

  • Kelly, Lovett & Regan, A Gap or a Chasm? Attrition in Reported Rape Cases, Home Office Research Study 293 (2005)

  • Myhill & Allen, Rape and sexual assault of women: the extent and nature of the problem. Findings from the British Crime Survey. Home Office Research Study 237 (2002).

  • Ellison, Promoting Effective Case-building in Rape Cases: A Comparative Perspective” [2007] Crim LR 691

  • Temkin, “Prosecuting and Defending Rape: Perspectives from the Bar” (2000) 27 JLS 219

  • McEwan, “'I Thought She Consented': Defeat of the Rape Shield or the Defence That Shall Not Run?” [2006] Crim LR 969

  • McEwan, “Proving Consent in Sexual Cases: Legislative Change and Cultural Evolution” (2005) 9(1) E & P 1

  • Finch & Munro, “Juror Stereotypes and Blame Attrition in Rape Cases Involving Intoxicants: the Findings of a Pilot Study” (2005) 45(1) Brit J Criminol 25

  • Wilson & Fowles, “Attrition in Reported Rape Cases” 2005 44(3) Howard Journal of Criminal Justice 326

  • Rumney, “False Allegations of Rape” (2006) 65(1) CLJ 128

  • Graham, “Male Rape and the Careful Construction of the Male Victim” (2006) 15(2) Social and Legal Studies 187

  • Rumney, “Male Rape in the Courtroom: Issues and Concerns” [2001] Crim LR 205

Youth Justice and Criminal Evidence Act 1999

    • Kelly, Temkin & Griffiths, Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials Home Office Online Report (2006)

    • Dennis, “Sexual History Evidence: Evaluating Section 41” [2006] Crim LR 869 [editorial]

    • Firth, “The Rape Trial and Sexual History Evidence – R v A and the (Un)worthy Complainant” (2006) NILQ 57(3) 442

    • Kibble, “Judicial Perspectives on the Operation of s 41 and the Relevance and Admissibility of Prior Sexual History Evidence: Four Scenarios: Part 1” [2005] Crim LR 190

    • Kibble, “Judicial Discretion and the Admissibility of Prior Sexual History Evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to Your Guns Means Shooting Yourself in the Foot: Part 2” [2005] Crim LR 263

    • Birch, “Rethinking Sexual History Evidence: Proposals for Fairer Trials” [2002] Crim LR 531

    • Temkin, “Sexual History Evidence – Beware the Backlash” [2003] Crim LR 217

    • Birch, “Untangling Sexual History Evidence: A Rejoinder to Professor Temkin” [2003] Crim LR 370

    • Kibble, “The Sexual History Provisions: charting a course between inflexible legislative rules and wholly untrammelled judicial discretion?” [2000] Crim LR 274

    • Redmayne, “Myths, relationships and coincidences: the new problems of sexual history” (2003) 7 E&P 75

Sexual Offences (Amendment) Act 1976

  • Ellison, “Cross-examination in Rape Trials” [1998] Crim LR 605

  • Temkin, “Sexual History Evidence – the Ravishment of Section 2” [1993] Crim LR 3

  • McColgan, “Common Law and the Relevance of Sexual History Evidence” (1996) 16 OJLS 275

I. Introduction

II. Pre-1976 Common Law

The Collateral Finality rule

III. Sexual Offences (Amendment) Act 1976

DPP v Morgan [1976] AC 182

Report of the [Heilbron] Advisory Group on the Law of Rape, cmnd 6352 (1975)

IV Youth Justice And Criminal Evidence Act 1999

  1. Introduction

Speaking up for Justice, Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, June 1998)

  1. Cross –Examination by the Defendant in Person

R v. Edwards (Ralston) (1996)

R v. Brown (Milton) (1998)

YJCEA Sec 34, 35, 38

  1. The ban on sexual history evidence

R v Soroya [2007] Crim LR 181

R v T [2002] 1 Cr App R 22

R v Martin [2004] 2 Cr App R 22

R v F [2005] 2 Cr App R 13

  1. Cross-examination on an issue other than consent

‘Gateway': s 41(3)(a)

  1. Cross-examination as to consent: complainant's behaviour around ‘the event'

‘Gateway': s 41 (3)(b)

R v A [2001] 3 All ER 1 (HL)

R v Mukadi [2004] Crim LR 373

  1. Cross-examination as to consent: similarities in complainant's behaviour

‘Gateway': s 41(3) (c)

R v Tahed [2004] EWCA Crim 1220

R v A [2001] 3 All ER 1 (HL). Note: The HL decision is also known as R v A (No 2). The CA decision is reported as R v Y [2001] Crim LR 389.

“In the present case it seems to me that the entire structure of s 41 of the 1999 Act contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial. The whole point of the section, as was made clear during the debates in Parliament, was to address the mischief which was thought to have arisen due to the width of the discretion which had previously been given to the trial judge.” (Lord Hope, at [109]).

R v Richardson [2003] EWCA Crim 2754

R v White (Andre) [2004] EWCA Crim 946

  1. Cross-examination on evidence adduced by the prosecution

‘Gateway': s 41(5)

  1. Procedure

YJCEA 1999, s 43

Criminal Procedure Rules 2005, part 36. (SI 2005/384)

Criminal Evidence

Youth Justice And Criminal Evidence Act 1999

41.— Restriction On Evidence Or Questions About Complainant's Sexual History.

(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—

(a) that subsection (3) or (5) applies, and

(b) that a 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.

(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—

(a) that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(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—

(i) to any sexual behaviour of the complainant which (according to 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

(ii) 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.

(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

(5) This subsection applies if the evidence or question—

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).

(7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—

(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but

(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.

(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.

Criminal Evidence

Cross-Examination In Sexual Offence Cases

This handout relates to lecture outline heading III Sexual Offences (Amendment) Act 1976, sub-heading 3: The jurisprudence. It gives information on case law of the 1976 Act, illustrating the effect of the Lawrence test (see lecture notes for the test). Note: C = ‘complainant'; D = defendant. Please see lecture outline for case citations.

Viola (1982)

Conviction quashed. C should have been cross-examined on the following matters which the CA deemed relevant to consent:

  • A claim that C had drunk alcohol and flirted with 2 men 1 ½ hours before D arrived at the flat, where the rape took place

  • A claim that the day after the rape, there was a naked man lying on the settee

R V SMS (1992)

C = 14, white; D = 26, Asian, physically disabled. Rape occurred in his “grubby flat.” The prosecution asked C whether the sex was painful, she said yes. The defence then applied to cross-examine her. The defence argued that the jury would infer that C had been a virgin and would then conclude that it must have been rape. – The defence claimed that the jury would think it inconceivable that a girl would consent to lose her virginity to D, given his appearance and the environment of his flat (!) CA: the trial judge was wrong to disallow the cross-examination: the jury might have taken a different view of C's evidence if it had been told that C had previous sexual experience. The CA came to this conclusion even though C had said, in her police statement, that she was a virgin. The Court stated, without much explanation, that the question of C's sexual experience went to consent. Conviction quashed.

R V Ellis (1990)

In this case, there was medical evidence consistent with violent rape.

C testified that she had had 4 baths in 24 hrs after the rape because she felt “dirty.” The defence cross-examined C, asserting that she had told a friend (G) that she had bathed after consensual sex with another man (S) because she felt dirty. C denied making such a statement and said that she had never had sex with S. S was called and he confirmed that he and C had never had sex. The defence was not allowed to call G. CA: G should have been called: whether C bathed after consensual sex went beyond her credibility – it was material to her evidence that she did not consent to sex with D. If it was true [despite C's denials!] that she bathed after consensual sex, then her testimony about the 4 baths would have had less impact on the jury. Conviction quashed because the defence had been denied the opportunity to call a witness on an issue in the case.

R V Riley (1991)

The rape took place in C's bedroom, with her child present. C testified that she would not have had consensual sex in the presence of her child. A former boyfriend had stated that he and C had had sex in her bedroom – it was not clear whether her child was present. The defence was not allowed to call him to question him on that point and was refused permission to cross-examine C on his statement. CA: whether C would have had sex in the presence of her child was relevant to the issue of consent. Conviction quashed.

R V Bogie (1992)

One night, C didn't have the keys to the flat she shared with her boyfriend and couldn't get access to the flat. D, whom she'd known for 2 months, said that she could stay the night at a building where he worked as a caretaker. When they were in the building, D told C to take her clothes off as otherwise they would get creased, and gave her a shirt to wear. They lay down on a mattress. She resisted his advances. He then raped her.

The jury believed C despite the use by the defence of the rare tactic of calling witnesses (5, in fact) to testify that C was generally untruthful and to support D's claim that C was an “easy lay.”

Conviction quashed. C should have been cross-examined on:

  • Statement from D's friend (M) that he had had sex with C and that she had told him that she was ‘working through' their circle of friends (which included D), giving them ‘marks out of 10' for their sexual performance.

  • She had allegedly had sex with another man at a party “shortly before” the alleged rape

The appellant claimed this cross-examination should have been allowed because it tended to show that C was ‘neurotic' and ‘unbalanced' and might make a false claim of rape. The CA said the matters went to consent.

CA: This was “a remarkable case because…it was hard to imagine a case where a complainant had gone further in being prepared to have sexual intercourse but at the last minute, according to her, said ‘no.' Of course, she was entitled to do that, but it might be difficult for the appellant. She was prepared to spend the night with a man in a deserted house, to take off all her clothes except her bra and to put on a scanty shirt and get into bed with a man who was wearing nothing but underpants. It perhaps was not entirely surprising that in these circumstances sexual intercourse had taken place.”

R V Brown (1988)

An unsuccessful appeal against conviction. But the case is significant because the CA ruled that women's attitudes to sex could be relevant to the issue of consent.

In this case, the CA thought the following factors might be relevant to C's attitude to sex: her failure to shout out when D dragged her away from a nightclub (but he threw stones at C's friends who tried to help her); her failure to tell the male taxi driver who collected her from the house to which D had taken her to rape her.

CA labelled C promiscuous because:

  • The police doctor said that C had signs of venereal disease

  • C described her relationship with her boyfriend as one of ‘casual sex'

  • 6 months before the rape, C had had a child by a man who was not her current boyfriend

Silence Prior To Trial

  1. The Meaning Of Silence:

Silence in the Law of Evidence refers to the choice that a person may make not to volunteer or provide information when he is either a suspect under investigation, who is being questioned or interviewed by the Police, when he is confronted with an allegation by another person on equal terms or when he is on trial in a Court of Law.

Silence May Therefore Involve, For Example:

a). An individual choice to refuse to answer all or some of the questions put to him under caution by an investigating Constable who is trying to determine whether, or by whom an offence has been committed;

b). A refusal or failure, on the advice of Legal Counsel, to answer questions or to provide information when being interviewed by the Police under caution;

c). A refusal or failure to volunteer evidence by producing or identifying or explaining objects in his possession, or marks on his person, or his presence in the vicinity of a crime scene;

d). A failure to answer or react to an accusation by another person who is on equal terms with him when confronted in circumstances where it would be reasonable to expect a reaction or a rebuttal of the accusation;

e). A failure to testify in his own defence in order to answer or counter Prosecution allegations against him whilst on trial in a Court of Law.

  1. The Relevance Of Silence

You need to understand why a Defendant's silence prior to trial may be important in the context of Criminal proceedings. In other words, what sort of inferences or conclusions may be drawn from such silence?

(a). First, the defendant's failure to answer questions or to disclose relevant information to the Police during an investigation may create the impression that he or she is guilty. His silence may be seen as evidence that he is conscious of his guilt and may therefore lead to a direct inference of such guilt.

(b). Secondly, a person's failure to deny an accusation, in a situation where one would reasonably expect him to deny the accusation if it were untrue, may lead to the conclusion that the person is accepting the accusation as true.

(c). Thirdly, where an accused person fails to disclose certain relevant facts at the first reasonable opportunity, and then seeks to rely on those facts in his defence at the trial, this may cause the Court to conclude that he fabricated these “facts” at a later stage, withholding to mention them before the trial for fear that the police might investigate and expose their falsity. This will have the cumulative effect of weakening the Accused's defence.

(d). Finally, a refusal to provide an explanation for any evidence that the Police or prosecution might have, where the defendant is the only one who can explain that evidence, may lead to the conclusion that the Defendant is unable to provide any explanation or at least is unable to provide an explanation that will stand up to scrutiny.

  1. The Reasons For Silence:

It must be noted, however, that different people react very differently to charges and accusations, and that therefore any inferences that may be drawn from an accused person's silence must be made with caution.

For example an accused person may remain silent for any of the following reasons:

(a). He may be confused or taken by surprise – a condition from which he may take a while to recover;

(b). He may consider the allegation to be unworthy of an answer;

(c). He may wish to conceal matters concerning himself or others which are irrelevant to the investigation of the offence or the trial before the court;

(d). He may wish to have legal advice before speaking, or

(e). He may have been given legal advice not to speak.

Because of the conflicting considerations surrounding the Issue of Silence Before and at Trial, the Law has developed special rules to govern Police investigations, as well as to regulate the inferences that may be drawn by a Court from a defendant's silence at various stages of Criminal Proceedings. It is these rules that we aim to investigate.

Criminal Evidence

Silence Prior To Trial

  • Birch, “Suffering in Silence: A Cost-Benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994” [1999] Crim LR 769

  • Dennis, “Silence in the Police Station: the Marginalisation of Section 34” [2002] Crim LR 25

  • Cape, “Sidelining defence lawyers: police station advice after Condron” (1997) 1 E & P 386

I. Introduction

  1. Right to Silence and Privilege Against Self-Incrimination

R V. Sanga (1980)

NEMO DEBET PRODERE SE IPSUM

  1. Common law – Five Rules

R v Leckey [1944] KB 80

Rice v. Connolly (1966)

R v. Bathurst (1968)

R v Lewis (1973)

R v Foster (1974)

R v Gilbert (1977

R v Henry [1990] Crim LR 574

  1. Even Terms Rule:

R v. Mitchell (1892) - per Cave J.

Parkes v. The Queen (1977)

Barry George v. R (2007)

  1. Right to a fair trial

    • Jennings, Ashworth, & Emmerson, “Silence and Safety: The Impact of Human Rights Law” [2000] Crim LR 879

    • Munday, “Inferences from Silence and European Human Rights Law” [1996] Crim LR 370

ECHR, Art 6

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Funke v. France (1993)

Murray (John) v UK (1996) 22 EHRR 29

Criminal Justice and Public Order Act 1994, s 38(3)

R v Perry [2004] EWCA Crim 1616

R v Gill [2001] 1 Cr App R 11

Saunders v. United Kingdom (1997)

R v Argent [1997] 2 Cr App R 27

Averill v UK (2001) 31 EHRR 36; [2000] Crim LR 682

CJPOA, s 34(2A) (inserted by Youth Justice & Criminal Evidence Act 1999, s 58)

  1. Criminal Justice and Public Order Act 1994

  1. Introduction

R v B [2003] EWCA Crim 3080

Criminal Procedure and Investigations Act 1996

R v Webber [2004] 1 Cr App R 40

  1. A fact relied on in defence…

R v McGarry [1998] 3 All ER 805

R v Campbell [2005] EWCA Crim 1249

  1. …which D could reasonably have been expected to mention

R v Nickolson [1999] Crim LR 61

R v B(MT) [2000] Crim LR 181

R v Condron [1997] 1 Cr App R 185

R v Argent [1997] 2 Cr App R 27

II Silence On Legal Advice

  • Cooper, “Legal advice and pre-trial silence – unreasonable developments” (2006) 10 (1) E&P 60

  • Choo & Jennings, “Silence on Legal Advice Revisited: R v Howell” (2003) 7(3) E & P 185

  • Malik, “Silence on legal advice: clarity but not justice?: R v Beckles (2005) 9 E&P 211

  • Fitzpatrick, case comment on Beckles: [2005] Crim LR 560

R v Condron [1997] 1 Cr App R 185:

It was desirable to direct the jury that it could only draw inferences if it concluded that the silence could only sensibly be attributed to the defendant's having no answer or none that would stand up to questioning or investigation.

(Note: the italicised words were supplied by the CA in the later case of Betts & Hall; the wording in Condron was ‘cross-examination'. The Betts & Hall amendment is appropriate because it acknowledges that a D might remain silent not only because he has yet to fabricate a story which would withstand cross-examination, but also because he knows that his story would not hold good if investigated by the police).

R v Daniel [1998] Crim LR 818

Condron v UK [2001] 31 EHRR 1; [2000] Crim LR 679

Beckles v UK (2003) 36 EHRR 13

R v Milford [2001] Crim LR 330

R v Betts and Hall [2001] 2 Cr App R 16; [2001] Crim LR 754:

“In the light of the judgment in Condron v United Kingdom it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no, or no satisfactory, answer to give then no inference can be drawn.

That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer's advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.” (Kay LJ at [53] – [54]; emphasis added).

R v Howell [2003] Crim LR 405; [2005] 1 Cr App R 1

“We do not consider, pace the reasoning in Betts & Hall, that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect's remaining silent, adverse comment is thereby disallowed.” (Laws LJ at [24])

R v Knight [2003] EWCA Crim 1977; [2003] Crim LR 799

R v Hoare [2004] EWCA Crim 784

R v Beckles [2005] 1 Cr App R 23

“If the jury consider that the defendant genuinely relied on the 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.” (Lord Woolf CJ, at [46]).

R v Samuel [1988] 2 All ER 135

R v Bowden [1999] 2 Cr App R 176

III. The Direction To The Jury

R v Bresa [2005] EWCA Crim 1414; [2006] Crim LR 179

“it is a matter of some anxiety that, even in the simplest and most straightforward of cases, where a direction is to be given under Section 34 it seems to require a direction of such length and detail that it seems to promote the adverse inference question to a height it does not merit.” (Waller LJ, at [4]).

R v Petkar [2004] 1 Cr App R 22:

  1. the facts which D failed to mention should be identified

  1. the usual inference is late invention; any other inferences should be identified

  1. jury must not convict solely or mainly on the inference

  1. jurors only to draw ‘fair and proper' inferences

  1. inferences should be drawn only where the sole sensible explanation for D's failure is that he had no answer, or none that would withstand scrutiny

  1. inferences are only to be drawn where the prosecution case is so strong it calls for an answer from D

  1. If D gives an explanation for his failure, the jury should be reminded of the evidence supporting that explanation

  1. a special direction is to be given where D has received legal advice to remain silent.

R v Moshaid [1998] Crim LR 420

Silence On Legal Advice

Commentary

(1). The first point to note is that the courts have unnecessarily caused confusion in this area, with the introduction of a requirement of ‘reasonableness'. Essentially, the courts are concerned to prevent a guilty Defendant from avoiding the application of Section 34 by taking advantage of his lawyer's advice to remain silent. This objective was achieved with the Betts and Hall test which allowed the jury to draw adverse inferences if they thought that the Defendant's claimed reliance on legal advice was not genuine. There was no need to further require that the Defendant's reliance should be reasonable.

(2). The courts deny, in Howell and subsequent cases, that a requirement of reasonableness is inconsistent with the ruling in Betts and Hall. However, regardless of whether or not the courts intended to introduce an objective test, that is the effect of the judgments. The comments made by some of the judges which we quoted in lectures, certainly appear to reflect an intention on their part, to introduce an objective test.

(3). Reasonableness is usually understood in the law to imply an objective test. That is certainly how a jury is likely to take the instruction to consider not only whether the Defendant's decision was genuine, but whether it was also reasonable.

(4). One significant problem with the principle that Section 34 should only be prevented from operating where the Defendant has genuine and reasonable grounds for silence is that it in effect requires the Defendant to assess the quality of the advice given by his lawyer. The Defendant cannot simply genuinely rely on his lawyer's advice: he has to guess whether that advice is in the circumstances reasonable. This undermines the right to legal advice given by Section 58 of the Police and Criminal Evidence Act 1984. The question may be asked - What is the point of having a right to consult a lawyer during police detention if the Defendant cannot rely on that advice without fear of being penalised at trial if he follows that advice?

(5). The importance of legal advice, in light of Section 34, is acknowledged by the rule introduced by Section 58 of the Youth Justice and Criminal Evidence Act 1999, which provides that inferences must not be drawn where the Defendant is questioned without the opportunity of consulting a solicitor. And yet, according to the ruling in Howell and subsequent cases, if the Defendant has a solicitor, who advises silence, and the Defendant genuinely relies on that advice, inferences may still be drawn if the jury considers that it was not reasonable for the Defendant to rely on the advice.

(6). An additional difficulty arises in the sense that, if the defence wants to explain the reason for the solicitor's advice to remain silent, this will involve a waiver of legal professional privilege, as indicated in R v Bowden (1999). In the circumstances, it is difficult to see how a Defendant could satisfy the jury that his reliance on legal advice was reasonable (as well as genuine) without disclosing the basis for the advice.

The Direction To The Jury

a). The question of what direction the trial judge may give to the jury is rather problematic, as was noted in the case of R v Bresa (2005).

b). The Court of Appeal in R v. Petkar (2004) did, however, give some guidance on directing the jury where the judge has decided that Section 34 applies.

This Guidance Is Available In The Topic Outline On Blackboard.

c). A further point to note is that, as well as the duty on the trial judge to give proper direction to the jury about the circumstances in which they may draw inferences, the judge is also under a duty not to make prejudicial comment on the defendant's silence.

d). In R v Moshaid (1998), the trial judge told the jury that solicitors had no right to advise their clients to remain silent and that ‘too many solicitors are behaving in this way and providing Defendants with a platform to avoid answering questions'. The Court of Appeal held that these comments were wholly inappropriate and quashed the conviction.

Criminal Evidence

Bad Character Evidence 1: Attack On Another's Character

See generally:

  • JR Spencer, Evidence of Bad Character (2nd ed., 2009)

  • Waterman & Dempster, “Bad Character: Feeling Our Way One Year On” [2006] Crim LR 614

  • Tapper, “Evidence of Bad Character” [2004] Crim LR 533

I. Introduction

II. Criminal Evidence Act 1898

See also, handout: The Criminal Evidence Act 1898 (available on BB).

S 1 (3): A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than one with which he is then charged, or is of bad character…

R v Jenkins (1946) 31 Cr App R 1 :

“It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witness for the prosecution…” (Singleton J, at 15).

Law Commission Report 273, Evidence of Bad Character in Criminal Proceedings (2001):

‘The whole foundation of [this law]…is flawed.' (para 4.33).

III. Background To Reform

A Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld (2001)

White Paper, Justice for All (2002)

Criminal Justice Act 2003

R v Edwards (Stewart Dean) [2005] EWCA Crim 3244:

“Under the new regime it is apparent that Parliament intended that evidence of bad character would be put before juries more frequently than had hitherto been the case.” (Scott Baker LJ at [1]).

R v Hanson [2005] 2 Cr App R 21:

“Parliament's purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.” (Rose LJ at [4]).

IV. ‘Bad Character' Defined

  • Goudkamp, “Bad character evidence and reprehensible behaviour” (2008) 12(2) E&P 116

  • Munday, “What Constitutes ‘other reprehensible behaviour' under the Bad Character Provisions of the Criminal Justice Act 2003?” [2005] Crim LR 24

R v Renda [2006] 1 Cr App R 24

R v Manister, reported with R v Weir [2006] 1 Cr App R 19

V Admissibility: overview

S101 (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

(a) all parties to the proceedings agree to the evidence being admissible

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it

(c) it is important explanatory evidence [s 102]

(d) it is relevant to an important matter in issue between the defendant and the prosecution [s 103]

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant [s 104]

(f) it is evidence to correct a false impression given by the defendant [s 105].

(g) the defendant has made an attack on another person's character [s 106]

R v Carp, reported with R v Highton [2006] 1 Cr App R 7

R v Campbell [2007] 2 Cr App R 28

R v Edwards (Karl Adrian) [2006] 1 Cr App R 3

VI. Exclusion On Grounds Of Fairness

R v Highton [2006] 1 Cr App R 7

R v Somanathan, reported with R v Weir [2006] 1 Cr App R 19

R v Edwards (Karl Adrian) [2006] 1 Cr App R 3

VII. Gateway (G): Attack On Another Person's Character

Munday, “The Purposes of Gateway (g): Yet Another Problematic of the Criminal Justice Act 2003” [2006] Crim LR 300

S 101(1)(g), read with s 106

R v Littlechild [2006] EWCA Crim 2126

R v Hanson [2005] 2 Cr App R 21

R v Hearne [2009] EWCA Crim 103

R v Ball [2005] EWCA Crim 2826

R v Highton [2006] 1 Cr App R 7

R v Edwards (Stewart Dean) [2005] EWCA Crim 3244

Law Commission Report 273, Evidence of Bad Character in Criminal Proceedings (2001)

Select Committee on Home Affairs: Report on the Criminal Justice Bill 2002

Joint Committee on Human Rights (11th Report of 2003):

“we conclude that these provisions as currently drafted give rise to a threat to the fairness of a trial within the meaning of ECHR Article 6 by allowing evidence of bad character to be admitted without proper regard to its evidential value, and in particular by requiring irrelevant but highly prejudicial evidence of previous convictions to be admitted in some circumstances.” (Para. 20)

Criminal Evidence

Bad Character Evidence 1: Attack On Another's Character

The Criminal Evidence Act 1898

This handout addresses the old law relating to attack on another's character (the Criminal Evidence Act 1898). Knowledge of the old law will assist in the evaluation of the new law (Criminal Justice Act 2003). The handout relates to major heading II of the lecture outline.

See generally:

Note: the subsections of s 1 CEA were originally denoted with letters; the YJCEA 1999 replaced the letters with numbers (but made no substantive changes). The articles below refer to ‘s 1(f)(ii)', which became ‘s 1(3)(ii)'.

  • Murphy, “Character evidence: the search for logic and policy continues” (1998) 2 (2) E & P 71

  • Munday, “Stepping Beyond the Bounds of Credibility: The Application of section 1 (f)(ii) of the Criminal Evidence Act 1898 [1986] Crim LR 511

  • Seabrooke, “Closing the Credibility Gap: A New Approach to section 1 (f)(ii) of the Criminal Evidence Act 1898 [1987] Crim LR 231

  1. Overview

The CEA 1898 made D, for the first time, generally competent to testify in her own defence. The Act set out rules governing the cross-examination of D: it provided the prosecution (or Co-D) with a ‘sword', and the defence with a ‘shield'.

Sword: (not repealed)

S 1 (2): A person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings.

But because of D's right not to incriminate herself, there had to be controls on the sword - hence the shield:

S 1 (3): A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than one with which he is then charged, or is of bad character…

The sword allows questions to be put in cross-examination which directly incriminate D on the offence charged.

The shield banned questions which indirectly incriminated D by referring to evidence of other misconduct.

But, under the CEA, D could lose the shield where:

  1. there was ‘similar fact evidence' available (in practice, this was dealt with under common law rules, rather than under the CEA. ‘Similar fact' or ‘propensity' evidence is dealt with in the next topic on the syllabus)

  2. the defence asserted the good character of D or impugned the character of a prosecution witness (or the prosecutor, or the deceased victim of the crime); known as ‘the second limb' (of s 1(3)(ii))

  3. D gave evidence against her co-defendant.

Whether the shield was lost was a matter of law for the judge, so leave was required before the prosecution could cross-examine on previous convictions.

The shield (s 1(3) CEA 1898) was repealed by the Criminal Justice Act 2003.

  1. Imputations on the character of a prosecution witness

As mentioned, the shield against revelation of misconduct could be lost under the CEA where the defendant:

has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or the deceased victim of the alleged crime (S 1(3)(ii))

Where D impugned the character of a prosecution witness (e.g. asserted that the witness was lying), the trial judge could lift the shield, allowing the prosecution to cross-examine D on misconduct (usually, previous convictions). However, the shield would not be lost where D was simply denying, even in vigorous terms, the prosecution case (because D would merely be asserting his innocence).

Two particular features of the law led to inconsistent case law, making it difficult for the defence to predict whether a proposed line of questioning would result in the loss of the shield:

  • the difficulty in distinguishing between mere denial of the prosecution case and casting an imputation, a prominent feature of the case law under the CEA.

  • The trial judge was not required to lift the shield once there had been an imputation: the shield was lost as a matter of law, but the judge retained a wide discretion to keep the shield in place, preventing the prosecution from revealing evidence of D's bad character.

In R v Britzman & Hall [1983] 1 All ER 369 the CA set out guidance for trial judges when determining whether to lift the shield:

  • where D has denied an act, an incident or a short interview, the judge should not lift the shield (because the ‘attack' by the defence is limited where D is denying an incident or the content of a short interview for example).

  • The judge should make allowances for confusion, mistake and the strain of testifying. Cross-examination should only be allowed where the jury has to consider whether a prosecution witness has fabricated evidence.

  • If the evidence against D is ‘overwhelming,' the prosecution does not need to rely on cross-examination under s 1 (3)(ii).

The above principles are protective of D. But the CA also ruled that even if it was necessary and reasonable for D to impugn the character of a prosecution witness, the shield was lost. Lawton LJ: no distinction could be drawn between “a defence which is so conducted as to make specific allegations of fabrication and one in which the allegation arises by way of necessary and reasonable implication.” (At 372-73). This aspect of Britzman was much criticised.

  1. Rationale And Purpose Of Cross-Examination Under S 1(3)(Ii)

Purpose: to challenge D's credibility as a witness.

Rationale:

R v Jenkins (1946) 31 Cr App R 1 :

“It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witness for the prosecution…” (Singleton J, at 15).

But is it ‘obviously unfair' for the jury not to hear of D's bad character? Does ‘fairness' reside equally in the defence and the prosecution?

What operated here was a ‘tit for tat' principle: if a D of past bad character had the audacity to impugn a prosecution witness, then she must suffer a setback in her defence. In addition to the objections of principle to the disclosure of previous misconduct, there is the pragmatic point that the prosecution did not need to undermine D in order to bolster a Crown witness who has been impugned: counsel could have restored the witness' standing in re-examination by highlighting the strengths of her testimony and her demeanour in the witness box. Indeed, prosecution witnesses start with an enhanced status: they are doing their civic duty in assisting the criminal justice process, whereas D is in the dock, charged with a crime.

  1. Safeguards For D

In addition to the requirement of leave, there were two main safeguards:

  1. Direction To Jury

Because of the prejudice which could be provoked by the adduction of bad character evidence, the judge was under a duty to warn the jury that bad character evidence was relevant only to D's credibility and not to the issue of guilt. Failure to give this warning would be ground for appeal against conviction.

But this was an unrealistic and weak ‘safeguard:' it failed to acknowledge that bad character evidence could have an indirect bearing on guilt in that it might lead the jury to reject D's evidence. Moreover, the distinction bet credibility and guilt is elusive in reality. As Friedman put it:

“The courts say that the convictions only go to credibility, but in the case of an accused it is not in practice possible to separate bad character which affects credibility from bad character which shows disposition. To say that the D is a bad man and is not to be believed is hardly distinguishable from saying that he is a bad man and is guilty of the offence.”

(1969) 47 Can Bar Rev 656, at 658).

Indeed, the probability that jurors will infer guilt from bad character evidence was the very reason for the general ban on the adduction of such evidence. It may be argued that there was a ‘hidden agenda' in this area: that the jury was being enticed to infer guilt as a matter of common sense. The Law Commission was concerned that jurors would give in to this temptation, notwithstanding the judicial direction:

“We…believe that juries and magistrates are likely to use previous convictions not only on credibility (as they are supposed to) but as showing that the defendant committed the offence.” (Consultation Paper No. 141, para. 6.84).

  1. Discretion to exclude prejudicial evidence

The trial judge has a general discretion to exclude any prosecution evidence where its prejudicial effect exceeds its probative force, arising from the duty to ensure a fair trial: R v Selvey [1970] AC 304; R v Sang [1980] AC 432

R v Watts [1983] 3 All ER 101: D, charged with indecent assault against a woman, alleged that the police had fabricated his confession. The prosecution was then allowed to cross-examine him on his previous convictions for indecent assault on girls. The judge directed the jury that D's antecedents were not to be used as evidence against him on the current charge. Notwithstanding this direction, the CA quashed the conviction because the prejudicial effect of D's previous convictions outweighed their probative value, which was “at best, slight.” CA commented that the judicial direction that bad character evidence goes only to credibility and not to guilt often “requires the jury to perform difficult feats of intellectual acrobatics.” (At 104).

However, in R v Powell (1985) 82 Cr App R 167, the CA upheld a conviction where the appellant had been cross-examined on previous similar convictions. Lord Lane CJ criticised the cautious approach taken by the CA in Watts. That antecedents were similar to the present charge was a factor for the judge to consider when deciding whether to allow cross-examination. The CA in Watts was wrong to suggest that care should be taken to conceal previous similar offences from jury. The CA in Watts had, said Lord Lane, overlooked the ‘tit for tat' principle.

R v Burke (1986) 82 Cr App R 152: D, charged with possessing & supplying cannabis, alleged that the police had fabricated evidence. The prosecution was then allowed to cross-examine on: a conviction for cannabis possession; a guilty plea on a subsequent possession charge; the finding of £2,000 in a police raid on D's home the year before his current trial. The CA endorsed the cross-examination, even though the Court recognised that Burke would have been prejudiced by it. Indeed, Lord Ackner appeared to view Burke's antecedents as relevant to guilt: “the probative value of the evidence that he was a convicted criminal was considerable.”

The CA in R v McLeod [1994] 3 All ER 254 set out (at 267) guidelines for judges on the exercise of the discretion to allow cross-examination under s 1 (3)(ii):

  1. Although the primary purpose of cross-examination under s 1(3)(ii) was to undermine D's credibility, it was not improper to cross-examine D on similar previous convictions – even if it had the “incidental effect of suggesting a tendency or disposition to commit the offence charged.”

  2. Cross-examination on D's bad character should not be prolonged or extensive.

  3. D could be cross-examined about previous similar defences which had been rejected by a jury (because this was relevant to credibility)

  4. The details of previous offences which reveal particularly bad character could be admitted, but the judge had to weigh up the gravity of the defence attack on the character of the prosecution witness with the prejudice caused to D by disclosure of the details.

  5. CA would not interfere with the trial judge's discretion “unless he has erred in principle or there is no material on which he could properly have arrived at his decision.” (Approving Ackner LJ in R v Burke (1986) 82 Cr App R 152).

  1. Criticisms Of The Cea And Its Jurisprudence

Tapper, “Evidence of Bad Character” [2004] Crim LR 533:

The CEA case law lacked “conceptual underpinning”, was incoherent, complex and uncertain.

Law Commission Report 273, Evidence of Bad Character in Criminal Proceedings (2001):

‘The whole foundation of [this law]…is flawed.' (para 4.33).

Specific criticisms:

  1. Unclear what amounted to an ‘imputation.' No exception for necessary imputations (which could deter D from testifying – and then s 35 CJPOA 1994 operates, allowing the jury to draw inferences from D's decision not to testify).

  1. Width of judicial discretion made it difficult for defence counsel to predict when the shield would be lost.

  1. Purpose of cross-examination under s 1(3)(ii) was to undermine D's credibility. But the courts often admitted evidence of misconduct which was irrelevant to D's credibility.

  1. The ‘tit for tat' principle: exposing D to undue prejudice does not promote fairness in the trial.

  1. S 1(3)(ii) gave the police an incentive to fabricate evidence: if D complained about this at trial he could lose the shield.

Criminal Evidence

Criminal Justice Act 2003

98 “Bad Character”

References in this Chapter to evidence of a person's “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

99 Abolition Of Common Law Rules

(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.

(2) Subsection (1) is subject to section 118(1) in so far as it preserves the rule under which in criminal proceedings a person's reputation is admissible for the purposes of proving his bad character.

100 Non-Defendant's Bad Character

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

(a) it is important explanatory evidence,

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole,

or

(c) all parties to the proceedings agree to the evidence being admissible.

(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—

(a) the nature and number of the events, or other things, to which the evidence relates;

(b) when those events or things are alleged to have happened or existed;

(c) where—

(i) the evidence is evidence of a person's misconduct, and

(ii) it is suggested that the evidence has probative value by reason of similarity

between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

(d) where—

(i) the evidence is evidence of a person's misconduct,

(ii) it is suggested that that person is also responsible for the misconduct charged,

and

(iii) the identity of the person responsible for the misconduct charged is disputed,

the extent to which the evidence shows or tends to show that the same person was responsible each time.

(4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.

101 Defendant's Bad Character

(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

(a) all parties to the proceedings agree to the evidence being admissible,

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c) it is important explanatory evidence,

(d) it is relevant to an important matter in issue between the defendant and the prosecution,

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f) it is evidence to correct a false impression given by the defendant, or

(g) the defendant has made an attack on another person's character.

(2) Sections 102 to 106 contain provision supplementing subsection (1).

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the

defendant to exclude it, it appears to the court that 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.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in

particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

102 “Important Explanatory Evidence”

For the purposes of section 101(1)(c) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand

other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

103 “Matter In Issue Between The Defendant And The Prosecution”

(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.

(2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—

(a) an offence of the same description as the one with which he is charged, or

(b) an offence of the same category as the one with which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for

it to apply in his case.

(4) For the purposes of subsection (2)—

(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

(5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6) Only prosecution evidence is admissible under section 101(1)(d).

104 “Matter In Issue Between The Defendant And A Co-Defendant”

(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence.

(2) Only evidence—

(a) which is to be (or has been) adduced by the co-defendant, or

(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).

105 “Evidence To Correct A False Impression”

(1) For the purposes of section 101(1)(f)—

(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;

(b) evidence to correct such an impression is evidence which has probative value in correcting it.

(2) A defendant is treated as being responsible for the making of an assertion if—

(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),

(b) the assertion was made by the defendant—

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,

(c) the assertion is made by a witness called by the defendant,

(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or

(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.

(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(5) In subsection (4) “conduct” includes appearance or dress.

(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.

(7) Only prosecution evidence is admissible under section 101(1)(f).

106 “Attack On Another Person's Character”

(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if—

(a) he adduces evidence attacking the other person's character,

(b) he (or any legal representative appointed under section 38(4) of the Youth Justice and

Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or

(c) evidence is given of an imputation about the other person made by the defendant—

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it.

(2) In subsection (1) “evidence attacking the other person's character” means evidence to the effect that the other person—

(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or

(b) has behaved, or is disposed to behave, in a reprehensible way; and “imputation about the other person” means an assertion to that effect.

(3) Only prosecution evidence is admissible under section 101(1)(g).

107 Stopping The Case Where Evidence Contaminated

(1) If on a defendant's trial before a judge and jury for an offence—

(a) evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(b) the court is satisfied at any time after the close of the case for the prosecution that—

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

(2) Where—

(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and

(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence, the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.

(3) If—

(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,

(b) evidence of the person's bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(c) the court is satisfied at any time after the close of the case for the prosecution that—

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.

(4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.

(5) For the purposes of this section a person's evidence is contaminated where—

(a) as a result of an agreement or understanding between the person and one or more others, or

(b) as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise have been.

108 Offences Committed By Defendant When A Child

(1) Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) shall cease to have effect.

(2) In proceedings for an offence committed or alleged to have been committed by the defendant when aged 21 or over, evidence of his conviction for an offence when under the age of 14 is not admissible unless—

(a) both of the offences are triable only on indictment, and

(b) the court is satisfied that the interests of justice require the evidence to be admissible.

(3) Subsection (2) applies in addition to section 101.

109 Assumption Of Truth In Assessment Of Relevance Or Probative Value

(1) Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true.

(2) In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.

110 Court's Duty To Give Reasons For Rulings

(1) Where the court makes a relevant ruling—

(a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;

(b) if it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court's proceedings.

(2) In this section “relevant ruling” means—

(a) a ruling on whether an item of evidence is evidence of a person's bad character;

(b) a ruling on whether an item of such evidence is admissible under section 100 or 101 (including a ruling on an application under section 101(3));

(c) a ruling under section 107.

111 Rules Of Court

(1) Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules.

(2) The rules may, and, where the party in question is the prosecution, must, contain provision requiring a party who—

(a) proposes to adduce evidence of a defendant's bad character, or

(b) proposes to cross-examine a witness with a view to eliciting such evidence, to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.

(3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).

(4) In considering the exercise of its powers with respect to costs, the court may take into account any failure by a party to comply with a requirement imposed by virtue of subsection (2) and not dispensed with by virtue of subsection (3).

(5) The rules may—

(a) limit the application of any provision of the rules to prescribed circumstances;

(b) subject any provision of the rules to prescribed exceptions;

(c) make different provision for different cases or circumstances.

(6) Nothing in this section prejudices the generality of any enactment conferring power to make

rules of court; and no particular provision of this section prejudices any general provision of it.

112 Interpretation Of Chapter 1

(1) In this Chapter—

“bad character”is to be read in accordance with section 98;

“criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

“defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings; and “co-defendant”, in relation to a defendant, means a person charged with an offence in the same proceedings;

“important matter” means a matter of substantial importance in the context of the case as a whole;

“misconduct” means the commission of an offence or other reprehensible behaviour;

“offence” includes a service offence;

“probative value”, and “relevant” (in relation to an item of evidence), are to be read in

accordance with section 109;

“prosecution evidence” means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution;

(2) Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.

(3) Nothing in this Chapter affects the exclusion of evidence—

(a) under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18) against a party impeaching the credit of his own witness by general evidence of bad character,

(b) under section 41 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (restriction on evidence or questions about complainant's sexual history), or

(c) on grounds other than the fact that it is evidence of a person's bad character.



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