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Published: Fri, 02 Feb 2018

Advice to prosecution

1) Mrs A is not jointly charged with A. Therefore she is competent to give evidence against him[1]. She is compellable as a witness in respect of the charge of murder because this “involves” an injury to her under s.80(3)(a) of the Police and Criminal Evidence Act 1984 (“PACE”). However, as his spouse, she cannot be compelled to give evidence against A in respect of the murder of B. It was held in Pitt[2] that a wife has the right to refuse to give evidence against her husband until she waives that right by going into the witness box and taking the oath. The waiver of this right is only effective if made with full knowledge of the right and it has been suggested[3] that although it was held in Pitt that an explanation of the right was not required as a matter of law, the fact that PACE renders wives generally competent against their husbands makes such an explanation especially important. If when giving evidence Mrs A attempts to resile from her statement and, as is anticipated, to give evidence exonerating A, an application may be made to treat her as a hostile witness pursuant to s.3 of the Criminal Procedure Act 1865 which provides that where a party has called a witness who is proving “adverse”, that party may contradict him by other evidence or, with the leave of the judge, prove that he has made at other times a statement inconsistent with his testimony. Thus prosecuting Counsel in such circumstances should show Mrs A’s statement to the judge and seek leave to cross-examine her as hostile. The application should be made as soon as Mrs A demonstrates in examination in chief that she is not going to remain true to her previous statement. Once it is granted, she must be asked to confirm that she made the statement. She may then be cross-examined on it. The section does not affect the power of the judge at common law to allow a hostile witness to be examined by means of leading questions.[4]

2) The statement made to A junior amounts to a confession under s.82(1) of PACE since it is a statement “wholly or partly adverse” to A and it therefore escapes the hearsay rule because it is directly relevant to a matter in issue, namely the attempted murder of Mrs A. The fact that it was made to A’s son does not prevent its use[5]. Section 137 of the Criminal Justice Act 2003 (“CJA”) extends the use of video-recorded evidence-in-chief (which was already permitted in respect of children and other vulnerable persons) and would thus allow the use in principle of the video recording. However, s.137(1)(d) CJA provides that to be admissible the recording must have been made at a time when the events were fresh in the person’s memory. Section 137(4) provides inter alia that the court must have regard to:

  • The interval between the time of the events in question and the time when the recording was made; and
  • Any other factors that might affect the reliability of what the witness said in the recorded account.

This gives rise to two concerns in this case. First, there was a lapse of six weeks from the events described to the interview. There is therefore scope for doubt as to whether in any event the recording passes the test of the events being fresh in the mind of the witness. Although the interval is explicable by the child being too traumatised to give evidence sooner, it is a significant period particularly in the life of a young child. Further, the age of the child is a factor which may affect reliability. The very tender age of this child is such that his competence to give evidence in any form may be called into question. The judge will have to be satisfied that the child meets the requirements of s.53(3) of the Youth Justice and Criminal Evidence Act 1999 (“YJCEA”) in that he understands questions put to him as a witness and gives answers to them which can be understood.

3) The purpose of adducing the evidence of the neighbour is twofold. First, it is directly probative of two shots being fired, the second being preceded by the plea by Mrs A not to shoot her. It thus serves to corroborate her account of events. The fact of two shots being fired is significant since it corroborates Mrs A’s account of Mr A shooting first B and then her and serves to disprove Mr A’s defence that he fired at a supposed burglar and accidentally shot his wife. The words, “Please don’t shoot me” are probative of an intention to shoot but are hearsay. Section 114(1) CJA permit’s the admission in criminal proceedings of hearsay evidence. Section 115(b) provides that the statement must be made for the purpose of causing another to believe in the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated. The section therefore permit’s the admission of hearsay evidence where the maker does not intend to communicate evidence (such statements being previously inadmissible under common law). However, where the court gives leave for hearsay evidence to be admitted under s.114 it must have regard to a number of factors:

  • The probative value of the statement in relation to a matter in issue in the proceedings or how valuable it is for the understanding of other evidence in the case. In this regard, the statement is important to an understanding of the context of the shots heard;
  • What other evidence can be given on the matter. This will relate to the issues discussed at 1) & 2) above;
  • How important the evidence is in the context of the case as a whole;
  • The circumstances in which the statement was made;
  • How reliable the maker of the statement appears to be;
  • Whether oral evidence (as in this case) can be given;
  • The difficulty of challenging the statement; and
  • The prejudice occasioned to the defendant by such difficulty.

In this case it may be anticipated that the judge will be willing to allow the evidence of the neighbour of the statement of Mrs A since it goes directly to the account which she has given of the circumstances of the shooting. The extent of Mrs A’s perceived reliability will of course depend on the outcome of her evidence as discussed above.

4) The anonymous letter found in A’s possession is, of course, not directly probative of his intention to kill or seriously injure B. It is circumstantial evidence which is defined[6] as “evidence of a basic fact from which the court or jury may be invited (if it believes it) to infer a further fact.” This further fact may be one of the facts in issue at the trial or it may only be an intermediate fact which is in turn is offered as circumstantial evidence of a fact in issue. In Ball[7], Lord Atkinson stated provided the grounds for admitting evidence of motive:

“In a prosecution for murder, you can prove previous acts or words of the accused to show that he entertained feelings of enmity to the deceased…it is more probable that men are killed by those who have some motive for killing them than by those who have not.”

In Phillips[8] a man was charged with the murder of his wife and evidence that the marriage had broken down was admissible both to rebut his claim that the marriage was happy and that he had a motive for killing her. It is held that a motive is not disqualified from being such simply because it would not move a rational person to act in such a way. Thus it should be argued that the finding of the letter in Mr A’s possession and its contents are admissible. The combination of the allegation in Mr A’s possession and his discovery of his wife with a strange man supply convincing evidence of a motive to kill B and to attempt to kill Mrs A. This behaviour would also be consistent with the statement made to A’s son that mummy had been “a naughty girl”.

5) Section 117(2)(a) CJA renders documents admissible if oral evidence given in the proceedings would be admissible as evidence of that matter where the document was created or received in the course of a trade or business. Thus the purchase of ammunition by A might potentially be proven. However, it should be borne in mind that the record is not of a personal purchase by A; it is of the use of his credit card which might in fact have been used fraudulently. Further steps should be taken to establish that A was the purchaser which might include identification by the gun dealer and/or scrutiny of Mr A’s credit card records to verify a purchase by him. If such a purchase can be thus established, an attempt may be made to introduce it as evidence of an act preparatory to the commission of an offence. The prosecution will argue that the purchase of ammunition on the day of the offences taken together with the evidence of motive described above establishes the requisite element of “malice aforethought” for murder. However, it cannot be certain that such evidence will be admitted. It is not known to whom the gun belonged or how Mr A came by it. If it did not belong to him and the means by which he acquired it can be established, this – taken together with the purchase of ammunition – would represent powerful evidence of preparation to kill or inflict grievous bodily harm. If, however, Mr A was a keen hunter or rifleman who regularly purchased ammunition, the presentation of one such purchase in isolation is unlikely to be admissible since in terms of its effect on the jury its prejudicial effect would outweigh its probative value.

6) There is little need to adduce the expert evidence of a pathologist to confirm that A died from a gunshot would; this is something which the jury would be capable of establishing without expert guidance. The issue here is the opinion offered that B was shot in the back. This becomes significant in the advancement by Mr A of the defence of self-defence since a fatal shot in the back is not consistent with a reasonable use of force. Section 118(1) CJA preserves certain common law categories of admissible hearsay including “any rule of law under which in criminal proceedings an expert may draw on the body of expertise relevant to his field.” Before the coming into effect of s.127 CJA an expert was not allowed to give an opinion based upon the scientific findings of assistants unless all those assistants were called upon to give supporting evidence in court. Section 127(2) CJA provides that where a statement has been prepared for the purposes of criminal proceedings and the person who prepared the statement had or may reasonably be supposed to have had personal knowledge of the matters stated, in evidence given in the proceedings the expert may base an opinion or inference upon the statement. This reform was intended to address the fact that experts habitually relied upon primary facts provided by machines operated by others or the direct reporting of others and the requirement for all of these to give evidence if called upon to do so raised considerable scope for abuse and waste of public money. However, there is an apparent in the CJA in that s.115 defines “statement” as “any representation of fact or opinion made by a person by whatever means and it includes a representation made in a sketch, photo fit or other pictorial form. Arguably, a photograph is not a “representation made by a person” and the pathologist will be unable to base his opinion upon it. Thus, unless he can rely upon his own observations or upon reporting by another of the characteristics of the wound that does not involve photographic enlargement, his evidence will be inadmissible.


Archbold Criminal Pleading Evidence and Practice 2005

Blackstone’s Criminal Practice 2005

Hirst, M., Andrews & Hirst on Criminal Evidence, (4th Ed., 2001)

May, R. & Powles, S., Criminal Evidence, (5th Ed., 2004)

Osborne, C., Criminal Litigation, (LPC Course Guide 2004-2005)

Ward, R. & Davies, O., The Criminal Justice Act 2003, A Practitioner’s Guide, (2004)



[1] Police and Criminal Evidence Act 1984, s.80(2A) & (4)

[2] (1983) Cr App Rep 254

[3] May, R. & Powles, S., Criminal Evidence, (5th Ed., 2004), p.511

[4] Clarke v Saffery (1824) Ry & M 126

[5] Simms (1834) 6 C & P 540

[6] Hirst, M., Andrews & Hirst on Criminal Evidence, (4th Ed., 2001), p.100

[7] [1911] AC 47

[8] [2003] Crim LR 629

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