Chapter 1: Introduction
(1) WHAT IS THE LAW OF EVIDENCE?
The law of evidence as a distinct field of study which developed in the period 1770 to 1830 consisted of two elements: first, the collation and classification of an avalanche of cases; and second, a "comparatively small number of Acts of Parliament which attracted the denunciation of Bentham."
With regards to the first element, the most important early attempt at a treatise on the law of evidence was William Nelson's: The Law of Evidence (1720). In that treatise each chapter consisted of numbered propositions founded on statutes and an analysis of over fifty series of legal reports compiled and published before 1700. Although Nelson did not extract the underlying principles of the law of evidence from these sources, the treatise inspired Geoffrey Gilbert's and Thomas Peake's classic works on the subject in 1754 and 1801 respectively.
For Gilbert the whole corpus of law of evidence can be subsumed under one principle: the Best Evidence rule which ordains that "the first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of." This principle was treated as a fundamental principle by Gilbert's successors such as Peake, Greenleaf, Taylor and Best but later reduced by Thayer to a counsel of prudence. By 1875, Judge James Fitzjames Stephen embarked on a project to simplify the law of evidence by writing a lucid text which was radically different from texts with "enormous mass of detail and illustration into which ... writers naturally fall ... which makes these books useless for the purposes of study, though they may increase their utility as works of reference." This project, entitled A Digest of the Laws of Evidence, was published in 1876. In the Digest, Stephen systematized the law of evidence by presenting the rules, the principles, the presumptions, the concepts and doctrines in a number of sections described as Articles.
Towards the end of the nineteenth century, three magna opera on evidence were published in the United States by Greenleaf, Thayer and Wigmore. Whilst Greenleaf's text was the first to dominate the US market, it also inspired Taylor who profusely acknowledged his debt of gratitude to Greenleaf in A Treatise on the Law of Evidence (1848), but pride of place must be accorded to Thayer regarded as "the greatest of all evidence scholars" who in his Preliminary Treatise expounded the principles of the law of evidence with refreshing candour and Wigmore, his disciple, who completed the task in ten volumes of historical erudition entitled Evidence in Trials at Common Law .
Two English texts which dominate the twentieth century are instructive: Cross's text elaborated on some of the themes tackled by Wigmore but is rather thin on other celebrated text writers whilst Nokes's opuscle is still a sourcebook for researchers on the law of evidence in view of its discussion of views of text writers from Gilbert to Wigmore. We must also take cognizance of the theoretical works on evidence by contemporary text writers such as Morgan, Twining and Anderson, and Damaska.
The twentieth century was the century of reforms. In civil proceedings, four pieces of legislation are significant. The first is the Civil Evidence Act 1938 which defined the word "document" as including "books, maps, plans, drawings and photographs” and superseded statutory inroads into the hearsay rule in civil proceedings such as the Parochial Registers Act 1812, the Evidence Act 1845 and the Documentary Evidence Act 1868 which rendered admissible various documentary evidence. The second is the Civil Evidence Act 1968 which extended that definition by assimilating technological developments into evidentiary rules; and the third is the Civil Evidence Act 1972 which regulates the admissibility of the opinions of expert and lay witnesses. Finally, the Civil Evidence Act 1995 superseded Part I of the Civil Evidence Act 1968 by replacing it with simpler provisions.
In criminal proceedings the Eleventh Report of the Criminal Revision Committee in 1972 and the Royal Commission on Criminal Procedure in 1981 and the resulting Police and Criminal Evidence Act 1984 are landmarks. But there are five important Reports worthy of note. The first is the Report of the Advisory Group on the Law of Rape (the Heilbron Report 1975) which recommended that the trial judge's discretion to admit evidence of sexual behaviours or sexual histories be guided by, and based on, principles set out in legislation. The effectuating legislation was the Sexual Offences (Amendment) Act 1976 now superseded by the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). The second is the Report of the Committee on Frauds Trial (the Roskill Report 1986) which recommended, inter alia, the use of live television link and was effectuated by section 32 of the Criminal Justice Act 1988. The third is the Report of the Advisory Group on Video Evidence (the Pigot Report 1989) which recommended that diagnostic videotaped interviews be used as examination-in-chief in child abuse cases. This recommendation was effectuated by section 32A of the Criminal Justice Act 1988. The fourth Report is Speaking Up for Justice, the Report of the Interdepartmental Working Group on Intimidated Witnesses in the Criminal Justice System published in June 1988. The recommendations of this Working Group were enacted in the YJCEA 1999. The fifth is Justice for All, the White Paper on Criminal Justice which recommended wide ranging reforms on court procedure and sentencing effectuated by the Criminal Justice Act 2003.
Some of the recent reforms of criminal trials such as adverse inferences from silence, the empowerment of vulnerable witnesses, the proliferation of cases where the burden of proof is placed on the accused and the exceptions to the hearsay rule in criminal trials bristle with practical evidential difficulties. These evidential difficulties will be assessed critically in the ensuing chapters taking cognizance of the principle of orality and the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (The European Convention).
(2) ARRANGEMENT OF CHAPTERS
There is no hard and fast rule on the arrangement of chapters: a writer's decision on the appropriate schema is guided by logic and experience.
The law of evidence is presented in this book in fifteen chapters divided into six parts. Chapters 1 to 3 cover the Introduction, Preliminaries such as the meaning and classification of evidence, relevance and admissibility, the functions of the judge and jury, and the burden and standard of proof. Chapters 4 to 8 explore the basic concepts: presumptions, earlier judicial findings, competence and compellability, corroboration, privilege against self-incrimination and the right to silence. Chapter 9 deals with the evidence of identification in its entire ramification whilst in Chapter 10 public interest immunity and privilege are discussed. Chapters 11 and 12 cover the course of evidence, evidence of character and similar facts in civil proceedings.
Finally, Chapters 13 to 15 cover the hearsay rule which, we are told, is the most important topic in the law of evidence ; the rule against opinion: expert and lay witnesses; and illegally obtained evidence and confessions.
See William Twining, Rethinking Evidence: Explanatory Essays (Illinois: Northwestern University Press, 1994), at 185.
J.F. Stephen, A Digest of the Law of Evidence, ed. by H.L. Stephen and L.F. Sturge, (London: Macmillan, 1948), at x. For Bentham's aversion to the exclusionary rules of evidence, see J. Bentham, The Rationale of Judicial Evidence, London: Hunt and Clarke, 1827), Vol. 1, at 5.
The second edition was published in 1735 by R. Nutt and R. Gosling.
See G. Gilbert, The Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1754 ed. printed for Sarah Cotton, Dublin].
See T. Peake, A Compendium of the Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1801 ed. printed for E. & R. Brooke and J. Rider, London].
S. Greenleaf, A Treatise on the Law of Evidence (Boston: Little, Brown), 1842.
J.P. Taylor, A Treatise on the Law of Evidence 12th ed. by R.P. Croom-Johnson and G.F.L. Bridgman, (London: Sweet & Maxwell, 1931), Vols. 1 and 2.
W.M. Best, The Principles of the Law of Evidence , 12th ed. by S.L. Phipson, (London: Sweet & Maxwell, 1922).
See J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898), at 487-8.
J.F. Stephen, A Digest of the Law of Evidence, 1948, at vii.
J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers rev. (Boston: Little, Brown, 1983), Vols. 1-10.
W. Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicholson, 1985), at 5.
Supra, n. 14. See also J.H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913) .
See Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967).
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967).
E.M. Morgan et al., The Law of Evidence: Some Proposals for Reform (New Haven: Yale University Press, 1927).
T. Anderson and W. Twining, Analysis of Evidence (London: Weidenfeld & Nicolson, 1991).
M.R. Damaska, Evidence Law Adrift (New Haven and London: Yale University Press, 1997).
Section 10 (1) of the Civil Evidence Act 1968 defines the word "document" as including discs, tapes, sound track and microfilms. The use of radars and computers are also recognised.
For a critique of these provisions, see S.E. Salako, "The Hearsay Rule and the Civil Evidence Act 1995: Where are we now?" (2000) 19 CJQ 371-385.
See YJCEA 1999, ss. 34, 35 and 41.
Substituted by s.54 of the Criminal Justice Act 1991.
See A. Ashworth and M. Blake, "The Presumption of Innocence in English Law" [1996] Crim LR 306.
See S.E. Salako, "Hearsay in English Criminal Trials: A Violation of the Convention?" (2001) HR 232-238.
See J. Stone in "Res Gesta Reagitata" (1939) 55 LQR 66 where he opined: "One may be expert in many branches of torts, and yet know nothing of conspiracy. But he who does not understand the hearsay rule knows no evidence.
Chapter 2: Preliminaries
(1) THE MEANING OF EVIDENCE
Of the eight uses of the term "evidence" in ordinary parlance, only three are relevant in legal parlance. The first defines the term by presenting a complex picture and the importance of the context:
"The available facts, circumstances, etc. supporting or otherwise a belief, proposition, etc., or indicating whether or not a thing is true or valid."
This definition suggests that argument and evidence are interconnected. But there is a distinction between "an argument" and "evidence": An "argument" is the statement of reasons leading to a conclusion which involves an inference or a deduction whilst evidence is concerned with facts and proof of facts or statistical and experimental data. For example, a person found in possession of stolen goods soon after the theft is presumed to be either the thief or the receiver. But this is a stereotyped conclusion which could be displaced by testimony proving the accused's innocence. Furthermore, a belief is a personal matter since it is difficult for the non-believer to share the belief and as Wittgenstein reminds us: "It is clear that there are no grounds for believing that the simplest eventuality will in fact be realized.”
The second definition specifies the use to which evidence is put:
"Information, whether in the form of personal testimony, the language of documents, or the production of material objects, that is given in a legal investigation, to establish the fact or point in question."
The third definition describes what counts as evidence: "a document by means of which a fact is established". Historically, the third definition is very limited in scope since in civil and criminal proceedings we rely on more than just documentary evidence.
In legal parlance, therefore, text writers have adopted variants of the second definition or a combination of the second and third definitions instantiated above. Cross defines evidence of a fact "as that which tends to prove it - something which may satisfy an inquirer of the fact's existence". Stephen's definition shows that there are precise requirements for the legal admissibility of evidentiary facts in a court of law. "Evidence", according to Stephen, means:
"(1) Statements made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry; such statements are called evidence;
(2) Documents produced for the inspection of the Court or judge; such statements are called documentary evidence."
Adopting a position not too dissimilar to the second definition instantiated above, Twining opines:
"[E]vidence is the means of proving or disproving facts, or of testing the truth of allegations of fact, in situations in which the triers of fact have no first-hand knowledge of the events or situations about which they have to decide what happened ... 'evidence' is information from which further information is derived or inferred in a variety of contexts for a variety of purposes."
As the definitions proffered by Cross, Stephen and Twining are silent on the quality of fact or information offered, it is submitted that any material or fact which is sufficiently reliable and cogent (i.e. weighty) may be regarded as evidence.
(2) CLASSIFICATION OF EVIDENCE
The following terms are used (not consistently) as descriptive of different varieties of evidence:
Best and inferior. According to Baker, the Best Evidence rule was an attempt to rationalize the hearsay rule and has been traced to Ford v Hopkins. In that case, Holt CJ said: "The best proof that the nature of the thing will afford only is required." By the nineteenth century this dictum, this slender stream of authority, has been developed by text writers on the law of evidence to enunciate the Best Evidence rule which required that the best evidence the nature of the case would afford must be produced and if the best evidence could not possibly be produced the next best (or inferior evidence) was admitted. For example, the production of a copy of a deed or will rather than its original raises the presumption that there is something more in the original.
In the latter part of the nineteenth century, the decline of the strict application of the Best Evidence rule became obvious due to the relaxation of the rule and whatever was left was once stigmatized as "one of the ghosts of the law of evidence." Is the rule a ghost or a current principle of the law of evidence? Recently, judges of the Queen's Bench Division and Family Division of the High Court in their response to the Civil Justice Review recognized the currency of the Best Evidence rule as a principle underlying the weight of hearsay evidence to be admitted. In a similar vein, Balcombe LJ in Ventouris v Mountain (No. 2) said that: "The modern tendency in civil proceedings is to admit all relevant evidence and the judge should be trusted to give proper weight to evidence which is not best evidence."
Direct and circumstantial. Direct evidence is the proof of a fact in issue by a person who perceived it with one of his five senses. Circumstantial evidence is fact from which the existence or non-existence of a fact in issue can be inferred.
Direct and hearsay. Direct evidence (as defined above) of a relevant fact is admissible whereas proof by a witness who relates what he was told by some other person (first-hand hearsay) or what the other person was told by another person (second-hand hearsay) or what other persons who were not called to give evidence told him (multiple hearsay) is contrary to the rule against hearsay discussed later.
Oral, documentary and real. The modern means of proof are often categorized as oral or parole evidence, documentary and real evidence. The term "documentary evidence" is a compendious expression for describing a variety of evidence inscribed on or emanating from a vast array of documents such as maps, graphs, drawings, tables, microfilms, microfiche, computer printouts and Electronic Data Interchange Systems (EDI). Oral evidence is the testimony of a person called as a witness but it includes evidence which, by reason of defect of speech or hearing, is given by signs. Real evidence is that from which the court can draw inferences such as material objects, demeanour of a witness, physical characteristics of a person or an animal. In modern evidential parlance, the word "real" is used to draw a distinction between a document intended to show that it was in fact made (such as a tape or a microfilm) and one tendered as evidence of the truth of that which was asserted. The former is regarded as real evidence whilst the latter is hearsay.
Primary and Secondary. The distinction, a by-product of the Best Evidence rule discussed above, is of importance in relation to private documents. Primary evidence is regarded as synonymous with best evidence. In other words, the primary evidence of a private document is the original itself whilst a copy of the document or other evidence of its contents is secondary evidence.
Prima facie and Conclusive. Prima facie (or presumptive) evidence is either a creature of statute or a judicial pronouncement ossifying into a rule of law. It is evidence declared as sufficient until the contrary is proved. One example will suffice: Section 2(3) of the Partnership Act 1890 which provides that the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in that business.
Conclusive evidence is evidence which no party is allowed to contradict (e.g. the rule that a child under 10 is incapable of committing an offence - doli incapax). If the evidence is incontrovertible, it tantamount to a rule of law and should be so described.
(3) SOURCES OF THE LAW OF EVIDENCE
The term "source of law" can refer to governmental institutions that formulate legal rules or to the published manifestations of the law: the books and the electronic and other media that contain legal information. The latter and broad meaning of "source" is adopted in this text to include all sorts of historical and modern sources of the law of evidence.
In view of the fact that the rules of evidence are of great antiquity, it is pertinent to mention, from the outset, that the concept of the burden of proof has been traced to the second century A.D. whilst the rules of corroboration have been traced to the great religious texts - the Talmud, the Bible and the Koran.
Of special importance to the study of evidence are texts written by Nelson and Gilbert in the eighteenth century. The nineteenth century texts published on both sides of the Atlantic is important for the rationalization of the law of evidence. In England Peake's Compendium appeared in 1801 and Bentham's The Rationale of Judicial Evidence, a trenchant critique of the law of evidence, was published in five volumes in 1825. Despite the author's infelicities of style and punctilious analysis of the law, The Rationale was indirectly responsible for a number of statutory reforms of evidence. For the systematization of the law of evidence, Stephen's Digest in England and, in the United States, Greenleaf's Treatise on the Law of Evidence, Thayer's Preliminary Treatise and Wigmore's magnum opus are instructive. No study of the historical evolution of the principles, rules and doctrines of evidence will be complete without consulting two texts by English text writers - Taylor and Best.
The modern sources of the law of evidence include practitioners' texts by Archbold, Andrews and Hirst, Murphy, Phipson and various textbooks and theoretical works. But that is not all: judicial decisions have played a vital role in the development of the law of evidence since its inception as a discrete discipline in 1770. These judicial decisions are reported in various law reports and discussed in law journals such as the Cambridge Law Journal , the Criminal Law Review , the Law Quarterly Review , the Modern Law Review , the International Journal of Evidence and Proof , the European Human Rights Law Review and the European Human Rights Law Journal , to mention a few.
In its embryonic stage, the law of evidence consisted of a comparatively small number of Acts of Parliament which has increased by leaps and bounds over the centuries notable amongst which are the Criminal Evidence Act 1898, the Civil Evidence Acts 1968, 1972 and 1995, the Police and Criminal Evidence Act 1984, the Criminal Justice Acts 1988 and 1991, the Criminal Justice and Public Order Act 1994, the Criminal Procedure and Investigations Act 1996, the Youth Justice and Criminal Evidence Act 1999, the Freedom of Information Act 2000, the Regulation of Investigatory Powers Act 2000, the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003.
Finally, no survey of the sources of the law of evidence will be complete without mentioning the pervasive effect of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into British law, on the rules of evidence and the intellectual production excited by this incorporation. Three practitioners' texts on human rights law authored by Clayton and Tomlinson, Kempees and Feldman dominate the market but there are other works which are not practitioners' texts and are not so popular as the aforementioned but are equally useful. Recent developments on the municipal law and European law are noted in Current Law and European Current Law respectively.
(4) FACTS IN ISSUE
(A) In general
There are two principal facts in issue: those which are in issue as a matter of substantive law and those which are in issue as a matter of the law of evidence itself. These are facts which the plaintiff claimant in civil proceedings and the prosecutor in criminal proceedings must prove in order to succeed. The main facts in issue can only be ascertained by reference to the substantive law and pleadings.
(B) Means of Proof
Facts in issue may be proved or disproved by judicial evidence which takes the following forms: testimony, hearsay, documents, things or real evidence and circumstantial evidence.
(a) Testimony. Testimony is the oral statement of a witness made under oath as evidence of the truth of that which is asserted. In legal parlance, it is aptly called 'direct' evidence or testimony to distinguish it from hearsay.
(b) Hearsay. Section 1(2) of the Civil Evidence Act 1995 liberally defines "hearsay" as follows:
"a statement made other than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated therein."
This statutory definition lacks specificity. A specific and universally accepted definition of hearsay proffered by Cross is as follows:
"Express or implied assertions of persons other than the person who is testifying and assertions in documents produced to the court [which] are inadmissible as evidence of the truth of that which was asserted."
In civil proceedings, all hearsay statements are generally admissible but in reality the statements may still be excluded due to considerations relating to weight (or cogency) or on grounds other than hearsay, for example, because they infringe the rule against opinion or are inadmissible similar fact evidence.
In criminal proceedings, hearsay statements are generally inadmissible but are rendered admissible, if they come within the ambit of one of the recognized statutory or common law exceptions to the hearsay rule.
(c) Documents. The word "document" has no single meaning but includes maps, plans, graphs, photographs, discs, tapes, films, microfilm, microfiche, soundtrack or any other device by which visual image may be reproduced. It therefore also includes videotapes and computer printouts. Documents (as statutorily defined) may be incorporated in evidence if they contain admissible hearsay.
(d) Things or Real Evidence. Although the term "real evidence" was coined by Bentham and adopted by Best, it has not received the blessing of judicial usage. It encompasses material objects, appearance, the demeanour of a witness and a view. An object such as a vicious dog (e.g. a Rottweiler) or a suit that does not fit or a blood-stained knife may be produced to the judge and jury to enable them to form their opinion on the matter. The appearance of the accused - whether he is left-handed, tall, short, weak or has physical deformity such as rupture in cases of alleged rape may be relevant to a fact in issue. Nokes includes the demeanour of a witness as real evidence, for example, the way a witness behaves under cross-examination may rightly be regarded as evidence.
There is considerable doubt as to the true nature of a view or visit by a judge to the locus in quo - the scene of the crime or accident. Denning LJ in Goold v Evans & Co. treated a visit to a factory to observe the reconstruction of an accident as a species of real evidence. Hodgson LJ regards it as no more than a means of interpreting evidence in court and this was the view adopted in Birmingham v Daily News Ltd. where it was held that the trial judge had rightly taken into account his opinion of the machine formed at the view. More recently, in Li Shu-Ling v R videotaped reconstruction at the scene of a crime and the accused's confession was admitted in evidence.
(e) Circumstantial Evidence. Circumstantial evidence has been defined in section 2 (above) as facts from which the existence or non-existence of a fact in issue may be inferred. For example, in a charge of arson the fact that the accused was seen walking away with an empty can of petrol from a building gutted by fire might lead to the inference that he set the building alight.
According to Wigmore, circumstantial evidence may be classified as prospectant, concomitant and retrospectant circumstantial evidence. Prospectant circumstantial evidence is a past event from which a fact in issue can be inferred such as proving speed in an action for negligence as to establish motive or plan. Concomitant circumstantial evidence is used to prove circumstances existing contemporaneously with the transaction in issue before the court to show that the acts alleged are probable, for example, as standard of comparison where the defendant's liability for negligence is determined by considering what other brokers in his position would have done or in rendering admissible a hearsay statement as part of the doctrine of res gestae. Far too much ink has been spilled by text writers on this doctrine. It will suffice to state that by the doctrine statements which otherwise would have been excluded are now admissible as exceptions to the hearsay rule because the evidentiary facts by reason of proximity in time, place or circumstances throws light on the principal facts. This doctrine is considered in depth in Chapter 13.
Retrospectant circumstantial evidence is the converse of prospectant circumstantial evidence in that a person's anterior intention may be proved by his subsequent acts. For example, possession of stolen goods without explanation entitles the jury to infer that the person in possession was either a thief or guilty of dishonestly handling the goods, knowing or believing it to be stolen contrary to section 22 of the Theft Act 1968.
(5) RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE
(A) In general
The term "relevance" means the connection between one fact and another fact renders the existence of the other fact probable or improbable. Relevance is not a matter of law but one of logic and experience.
The general rule is that all evidence that is sufficiently relevant is admissible and all evidence that is irrelevant or insufficiently relevant should be excluded. The first limb of the rule - that all evidence that is sufficiently relevant is admissible - is subject to a number of exceptions as relevant evidence might still be excluded because the evidence infringes the rules against hearsay and opinion or is inadmissible as similar fact or character evidence.
The exclusion of irrelevant or insufficiently relevant evidence may be considered under the following headings:
(a) Remoteness. For Best, the rejection of evidence on the ground of remoteness is an offshoot of the Best Evidence rule. This rejection is based on lack of connection between the evidentiary and principal facts. In Hart v Lancashire and Yorkshire Rail Co. the fact that the defendant's method of changing the points was altered after an accident was held to be inadmissible. In the words of Bramwell B: “People do not furnish evidence against themselves by adopting a new plan.” Again, in Hollingham v Head where a contract for the sale of guano was in issue, evidence that the plaintiff had contracted on the alleged terms for the sale of guano to strangers was held inadmissible. Williams J said: “It would lead to the greatest inconvenience if we were once to relax the rule, which requires the evidence to be confined to the points in issue, by allowing other transactions to be inquired into …”
(b) Multiplicity of issues. The desire to avoid multiplicity of issues is responsible for several of the exclusionary rules of evidence. For example in Agassiz v London Tramway Co. Ltd. a passenger on a tram claimed damages for personal injuries caused by collision due to the negligence of the driver. She sought to tender evidence that she had heard a fellow passenger say that the driver had been off the line five or six times that day. The presiding judge rejected the evidence because it would have given rise to collateral issues.
Again, in Folkes v Chadd the question was whether an embankment erected by P caused silting in D's harbour. One Mr. Smeaton, a distinguished engineer, testified as an expert that silting was not caused by the embankment and sought to reinforce his opinion by showing that silting had occurred in other harbours on the same coast. The additional evidence was held inadmissible. However, in Metropolitan Asylum District v Hill and Hales v Kerr the judges were formally disposed to allow such evidence. In the former, the effect of a smallpox hospital on the health of the inhabitants of the neighbourhood was in issue. The House of Lords held that the evidence on the effect of similar institutions on other localities was admissible, although the point was not finally decided. In the latter, P claimed he had contracted barber's itch from the implements used by D, a barber. He was allowed to prove that two other customers of D had contracted the same disease.
(c) Danger of Manufactured Evidence. There is a school of thought that believes that the degree to which an item of evidence is relevant diminishes in proportion to the likelihood of its being manufactured.
(B) Relevance and admissibility: A summary
The distinction between relevance and admissibility was succinctly put by Thayer:
“Admissibility is determined, first, by relevancy, - an affair of logic and experience and not at all of law; second, but only indirectly by the law of evidence, which declares whether any given matter which is logically probative is excluded.”
Thayer's position on admissibility was revised by Wigmore as follows:
“Admissibility signifies that the particular fact is relevant, and something more – that it has also satisfied all the auxiliary tests and extrinsic policies.”
Cross eventually reformulated Thayer's position in a statement explicable in a quasi-mathematical form:
Relevance ¹ Admissibility
Admissibility = Relevance + Satisfaction of Auxiliary Tests and Extrinsic Policies.
(C) Cogency or weight of evidence or probative force
The difference between the admissibility of evidence and cogency or weight of evidence or probative force is that whilst the former is a matter of law for the judge, the latter is a question of fact which frequently forms part of the judge's observation in his summing up.
(6) THE FUNCTIONS OF THE JUDGE AND THE JURY
(A) Questions of law and fact
In an adversary system of procedure, the procedural action is controlled by the parties whilst the judges remain passive whereas in an inquisitorial system judges “are free to inject themselves in proof-taking if they so choose” consonant with their responsibility for ascertaining the truth. Because of the powers of judicial intervention vested in judges in criminal proceedings, Professor W. Twining suggests that the civil procedure is much closer to the adversarial system than the criminal procedure. The reality, however, is that “the overall orientation [of English criminal justice] is towards an adversarial model.”
The general rule is that in the limited civil proceedings with jury trials and in criminal proceedings, questions of law are determined by judges and questions of fact by the jury. There are some special cases and exceptions which lend credence to Professor Twinning’s position. The special cases and exceptions are as follows:
(B) Special Cases
1. Construction. The proper construction of a word used in a statute is a question of law. In Brutus v Cozens the appellant was charged with insulting behaviour as a result of stepping on the Wimbledon tennis court, throwing around leaflets and sitting down on the court contrary to section 5 of the Public Order Act 1935. The justices held that his behaviour had not been insulting and dismissed the information without calling on him to give evidence. On appeal to the House of Lords it was held that the meaning of an ordinary word of English language is not a question of law. The proper construction of a statute is a question of law. Again, in R v Feely it was held that the word “dishonestly” used in section 1 (1) of the Theft Act 1968 was an ordinary word of the English language and that a jury required no direction by the judge as to its meaning.
2. Defamation. In a criminal prosecution for libel the judge determines whether the document in question is capable of bearing the meaning alleged by the prosecution whilst the jury decides whether it does in fact amount to criminal libel. The same procedures apply in civil cases.
3. Perjury. Whether a statement on which perjury is assigned is material is one of law to be determined by the court of trial.
(C) Exceptions
There are two main exceptions. The first is that foreign law, that is, the laws of other countries (Scotland, Eire since 1921 and others) are matters of fact to be determined by evidence adduced. The second is that reasonableness is generally a question of fact for the jury but it must be decided by the judge in actions for malicious prosecution, false imprisonment and covenants in restraints of trade.
(7) JUDICIAL CONTROL OF THE JURY
(A) Introduction
Although the juries are triers of fact, judges use four methods to control the jury, viz. withdrawal of an issue from the jury, stopping a case, summing-up and discretion.
(B) Withdrawal of an issue
The judge must be satisfied that there is sufficient evidence for the proponent's contention for the jury's consideration before the issue can be referred to the jury. Otherwise, he must decide the issue in the opponent's favour. In Metropolitan Railway Co. v Jackson the plaintiff claimed damages for negligence because his thumb had been crushed by the slamming of the door of a railway carriage. There was evidence that the defendant had been negligent in allowing the railway to be overcrowded but there was no evidence that the overcrowding had caused the plaintiff's thumb to be where the door was slammed. The House of Lords held that the judge should have withdrawn the case from the jury. It must be noted, however, that in DPP v Stonehouse the trial judge directed the jury that if they were satisfied that the accused had falsely faked his own death by drowning dishonestly intending that his wife would obtain money under his insurance policies, that would constitute the offence of obtaining property by deception. The House of Lords held that that amounted to a withdrawal of fact from the jury and misdirection.
Where a no-case submission is made by one of the parties in a civil case tried by the judge alone, he must decline to rule on the submissions unless the party making it elects not to call evidence. This is necessary for two reasons. First, the judge has to determine the facts as well as the law and cannot express an opinion until the evidence is complete. The second reason is that the parties may be put to an extra expense if the Court of Appeal were to decide against the judge. In civil cases tried by a jury the judge has a discretion. In criminal cases the party making the submission is never put to his election but where the ruling is in favour of the submission the trial judge directs the jury to acquit.
(C) Stopping a case
In R v Galbraith, it was held that on a submission of no case to answer at the end of the prosecution case, the trial judge should stop the case and direct an acquittal if there was no evidence that the alleged crime was committed by the defendant. It was added, however, that if there was some evidence of tenuous character – because of inherent weakness or vagueness or because it was inconsistent with other evidence – it was the judge's duty to stop the trial but where the prosecution evidence was such that its strength or weakness depended on the view to be taken of a witness's reliability or on a matter within the province of the jury, then the judge should allow the jury to determine the matter.
The Royal Commission on Criminal Justice recommended that Galbraith be reversed “so that a judge may stop any case, if he or she takes the view that the prosecution evidence is demonstrably unsafe or unsatisfactory or too weak to go to the jury”. This recommendation was effectuated by section 125 of the Criminal Justice Act 2003.
(D) Summing-up
Judges frequently exercise considerable influence over the jury by summing-up. The purpose of the summing-up is two-fold, namely, to direct the jury as to the law and comment on the plausibility and credibility of the witnesses and weight of evidence. This influence has been curtailed by the House of Lords in DPP v Stonehouse where Lord Salmond said:
“Whilst there is no doubt that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse of them to do so, it is the judge's duty to direct them to acquit. This rule, which has been long established, is to protect the accused against being wrongly convicted. But there is no converse rule – although there may be some who think that there should be. If the judge is satisfied that on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone has the right to decide that the accused is guilty.”
In other words, judges can direct the jury to acquit but they must not direct them to convict.
(E) Judicial discretion
Judges have the common law discretion preserved by section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) and the statutory discretion under section 78 of PACE to exclude relevant evidence if admitting the evidence will be adverse to the fairness of the proceedings. These provisions have excited an avalanche of cases and are discussed in Chapter 15.
The Concise Oxford Dictionary (Oxford: Oxford University Press, 1951).
See G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 9.
L. Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan Paul, 1960) at para. 6.3631.
C. Tapper (ed.), Cross and Tapper on Evidence (Butterworths, 1999), at 1.
J.F. Stephen, A Digest of the Law of Evidence (London: Macmillan, 1948), at 3.
William Twining, "Evidence and Legal Theory" in W. Twining (ed.), Legal Theory and Common Law (Oxford: Basil Blackwell, 1986), at 66.
See R.W. Baker, The Hearsay Rule (London: Pitman, 1950), at 15-16.
(1700) 1 Salk 283.
P. Murphy, A Practical Approach to Evidence (London: Blackstone, 1992), at 40. See also Garton v Hunter (1969) 2 Q.B. 37, Kajala v Noble (1982) 75 Cr App R 149 and R v Governor of Pentonville, Ex p Osman [1990] 1 W.L.R. 277, 308.
See The Hearsay Rule in Civil Proceedings (The Law Commission Consultation Papers No. 117, 1991), para. 2. 68.
[1992] 1 WLR 887.
Ibid., p.899. These views are enacted as section 4 of the Civil Evidence Act 1995.
See Myers v DPP [1965] A.C. 1001 and R v Kearley (1992) 95 Cr App R 88, HL.
See J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research , 1-2 (5th edn. 1990) cited in Bryan A. Garner (ed.), Black's Law Dictionary , (Minnesota: West Group, 1999), at 1401.
W. Nelson, The Law of Evidence , 2nd edn., ( London : R. Nutt and R. Gosling, 1735).
G. Gilbert, The Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1754 ed. printed for Sarah Cotton, Dublin ].
T. Peake, A Compendium of the Law of Evidence (New York and London : Garland Publishing Incorporated, 1979) [a] reprint of the 1801 ed. printed for E.&R. Brooke and J. Rider, London ].
J. Bentham, The Rationale of Judicial Evidence (London: Hunt and Clarke, 1827), Vols. 1-4.
J.F. Stephen, A Digest of the Law of Evidence (London: Macmillan, 1948) (first published in 1876).
S. Greenleaf, A Treatise on the Law of Evidence (Little, Brown, 1842).
J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898).
J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers rev. (Boston: Little, Brown, 1983).
J.P. Taylor, A Treatise on the Law of Evidence , 12th edn. (London: Sweet & Maxwell, 1931), Vols. 1 and 2.
W.M. Best, The Principles of the Law of Evidence , 12th edn. (London: Sweet & Maxwell, 1922).
J. Richardson, et al. , Archbold's Criminal Pleading, Evidence and Practice ( London : Sweet & Maxwell, 2009).
M. Hirst (ed.), Andrews and Hirst on Criminal Evidence ( Bristol : Jordans , 2001).
P. Murphy, et al. , Criminal Practice ( London : Blackstone, 2002).
H.J. Malek, et al. , Phipson On Evidence ( London : Sweet & Maxwell, 2008).
See I.H. Dennis, The Law of Evidence ( London : Sweet & Maxwell, 2007); A. Keane, The Modern Law of Evidence (Oxford: Oxford University Press, 2008); and C. Tapper (ed.), Cross and Tapper On Evidence (Oxford: Oxford University Press, 2007).
See T. Anderson and W. Twining, Analysis of Evidence (London: Weidenfeld & Nicolson, 1991); W. Twining, Rethinking Evidence (Illinois: Northwestern University Press, 1994); W. Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1995); and M.R. Damaska, Evidence Law Adrift (New York and London: Yale University Press, 1997).
R. Clayton and H. Tomlinson, The Law of Human Rights ( Oxford : Oxford University Press, 2008), Vols. 1 and 2.
P. Kempees, A Systematic Guide to the Case Law of the European Court of Human Rights, 1960-1994 (Martinus Nijhoff, Dordrecht ), 1996, Vols. 1-3.
D. Feldman, Civil Liberties and Human Rights in England and Wales ( Oxford : Oxford University Press, 2002).
See B. Dickinson, Human Rights and the European Convention (London: Sweet & Maxwell, 1997); M. Janis, R. Kay and A. Bradley, European Human Rights Law: Text and Materials (Oxford: Oxford University Press, 2000); E. Shorts and C. de Than, Civil Liberties: Legal Principles of Individual Freedom (Sweet & Maxwell, 1998); E. Shorts and C. de Than, Human Rights Law in the UK (London: Sweet & Maxwell, 2001); and R.M.M. Wallace, International Human Rights: Text and Materials (London: Sweet & Maxwell, 2001) and D.J. Harris, M. O'Boyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2009).
Sir Rupert Cross, Cross On Evidence (Butterworths, 1967), at 387. This definition was adopted in the 11th Report of the Criminal Law Revision in June 1972 (Cmnd. 4991).
The principal statutory exceptions to the hearsay rule in criminal proceedings were stipulated in sections 23, 24, 26, 30, 32 and 32A of the Criminal Justice Act 1988 as extended by section 24 of the Youth Justice and Criminal Evidence Act 1999 which are now replaced by sections 114-118 of the Criminal Justice Act 2003.
The hearsay statements admitted as common law exceptions to the hearsay rule are as follow: statements made by deceased persons, declarations against pecuniary interest and proprietary interest, dying declarations as to homicide and res gestae evidence.
R v Grimer [1982] Crim LR 674 and Li Shu-Ling v R [1988] AC 270, PC.
R v Minors, R v Harper [1989] All ER 208, R v Spiby [1991] Crim LR 199, R v Burke [1990] Crim LR 401 and R v Shephard [1993] 1 All ER 225, H.L.
Section 13(1) of the Civil Evidence Act 1995 defines a "document" as "anything in which information of any description is recorded".
For further discussion, see Chapter 13.
J. Bentham, The Rationale of Judicial Evidence (London: Hunt and Clarke, 1827), Vol. 1 at 53.
W.M. Best, The Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 17.
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, London, 1967), at 448-9.
J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers rev. (Boston: Little, Brown, Boston, 1983), Vol. 1A, at 1140.
Chapman v Walton (1833) 10 Bing 57.
W.M. Best, The Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 234.
(1908) 2 KB 601. See also Holcombe v Hewson (1810) 2 Camp 391.
J.B. Thayer, A Preliminary Treatise on Evidence at Common Law (Boston: Little, Brown, 1898), at 516.
J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers rev. (Boston: Little, Brown, 1983), Vol. 1, at 689.
C. Tapper (ed.), Cross and Tapper on Evidence (London: Butterworths, 1999), at 66.
M.R. Damaska, Evidence Law Adrift (New Haven and London: Yale University Press, 1997), at 91.
See W. Twining, Rethinking Evidence: Exploratory Essays (Illinois: Northwestern University Press, 1994), at 182.
A. Ashworth, The Criminal Process: An Evaluative Study (Oxford: Oxford University Press, 1998), at 69.
In other civil cases tried without the jury, the judges determine questions of law and fact.
[1973] QB 530, [1973] 1 All ER 341.
See Fox's Libel Act 1792 (32 Geo 3, c.60).
Perjury Act 1911, s.1 (6). See R v Triano (1987) 27 ACR 271.
Administration of Justice Act 1920, s.15.
Herniman v Smith [1938] AC 305, [1938] 1 All ER 1.
Broughton v Jackson (1852) 18 QB 378.
Mason v Provident Clothing and Supply Co. Ltd. [1913] AC 724.
Final Report No. 245 (1996), para 45.
See also section 107 of the Criminal Justice Act 2003 which allows a judge to stop a trial, direct the jury to acquit or order a retrial if the evidence is contaminated.
[1878] AC 55 at 79-80. See also R v Wang [2005)
Chapter 3: The Burden and Standard of Proof.
(1) BURDEN OF PROOF: THE TWO BURDENS
The principle governing the phrase “the burden of proof” has been traced to Pauls, a Roman jurist, in the second century A.D. and expressed by the Latin maxim ei qui affirmat non ei qui negat incumbit probatio: he who asserts a matter must prove it, but he who denies it need not prove it. For Thayer, the phrase “the burden of proof” has two meanings: (i) the risk of not persuading the jury and (ii) the duty of going forward with the evidence to satisfy the judge. The latter meaning is frequently called “the presumption of innocence”, a presumption recognised as a cornerstone of the English criminal law and protected by Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention).
There are two burdens of proof: (i) the legal (i.e. fixed) or persuasive or ultimate burden of proof; and (ii) the evidential or provisional or tactical burden – “the burden of introducing enough evidence to be placed before the jury or other tribunal of fact.” The burdens of proof of issues are the same in civil and criminal proceedings but the issues are determined differently and are subject to other factors which will be discussed below. For instance, in criminal proceedings, the burden of proof rests on the prosecution and never changes throughout the trial; in civil proceedings the burden of proof of an issue is either on the plaintiff or the defendant and rests on him throughout the trial. The moot point is whether the burden of proof shifts.
Shifting the burden; Judges and text writers are divided on the shifting of the burden of proof. There is high authority for the proposition that the burden of proof never shifts and also for the proposition that, in some cases, the burden shifts. The former proposition refers to legal or ultimate burden of proof in criminal proceedings which requires that the prosecution must prove that the accused is guilty of the alleged crime beyond reasonable doubt; in which case, the burden remains on the prosecution throughout the criminal proceedings. Similarly in civil proceedings, where the burden of proof is on the plaintiff or the defendant, the burden remains on him throughout the trial. But there are some cases where on the true construction of an enactment it prohibited the doing of a certain act, save in special circumstances, and it is not for the prosecution to prove a prima facie case of lack of excuse or qualification but for the defendant to prove that he was entitled to do so. In such a case, the burden of proof shifts to the defendant as in R v Edwards. There are also cases where negligence is alleged in civil proceedings, the mere fact that the accident occurred may amount to prima facie evidence of negligence. This state of affairs is described by the maxim Res ipsa loquitur (the thing speaks for itself). In case of collision at sea where the defendants' ship collided in daylight with a ship at anchor , the burden lay on the defendants to prove inevitable accident either by proving the cause of the accident or by enumerating possible causes and proving with regard to everyone of them that the result could not have been avoided. In all the three instances, the burden of proof is described as shifting tactically.
(2) BURDEN OF PROOF IN CIVIL CASES
(A) The right to begin
In civil proceedings, the burden of proof is on the party who would be unsuccessful if no evidence at all were given and such a party has the right to begin. In Amos v Hughes, an action for breach of contract, the question arose as to which party should begin. Alderson B ruled that the plaintiff was entitled.
(B) The burden of proof
The general rule is that he who affirms must prove but in determining who is affirming the judge should consider the substance and not the grammatical language of the pleading. For instance, where P the landlord of D alleged that the latter “did not repair” the premises in question and D pleaded that he “did well and sufficiently repair” the same, it was held that notwithstanding that D's pleading was the grammatical affirmative; the burden of proof was on P. This position is not altered because it involves the plaintiff proving the negative. In Abrath v North Eastern Railway, an action for malicious prosecution, the plaintiff alleged that the defendant instituted proceedings against him without reasonable and probable cause. It was held that the burden is on the plaintiff to prove not only the malicious prosecution but also prima facie the want of reasonable and probable cause. It must be noted, however, that where the evidence is so scanty as to render it impossible to reach a conclusion as in Wakelin v London & South Western Railway the party to suffer for this state of affairs is the one on whom lies the burden of proof. In that case, the plaintiff brought an action under the Fatal Accidents Act 1846 alleging that her deceased husband had met his death owing to the negligence of the defendants. The only evidence was that the deceased's dead body was found lying at the side of a railway line near a level crossing. It was held the burden of proof lay on the plaintiff.
We are also reminded by Viscount Maugham in Joseph Constantine Steamship Line, Ltd. v Imperial Smelting Corporation, Ltd. that the burden of proof lies on the party who affirms and not upon the party who denies it. In that case, the plaintiffs, who had chartered a ship from the defendants, claimed damages for breach of contract because the ship was not available at the stipulated time. The defendants pleaded that the performance of the contract had become impossible because of an explosion in a boiler whilst the ship was at anchor. The plaintiffs contended that the defendants must prove that they were not responsible for the explosion. The House of Lords held that where the plaintiffs wished to show that the frustration of the contract was due to the defendants' negligence, the plaintiffs must allege and prove it.
(3) BURDEN OF PROOF IN CRIMINAL CASES
In a criminal case it is always the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. In Woolmington v DPP the accused was convicted of murder. His defence was accident. Swift J in his summing-up said:
“Once it is shown to the jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy the jury that what happened was something less, something which must be alleviated, something which must be reduced to a charge of manslaughter, as something which was accidental, or something which could be justified.”
The accused appealed unsuccessfully to the Court of Appeal but successfully to the House of Lords. Viscount Sankey LC said:
“Where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. 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 subject to what I have already said as to the defence of insanity and subject to any statutory exception.”
Although two exceptions to the “golden thread” or the so-called Woolmington principle were instantiated by Viscount Stanley LC in 1935, namely, insanity and any (express) statutory exception (i.e. where a statute places the legal burden of proof on the defendant) a third exception has been added.
Insanity. The first exception to the Woolmington principle is insanity as defined under the M'Naghten rule. Where the accused pleads insanity, he bears the persuasive burden which is discharged on a balance of probabilities. Where prosecution raises the defence, they must prove it beyond reasonable doubt.
It must be noted, however, that where the accused's defence involves the pleading of issues such as non-insane automatism, provocation, self-defence, duress, and belief in lawful authority and mechanical defect, he bears the evidential burden and the onus of disproving them rests on the prosecution.
Express Statutory Exceptions. In the year 2000, at least twenty-nine statutory exceptions to the Woolmington principle were in force casting the burden of proof on the defendant. For our present purposes, eight of these statutory provisions will suffice:
(i) Homicide Act 1957, s.2 (2) places the burden of proof on the defendant who relies on the plea of diminished responsibility as statutorily defined in section 2 (1) of the Act.
(ii) Prevention of Crime Act 1953, s.1 (1) provides that any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place an offensive weapon shall be guilty of an offence.
(iii) Prevention of Corruption Act 1916, s.2 provides that where in any proceedings for an offence under the Prevention of Corruption Act 1906 or the Public Bodies Corrupt Practices Act 1889, it is proved that any money, gift, or other consideration has been offered or received by a person in the employment of His Majesty or any Government Department or a public body such money, gift or consideration shall be deemed to have been paid or given corruptly unless the contrary is proved.
(iv) Bills of Exchange Act 1882, s.30 (2) provides that every holder of a bill is prima facie deemed to be a holder in due course but if an action on a bill is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted , unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill.
(v) Misuse of Drugs Act 1971, s.28 (2) provides that in any proceedings where this section applies it shall be a defense for the accused to prove that he neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which is necessary to be proved by the prosecution if he is to be convicted of the offence charged. In other words, the onus of proof is placed on the accused and the standard of proof is in balance of probabilities.
(vi) Criminal Damage Act 1971, s.1 (1) provides that a person without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. The absence of lawful excuse is an element of the crime and the circumstances in which the accused may have a lawful excuse are in section 5.
(vi) Sexual Offences Act 1956, s.30 (2) provides that for the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute's movements in a way which shows that he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless the contrary is proved.
(vii) Prevention of Terrorism (Temporary Provisions) Act 1989, ss.16A and 16B: Section 16A (1) provides that it is an offence to possess articles, in themselves innocent, for terrorist purposes and section 16A (3) places a reverse burden on the accused. Similarly, section 16B (1) provides that no person shall without lawful and reasonable excuse (the proof of which lies on him) collect or possess information, in itself innocent, for terrorist purposes.
Implied Statutory Exception. Section 101 of the Magistrates' Court Act 1980 provides:
“Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception … shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception …”
In summary proceedings, the common law rule is that where the accused claims that he is within the exception, exemption, proviso or qualification, the persuasive burden is on him and this burden is discharged on a balance of probabilities. This common law rule, developed in summary trials, was held to apply to trials on indictment in R v Edwards and R v Hunt. In Edwards the defendant was convicted of selling intoxicating liquor without justices' license contrary to section 160 (1) of the Licensing Act 1964. He was unrepresented at the trial and did not give evidence but made an unsworn statement denying the occupation of the premises. He appealed against conviction on the ground that since the prosecution had access to the register of licenses under s.34 (2) of the Act, the prosecution should have called evidence to prove that there was no justices' license in force. It was held, dismissing the appeal, that there was an exception to the fundamental rule of the criminal law that the prosecution had to prove every element of the crime and that its application was not dependent upon either the fact or the presumption that the defendant had peculiar knowledge enabling him to prove the positive of a negative averment. It was further held that if on the true construction of an enactment it prohibited the doing of a certain act, save in specific circumstances, it was not for the prosecution to prove a prima facie case of lack of excuse or qualification but it was for the defendant to prove that he was entitled to do the prohibited act, and therefore to prove that he held the justices' license.
In Hunt the defendant was charged with unlawful possession of morphine contrary to section 5 of the Misuse of Drugs Act 1971. By regulation, section 5 did not have effect in relation to preparation containing not more than 0.2 per cent of morphine. The prosecution called no evidence at the trial as to the proportion of morphine in the powder and, at the end of the prosecution case, the defence submitted that there was no case to answer. The judge rejected the submission. The appellant then changed his plea to guilty and a conviction was recorded. The Court of Appeal (Criminal Division) dismissed the appellant's appeal against conviction but gave leave to appeal to the House of Lords and certified the following point of law of general importance:
“Whether in a prosecution for the possession of a preparation or product containing morphine under section 5 of the Misuse of Drugs Act 1971, where the morphine is of an unspecified amount and compounded with other ingredients and where the defence seeks to rely upon the exception to the said section 5 set out in regulation 4 (1) of and paragraph 3 of Schedule 1 to the Misuse of Drugs Regulations 1973 (as amended) the burden falls upon the defence to show that the said preparation or product comes within the said exception.”
It was held that there was no rule of law that the burden of proving a statutory defence lay on the defendant only where the statute specifically so provided, since a statute could place the burden of proof on the defendant by necessary implication and without doing so expressly and that each case turned on the construction of the particular legislation. As regards the question of construction, Lord Griffiths said:
“As this question of construction is obviously one of difficulty I have regard to the fact that offences involving the misuse of hard drugs are among the most serious in criminal calendar and, subject to certain special defences the burden of proof whereof is specially placed on the defendant, they are absolute. In these circumstances, it seems to me right to resolve any ambiguity in favour of the defendant and to place the burden of proving the nature of the substance involved in so serious an offence on the prosecution.”
The certified question was answered in the negative. The House of Lords allowed the appeal and quashed the conviction.
The common law rule emerging from the three cases cited above – Nimmo v Alexander Cowan & Sons Ltd. , Edwards and Hunt – is enunciated by Carter as follows:
“A statutory exception to the rule that the legal burden of proof in a criminal case is upon the prosecution may be express or implied. This is so whether the offence is triable summarily or on indictment. Where a linguistic construction does not clearly indicate where the burden of proof lies, the court may look to other factors in order to discover the intention of Parliament. These considerations include the mischief at which the provision is directed, and also practical consideration such as, in particular, the relative degrees of the likely difficulty for the respective parties in discharging the burden.”
It must be mentioned, however, in view of recent developments the furor triggered by the decision in Hunt between the adherents of the above rule and its opponents who “regarded the reasoning in Hunt as a license to re-write Acts of Parliament or to subvert existing canons of construction” pales into insignificance for two reasons. First, the principles of Edwards and Hunt were approved by the High Court of Australia and followed in England in R v Alath Construction Ltd., R v Brightman . In that case, the chairman of a company which was developing a housing site on which a tree preservation order had been made and the company were charged with destroying a tree which was the subject of a preservation order contrary to section 102 (1) of the Town and Country Planning Act 1971. Counsel for the defendants raised a preliminary point of law that the prosecution must prove that the beech tree in question was not dying, dead or dangerous, or creating a nuisance, conditions which created an exception under section 60 (6) of the 1971 Act to the prohibition on destroying trees which were within the preservation order. The judge ruled that the burden of proof lay on the defendants to establish that the tree was dangerous, etc. The defendants appealed. The Court of Appeal, dismissing the appeal, held that where the burden of proof of a statutory offence was not expressly stated, the courts must look to the mischief at which the Act was aimed and the ease or difficulties that the respective parties would encounter in discharging the burden. Edwards and Hunt were followed.
The second reason is that in the past seventy-four years since Woolmington the proliferation of statutory exceptions to the Woolmington principle has reached an alarming proportion. In a recent survey, it was found “that no fewer than 40 per cent of offences triable in the Crown Courts appear to violate the presumption [of innocence].” Indeed, there is some scepticism about the aptness of referring to the English criminal justice system as adversarial. But the crucial question is whether the exceptions to the Woolmington principle violate Article 6 (2) of the European Convention and to this we now turn.
(4) THE HUMAN RIGHTS ACT 1998 AND THE BURDEN OF PROOF
In the run up to the coming into force of the Human Rights Act 1998 (HRA 1998) on 2 October 2000, the DPP's decision to prosecute under sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989 as inserted by section 82 of the Criminal Justice Act 1994 was challenged as incompatible with the presumption of innocence guaranteed by Article 6(2) of the Convention in R v DPP, ex p Kebilene, R v DPP, ex p Rechachi . In that case, Mr. Kebilene and others were charged with an offence of possessing articles, in themselves innocent, for terrorist purposes contrary to section 16A of the 1989 Act. Section 16A (1) provides:
“(1) A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation and instigation of acts of terrorism.”
This sub-section allows the prosecution to establish the terrorist purpose by showing something short of the proof because the reverse burden is placed upon the defendant by section 16A (3) which provides:
“(3) It is a defence for a person charged … under this section that at the time of the alleged offence the article in question was not in his possession for such purpose as is mentioned in (1) above.”
Mr. Rechachi was charged under section 16A (as above) and section 16B (1) of the 1989 Act. Section 16B (1) makes it an offence for any person, without lawful authority or reasonable cause (proof of which lies on him) to collect or record any information of such as nature as is likely to be useful to a terrorist in planning or carrying out any act of terrorism or to have in his possession any such record or document.
Pursuant to section 3 (1) of the HRA 1998 which makes it mandatory for courts to adopt a new interpretive approach not yet in force that provisions of domestic legislation must be construed in the light of Convention jurisprudence and issue a declaration of incompatibility (section 4) if there is a violation of Convention rights, the defendants challenged the DPP's decision to consent to the prosecution which palpably infringed Article 6 (2) – the presumption of innocence.
The defendants' position was based on two grounds. The first is their legitimate expectation that the DPP would exercise his prosecutorial discretion in accordance with the Convention following the enactment of the HRA 1998 and in particular section 22 (4) of the Act and from public statements made by ministers since the passing of the Act. The second is that the Prevention of Terrorism (Temporary Provisions) Act 1989 undermined the presumption of innocence and violated Article 6 (2) of the Convention because of the reverse burden placed on the defendants by section 16A (3) and 16B (1) of the 1989 Act.
The judges in the Divisional Court (Lord Bingham CJ, Lord Justice Laws and Mr. Justice Sullivan) were adamant that sections 16A and 16B were incompatible with Article 6 (2) of the Convention. There are two countervailing considerations: (i) the exercise by the individual of the right guaranteed to him or her under the Convention as incorporated into the UK law by the HRA 1998; and (ii) the right of the State to take effective measures for the prevention of terrorist crimes. How are these considerations to be reconciled?
Lord Bingham looked at the consideration in the continuum by interrogating the Canadian model and ruled that statements by ministers concerning the future conduct of themselves and their officials found no legitimate expectation concerning the future decision of the DPP. He also held that both sections 16A and 16B undermined in a blatant and obvious way the presumption of innocence. He cited with approval the rule propounded by Dickson CJC in R v Whyte that:
“The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of considerable doubt in the mind of the Trier of fact as to the guilt of the accused. ”
The rationale for this rule is that the Canadian Charter of Rights and Freedoms 1982, a constitutional document, is fundamentally different from a statute and any statute, for that matter, must conform to it. For the rule to apply, there are two tests: (i) the judge must ascertain whether the provision in question violates the presumption of innocence in section 11(d) of the Charter; and (ii) apply the limitation set out in section 1 of the Charter. Section 1 provides that the rights and freedoms which it guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The two tests are analytically distinct.
Applying the above tests, the House of Lords came to a different conclusion that sections 16A and 16B did not violate Article 6 (2) of the Convention. Two principal reasons were proffered. First, Lord Steyn felt that the policy underlying the HRA 1998 would be severely undermined if it could be outflanked by framing the case as a challenge to the prosecutor's will to enforce the law. Second, Lord Hobhouse stated that criminal statutes which in certain circumstances partially reversed the burden were not uncommon and that the decision of the European Court on Human Rights and Commission showed that they were not necessarily incompatible with the Convention.
It is true that Lord Bingham applied Dickson CJC's first test and not the second but the decision of the House of Lords, as I intend to show, is problematic. In spite of the disfavour with which reverse legal burden has been regarded in Commonwealth jurisdictions, for example, in Attorney-General of Hong Kong v Lee Kwon-kut , Oakes , Whyte and State v Mbatha , the Law Lords proceeded by applying (in addition) the second test cited above. The majority (excluding Lord Cooke of Thorndon) erroneously drew considerable strength from Salabiaku v France . In that case, the European Court was concerned with an article in the Customs Code which provides that where possession of prohibited goods was established, the person in possession is deemed liable for smuggling. The Court held that there was no failure to comply with Article 6 (2) and issued the following guidelines:
“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law … Article 6 (2) does not therefore regard presumptions of fact or of law provided for in the criminal law with difference. It requires the States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence .”
Taking into account what is at stake, namely, terrorism and maintaining the rights of the defence bring into focus the second test enunciated by Dickson CJC above. In other words, in interpreting the statutes pursuant to section 3 of the HRA 1998 an element of discretion resides in the court to find an acceptable means of dealing with an otherwise incompatible provision either in the public interest or because it is necessary in a democratic society. This may entail “reading down” a piece of legislation, that is, where statutory language bears two meanings such as legal and evidential burdens of proof, the narrow meaning (i.e. evidential burden) is applied in order to ensure that the legislation is valid. This must be contrasted with “reading in” or “reading out” words in order to uphold the validity of statutes. Whilst “reading in” is acceptable, “reading out” is not.
Relying on Salabiaku v France as the leading case and “reading down” the burden of proof from “legal” to “evidential”, Lord Hope of Craighead opined:
“Statutory presumptions which placed an “evidential” burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence. They are not incompatible with Article 6 (2) of the Convention.”
Lord Hope's position is problematic for two reasons. The first is that the juridal basis of the proposition is questionable. We are reminded by Lord Cooke that Professor Glanville Williams's suggestion that statutes should be “read down” in order to uphold their validity was rejected in New Zealand. The second, and more important reason, is the assumption that Salabiaku v France is the leading case. In European Convention jurisprudence where the doctrine of stare decisis does not apply as we understand it in the United Kingdom, the European Court at Strasbourg “regards its previous decisions as a starting-point rather than as binding precedents …” Two European cases cast doubt on the assumption and on the House of Lords' decision in Ex parte Kebilene . In Barbera, Messegue and Jabardo v Spain the applicants, allegedly members of a Catalan separatist organization convicted of murder, complained of violation of Article 6 (1) and (2) of the Convention. It was held that there could be a violation of Article 6 (1) where there is evidence that the principle of adversarial proceedings and equality of arms had not been followed and Article 6 (2) because members of the Court had started with the preconceived idea that the accused had committed the offence charged.
Recently, in Telfner v Austria, the guiding principle was enunciated as follows:
“[I]t is for the national courts to assess the evidence before them, while it is for the Court [at Strasbourg] to ascertain that the proceedings considered as a whole were fair, which in case of criminal proceedings includes the observance of the presumption of innocence. Article 6 (2) requires, inter alia, that when carrying out their idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence.”
In that case, the applicant was convicted of causing injury by negligence in a car accident. The applicant's mother, the owner of the car, was not driving the car. His mother and sister had exercised their right not to testify. The domestic court relied on allegations made in the police report according to which the car in issue was mainly used by the applicant. The European Court found that this was arbitrary and violated the presumption of innocence in that it wrongly placed the burden of proof on the defence. The decisions in Barbera and Telfner cast serious doubts on Salabiaku v France as the leading case and on Ex parte Kebilene itself. However, cases decided sequel to Kebilene bring into focus the need for the reconceptualisation of the marcescent Woolmington principle. In R v Gibson it was held that on a charge of acquiring, using or having possession of the proceeds of criminal conduct, it was not necessary for the prosecution to disprove the defence that the defendant has acquired or used or had it for adequate consideration. Again, in R v Lambert it was held that the provisions of section 2 (2) of the Homicide Act 1957 and sections 5 (4) and 28 of the Misuse of Drugs Act 1971 placing reverse burden on the defendant did not violate Article 6 (2) of the Convention. In R v Benjafield it was held that where applicants had pleaded guilty, sentences had been passed and confiscation order had been made before the HRA 1998 came into force, their rights under the Convention were not engaged; and in R v Kansal (No. 2) it was held that although the HRA 1998 was retrospective in respect of proceedings brought by or at the instigation of public authority, it was not retrospective in respect of appeals.
More recently, in Sheldrake v DPP, Attorney General's Reference (No 4 of 2002) , it was held that statutory defences available to an accused person imposed a reverse burden of proof upon the defendant and did not violate Article 6 (1) and (2) of the Convention.
In Sheldrake D was charged with being in charge of a motor vehicle after consuming alcohol in excess of the prescribed limit contrary to section 5 (1) (b) of the Road Traffic Act 1988. Section 5 (2) of the 1988 Act provides:
“It is a defence for a person charged [under section 5 (1) (b)] to prove at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the portion of alcohol in his breath … exceeded the prescribed limit.”
The justices were of the opinion that section 5 (2) which placed a reverse burden of proof on D did not violate Article 6 (2) of the Convention. On appeal by way of case stated, the Divisional Court held that the statutory defence contained in section 5 (2) prima facie interfered with the presumption of innocence contained in Article 6 (2) of the Convention. Clarke LJ observed:
“I do not think that to impose a legal burden on the prosecution to prove that there was a real risk of his driving will cause undue problems for the prosecutors. It is not a heavy burden and should be capable of proof on the facts of the great majority of cases. It follows that I would hold that it has not been proportionate to impose a legal burden.”
On reading down the burden of proof from legal to evidential burden, Clarke LJ opined:
“… the question whether the particular provision should be construed as imposing a legal burden 0r read down as imposing evidential burden is whether it was necessary to do so.”
In Attorney General's Reference (No 4 of 2002) , the reference was prompted by the acquittal of A on charges of being a member of a proscribed organization, namely Hamas IDQ, contrary to section 11 (1) of the Terrorism Act 2000. Section 11 (2) provided that it was a defence for a person to prove that the organization was not proscribed when he became a member and that he had not taken part in its activities at any time when it was proscribed. The Attorney General referred the case to the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1972. Cutting away the frills, two questions were referred by the Attorney General for the opinion of the Court of Appeal, viz: (1) What are the ingredients of the offence created by section 11 (1) of the Terrorism Act 2000? (2) Does the defence in section 11 (2) impose a legal, rather than an evidential, burden, and if so, whether the legal burden is compatible with Article 6 (2) of the Convention?
The two cases went on to the House of Lords as consolidated appeals. The House of Lords adhered to the erroneous conclusion that “[t]he leading Strasbourg authority on the presumption of innocence is Salabiaku v France …” A passing reference was made to Barbera, Messegue and Jabardo v Spain (a relevant case on terrorism and Telfner v Austria (which casts serious doubts on Salabiaku v France ) without considering the legal reasoning of the judges in the European Court.
In Sheldrake , the House of Lords concluded that D's conviction, properly analysed, did not rest on a presumption that he was likely to drive but on his being in charge of a car while unfit in a public place. The decision of the justices was restored. In Attorney General's Reference (No 4 of 2002) , Lord Rodger observed that section 11 (1) of the Terrorism Act 2000 was apt to catch people who joined the organization before it was proscribed or who joined the organization without knowing that it was proscribed or when an immature youth or those who joined abroad where it was legal and came to this country without knowing it was illegal here. His Lordship argued that section 11 (2) singled out for favourable treatment those who became members before the organization was proscribed and mitigated the rigor of the offence in section 11 (1) by providing a defence. He then relied on Salabiaku v France by stating that
“if the law provides for a defence and the defendant is free to deploy his case in support of that defence before the trial court, then the mere fact that the onus is on him to establish the facts giving rise to the defence does not constitute a violation of art 6 (2) or make his trial unfair for the purposes of art 6 (1).”
Similar arguments were canvassed by Lord Bingham (who delivered the leading judgment) and Lords Steyn and Carswell; Lord Phillips concurred with Lord Bingham. Barbera, Messegue and Jabardo v Spain , Janosevic v Sweden and Telfner v Austria (discussed above) were not critically assessed.
The proliferation of cases where reverse burden is placed on the defendant in criminal cases leads to one conclusion: that in spite of the erudition and ingenuity with which the cases were disposed of, the issue of reverse burden of proof and compatibility with Article 6 (2) of the Convention is not going to disappear in a hurry.
(5) STANDARDS OF PROOF
(A) Criminal cases
A distinction is made between criminal cases in which the evidential burden but not the legal burden on a particular issue such as provocation or self-defence is bourne by the accused and criminal cases where the evidential burden is bourne by the prosecution. In case of the accused, such evidence must suggest a reasonable possibility. In case of the prosecution, “such evidence, if believed, and is left uncontradicted be accepted by the jury as a proof”. The standard of proof required is “proof beyond reasonable doubt”.
(B) Civil cases
In civil proceedings, the party with legal burden also bears the evidential burden and the standard in each cases is on the balance of probabilities. When a crime is alleged in civil proceedings, the standard of proof is the balance or preponderance of probabilities. In Hounal v Neuberger Products Ltd. the plaintiff, a director of the defendant company, falsely stated that a machine had been reconditioned by a named firm. In an action for damages for breach of warranty, or in the alternative for fraud, the county court judge was satisfied on the balance of probabilities that the false statement had been made as alleged, and he applied that standard of proof. The standard of proof in matrimonial proceedings is the balance of probabilities.
Legal Burden in Criminal Cases . The standard of proof required as stated in Woolmington v DPP is “proof beyond reasonable doubt”. The question is: What is reasonable doubt? According to Phipson, “it is better for a judge not to attempt to explain to the jury what is meant by “reasonable doubt” unless they specifically ask for direction on this point”. In R v Hepworth a Recorder was rebuked by the Court of Criminal Appeal for using the word “satisfied”. In Dawson v R , Dixon CJ said: “In my view it is a mistake to depart from the time-honoured formula. Perhaps the best definition is that proffered by Denning J (as he then was) in Miller v Minister of Pensions :
“That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. 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.”
Lawton LJ observed that “if judges stopped trying to define that which is almost impossible to define there would be fewer appeals.” It is now safe to assert that judges should not volunteer an explanation of the expression but should adhere to the time-honoured formula – “beyond reasonable doubt”.
(C) The third standard
There are two pertinent questions arising from a critical assessment of case law: Is there a third standard between the civil and the criminal standards? Are there degrees of proof within the same standard?
The first question must be answered in the affirmative. For example, a claim for rectification must be established by “strong, irrefragable evidence”. In cases of professional misconduct the Judicial Committee has called for a high standard as professional men cannot condemn each other on mere probabilities.
As regards the second question, the degree of proof within the same standard, Denning LJ in Bater v Bater opined:
“In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within the same standard … So also in civil cases the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard.”
The latter view has been endorsed in Khawaja v Secretary of State for the Home Department where the House of Lords considered the standard of proof in immigration cases involving the liberty of the person. Lord Scarman said: “The flexibility of the civil standard of proof suffices that the court will require the high probability which is appropriate to what is appropriate to what is at stake.” Again, in Lawrence v Chester Chronicle it was held that on trial of defamation action by a jury, it was not generally necessary for the judge to direct the jury as to the flexibility of the civil standard of proof according to the seriousness of the alleged defamatory statement; that it was a matter for the jury's common sense. Recently, in Royal Brompton Hospital National Health Service Trust v Hammond it was held that in striking out a claim under the Civil Procedure Rules, the judge should have regard not only to witness statement but whether supplemented by evidence at trial the claim was bound to fail even though unchallenged; and that the normal standard of proof, on a balance of probabilities was not appropriate.
See C.A. Morrison, “Some Features of the Roman and English Law of Evidence” (1959) 33 Tul LR 577.
See J.B. Thayer, A Parliamentary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898), at 355.
Glanville Williams, “The Evidential Burden: Some Common Misapprehensions” (1977) 127 NLJ 156. See also Jayasena v R [1970] 1 All ER 219 at 221 where Lord Devlin described the quantum of “evidential burden of proof” as follows: “It may be such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof.”
See Glanville Williams, note 3 above and M. Hirst (ed.), Andrews & Hirst On Criminal Evidence ( Bristol : Jordans , 2001), at 56. See also R v Schama (1914) 11 Cr App R 45 at 49 and Woolmington v DPP [1935] AC 42.
See J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), at 125-7; and C. Tapper (ed.), Cross and Tapper On Evidence (London: Butterworths, 1999), at 125. See also Abrath v North Eastern Railway (1883) 11 QB 440, per Brown L.. at 455-462; R v Edwards [1975] QB 27, per Lawton LJ at 37 at 39; and DPP v Morgan [1976] AC 182, per Lord Simon at 217.
Supra, n.5.
Scott v London and St. Katherine Docks Co. (1865) 34 L.J Ex 20; 3 H.C 596 and Moore v R. Fox & Sons 1956] 1 QB 596.
The Merchant Prince [1891-4] All. ER Rep. 396, [1892] P.179.
(1835) Mood &R 464; 174 ER 160.
Soward v Leggatt (1836) 7C and P613; 173 ER 269
(1886) 11 App Cas 247, HL.
(1886) 12 App Cas 41, HL.
[1942] AC 154, HL. See also Rhesa Shipping Co. SA v Edmunds [1985] 2 All ER 712, HL and Ashraf v Akram , unreported, January 22, 1999, CA
[1935] AC 462.
Ibid., at 472-473.
Ibid., at 481.
This exception was discussed in T.H. Jones, “Insanity, Automatism and the Burden of Proof on the Accused” (1995) 111 LQR 475
R v M'Naghten (1843) 10 CI&F 200.
Bratty v Att-Gen ( Northern Ireland ) [1963] AC 386
Mancini v DPP [1942] AC 1
R v Lobell [1957] 1 QB 547.
R v Gill (1963) 47 Cr App R 166.
R v Gannon (1988) 87 Cr App R 254, CA.
R v Spurge [1961] 2 QB 205, [1961] 2 All ER 688, CA.
See P. Lewis, “The Human Rights Act 1998: Shifting the Burden” [2000] Crim LR 667, n.3.
See R v Dunbar [1958] 1 QB 1.
R v Petrie [1961] 1 WLR 358 and R v Brown (D.W.) (1971) 55 Cr App R 478
R v Evans-Jones (1923) 87 JPR 115 and R v Braithwaite [1983] 1 WLR 385, [1983] 2 ALL ER 87
Baker v Barclays Bank Ltd. [1955] 1 WLR 822.
R v Champ [1982] Crim LR 108, Warner v Metropolitan Police Commissioners [1969] 2 AC 256 and Sweet v Parsley [1970] AC 132.
R v Ashford and Smith [1988] Crim LR 682 and Chamberlain v Lindon [1998] 2 All ER 538.
R v Grant (Thomas) [1985] Crim LR 387.
R v DPP, ex p. Kebilene, R v DPP, ex p. Rechachi , infra n.47.
For the Scottish equivalent of s.101 of the Magistrates' Court Act 1980, see Nimmo v Alexander Cowan & Sons Ltd. [1968] A.C. 107, H.L. where s.29 (1) the Factories Act 1961 imposes a duty on employers to “maintain safe means of access to every place … in so far as it is reasonably practicable”. The House of Lords held that the onus of pleading and proving that it was reasonably practicable to keep the place safe lay on the employers.
[1975] QB 27. See also Gatland v Metropolitan Police Commissioner [1968] 2 QB 279 where the Divisional Court in respect of s.81 of the Magistrates' Court Act 1952 (which was replaced by s.101 of the 1980 Act) placed the legal burden on the accused to prove his lawful authority or excuse.
[1987] 1 All ER 1, HL.
Ibid., pp.5-6.
Ibid., p.13.
P.B. Carter, Cases and Statutes on Evidence (London, Sweet & Maxwell, 1990), at 44.
Zuckerman [1987] 103 LQR 170 and Birch [1958] Crim LR 221.
Healy [1987] Crim LR 355; Smith [1987] 38 NILQ; and Mirfield [1988] Crim LR 19 and 233.
C. Tapper (ed.); Cross and Tapper on Evidence (London: Butterworths, 1999), at 134.
DPP v United Telecasters Sydney Ltd. (1990) 168 CLR 594. See J.D. Heydon and M. Ockleton, Evidence: Cases & Materials (London and Sydney: Butterworths, 1996), at 32.
[1990] 1 WLR 1255, [1990] Crim LR 516.
A. Ashworth and M. Blake, “The Presumption of Innocence in English Criminal Law” [1996] Crim LR 306 at 314.
See W. Twining, Rethinking Evidence: Exploratory Essays (Illinois: Northwestern University Press, 1994), at 181. Compare A. Ashworth, The Criminal Process: An Evaluative Study (Oxford: Oxford University Press, 1998), at 69.
[2000] 1 Cr App R 275, HL. For a trenchant critique, see P. Roberts “The Presumption of Innocence Brought Home? Kebilene Deconstructed” (2002) 118 LQR 41.
The HRA 1998, s.22 (4) provides:
“(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whether the act in question took place; but otherwise that section does not apply to an act taking place before the coming into force of that section. ” (emphasis added)
Section 7 (1) of the Act provides:
“(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful … may –
(a) bring proceedings against the authority under the Act in appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.”
[2000] 1 Cr App R 275 at 282-284.
Ibid., p.289 F.
(1988) 51 DLR (4th) 481 (Supreme Court of Canada ).
Ibid., p.493 (emphasis added).
R v Oakes (1986) 26 DLR (4th) 200, per Dickson CJC at 223.
[2000] 1 Cr App R 275 at 316.
Ibid., p.343 E-F.
[1993] AC 951.
Supra, n.53.
Supra, n.51.
[1996] 2 LRC. 208 ( South African Constitutional Court ).
(1988) 13 EHRR 379.
Ibid., p.388 at para. 28 (emphasis added).
For an overview of the constitutional principle of “reading in” and “reading down” words used in a statute, see R. Clayton and H. Tomlinson, The Human Rights Law (Oxford: Oxford University Press, 2000), Vol. 1, at 54-59. See also R.A. Edwards, “Reading down legislation under the Human Rights Act” (2000) 20 LS 353.
See Miron v Trudel [1995] 2 SCR 418 and Vriend v Alberta (1998) 156 DLR (4th ed.) 385 (Supreme Court of Canada).
See P. Lewis, “The Human Rights Act 1998: Shifting the Burden” [2000] Crim LR 667 at 673.
[2000] 1 Cr App R 275 at 324.
Ibid., p.318. See R v Phillips [1991] 3 NZLR 175.
D. Feldman, Civil Liberties and Human Rights in England and Wales ( Oxford : Oxford University Press, 2002), at 51.
(1989) 11 EHRR 360.
(2002) 34 EHRR 7 at [15].
(2000) The Times, 2 March. See also Phillips v United Kingdom (2001) The Times, 13 August.
[2001] UKHRR 1074, H.L. See also R v Johnstone [2003] 1 WLR 1736.
[2002] 1 All ER 815. See also HM Advocate v McIntosh [2001] HRLR 20, P.C.
[2002] 1 All ER 257, HL discussed in D. Beyleveld, R. Kirkham and D. Townend, “Which presumption? A critique of the House of Lord's reasoning on retrospectivity and the Human Rights” (2002) 22 LS 185.
[2003] 2 All ER 497, DC; [2005] 1 All ER 237, HL.
[2003] 2 All ER 517-518.
Ibid, 518 (emphasis in the original).
[2005] 1 All ER 237 at 247.
Supra n68.
Supra n69.
See Hussain v United Kingdom (2006) 43 EHRR 22, R v Keogh [2007] 3 All ER 1500 and DPP v Wright [2009] EWHC 105 (Admin). For a critical assessment of reverse burden and Article 6 (2) of the Convention, see S.E. Salako, “Strict Criminal Liability: A Violation of the Convention?” [2006] 70 J Crim L 531 at 540-546.
Jayasena v R [1970] AC 618 at 624.
Woolmington v DPP [1935] AC 462.
[1957] 1 QB 247, [1956] 3 All ER 970. See also Re H (minors) [1996] AC 563 and In re L (minors) (1995) The Times, 3 July.
Preston-Jones v Preston-Jones [1951] AC 391 and N v N (1991) The Times, 13 August.
M.N. Howard, et al. , Phipson on Evidence ( London : Sweet & Maxwell, 2000), at 78.
R v Ching [1976] 63 Cr App R 7.
Countess of Shelbourne v Earl of Inchiquin (1781) 1 Bro CC 338.
Bhandari v Advocates Committee [1956] 3 All ER
Ibid., p.113. See also Karanakaran v Secretary of State for the Home Department (2000) Times, 16 February, CA
(1986) The Times, 8 February, CA
(2001) The Times, 11 May, CA. See also Heine v Jyske Bank (Gibraltar) Ltd. (1999) The Times, 28 September, CA where it was held that the standard needed to establish a claim in equity to make good a loss against a person as a constructive trustee for dishonestly assisting breaches of fiduciary duty by a bank employee need not be as high as the criminal standard but must involve a high level of probability.
Chapter 4: Proof Of Facts Without Evidence
(1) INTRODUCTION
There are matters which do not require proof or are not allowed to be proved viz. (i) matters presumed, (ii) matters judicially noticed, and (iii) formal admissions.
(2) PRESUMPTIONS
(A) In general
Presumptions are inferences or positions established by law. They are conclusions which may or must be drawn until the contrary is proved. Several reasons have been proffered. Notable amongst these reasons are that the use of presumption accords with the preponderance of probabilities, saves time at the trial, solves a problem where ordinary rules result in an impasse as in the commorientes rule (discussed later), and operates to promote convenience. For example, absence unheard of which leads to a presumption of death enables the affairs of property to be wound up within a reasonable time. Presumptions are categorized as (i) particular presumptions, (ii) irrebuttable presumptions, and (iii) rebuttable presumptions.
(B) Particular Presumptions
(a) Presumption of regularity . This is expressed by the Latin maxim: Omnia praesumuntur rite esse acta [All acts are presumed to have been done rightly]. The presumption of regularity applies to acts of an official or judicial character. For example, in Berryman v Wise , it was held that an attorney need not prove by his certificate or by a roll of attorneys that he was an attorney. Proof that he acted as such was held sufficient. Again, in R v Roberts it was held that the presumption applied to a deputy judge of county court and in Dillon v R that it applied to a policeman.
(b) Presumption of innocence . The presumption of law as to innocence not only applies to criminal charges but also cases where an allegation of criminality is made.
(c) Presumption as to continuance . It is presumed that things or circumstances once proved to have existed at a certain time must continue to exist in that state for a reasonable time. This presumption is not sufficient to support a claim that a person was alive at a particular time as in R v Lumley where the accused, a woman, was tried for bigamy. It was proved that the woman married A in 1836, left him in 1843, and married another man in 1847. Nothing was heard of A after the accused left him, nor was any evidence given of his age, but the judge, holding that there was a presumption of law that A was alive at the date of the second marriage, withdrew the case from the jury and directed them to return a verdict of guilty. It was upheld by the Court of Crown Cases Reserved that there was no presumption of law either in favour, or against, the continuance of A's life up to 1847. The conviction was quashed.
(d) Presumption of death . There is a presumption of law as to death arising from seven years' unexplained absence. In Chard v Chard , it was alleged that the ceremony of marriage in 1933 between the petitioner and the respondent was a nullity. The petitioner had been married to another woman in 1909 and had last heard of her in 1917. The question was whether she should be presumed to be dead in 1933. The court inferred that he was alive then, and held the ceremony of 1933 null. Sachs J stated that for the presumption to take effect it must be shown –
(i) that there is no affirmative evidence that the person in question was alive at some time during a continuous period of seven years or more from persons who would be likely to have heard of him over that period;
(ii) that those persons who are likely to hear of him have not heard of him; and
(iii) that all due inquiries have been made appropriate to the circumstances.
There is no presumption as to the time of death. The burden of proving death at any particular time lies on the person who asserts it.
It must be noted, however, that section 184 (1) of the Law of Property Act 1925 – a statutory enactment of the commorientes rule – provides that where two or more persons die in circumstances rendering it uncertain which of them survived the other, the death shall be presumed to have occurred in order of seniority and the younger shall be deemed to have survived the elder. But where circumstances connected with the death of the persons involved can be proved the question of survivorship may be dealt with as a matter of fact.
(e) Presumption of law as to lawful origin . There is a presumption of law as to lawful origin: that asserted rights exercised uninterrupted for such a length of time that they may be fairly taken to have had a lawful origin, had such origin; for example, the presumption of lost grant. In Johnson v Barnes the corporation of a borough had from time immemorial exercised exclusively the right of pasturage. It was presumed that the corporation was entitled to exclusive rights. Again, in Bridle v Ruby it was held that since the plaintiff had established twenty-two years' user of a right of way by him and his predecessor in title, he was entitled to the presumption of last grant.
(f) Presumption of legitimacy . The fact that a child is born during the subsistence of a valid marriage of its mother or thereafter during the period of gestation raises the presumption of law that the child is legitimate.
(C) Irrebuttable and rebuttable presumptions
Presumptions are traditionally categorized as irrebuttable and rebuttable presumptions. An irrebuttable presumption is rule of law, for example, the presumption of doli incapax : that a child under ten cannot commit a crime. Two rebuttable presumptions are worthy of note. The presumption of legitimacy may be rebutted by strong evidence of non-access whilst equitable presumption of advancement may be rebutted by evidence of statements by the parent which forms part of the transaction, but not by evidence made subsequently or a course of conduct.
(3) JUDICIAL NOTICE
(A) Introduction
According to Stephen, “no evidence of any fact of which the Court will take judicial notice need be given by the plaintiff alleging its existence” because the matters noticed are of common notoriety. Two reasons have been proffered for the doctrine of judicial notice. The first is that it expedites the hearing of cases as where it is judicially noticed that a fortnight is too short a period for human gestation or that the advancement of learning is among the purposes for which the University of Oxford exists. The second is that it tends to produce uniformity of decisions on matters of fact. For example, in R v Simpson it was held that a flick knife was an offensive weapon per se for the purposes of section 1 (1) of the Prevention of Crime Act 1953 since it is an ‘article made … for use for causing injury to a person' within section 1 (4) of the Act.
Although Cross opines that it is pointless to make a list of cases in which courts have taken judicial notice of facts without inquiry since the justification for the courts acting in such a way is that the fact is too notorious, an attempt will be made to categorize the instances. The categories put forward here are: legal matters, constitutional matters, professional practice, historical facts and other facts.
(B) Legal matters
Judicial notice is taken of the laws of England but generally of other parts of the UK , the Commonwealth and the laws of foreign countries.
(a) Custom . Law Merchant such as customary right of a banker to a general lieu on his customer's securities in respect of money owed, general or local customs after due proof in earlier cases as certification by appropriate authority are judicially noticed.
(b) Decisions . Judicial precedent or reported cases constitute one of the sources upon which judges rely when taking judicial notice.
(c) Facts found by judges in the light of their experience. A Trier of fact must not produce from his personal knowledge evidence with which the parties have not had an opportunity of dealing. He may use his knowledge to assess the evidence adduced before him but he is forbidden to use such knowledge in order to contradict the evidence given in court. Where a court or tribunal relies on the personal knowledge of one of their members, it is necessary to indicate not only that the member is a specialist in the field but also to bring the facts known by that member to the knowledge of the parties so that their counsel could either deal with them or ask for an adjournment.
In R v Blick the accused explained his presence at the scene of robbery by saying that he was visiting a public lavatory. A juror informed the judge that the lavatory was closed at the time, whereupon the judge invited the prosecution to call evidence on the point so that the juror's information might be investigated by both parties in open court. It was held that the judge had properly received a note and had acted properly in calling evidence on the point. Again, in Wetherall v Harrison where the issue was whether the accused had a good medical reason for refusing to give a blood sample. A medical witness for the prosecution testified that he had not. The justices found that, in the light of their own experience in the matter, the defendant may well have had a good reason for refusing. Lord Widgery CJ explained that whilst a magistrate is forbidden to use his knowledge in order to contradict evidence given in court, he may use his knowledge to assess the evidence adduced before him. The last-mentioned case must be contrasted with R v Fricker where it was held that where a juror had specialised knowledge of matters forming the background to the case against the defendant, and had communicated that information to other members of the jury who had then come to a verdict, the judge was obliged to discharge the jury because the defendant would have had no opportunity to challenge what amounted to an entirely new evidence or fact or put forward his own explanation.
Two other cases are worthy of note. In Reynolds v Llanelly Associated Tinplate Co. Ltd. a factory worker was injured in the right eye by a flying steel splinter and was incapacitated. An operation was performed on the injured eye and an award of compensation was made on the basis of total incapacity for four months. It was held that although the arbitrator was entitled to use his knowledge, properly applied and within reasonable time limits of matters which were within the common knowledge of persons in the district, the present case was a special and individual case and the arbitrator must, wrongly, have based his decision on some particular knowledge which he had. Again, in Harrington v Berker Sportcraft Ltd an employee was seeking compensation for unfair dismissal. In reliance on the personal knowledge and experience of a member of the industrial tribunal in trades connected with the employee's former employment, the tribunal decided to make an award in respect of future loss of earnings. On appeal, it was held that where a tribunal relied on the personal knowledge and experience of one of its members it was necessary to indicate not only that the member was a specialist but also to bring the facts known to that member to the attention of the employee's counsel so that if they were relied on the counsel could either deal with them or ask for an adjournment. As the matters had not been dealt with in this way the case was remitted for rehearing.
(d) Statutes . The effect of section 3 of the Interpretation Act 1978 is that every Act passed after 1850 shall be a public Act and judicially noticed as such in the absence of express provision to the contrary. Scots, foreign and colonial laws are not judicially noticed. It may be necessary to produce the Queen's Printers' copy of a Private Act passed before 1850.
(C) Constitutional matters
The following matters of public administration are judicially noticed:
(a) Sovereign and officers of the state . Judges take judicial notice of the accession and death of the Sovereign whom they represent. They also take judicial notice of the sovereignty of foreign rulers and even membership of the staff of their ambassador on information supplied by a Secretary of State. In Duff Development Co. v Government of Kelantan the Government of Kelantan applied for the enforcement of an arbitration award on the ground that Kelantan was an independent Sovereign State . The Secretary of State for the Colonies in a reply to an inquiry from the Master wrote that Kelantan was a Sovereign State and the Sultan the ruler thereof. The House of Lords held that this concluded the matter.
It must be noted, however, that a judge can take judicial notice of sovereign immunity but that a claim to immunity by a head of state or former head of state applies only to acts performed by him in the exercise of his functions as head of state and these do not extend to torture or other degrading or inhuman treatment.
(b) Parliament . The law and custom of Parliament are part of the law of England . Hence, parliamentary privilege as a defence to an action for libel has been judicially noticed though this is now governed by the Parliamentary Papers Act 1849 as amended.
(c) War . The courts take judicial notice of a state of war to which Britain is a party. Its continuance and cessation of hostilities can be certified by a Secretary of State.
(D) Professional practice
Judicial notice will be taken of the practice of conveyancers or the practice of ordinance survey as to what a line on the map indicates.
(E) Historical facts
The judge can rely on his own historical learning but where it is important to ascertain ancient facts of a public nature he is not permitted to refer to historical works. In Read v Bishop of Lincoln it was held that a judge might consider historical and ritualistic works on whether the mixture of communion wine with water was contrary to the law of the church but in Evans v Getting the history of Beconshire was declared inadmissible on the question of the boundary of Welsh parishes because of possible prejudice of the author.
(F) Other facts
The courts will take judicial notice of official Gazettes of London , Edinburgh and Belfast on their mere production and the fact that a postcard is likely to be read by people other than the addressee.
(4) FORMAL ADMISSIONS
An alleged fact can be formally or informally admitted. Informal admissions are “made casually … they must be proved; and far from being conclusive, they may be denied or explained away …” Any matters which have been formally admitted need not be proved.
In criminal proceedings, the general rule is that formal admissions are inadmissible. There are, however, two exceptions. The first is section 10 of the Criminal Justice Act 1967 which provides that a formal admission may be made by or on behalf of the prosecution or defendant before, or at any criminal proceedings, and may, with the leave of court, be withdrawn. The effect of this statutory provision is that the admitted fact ceases to be a fact in issue. The other exception is the plea of guilty rendered admissible by section 74 of the Police and Criminal Evidence Act 1984 which is discussed in Chapter 5.
In civil proceedings, formal admissions may be voluntary or in response to a notice by the other party. The rules relating to formal admissions have been changed by the introduction of the Civil Procedure Rules (CPR). Formal admissions are made in pleadings and all pleadings now have evidential status; for example, failure of a defendant to deal with an allegation in a claimant's form or statement of the case will amount to an admission of the allegation.
A formal admission may also be made in an answer to notice to admit. The old rule that an admission made orally by counsel at the trial for the purpose of dispensing with proof precludes any evidence on this point is now subsumed in the wider principle of CPR, Pt 14, r.1. It must be noted, however, that where there are two interrelated matters, the admission of one does not exclude the other. Any party may admit the truth of the whole or any part of another party's case at any stage of the proceedings (CPR, r.14.1 (1)) by giving such notice in a statement of a case or by letter (CPR, r.14.1 (2)). Finally, a party must make disclosure of documents which are in his possession. Disclosure is the process of revealing the existence of the documents (CPR, r.31.2).
See W.M. Best, The Principles of the Law of Evidence , ed. by S.L. Phipson (London: Sweet & Maxwell, 1922), at 271.
See J.D. Heydon and M. Ockleton, Evidence: Cases & Materials (London and Sydney: Butterworths, 1996), at 60-62.
(1791) 4 TR 366; 100 ER 1067.
(1878) 14 Cox CC 101.
[1982] 1 All ER 1017.
Williams v East India Co (1802) 3 East 192; 102 ER 571.
(1869) LR 1 CCR 196.
[1956] P.259, [1955] 3 WLR 954, [1955] 3 All ER 721, 99 SJ 890.
[1956] P.259 at 272, [1955] 3 All ER 721 at 728 F-G. The seven year wait for certifying death (without a body) was suspended in respect of British people feared dead in the Indian Ocean tsunami disaster in December 2004. Death certificates were issued in a matter of months.
Re Phene's Trust (1870) LR 5 Ch. 139.
McMahon v McElroy (1869) 5 Ir. Rep. Eq. 1; Hopewell v De Pinna (1809) 2 Camp 113; Nepean v Doe (1837) 2 M&W 894; and R v Lumley, supra, n.7.
“Commorientes” are persons who die in a common calamity such as shipwreck, earthquake, conflagration and battle; for example, the tsunami disaster in the Indian Ocean in December 2004. See W.M. Best, Principles of the Law of Evidence (London: Sweet & Maxwell, 1922), at 351.
See J.P. Taylor, A Treatise on the Law of Evidence (London: Sweet & Maxwell, 1931), Vol. 1, at 183.
(1873) LR 8 CP 527.
[1988] 3 All ER 64.
Banbury Peerage Case (1811) 1 Sim & St 153.
Re Jenion [1952] Ch. 454, CA.
Shephard v Cartwright [1955] AC 431.
J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), Art. 62.
R v Luffe (1807) 8 East 193.
Re Oxford Poor Rate Case (1857) 8 E&B 184.
[1983] 3 All ER 789.
Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967), at 130.
(1966) 50 Cr App R 280.
[1976] 1 All ER 241.
(1999) The Times, 13 July.
[1948] 1 All ER 40.
[1980] 1 ICR 248.
Mostyn v Fabrigas (1774) 1 Cowper 161.
[1924] AC 797.
R v Bow Street Metropolitan Stipendiary Magistrates & Others, ex p Pinochet Ugarte (No. 3) [1999] 2 WLR 827, at HL. See also Harb v King Fahd Bin Abdul Aziz (2005) The Times, 6 June, CA and Republic of Yemen v Aziz (2005) The Times, 22 June, CA.
Stockdale v Hansard (1839) 9A. & E.1 and Bradlaugh v Gosset (1994) 12 QBD 271.
R v Bothrill [1947] KB 41.
Re Rosher (1994) 26 Ch D 801.
[1892] AC 644.
(1834) 6C & P586.
Documentary Evidence Act 1868, ss. 2 and 5.
Huth v Huth [1915] KB 32.
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 287.
CPR, Pt. 16 r.5 (Subject to qualifications in CPR, Pt. 16, rr.3 and 4).
CPR, r.32.18
See Ellis v Allen [1914] 1 Ch. 904.
Barnes v Merritt (1898) 15 TLR 419.
Chapter 5: The Evidential Significance of Earlier Judicial Findings and Estoppels
(1) THE RULE IN HOLLINGTON V HEWTHORN
The rule in Hollington v F. Hewthorn & Co. Ltd. states that the fact that a defendant in a civil action has been convicted of a criminal offence cannot normally be adduced for two reasons: (i) that the conviction merely proved that another court acted on evidence which was unknown to the tribunal trying the civil action, and (ii) that the reception of the conviction as evidence infringed the hearsay rule as well as the rule against opinion. In that case, the conviction of one of the defendants for careless driving was held to be inadmissible in proceedings for damages on that ground against him and his employers. It must be noted that the rule has been abrogated so far as it governs proof of convictions and findings of adultery and paternity in civil proceedings by sections 11 to 13 of the Civil Evidence Act 1968 and so far as it governs proof of convictions in criminal proceedings by section 74 of the Police and Criminal Evidence Act 1984 (PACE).
(2) PREVIOUS CONVICTIONS IN SUBSEQUENT CIVIL PROCEEDINGS
(A) In general
Section 11 (1) of the Civil Evidence Act 1968 provides that in civil proceedings the fact that a person has been convicted of an offence by any court in the UK or court-martial shall be admissible in evidence for the purpose of proving that he committed the offence. Section 11 (2) further provides that where a person has been proved to have been convicted of an offence by any court in the UK or a court-martial he shall be taken to have committed the offence. A “conviction” within the ambit of section 11 is one which is not subject to an appeal as neatly illustrated in Re Raphael . In that case, it was held that rather than finally dispose of civil proceedings in reliance on a conviction subsequently liable to be quashed, the civil proceedings should be adjourned pending the appeal. Where a civil action is instituted by the complainant after the conviction of the accused for a sexual offence, it is not an abuse of process to adduce evidence to discredit the complainant in the civil action.
In J v Oyston the plaintiff brought an action against the defendant for damages for indecent assault and rape relying on the defendant's previous conviction pursuant to section 11 (1) of the Civil Evidence Act 1968. The defendant sought to adduce evidence to discredit the plaintiff having failed on similar evidence to overturn his conviction on appeal. The plaintiff's application to strike out part of the defence as being an abuse of process or vexatious and disclosing no reasonable defence was dismissed by the Divisional Court. Smedley J ruled that section 11 of the 1968 Act made the conviction prima facie but not conclusive (s.11 (2)) and that the statute permitted the accused to challenge his conviction in a civil action. The trial judge drew a distinction between a plaintiff who wanted to relitigate his conviction in civil proceedings as in Hunter v Chief Constable of West Midlands (discussed later in this chapter) which would be an abuse of process and a defendant who sought to persuade the judge to take a different view from that of the jury, because to prevent the accused from having the issue of his guilt reheard would be manifestly unfair to him.
There remains, however, the issue of the weight to be attached the conviction in subsequent civil proceedings. In Wauchope v Mordecai the Court of Appeal did not suggest that the burden cast on the convicted defendant was a specially heavy one but in Taylor v Taylor it was said that the verdict of the jury finding the respondent to divorce proceedings guilty of incest was entitled to great weight. Lord Denning in Stupple v Royal Insurance Co. Ltd. said: “I think that the conviction does not merely shift the burden of proof. It is a weighty piece of evidence”.
(B) Findings of adultery and paternity
Section 12 (1) of the Civil Evidence Act 1968 as amended by section 29 of the Family Law Reform Act 1987 provides that the fact that a person has been found guilty of adultery and found to be father of a child in relevant proceedings shall be admissible for the purpose of proving that he committed adultery in a civil proceeding to which the finding relates. In Sutton v Sutton it was held that the burden of disproving adultery was on a balance of probabilities. More recently, in R v Secretary of State for Social Services, ex p. W , Johnson J held that where a parental responsibility had been made on grounds unrelated to paternity, that the order must satisfy the requirement of “a finding or adjudication” as stipulated in section 12 of the Civil Evidence Act 1968.
(C) Libel or slander
Section 13 (1) of the Civil Evidence Act 1968 provides that in an action for libel or slander in which the question whether a person did or did not commit a crime is relevant proof, that at the time the person stands convicted shall be conclusive evidence that he committed the offence. In Goody v Odhams Press Ltd . the plaintiff was convicted of robbery for his part in the ‘Great Train Robbery'. The defendants' newspaper, The People , published a story the plaintiff alleged to be defamatory. The defendants amended their defence to plead partial justification. It was held that the words of the plea of partial justification in the amended defence, being severable, were admissible and the defendants could prove the plaintiff's convictions; and that the plaintiff's convictions, being cogent evidence, were admissible in mitigation of damages.
(3) PREVIOUS CONVICTIONS IN CRIMINAL CASES
Section 74 (1) of PACE provides:
“In any proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving where to do so is relevant to any issue in those proceedings, that person committed that offence whether or not any other evidence of his having committed that offence is given.”
In R v O'Connor where the plea of guilty made by a co-accused was admitted at the defendant's trial for conspiracy to obtain property by deception, the Court of Appeal held that the trial judge should have excluded the evidence under section 78 of PACE. But matters came to a head in R v Robertson and Golder . In that case, R was tried on a count of conspiracy with two other men to commit burglaries. The two other men pleaded not guilty to conspiracy but guilty to relevant counts of burglary with which R was not charged and they were sentenced. At the trial of R, which was delayed for some weeks, the prosecution sought leave which was granted to tender the pleas of guilty under section 74 of PACE. R was convicted. G was tried on a count of robbery and evidence of the pleas of guilty to the offence by two co-defendants who had not been sentenced was tendered. G was convicted.
R appealed on the ground that the plea of guilty should be excluded under section 78 of PACE and G appealed on the ground that in his own case the two co-defendants had not been “convicted” within section 74 (1) of PACE. Dismissing the appeals, the Court of Appeal held that the word “convicted” within section 74 (1) was to be construed as a finding of guilt or a formal plea of guilty and not as meaning the final disposal of the case. Lord Lane CJ said that in order to admit evidence of a co-accused's conviction (including a plea of guilty) it was necessary to observe the following principles:
“(a) the conviction [or plea of guilty] must be clearly relevant to an issue in the case ;
(b) s.74 [of PACE] must be sparingly used ;
(c) the judge should consider the question of fairness under s.78 [of PACE] and whether the probative value of the conviction outweighs its prejudicial value ; and
(d) the judge must direct the jury clearly as to the issues to which conviction is not relevant and also why the evidence is before them and to what issue it is divided.”
In Kempster the Court of Appeal held that the plea of guilty could not be admitted by the judge without adhering to the guidelines enunciated above.
Two decisions on the admissibility of convictions under section 74 of PACE are worthy of note. In R v Warner, R v Jones , W and J were charged with conspiracy to supply heroin and with supplying the same. The prosecution sought and were granted leave to adduce in evidence pursuant to section 74 the fact that eight visitors to the address of one of the defendants observed by the police had previous convictions for possession or supply of heroin. The defendants were convicted and appealed, inter alia, on the ground that the evidence should not have been admitted under section 74. The Court of Appeal, dismissing the appeals, held that whilst the evidence was rightly admitted under section 74 and it could not be said that the trial judge had wrongly exercised his discretion under section 78 it might have been wiser not to adduce the evidence since it added little to an already strong case against W and J.
More recently, in R v Hasson and Davey H and D were found guilty of being concerned in the supply of cannabis resin but acquitted on a similar count relating to cannabis. The prosecution successfully applied for the admission, under section 74, of the previous drug-related convictions of six men said to be associates of H and D. The defendants appealed. Allowing the appeals, the Court of Appeal held (i) that before the convictions could be admitted under section 74 they must be shown to be relevant to an issue in the case and (ii) that in contrast to Warner and Jones , it was not the prosecution case that H and D were supplying cannabis resin to those whose convictions were adduced.
It must be stressed, however, that the courts have consistently allowed the pleas of guilty where the guidelines enunciated in Robertson and Golder have been adhered to. In R v Chapman C was charged with conspiracy to obtain by deception with seven others. Towards the end of the prosecution case B, C's brother, a co-accused pleaded guilty to two specific counts. The prosecution were permitted to reopen their case to adduce evidence of B's plea of guilty under section 74. Again, in R v Boyson B was charged with being concerned with the importation of ecstasy with four others, three of whom pleaded guilty to the same count as other counts. The principles in Robertson and Golder were applied and the pleas of guilty were admitted under section 74.
(4) ESTOPPEL
(A) Introduction
“Estoppel” simply means that “a party is not allowed, in certain circumstances, to prove in litigation particular facts or matters which, if proved, would assist him to succeed as plaintiff or defendant in an action.” Estoppel can be regarded as a matter of pleading or substantive law but is also an exclusionary rule of evidence. There are three types of evidence, viz. (i) estoppel by record, (ii) estoppel by deed, and (iii) those in pais . Estoppel in pais , we are told, “developed as an ancient act of notoriety not less than the formal execution of a deed” but in modern times extends to almost any situation where it is unconscionable to allow a party to deny a fact or the existence of a state of affairs because of his previous behavior. In its modern connotation, estoppel in pais includes estoppel by conduct, by negligence, by agreement and by acquiescence.
Estoppel by Record . The judicial basis of estoppel by record is stated in two maxims. The first is interest rei publicae ut sit finis litium : it is for the common good that there should be an end to litigation. The secondis nemo debet bis vexari pro aedem causa : no one should be sued twice on the same ground. For estoppel by record to apply the court must be of competent jurisdiction. In R v Hutchings it was held that there was no estoppel when the justices exceeded their jurisdiction by declaring that a road was a highway. Estoppel by record inter partes (between parties) per rem judicatam (in respect of the thing actually in dispute already adjudicated upon) is of two types, viz. (i) cause of action estoppel, and (ii) issue estoppel.
(B) Issue and cause of action estoppels
(i) General rule
According to Lord Denning in Fidelitas Shipping Co. Ltd v v/o Exportchleb , “within one cause of action there may be several issues which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule neither party can be allowed to fight that issue all over again”.
The three conditions for establishing issue estoppel (same as those governing cause of action estoppel) are as follows:
(ii) Finality
A decision of an inferior court (matrimonial causes apart) will operate as an estoppel in the High Court provided it is a decision from which there could have been no appeal.
In Concha v Concha it was held that matters which are unnecessary to the decision will not estop either strangers or parties to a grant of probate of a will did not estop interested parties from denying the recorded domicile of the testator. But finality raises another issue: whether there are exceptions to the general rule that the use of a civil action to initiate collateral attack on final decision is an abuse of process. This issue was discussed by the House of Lords in Hunter v Chief Constable of West Midlands . In that case, the accused persons were charged with murder for bombing two Birmingham public houses and killing as a result 21 people and injuring 161 others. At a voir dire (a trial within a trial) it was established that the accused persons had not been beaten up whilst in custody. The accused were convicted and later issued writs against the Chief Constable of West Midlands and Lancashire Police and also against the Home Office for injuries caused by the police. On appeal to the House of Lords, it was held that where a final decision had been made by a criminal court of competent jurisdiction it was a general rule of public policy that the use of civil action to initiate a collateral attack on the issue was an abuse of process. The exception to the general rule was stated by Lord Diplock in the following terms:
“There remains to be considered the circumstances in which the existence at the commencement of the civil action of ‘fresh evidence' obtained since the criminal trial and the probative weight of such evidence justify making an exception to the general rule of public policy that the use of civil actions to initiate collateral attacks on final decisions against the intending plaintiffs by courts of competent jurisdiction should be treated as an abuse of the process of court.”
It must be noted that whilst the rule in Hunter has been applied consistently , the concept of issue estoppel is one to be used with caution.
(iii) Identity of parties
An estoppel per rem judicatam operates where the parties to the proceedings in question are the same as the parties to the previous proceedings and their privies. This was neatly illustrated in Townsend v Bishop where P was injured when driving his father's car in a collision with D's lorry. P sued for damage to the car. D's plea was contributory negligence of P who was acting as his father's agent. D's plea succeeded but it was held that P was not estopped from denying his contributory negligence in action in which he claimed damages for personal injuries.
Again, in Carl Zeis Stiftung v Rayner & Keeler (No. 2 ) where in a previous action brought in German courts it had been held that the Plaintiffs, a body known as the Council of Caera, had no right to represent Stiftung. The Stiftung then brought an action in English courts by an English firm of solicitors. It was held that no estoppel precluded the solicitors or Stiftung from alleging that the action was duly authorised. More recently, in Mecklermedia Corporation v D.C. Congress Gmbh it was held that proceedings commenced in Germany for an alleged infringement of the German trade mark registration against a licensee of a plaintiff who brought a passing off action in England against the German trade mark holder, were not proceedings for the same cause of action between the same parties for the purposes of Article 21 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters signed at Brussels in 1968.
(iv) Same capacity
An estoppel per rem judicatam may arise where the parties in question are litigating in the same capacity as in the previous proceedings as in Marginson v Blackburn Borough Council where both parties had been defendants in a county court action in which a plaintiff claimed damages for negligence and they had been held both to blame. This was held to estop the plaintiff (Mr. Marginson) in this action for maintaining in his personal capacity that he was not to blame.
(iv) Same issues
An estoppel per rem judicatam only operates if the issue in the proceedings in question is the same as that which was litigated in the previous proceedings. This is illustrated by two tax cases. The narrow view in Hoystead v Income Tax Commissioner is that a tax authority is estopped from making an assessment for the current tax year by a previous judgement relating to an assessment for the previous year. This decision was not followed in Caffoor v Commissioner for Income Tax Columbo where it was held that the Commissioner of Income Tax was not estopped by the decision of the Board of Review for the year 1949-50 from challenging Caffoor's Trustees' claim to exemption for the following years.
(C) Matrimonial causes
The rule enunciated by Denning LJ (as he then was) in Thompson v Thompson states that in matrimonial causes estoppel binds the parties (the petitioner and respondent) but not the court. Again, in Harriman v Harriman W obtained a separation order from magistrates on the ground of H's desertion. W later petitioner for divorce on the grounds of adultery and desertion and she had to establish both of these matrimonial offences. It was held that H might be estopped from denying the desertion but the court was not bound by the findings of the magistrates. These views received statutory force by virtue of section 4 (1) of the Matrimonial Cause Act 1973.
(D) The situations in criminal cases: Autrefois acquit and autrefois convict
Autrefois acquit is the plea that the accused has been previously acquitted whilst autrefois convict is the plea that the accused has been previously convicted. According to Blackstone, the pleas of autrefois acquit and autrefois convict are “grounded on the universal maxim of the common law in England that no man is to be brought into jeopardy of his life more than once for the same offence” – the principle of double jeopardy.
These pleas enable a person charged in later criminal proceedings to raise a defence that he has been convicted. The plea of autrefois acquit was considered in the cause célèbre Sambasivam v Malaya Public Prosecutor . In that case, the appellant at his first trial was charged with two offences, carrying a firearm and being in possession of ammunition. He was acquitted of the second charge and a new trial was ordered on the first. At the new trial, the prosecutor relied on an admission to the effect that he was both carrying a firearm and in possession of ammunition. His conviction on the charge of carrying a firearm was quashed because the triers of fact had not been told that the part of the statement dealing with ammunition was untrue. This case must be contrasted with two other cases. In R v Griffiths it was held that the plea of autrefois acquit failed because the second offence (conspiracy to import cocaine) was different from the first offence (conspiracy to supply cocaine or being in possession with intent) for which the defendant had been previously acquitted. Again, in R v Z , the House of Lords held that evidence involving incidents resulting in three prior acquittals of the defendant on charges of rape could be adduced as similar fact evidence by the Crown in the charge for which the defendant was standing trial.
The plea of autrefois convict was discussed in two leading cases. In Richard v R the Board advised that where the accused pleaded guilty to manslaughter and counsel for the prosecution accepted the plea, the accused could be charged subsequently with murder on a fresh indictment because the plea of autrefois convict did not apply. Although in R v Sheridan which was followed in R v Grant the pleas of autrefois convict were sustained on the basis of guilt alone, their Lordships concluded that the two cases were wrongly decided and held that the underlying rationale of autrefois convict was to prevent duplication of punishment. In other words, the plea could only be sustained where there was a previous conviction on the same charge as in R v Beedie where the defendant, the landlord of a property where a young woman died of carbon monoxide poison by use of a defective gas fire, was prosecuted by the Health and Safety Executive, pleaded guilty and was fined. At an inquest into the death, the coroner required the defendant to give evidence ruling that he could suffer no prejudice by answering questions tending to incriminate him. A verdict of unlawful killing was returned. The defendant was later charged with manslaughter. His application to stay the indictment on the ground of autrefois convict was rejected by the trial judge. The defendant pleaded guilty, was convicted and appealed. The Court of Appeal, allowing the appeal, held:
• that the plea of autrefois convict or acquit was to be defined and applied only where the same offence was alleged in the second indictment as in the first;
• that in the instant case, a second trial on a more serious charge arising out of the same or similar facts as the first might be justified in special circumstances, and it was for the judge to exercise his discretion whether there were such circumstances.
• that the public interest in a prosecution for manslaughter and for concern for the victim's family did not amount to such circumstances; and
• that a stay should have been ordered since manslaughter was based on the same facts as the earlier summary proceedings.
(E) Issue estoppel in criminal cases
Issue estoppel is well-established in civil cases. According to Diplock LJ in Mills v Cooper the doctrine of issue estoppel in civil proceedings may be stated as follows:
“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in the previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”
The question, however, is whether the doctrine applies to criminal cases. In Connelly v DPP three Law Lords expressed the opinion that issue estoppel would be applicable on appropriate facts. Lord Devlin felt that it was undesirable because of the difficulty of ascertaining the precise issue. In R v Hogan Lawson J ranked himself with the three Law Lords. The disputation was, however, resolved by the House of Lords in DPP v Humphreys where it was declared that issue estoppel did not apply in criminal proceedings. In that case, the respondent was charged with driving a motor vehicle on July 18, 1972, while disqualified. The only issue at the trial was whether a police officer was correct in identifying the respondent as the driver of a motor bicycle on that day. He denied driving any motor vehicle during 1972 and was acquitted. Later he was charged with perjury, the allegation being that at the first trial he had wilfully made a statement which he knew to be false. The same police officer at the first trial was a prosecution witness, with other at the second trial. The judge, rejecting the plea of issue estoppel raised by the defence, allowed the police officer to give evidence again identifying the respondent as the driver of the motor bicycle which he had stopped on July 18, 1972. The respondent was convicted. The Court of Appeal allowed his appeal against conviction. The Crown appealed. The House of Lords, allowing the appeal, held that the doctrine of estoppel had no place in English criminal law and that the determination at the first trial of an issue in favour of the accused was no bar to the admission at a second trial. Recently, in R v Z the House of Lords held that the principle of double jeopardy did not render inadmissible evidence of previous acquittals as similar fact evidence but that the question of fairness must be addressed and judges must exercise their discretion under section 78 of PACE to exclude the evidence if admission would be adverse to the fairness of the proceedings.
(F) Reopening a tainted acquittal
Sections 54-57 of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) provided a procedure for a person to be retried if his or her acquittal is tainted. This procedure is available where
(a) a person has been acquitted of an offence, and
(b) a person has been convicted of an administration of justice offence involving interference with or intimidation of a juror or witness (or potential witness) in proceedings which led to the acquittal.
If the above conditions are met, the High Court may make an order under section 54 (3) of CPIA 1996 quashing the acquittal, but only if
(1) It appears to the High Court that but for the interference or intimidation, the accused person would not have been acquitted;
(2) it does not appear to the court that because of the lapse of time or for any other reason, it would be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted;
(3) it appears to the court that the acquitted person has been given a reasonable opportunity to make written representation to the court; and
(4) it appears to the court that the conviction for the administration of justice offence will stand.
Where the acquittal is quashed under section 54 (3) of the CPIA 1996, new proceedings may be taken against the acquitted person for the offence of which he or she was acquitted.
(G) Reopening a final acquittal under sections 75-81 of the CJA 2003
The Law Commission in its Consultation Paper No 156 recommended a limited power to reopen an acquittal if new evidence emerged in all cases in which the sentence for the offence would be at least three years imprisonment. The Government in its White Paper Justice for All stated:
“The double jeopardy rule means that a person cannot be tried more than once for the same offence … The Stephen Lawrence Inquiry Report recognised that the rule is capable of causing grave injustice to victims and the community in certain cases where compelling fresh evidence has come to light after an acquittal. It called for a change in the law to be considered, and we have accepted that such change is appropriate. The European Convention on Human Rights ( Article 4 (2) of Protocol 7 ) explicitly recognises the importance of being able to re-open cases, where new evidence comes to light.”
Article 4 of Protocol 7 of the Convention states:
“(1) No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
(2) The provision of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
(3) No derogation from this Article shall be made under Article 15 of the Convention.”
Article 4 (1) of Protocol 7 prohibits the bringing of proceedings only where the defendant has been finally acquitted or convicted of the offence now charged. The Explanatory Report to Protocol 7 states that a decision is to be regarded as final for the purposes of Article 4 (1)
“if, according to the traditional expression, it has acquired the force of res judicata. This is the case where no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time limit to expire without availing themselves of them.”
Article 4 (2) of Protocol 7 must be distinguished from an appeal by the prosecution. A prosecution appeal is a procedure which may be invoked before the decision has become res judicata. Reopening is an extraordinary procedure which may be invoked after the decision is res judicata. Article 4 (2) permits a different way of challenging an acquittal, namely, by persuading a higher court to “reopen” the original proceedings. Article 14 (7) of the International Covenant on Civil and Political Rights 1966 (ICCPR 1966) applies both to the reopening of an acquittal. The treaty body charged with implementing the ICCPR expressed the view that the reopening of criminal proceedings “justified by exceptional circumstances” did not infringe the principle of double jeopardy.
Mindful of the above human rights provisions, the Government in its White Paper Justice for All made the following proposals:
• “Should fresh evidence emerge that could not reasonably have been available for the first trial and that strongly suggest that a previously acquitted defendant was in fact guilty, the Director of Public Prosecutions (DPP) will need to give his personal consent for the defendant to be re-investigated …
• Before submitting an application to the Court of Appeal to quash an acquittal, the DPP will need to be satisfied that there is new and compelling evidence and that an application is in the public interest and a re-trial fully justified.
• The Court of Appeal will have the power to quash the acquittal where:
• there is compelling evidence of guilt; and
• the Court is satisfied that it is right in all the circumstances of the case to be a re-trial.
• There will be scope for only one re-trial under these procedures.
• The power [to reopen a final acquittal] will be retrospective, that is, it will apply to acquittals which take place before the law is changed, as well as those that happen after.”
The above recommendations were effectuated by section 75 to 81 of the Criminal Justice Act 2003 (CJA 2003).
Section 75 (1) of the CJA 2003 provides that an acquittal may be retried if the acquittal relates to proceedings for a qualifying offence in England and Wales or “elsewhere in the United Kingdom” if the commission of the offence would have amounted to, or included, the commission in the United Kingdom of a qualifying offence (section 75 (4)). The wording of section 75 (4) makes it plain that an acquittal in Scotland is not to be regarded as relating to proceedings in a foreign jurisdiction. The qualifying offences listed in Part I of Schedule 5 to the CJA 2003 are murder, attempted murder, sexual offences, criminal damage offences, war crimes and terrorism and conspiracy. Section 75 (6) of the CJA 2003 provides that the power to retry an acquittal is retrospective and prospective. It is worthy of note that the retrospective aspect of the procedure engages and violates Article 6 (1) (the right to fair trial) and Article 7 (the prohibition of retrospective application of criminal law) of the European Convention on Human Rights.
Section 76 (1) of the CJA 2003 provides that the prosecution may apply to the Court of Appeal for an order quashing a person's acquittal in proceedings within Section 75 (1) only with the written consent of the DPP (section 7 (3)). Section 76 (4) provides that the DPP may give consent if he is satisfied that –
(a) there is a “new and compelling evidence” within the meaning of s.78 of the CJA 2003;
(b) it is in the public interest for the application to proceed; and
(c) any trial pursuant to an order on the application would not be inconsistent with the obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle ne bis in idem (i.e. a person may not be prosecuted twice for the same thing).
New and compelling evidence
Section 78 (1) of the CJA 2003 provides:
“(1) the requirements of this section are met if there is a new and compelling evidence against the acquitted person in relation to the qualifying offence.”
“New evidence” is evidence which “was not in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related) (section 78 (2))”.
“Compelling evidence” is defined in section 78 (3) as follows:
“Evidence is compelling if –
(a) it is reliable,
(b) it is substantial, and
(c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.”
Section 77 provides that the Court of Appeal, if satisfied by the requirements of section 78 (new and compelling evidence) and that the interests of justice are served (section 79), must make the order; otherwise, must dismiss the application.
Two cases on reopening of final acquittal are instructive. In R v Dunlop , D was tried for the murder of a young woman, H, but the jury failed to agree on a verdict and he was discharged. At the retrial, the Crown offered no evidence and a “not guilty” verdict was recorded. D later confessed to the murder of H while serving a prison sentence for an unrelated matter. D was arrested on suspicion of perjury. At the interview, D admitted that he had killed H and had made various confessions to her murder. In 2000, D was convicted on two counts of perjury and sentenced to six years' imprisonment. In 2005, when sections 75-78 of the CJA 2003 came into force, the Crown applied to the Court of Appeal for an order quashing D's acquittal for the murder of H and ordering a retrial. The Court ordered the quashing of D's acquittal and a retrial on the grounds that there was new, compelling and overwhelming evidence and that the public would be outraged were the provisions of the CJA 2003 not to be applied on the basis that D would not have made the confessions had he known that they might lead to his retrial. It must be noted, however, that in R v Miell the Court refused to quash the conviction and order a retrial since there were grounds to doubt the veracity of the confession which D retracted. According to Lord Phillips, Miell differs from Dunlop in that “Dunlop had never gainsaid the truth of the confession that resulted in his conviction for perjury.
(H) Estoppel by deed
The rule of estoppel by record was adopted to estoppel by deed. A party who executes a deed is estopped in a court of law from saying that the facts are not truly stated. For example, in Bowman v Taylor a lease granted by the plaintiff to the defendant to use looms contained a recital that the plaintiff was the inventor of those looms. In an action for breach of covenant to pay the agreed sums for their use, the defendant was estopped from denying that the plaintiff was the inventor.
(I) Estoppel by conduct
The doctrine of estoppel by conduct enunciated in Pickard v Sears states that:
“Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induced him to act on that belief, or to alter his previous position, the former is precluded from averring against the latter a different state of things as existing at that time.”
Although a private person may be estopped by either active or passive conduct, it is not clear whether the same applies to the Crown.
(J) Estoppel by agreement
Where two people agree, expressly or by necessary implication, they are estopped from denying the existence of the assumed state of facts.
(K) Estoppel by representation
If a person intends his representation to be acted upon, and is acted upon, the person will be precluded from denying the truth. Such a representation may be express as in Carr v London and North Western Railway Co. where D's agent told P that company held three consignments of goods to his order when only two had been received. P purported to sell three consignments and had to pay damages to the purchaser of one of them. It was held that he could not recover these from the defendant. Representation can also be implied as in Greenwood v Martins Bank . In that case, H's failure to disclose the fact that his wife had been forging his cheques was held to estop him from alleging this to be the case in an action to recover the amounts paid to his wife and debited to his account by the bank.
(L) Estoppel by negligence
When the negligence of the defendant causes a person to believe in the existence of a suppressed fact, and that person acts on the belief with resulting damage, the defendant is estopped from denying the existence of the suppressed fact. In Coventry, Sheppard & Co v Great Eastern Railway the railway company negligently issued two delivery orders, not purporting to be duplicates, in respect of one consignment of wheat, whereby a fraudulent person was enabled to obtain two advances of money as on two separate consignments. The company was held to be estopped by negligence from disputing that there were two consignments. Estoppel by negligence will only apply where there is a relationship of contract or agency between the parties. In Mercantile Bank of India Ltd. v Central Bank of India Ltd. a firm of merchants pledged railway receipts entitling them to certain goods with the Central Bank as security for a loan. The Central Bank later returned the receipts to the merchants to enable them to claim possession of the goods. The receipts were then delivered to the Mercantile Bank in order to ascertain another loan. It was held that the Central Bank was not estopped from asserting its prior claim to the goods. There was no relationship of contract or agency between the banks and the Central Bank had no reason to suppose that the receipts would be handed to the Mercantile Bank.
[1943] 1 KB 587, CA; noted in (1943) 59 LQR 299.
[1973] 1 WLR 998.
[1999] 1 WLR 694, DC.
[1981] 3 All ER 727.
[1970] 1 All ER 417.
[1970] 2 All ER 609.
[1970[ 3 All ER 230.
[1970] 1 WLR 183, PD.
(1999) The Times, 19 May.
[1966] 3 WLR 460, CA.
(1987) 85 Cr App R 298, CA.
[1987] 1 QB 920, (1987) 85 Cr App R 304.
[1987] 1 QB 920 at 921; (1987) 85 Cr App R 304 at 305.
R v Robertson and Golder , supra, and R v Chapman [1991] Crim LR 44.
R v Dixon (Sarah Louise) (2000) 164 JPR 721, [2001] Crim LR 126.
R v O'Connor , supra, and R v Kempster [1989] Crim LR 747.
R v Warner, R v Jones (1993) 96 Cr App R 324.
Supra, n.16.
Supra, n.17.
[1997] Crim LR 579.
See R v Robertson and Golder , supra.
Supra, n.14.
[1991] Crim LR 274.
Diplock LJ in Thoday v Thoday [1964] 1 All ER 341.
Lord Kenyon in Hayne v Maltby (1789) 3 TR 438.
Lindley LJ and Bowen LJ in Low Bouverie [1891] 3 Ch. 82 and Farwell LJ in Harriman v Harriman [1909] P.123.
M.N. Howard, et al. , Phipson On Evidence ( London : Sweet & Maxwell, 2000), at 92-93.
(1881) 6 QBD 300.
[1966] 1 QB 630 at 640; [1965] 2 All ER 4 at 8.
(1986) 11 App Cas 541.
[1981] 3 All ER 727.
Ibid., p.736.
Nawrot v Chief Constable of Hampshire Police (1992) The Independent, 7 January, CA; Re A Solicitor (1996) The Times, 18 March, DC; and Smith v Linksills (a firm) [1996] 2 All ER 355.
See Friend v Civil Aviation Authority [2002] 4 All ER 385, CA
[1939] 1 All ER 805.
[1967] 1 AC 853, [1966] 2 All ER 536.
(1997) The Times, 27 March, Ch. D. See also C (A Minor) v Hackney London Borough Council [1996] 1 WLR 789, CA.
[1939] 1 All ER 273, [1939] 2 KB. 426.
[1926] AC 155, PC.
[1961] AC 584. See also Randolph v Tuck [1962] 1 QB 175 and Society of Medical Officers of Health v Hope [1960] AC 551.
[1957] P.19.
[1909] P.123.
Sir William Blackstone, Commentaries on the Law of England (Dublin: Sweet, Pheney, Maxwell, Stevens & Sons, 1829), Book IV, at 329.
[1950] A.C. 548, P.C. See also G (An Infant) v Coltart [1967] 1 QB 432, [1967] 1 All ER 271 and R v Ollis [1900] 2 QB 758.
[1990] Crim LR 181.
[2000] 3 All ER, HL discussed in Chapter 12.
[1992] 4 All ER 897, PC.
[1937] 1 KB 223.
[1936] 2 All ER 1156.
[1997] 3 WLR 758, [1997] Crim LR 747, CA.
[1967] 2 QB 459.
Ibid.
[1964] AC 1254.
[1974] QB 398.
[1977] AC 1.
Supra, n.45.
For comments on R v Z , see Roberts [2000] Crim LR 952, Birch [2000] Crim LR 293 and [2001] Crim LR 222, Tapper (2001) 117 LQR 1, Mirfield (2001) 117 LQR 194 and Munday [2000] CLJ 468.
Double Jeopardy , HMSO, 1999, para. 5.48.
Cm 5563, 2002, para 4.64 (emphasis added).
See R v Terry (2004) The Times, 28 December where it was held that an acquittal was not conclusive evidence of innocence unless by that word it was meant not guilty in law of the alleged offence to which it related; nor did it mean that all relevant issues had been resolved in favour of a defendant.
Article 14(7) of the ICCPR 1966 states:
“7. No one shall be liable to be tried or punished for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
Cm 5563, 2002, paras 4.65 and 4.66 (emphasis added).
[2007] 1 WLR 1657, CA.
[2008] 1 WLR 627, CA.
Ibid, 635.
(1834) 2 A& E 278. See also Baker v Dewey (1823) 1 B&C 704, Carpenter v Butler (1841) 8 M&W 209, Green v Kettle [1938] AC. 156 and Church of England Building Society v Piskor [1954] Ch. 553.
(1837) 6 Ad & El 469.
Amalgamated Investment and Property Co. Ltd. v Texas Commerce International Bank Ltd. [1981] 1 All ER 923.
(1875) LR 10 CP 307.
[1933] AC 51.
(1993) 11 QBD 776.
[1938] AC 287. See also Moorgate Mercantile Co. Ltd. v Twitchings [1977] AC 890, HL.
Chapter 6: Competence and Compellability
(1) A HISTORICAL EXCURSUS
The evidential rules relating to witnesses took cognizance of two categories of witnesses: the “automatic” category and the “discretionary” category. The former category includes witnesses suffering from mental handicap or illness whilst the latter includes victims of rape or serious sexual offences and those who are unable to give evidence through fear or because they are kept out of the way. The latter category is discussed in Chapter 13 and need not detain us here.
The evidential rules relating to the automatic category of vulnerable witnesses which are mainly judge-made evolved in the exercise of the parens patriae jurisdiction of the courts, the origins of which, we are told, “is lost in the mists of antiquity”. The spate of legislative activity on the evidential rules relating to the discretionary category was inspired by four Reports. The first – the Heilbron Report - originated as a result of the widespread concern of the public regarding the decision of the House of Lords in DPP v Morgan . The Report recommended that the trial judge's discretion to admit evidence of sexual history or sexual behavior should be guided by, and based on, principles set out in a legislation. That legislation is the Sexual Offences (Amendment) Act 1976 which is now superseded by the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999).
The second Report – the Roskill Report - recommended, inter alia , the use of television link in fraud and child abuse cases. In the third report (the Pigot Report ), the Advisory Group felt that section 32 of the Criminal Justice Act 1988 (CJA 1988) did not go far enough and therefore recommended that “video-recorded interviews with children under the age of 14 conducted by police officers, social workers or those whose duties include the investigation of crime or the protection of the welfare of children should be admissible as evidence.” The fourth Report – Speaking Up For Justice - redressed the balance between alleged sexual offenders and their victims and recommended that special measures be made available to vulnerable witnesses. The recommendations were enacted in the YJCEA 1999. Special measures are available to witnesses who qualify under section 16 of the YJCEA 1999 (i.e., witnesses under the age of 17 and those who are mentally handicapped or suffering from physical disability or disorder) or under section 17 (i.e., witnesses eligible on the ground of fear or distress about testifying). The YJCEA 1999 makes provisions on special directions to allow vulnerable witnesses to be screened from the defendant , to give evidence by live link or in private , to use the video recordings of their interviews as evidence-in-chief and for cross-examination and re-examination to be recorded , for evidence to be given through an intermediary , for aids to communication to be provided , and for wigs and gowns to be dispensed with.
(2) MODES OF ASCERTAINING COMPETENCE
(A) General rule
The general rule is that a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence. Section 53 (1) of the YJCEA 1999, which applies to all witnesses, provides:
“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.”
Competent witnesses are usually but not necessarily compellable.
The judge decides on the competency of a witness by examining him on a voir dire (a trial within a trial) or by evidence aliunde (i.e., by other and different evidence through television link or expert opinion). It must be noted, however, that rules of competency and therefore compellability are now enacted in and modified by the YJCEA 1999, and different rules apply to different categories of vulnerable witnesses.
(B) Mentally handicapped persons
At common law, the judge determines whether a witness who is mentally handicapped or affected by drunkenness is of competent understanding to give evidence and is aware of the nature of an oath. If the judge determines that he is competent, he should allow him to be sworn and examined, leaving the jury to decide on the worth of the evidence. The judge, in determining competency, may also rely on appropriate expert medical evidence.
In R v Stretton the Court of Appeal held that the judge had discretion to allow a trial to continue where a witness (who was epileptic and mentally handicapped) having been cross-examined for some time, became ill and could not give evidence. While competence and compellability of mentally handicapped persons are regulated by common law, section 30 of the YJCEA 1999 allows the use of aids to communication necessary to overcome an impairment of a witness who is eligible under section 16 of the YJCEA 1999.
Facilitated communication - a technique whereby an adult supports the arm of an autistic person while using a keyboard or typing device – poses thorny evidential issues. In Re D (Evidence: Facilitated Communication ) , the admissibility of facilitated communication was tested in wardship proceedings in the Family Division of the High Court. In that case, a young man of seventeen suffering from severe autism and epilepsy with a cognitive age of not more than two years, purportedly alleged that he had been the victim of sexual abuse by his father. Although the young man could not speak, he was assisted by facilitated communication. Dame Butler-Sloss P discharged the wardship for two reasons. First, the use of facilitated communication was not reliable because responses produced by the technique were under the control of the facilitator, and not the complainant. Second, as Butler-Sloss P rightly observed, “facilitated communication is a highly controversial method of communication and one that should be viewed with the greatest possible caution unless or until further evidence is provided.” And, one might add, facilitated communication is not only in breach of the principle of orality but also a violation of Article 6 (2) of the Convention for the Protection of Human Rights and Freedoms 1950 (the Convention) for it could not be said that the prosecution case has been proved beyond reasonable doubt.
(C) Deaf and dumb persons
At common law, a person who is deaf and dumb is competent if he can be made to understand the nature of an oath and if intelligence can be communicated to and received from his by means of signs. Section 29 of the YJCEA 1999 allows witnesses who have difficulties in communicating to be examined through an interpreter or intermediary subject to special measure direction and rules of court. The section placed on a statutory footing a Home Office Circular issued sequel to R v Atard that interpreters make notes of their interpretation and be prepared to give evidence. In that case, a Maltese was interrogated and the police officer who took notes of the answers was not permitted to give evidence of those notes because the interpreter was not called to give evidence. It was held that the notes were inadmissible hearsay.
(D) Infants
At common law, an infant of any age may be sworn in if he appears sufficiently to understand the nature and moral obligation of an oath and understands the duty of speaking the truth. In R v Brasier it was held that the judge must be satisfied that the infant appreciated the nature of an oath. This applies whether it is a civil or a criminal proceeding.
It must be noted, however, that the age of competency was not settled until recently due to a lacuna in section 38 (1) of the Children and Young Persons Act 1933 which provides:
“Where in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understand the duty of speaking the truth.”
Although the section did not stipulate the age limit below which children are forbidden to give unsworn evidence, Lord Goddard CJ in R v Wallwork opined that it was most undesirable that a child as young as five should be called as a witness. And yet, in R v B the Court of Appeal upheld the trial judge's decision to allow a six-year-old child to give evidence against her father. The Court held that although a child of five might not satisfy the requirements of section 38 (1) of the 1933 Act, the statute laid down no minimum age.
Other cases are worthy of note. In R v Haynes the Court of Appeal upheld the ruling that children of 11 and 12 could give evidence and in R v Wright and Ormerod a child aged six, gave evidence but in R v Campbell it was held that a child, aged 10, could give sworn evidence while a child of two has been allowed to give evidence by a London stipendiary magistrate.
The position now is that the evidence of a child under 14 is given unsworn by virtue of section 55 (2) (a) of the YJCEA 1999.
As for competency, the judge determines whether a child is competent either by putting questions to him pursuant to the rule in R v Brasier above or by looking at the video-taped interview of the child (s.32A of the CJA 1988) or by live television link (s.32 of the CJA 1988) or by listening to the evidence of an expert. By using one or more of the methods outlined the judge determines whether the child is capable of giving intelligible testimony pursuant to section 54 (2) of the YJCEA 1999.
In considering the admissibility of a child witness pursuant to section 33A (2A) of the CJA 1998, the predecessor of section 54 of the YJCEA 1989, Auld J in R v Hampshire stated that where competence is based on watching the video-taped interview of the child, the judge must determine whether the evidence ought not to be admitted in the interests of justice pursuant to section 32A (3) (c) of the CJA 1998. Again, in DPP v M it was stated that the appropriate course to follow in determining competency was to watch the video-recording or to ask some general questions.
It must be noted, however, that the use of expert opinion for determining the competency of a child is desirable but not mandatory and that the discretion exercised under section 32A (3) (c) of the CJA 1988 is different from that exercised under section 78 of PACE. The authority for this proposition is G v DPP . In that case, D was convicted of indecent assault committed when he was aged 14. The evidence adduced against him included that of two children, the complainant who was aged 6 and her brother who was aged 8. The evidence-in-chief consisted of video-taped interviews. D appealed on three grounds: (i) that the Crown used an incorrect test when determining the competence of the child witnesses; (ii) that the court should have heard expert evidence from the two psychiatrists who had interviewed the child witnesses as to the competence of the children to give evidence; and (iii) that the judge should have exercised his discretion under section 78 of PACE to exclude the video-taped interviews. The appeal was dismissed. The Divisional Court held that the trial judge had been correct to hold that the child was capable of giving intelligible testimony if the evidence was capable of being understood; that the expert evidence was not necessary; and that the discretion under section 32A (3) (c) of the CJA 1988 differed a little from that under section 78 of PACE.
The above decision adequately summarised the law but there is an obstacle to the reception of video-taped interviews and evidence of television link. This obstacle is the principle of orality or spontaneity which requires evidence to be given orally and spontaneously in court. In R v Redbridge Youth Court, R v Bicester Youth Court , two separate applications for judicial review arose as to the exercise of the court's power to hear evidence by television link under section 32 of the CJA 1988 and to receive evidence of a video-recording under section 32A of the CJA 1988.
Whilst section 32A (3) (c) of the CJA 1988 preserves the principle of orality in cases where evidence of video-recording is adduced by vesting in judges the discretion to exclude relevant evidence in the interests of justice (e.g., for infringing the hearsay rule and/or the rule against opinion ), there is no such provision in section 32. The relevant provisions of the CJA 1988 are as follows:
“ 32. Evidence through television links. – (1) A person other than the accused may give evidence through a live television link in proceedings to which subsection (1A) below applies if … (b) the witness is a child, or is to be cross-examined following the admission under section 32A below of a video recording of testimony from him, and the offence is one to which subsection (2) below applies, but evidence may not be so given without the leave of court.
(1A) This subsection applies … (b) to proceedings in youth courts …
(2) This subsection applies – (a) to an offence which involves an assault on, or injury or threat of injury to, a person … (c) to an offence under the Sexual Offences Act 1956 …
32A. Video recordings of testimony from child witnesses. – (1) This section applies in relation to the following proceedings, namely … (c) proceedings in youth courts [for any offence to which s.32 (2) above applies] …
(2) In any such proceedings a video recording of an interview which – (a) is conducted between an adult or one of the accused (“the child witness”); and (b) relates to any matter in issue in the proceedings, may, with the leave of court, be given in evidence in so far as it is not excluded by the court under subsection (3) below.
(3) Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under subsection (2) above unless – (a) it appears that the child witness will not be available for cross-examination; (b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or (c) the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted …”
In the first case, a 14-year-old boy was charged with an indecent assault of two 14-year-old girls. There was no evidence of intimidation or any suggestion that the complainants would be embarrassed if they were to give live evidence. The justice refused the applications and the DPP applied for judicial review. In the second case, the prosecution applied for orders under section 32 permitting three boys aged 10, 11 and 13 respectively to give evidence by live television link against L, a 14-year-old boy charged with causing grievous bodily harm who had threatened the two younger boys with a gun at the time of the incident. The district judge allowed the applications because of the vulnerability of the boys.
Latham LJ observed that sections 32 and 32A had the same legislative purpose, namely, to ensure that a child was able to give a full account of the events in question and that section 32A had a further purpose, namely, that the evidence should be contemporaneous. These legislative purposes, he submitted,, must be taken into consideration when exercising the discretion to exclude under section 32A (3) (c) which preserves the principle of orality. Taking all these legislative purposes into consideration, Latham LJ refused to make the orders sought in the first case and accordingly dismissed the DPP's application. In the second case, it was held that the district judge was entitled to take the view that the fear expressed by the two boys (aged 10 and 11) justified the order under section 32 that they should give evidence by television link but quashed the orders on the older boy (aged 13) since the district judge had not been concerned about the quality of the boy's evidence or his willingness to give evidence. It must be stressed that this decision is consonant with the preponderance of European Convention jurisprudence on the principles of adversarial proceedings and equality of arms even though Latham LJ felt that “Article 6 of the [C]onvention does not … provide any further assistance in resolving the difficult question which the court has to answer …”
It must be noted, however, that the House of Lords in R (D) v Camberwell Green Youth Court; R (G) v Camberwell Green Youth Court held that evidence through live television link did not violate Article 6 of the Convention since the evidence was produced in the presence of the defendant. In R v Ukpabio the Court of Appeal held that the court had no power outside the statutory provisions of the YJCEA 1999 to direct that a defendant suffering from paranoid schizophrenia could give evidence at the trial through live television link. The trial judge refused the defendant's application on the grounds that the special measures directions provisions under the 1999 Act were only to witnesses and not the defendant. The defendant's trial took place before s.33A of the YJCEA 1999, as inserted by s.47 of the Police and Justice Act 2006, came into force. The new s.33A of the YJCEA 1999 provides:
“33A (1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
(2) The Court may, on the application of the accused, give a television direction if it is satisfied –
(a) that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused, and
(b) that it is in the interests of justice for the accused to give evidence through a live link.”
The direction must be given through a live link where the accused is aged under 18 and his ability to participate effectively as a witness giving oral evidence is compromised by his level of intellectual ability or social functioning , and where the use of television link will enable him to participate effectively in the proceedings as a witness such as improving the quality of his evidence. Where the accused has attained the age of 18 at the time of trial, the conditions are that (a) he suffers from mental disorder (within the meaning of the Mental Health Act 1983 [superseded by the Mental Health Act 2007]) or otherwise has a significant impairment of social function, (b) he is for that reason unable to participate effectively, and (c) use of a live link would enable him to participate in the proceedings as a witness.
(E) The accused and his co-accused
The general rule is that an accused is not a competent witness for the prosecution in a criminal case. However, there are several ways of rendering him competent and compellable where several people are charged in an indictment, viz. – (i) where a nolle prosequi is entered ; (ii) where it is stated that no evidence will be offered against the accused and he is acquitted ; (iii) where an order for separate trials is obtained ; and (iv) where the accused pleads guilty but it is desirable that he should be sentenced before being called upon to give evidence for the prosecution. The above desiderata are now placed on statutory footing by section 53 (4) and (5) of the YJCEA 1999.
The accused is a competent witness for the defence by virtue of section 1 (1) of the Criminal Evidence Act 1898. As for evidence adduced in-chief, the general principle is that a statement made in the absence of the accused person by a co-accused cannot be evidence against the accused person. But if the co-accused goes into the witness box and gives evidence in the course of a joint trial, then his sworn evidence becomes evidence for all purposes including that of being evidence against the accused person. What the accused says under cross-examination can be relied upon by the counsel responsible for the cross-examination. An accused person is a competent but not a compellable witness for a co-accused who is tried in the same proceedings.
(F) Spouse and ex-spouse
(i) Competence of spouse . By virtue of section 80 (1) (a) of PACE (as amended) a spouse is competent to give evidence for the prosecution in criminal proceedings except where the husband and wife are “charged in the proceedings” (s.80 (4)). The spouse is competent to give evidence on behalf of the accused or any person “charged in the proceedings” (s.80 (1) (b) as amended).
(ii) Compellability of the spouse . The general rule is that anyone who is competent to give evidence is also compellable. However, an accused person and his spouse are exceptional in this regard. A spouse is compellable for her husband except where they are charged in the proceedings (s.80 (2) as amended). By virtue of section 80 (3) a spouse is compellable for the prosecution or the co-accused if, and only if:
(a) the offence charged involved an assault or injury or threat of injury to the wife or husband of the accused or a person under 16;
(b) a sexual offence is alleged to have been committed in respect of a person under 16;
(c) the offence charged consists of attempting or conspiring to commit or aiding, abetting, counseling, procuring or inciting the commission of the offence falling within paras. (a) and (b) above.
The above provisions apply to a spouse, and not to a cohabitee. The new section 80A of PACE which replaced the old section 80 (8) provides that failure of the wife or husband of any person charged in the proceedings to give evidence in the proceedings shall not be made the subject of any comment by the prosecution. It has been suggested that it would be futile to assert that the new provision was intended to modify section 35 of the Criminal Justice and Public Order Act 1994 (inferences from the accused's failure to give evidence at trial). It must be noted, however, that in a civil trial section 14 (1) (a) of the Civil Evidence Act 1968 confers on a witness the right to refuse to answer any question or produce any document or thing if to do so would expose the husband or wife to proceedings for any criminal offence, recovery or penalty.
In R v L (Evidence of wife) , the Court of Appeal held that the statement made to the police by a wife, while her husband was in custody, as admissible even though she was not compellable under s.80 of PACE. The Court stated that there was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.
(iii) Ex-spouse . An ex-spouse is a compellable witness by virtue of section 80 (5) of PACE as amended by para. 13 of Schedule 4 to the YJCEA 1999. In R v Matthias the former wife of a co-accused, Branton, made a statement to the police. The statement contained what amounted to a confession which implicated Branton, Matthias and another co-accused, Terry. It was submitted on behalf of Branton that the confession was made in the latter part of 1984 when the maker and Branton were still married to each other and before section 80 (5) came into force on January 1, 1986 and should be excluded under section 78 of PACE. It must be noted that before the trial the maker of the statement and Branton divorced and a decree absolute was pronounced on March 14, 1988. It was held that whilst the confession was made before the Act came into force, the matter was committed for trial after the commencement of the Act, and that made the former wife competent and compellable.
(G) Sovereigns and diplomats
The British Sovereign is not compellable but may, if she pleases, give unsworn evidence. Foreign Sovereigns and heads of state are also not compellable. Diplomats and other persons connected with certain international organizations enjoy total or partial immunity.
(H) Bankers
Section 6 of the Bankers' Books Evidence Act 1879 provides that a banker or officer of a bank shall not, in any legal proceedings to which the bank is not a party, be compellable to produce any banker's book the contents of which can be proved under this Act, or to appear as a witness to prove matters, transactions and accounts therein recorded, unless by order of a judge made for a special purpose.
(3) OATHS AND AFFIRMATION
According to Nokes, “every person having authority to hear evidence is empowered to administer an oath to witnesses”. Section 1 (1) of the Oaths Act 1978 (OA 1978) sets out the form and manner of administering the oath to a witness who is either a Christian or a Jew. The standard form of oath applicable to Christians (who swear on the New Testament) or Jews (who swear on the Old Testament) will be administered without question unless the person taking the oath objects or is incapable of doing so.
Section 4 of the OA 1978 on the efficacy of an oath provides:
“4 (1). In any case in which an oath may lawfully be and has been administered to any person, if it has been administered in a form and manner other than that prescribed by law, is bound by it if it has been administered in such a form and with such ceremonies as he may have declared to be binding.
(2) Where an oath has been duly administered and taken the fact that the person to whom it was administered had, at the time of taking it, no religious belief, shall not for any purpose affect the validity of the truth.”
This section was considered in two leading cases. In R v Chapman it was held that the words of section 1 of the OA 1978 regarding the manner in which an oath should be taken were a ‘directive' and that while they should be complied with, a failure to do so did not necessarily invalidate the whole of the taking of oaths. The efficacy of the oath was said to depend on it being taken in a way binding upon the conscience of the witness.
Again, in R v Kemble the appellant was convicted of possessing firearms with intent to commit an indictable offence. He appealed against the conviction on the ground that the main prosecution witness who was a Muslim had taken the oath using the New Testament before he gave evidence, that section 1 of the OA 1978 had not been complied with and the witness was not properly sworn. It was held, dismissing the appeal, that the provisions of section 1 (3) of the OA 1978 governed the situation. In the case of a person who is neither a Christian nor a Jew the oath may be administered in a lawful manner. Whether the administration of an oath is lawful or not does not depend upon what may be the considerable intricacies of the particular religion which is adhered to by the witness. Only two questions are relevant: first, is the oath an oath which appears to be binding on the conscience of the witness? If so, and more importantly, is it an oath which the witness considers to be binding on his conscience? In this case, the two progressive questions were answered in the affirmative. Whilst the efficacy of an oath depends on its being taken in a way that is binding on the conscience of a witness, the prosecution cannot call a psychiatrist or psychologist to give reasons why the jury should regard the witness as reliable.
A person who objects to being sworn will be allowed to take a solemn affirmation instead pursuant to section 5 of the OA 1978. On receiving an intimation from a witness that he objects to being sworn, it must be ascertained on which of the following grounds he bases his objection, viz (i) that he has no religious belief (e.g. an atheist); or (ii) that taking the oath is contrary to his belief. If his objection is based on either of these grounds, he repeats after the officer or the Commissioner the following words:
“I, [Joe Bloggs], do solemnly, sincerely and truly affirm” instead of “swear” (s.6).
The Criminal Law Revision Committee in their 11th Report in 1976 recommended by a majority that the oath should be replaced with an undertaking to tell the truth.
I. Dennis, The Law of Evidence (London: Sweet & Maxwell, 1999), at 463.
See the Criminal Justice Act 1988, s.23 (3) (b) discussed in S.E. Salako, “Hearsay in English Criminal Trials: A Violation of the Convention?” [2001] HR 232 at 237.
H. Theobald, The Law Relating to Lunacy (1924), p.1 quoted by La Forest J in Re Eve [1986] 2 SCR 388 at 407 (Supreme Court of Canada).
The Report of the Advisory Group on the Law of Rape , Home Office, London , December 1975.
(1975) 61 Cr App R 136.
The Report of the Committee on Frauds Trial , HMSO, London , 1986.
See the Criminal Justice Act 1988, s.32 (1) (a).
Ibid., s.32 (1) (b).
The Report of the Advisory Group on Video Evidence , Home Office, London , December 1989.
ibid., para 2.25.
The Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System , Home Office, London, 1998.
See the YJCEA 1999, s.23.
Ibid., s.24.
Ibid., s.25.
Ibid., s.27.
Ibid., s.28.
Ibid., s.29.
Ibid., s.30.
Ibid., s.26.
R v Whitehead (1866) LR 1 CCR 33.
R v Wakefield (1827) 2 Low 279.
R v Hill (1851) 2 Den 254 and R v Dunning [1965] Crim LR 372.
R v Barratt and Sheehan [1996] Crim LR 495, CA.
(1986) 86 Cr App R 7. See also R v Bellamy (1985) 82 Cr App R 222.
[2001] 1 FLR 148.
Ibid., p.150.
Ibid., p.151.
R v Rushton (1786) 1 L. Ca L 403.
See the YJCEA 1999, ss.19-22.
(1958) 43 Cr App R. 90.
R v Williams (1835) 7 C&P 320, R v Travers (1726) 2 Str 700 and R v Moscovitch (1925) 18 Cr App R 37. See J.P. Taylor, A Treatise on the Law of Evidence (London: Sweet & Maxwell, 1931), Vol. 2, at 869.
(1779) 1 Leach 199.
(1958) 42 Cr App R 153 at 160.
[1990] Crim LR 510.
(1976) 64 Cr App R 194.
(1987) 90 Cr App R 91.
(1983) 147 JPR 392, [1983] Crim LR 174.
See J.R. Spencer and R. Flin, Evidence of Children: The Law and the Psychology (London: Blackstone, 1993), at 53. See also R v Khan (1981) 73 Cr App R 190 where the Court of Appeal said that, as a rule of practice, inquiry should be made of any child under 14 whether he or she may give sworn or unsworn evidence.
Section 55 (2) of the YJCEA 1999 replaced s.52 of the Criminal Justice Act 1991.
Section 54 (2) of the YJCEA 1999 re-enacted s.33A (2A) of the CJA 1988 inserted by s.168 (1) of and Sch. 9, para. 33 to the Criminal Justice and Public Order Act 1994. Section 33A (2A) of the CJA provides that “A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony.” The rules of competency are now stated in s.54 of the YJCEA 1999. Section 137 (1) of the Criminal Justice Act 2003 enables the prosecution witness as well as defence witnesses (but not the defendant) to have their testimony recorded on video where the offence in question is triable on indictment or a prescribed offence.
[1995] 2 Cr App R 319.
[1997] 2 Cr App R 70.
[1997] 2 Cr App R 78. See also R v McAndrew-Bingham [1999] 2 Cr App R 293.
[2001] 4 All ER 411, DC.
See R v B (An Accused) [1987] 1 NZLR 362 and HM Advocate v Birkett (1992) The Times, 29 October.
The provisions of s.32 of the CJA 1988 was replicated in and extended by s.24 of the YJCEA 1999 to cover other arrangements such as video conferencing.
Barbera, Messegue and Jabardo v Spain (1988) 11 EHRR 360, Unterpertinger v Austria (1991) 13 EHRR 175 and Trivedi v UK [1997] EHRLR 51 discussed in S.E. Salako, “Hearsay in English Criminal Trials: A Violation of the Convention?” [2001] HR 232. See also Telfner v Austria (2002) 34 EHRR 7.
[2001] 4 All ER 411 at 421.
[2005] 1 WLR 393.
[2008] 1 WLR 728.
YJCEA 1999, s.33A (3).
Ibid, s.33A (4) (a).
Ibid, s.33A (4) (b).
Ibid, s.33A (5).
R v Grant [1944] 2 All ER 311 and R v Sharrock [1948] 1 All ER 145.
R v Sharman (1736) Cas. KB Temp Hardw 303.
R v Rowland (1826) Ry&M 401.
Winsor v R (1866) LR 1 QB 390.
R v Pipe (1967) 51 Cr App R 17 at 21. Cf. R v Turner (1975) 61 Cr Ap R 67 at 78.
R v Meredith (1943) 29 Cr App R 40 and R v Rudd (1948) 32 Cr App R 138.
R v Paul [1920] 2 KB 183. Cf. Young v HM Advocate , 1932 J.C. 63, [1932] SLT R 466.
R v Conti (1973) 58 Cr App R 387.
The phrase “charged in the proceedings” was substituted by para. 13 of Sch. 4 to the YJCEA 1999 for “jointly charged” wherever it appeared in the old S.80 of PACE. This amendment was necessary to correct a drafting error in the old s.80. See D. Birch and R. Leng, Blackstone's Guide to the Criminal Justice & Criminal Evidence Act 1999 (London: Blackstone), at 145.
R v Pearce (2002) 166 JPR 103.
See D. Birch and R. Leng, supra n.57, at 146.
(2008) The Times, 14 May.
The words “competent and” were deleted from the old s.80 (5) by para. 13 of Sch. 4 to the YJCEA 1999.
[1989] Crim LR 64.
See W.M. Best, The Principles of the Law of Evidence , ed. by S.L. Phipson (London: Sweet & Maxwell, 1922), at 170-171.
See J.P. Taylor, A Treatise on the Law of Evidence (London: Sweet & Maxwell, 1931), Vol. 2, at 872 and M.N. Howard, et al. , Phipson On Evidence ( London : Sweet & Maxwell, 2000), at 168.
State Immunity Act 1978, s.20.
Diplomatic Privilege Act 1964 and Consular Relations Act 1968.
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 396.
[1980] Crim LR 42, CA.
[1990] Crim LR 71, CA.
R v Robinson (1993) The Times, 25 November, CA.
Cmnd 4991, paras. 279-281.
Chapter 7: Corroboration
(1) A PLURALITY OF WITNESSES
The requirement of a plurality of witnesses is an ancient device which has been traced to Matthew xviii: 6 : “In the mouth of two or three witnesses every word may be established” and the rule that a single witness is insufficient derived from the Latin maxim testis unus testis nullus (one witness is no witness).
The general rule is that the court may act on the uncorroborated testimony of a witness. As Cross rightly observes , this does not mean that the court must act upon the evidence of one witness even if it is irrefutable. However, the unreliability of such a single testimony which may be based on a passing occurrence such as a verbal confession or a fact recalled from the memory of an eye or ear-witness compelled judges to enunciate rules of practice under which juries must be warned of convicting on uncorroborated evidence. There are also statutory provisions which require that evidence should be corroborated before a person is convicted. The pertinent question is: what is the legal meaning of corroboration?
(2) THE LEGAL MEANING OF CORROBORATION
Several definitions have been proffered by text writers and judges. According to Heydon and Ockleton, “corroboration” is “evidence tending to confirm some fact of which other evidence is given.” For Nokes, it is “confirmatory or supporting evidence on a matter on which other evidence is adduced.” In R v Baskerville Lord Reading CJ defines “corroboration” as follows:
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that sis, which confirms in some material particular not only the evidence that the crime has been committed, but also the prisoner committed it.”
Lord Diplock in DPP v Hester observed that “an examination of the basic 19 th century cases makes it plain that in judgments ‘corroboration' was not used in other sense than ‘confirmation'.” Finally, Lord Hailsham in DPP v Kilbourne opined:
“The word ‘corroboration' by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.”
From the foregoing statements, one can safely assert that corroboration means confirmation or support. Corroborative evidence, therefore, means evidence from an independent source which confirms or supports proof of a matter on which evidence has been or will be given and which implicates the defendant in a material particular.
(3) TWO ESSENTIAL REQUIREMENTS OF CORROBORATIVE EVIDENCE
The two essential requirements of corroborative evidence are as follows:
(a) Corroboration must come from an independent source . This requirement is neatly illustrated by three cases. In R v Baskerville it was held that where on a trial of an accused person evidence is given against him by an accomplice, the corroboration which the common law requires is corroboration in some material particular tending to show that the accused committed the offence charged. It is not enough that the corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused.
Again, in R v Redpath the accused was charged with indecent assault on a young girl. The girl's mother testified that the girl returned home very distressed and immediately complained. The court held that while the girl's distressed condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to the evidence because it is all part and parcel of the complaint.
The locus classicus is R v Whitehead. In that case, the accused was charged with having unlawful intercourse with a girl under 16. The girl mentioned the incident for the first time weeks later when she was pregnant. Lord Hewart CJ rejected the argument that her conversation could amount to corroboration saying: “the girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty-five times to get twenty-five corroborations of it.” Recently in R v Islam the appellant, a medical practitioner, was convicted on three counts of indecent assault on female patients. At his trial, the prosecution adduced evidence of complaints made by the victims to the police or to friends or relatives at or near the time of the alleged assault. The appellant appealed on the ground that the conviction was rendered unsafe by lack of direction on the evidence of recent complaint. The Court of Appeal held, allowing the appeal that (i) self-serving statements were usually inadmissible, and (ii) that it was a perverted survival of an ancient requirements that a woman should make hue and cry as a preliminary to a trial for rape. The Court also added that it could not be an independent confirmation of a complainant's evidence since it did not come from a source independent of her.
(b) Corroboration must implicate the defendant in a ‘material particular' . ‘Material particular' simply means a material fact, that is, “a fact which in the circumstances of the case and the issues raised in it is material to the guilt or innocence of the accused of the offence charged.”
(4) STATUTES REQUIRING TWO OR MORE WITNESSES
In spite of the abrogation by section 32 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994) of the mandatory requirement to give corroboration in cases relating to accomplices or sexual offenders (discussed in section 5), there are still statutes requiring two or more witnesses such as:
• The Treason Act 1795, s.1 which penalises the compassing of the death or restraint of the Queen provides that the accused can only be convicted on the oath of two or more witnesses.
• The Road Traffic Regulation Act 1984, s.89 (1) provides that a person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence. This section requires the opinion of one witness to be corroborated by another witness.
• Perjury Act 1911, s.13: In trials for perjury, what has to be corroborated is the falseness of the statement, not that the accused knew what he said was untrue.
• Police and Criminal Evidence Act 1984, s.77 provides that the judge must warn the jury of the special need of care in convicting a mentally handicapped person if his confession is obtained by the police otherwise than in the presence of an independent person.
• Affiliation Proceedings Act 1957, s.4 as amended by the Affiliation Proceedings (Amendment) Act 1972 provides that the court shall not adjudge the defendant to be the putative father of a child in a case where evidence is given by the mother unless her evidence is corroborated in some material particular by other evidence to the court's satisfaction.
(5) RULES OF PRACTICE
(A) Accomplices and sexual offenders
(i) What is an accomplice? In Davies v DPP Lord Simonds LC asserted that there was no formal definition in the authorities but suggested that from the cases the following persons have been treated as falling within the category:
(a) Participes criminis (parties to a crime);
(b) receivers in respect of thieves from whom they receive goods ; and
(c) parties to a crime which constitutes similar facts (i.e., crimes which are so similar that they prove system or intent and negative accident).
Lord Simonds, however, entered the caveat that there were witnesses outside the above categories such as witnesses with a purpose of their own. Prior to the enactment of the Criminal Justice and Public Order Act 1994 (CJPOA 1994), it was the duty of the judge to warn the jury that it was dangerous to convict upon the uncorroborated evidence of an accomplice. This practice which had the force of a rule of law was modified by the 1994 Act.
(ii) Corroboration and the CJPOA 1994
Section 32 (1) of the Criminal Justice and Public Order Act 1994 provides:
“32 (1). Any requirement whereby at a trial or indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is:
(a) an alleged accomplice of the accused; or
(b) where the offence charged is a sexual offence , in respect of whom it is alleged to have been committed, is hereby abrogated ”. (emphasis added)
Although section 32 (1) of the CJPOA 1994 abrogates the mandatory requirement for corroborating an accomplice's evidence, the section leaves intact the Turnbull warning and cases of witnesses with purposes of their own to serve instantiated by Lord Simonds in Davies v DPP (above) who are stricto sensu not accomplices.
Since 1953 when Lord Simonds entered his caveat, a category of cases emerged on the need to give corroboration warning to the jury before acting on such evidence. In R v Prater the appellant was convicted of uttering forged documents and unsuccessfully appealed on the ground that the evidence of a co-accused, who gave evidence on his own behalf, required corroboration and that there should have been a warning given by the trial judge. Dismissing the appeal, the Court of Criminal Appeal held that it was desirable that a warning should be given to the jury where a witness (whether a co-accused or a prosecution witness) might have a purpose of his own to serve but that there was no miscarriage of justice.
Again, in R v Beck , A, the Managing Director of a company (S Ltd.) set up in England by an American-owned company (F Ltd.) to finance home improvements entered into various loss-sustaining transactions with B, the owner of a double-glazing business (C Ltd.). After speaking to the directors of F Ltd., the auditors made a claim on F Ltd.'s insurance company in respect of the loss and A and B were charged with conspiracy to defraud C Ltd. and F Ltd. In the course of the trial, A changed his plea to guilty and admitted that he and B had been operating a dishonest system known to the directors of F Ltd. The directors, when called, denied any knowledge of it. B, however, alleged that the directorate had lied to the auditors and, therefore, were unreliable witnesses. The trial judge, in his summing up, advised the jury that they should pay particular attention to the evidence of the directors and the weight, if any, to be attached and warned them of the danger of acting on uncorroborated evidence. B was convicted and appealed, inter alia, that although the directors of F Ltd. were not accomplices stricto sensu , they had a purpose of their own to serve and the trial judge should have given the usual corroboration warning. Dismissing the appeal, the Court of Appeal held that although a judge was obliged to proceed with caution where a witness's evidence might be tainted, he was not bound to give an accomplice warning in respect of that witness's evidence unless there were grounds for believing that he was involved in the crime which was the subject matter of the trial.
Prater and Beck were followed in Nembhard v R and R v Knowlden . In Nembhard , an appeal from Jamaica to the Privy Council, the defendant was charged with the murder of a policeman. The only evidence which implicated the defendant was a dying declaration made by the policeman to his wife that the defendant shot him. The defendant's appeal which was based on the ground that it was dangerous to rely on dying declaration in the absence of corroboration was rejected. In Knowlden , it was held that when two co-defendants made accusations about each other in the witness box it was not incumbent on the trial judge to give a full Prater direction on corroboration. A customary clear warning would suffice.
It must be noted, however, that the aforementioned cases were decided before the CJPOA 1994 came into force. The crucial issues as stated by Lord Taylor CJ in R v Makanjuola, R v Easton is as follows:
“Given that the requirement of a corroboration direction is abrogated in terms of s.32 (1) [of the CJPOA 1994], we have been invited to give guidance as to the circumstances in which, as a matter of discretion , a judge ought in his summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done.”
In a consolidated hearing of the two appeals – R v Makanjuola and R v Easton – the issue whether it was the mandatory requirement or any requirement of corroboration warning (including the discretionary requirement) that was abrogated was resolved. In Makanjuola , the appellant was convicted of indecent assault of a young girl on 23 February 1995 and sentenced to six months imprisonment. The offence was committed 22 months before section 32 came into force. The appellant's grounds of appeal, inter alia, were that the judge erred in law for failing to exercise his discretion to give a corroboration warning and had unfairly applied section 32 of the CJPOA retrospectively. The appeal was allowed and a community order of 50 hours substituted. In Easton , the appellant was convicted of indecent assault upon a female on 24 February 1995 and sentenced to a probation order for two years and ordered to pay prosecution costs. The appeal was on similar grounds but the Court of Appeal dismissed it.
Cutting away the frills, the three arguments canvassed by counsel for the two appellants are as follows: (i) that the rationale of the corroboration rules developed in case law is that accomplices may have a purpose of their own to serve; (ii) that complainants about sexual offences may lie or fantasize for unascertainable reason or no reason at all; and (iii) that although the statute [s.32 (1)] removes the requirement to give warning, the judge has a discretion to do so. It was also contended that the direction to the jury under the pre-existing law should continue to apply as suggested by the editors of Archbold in the following passage:
“Furthermore if a judge does give a warning, it seems likely that the existing [i.e. pre-1994] law as to what evidence is capable of corroborating a witness will continue to apply. It seems to follow also that if the judge does give warning, he will still need to tell the jury what corroboration is and identify the evidence capable of being corroborative.”
The latter view was soundly rejected because it was contrary to the intention of Parliament which “is partly to escape from the tortuous exercise [the Baskerville direction] which juries must have found more bewildering than illuminating”. The Court of Appeal, however, accepted the argument that it was the mandatory requirement of corroboration warning that was abrogated and that judges still had a discretion to urge caution in case of an unreliable witness or in more extreme cases – where the witnesses are shown to have lied, to have made previous false complaints, to bear a defendant some grudge or to fantasise - give a strong warning but no special warning is required.
In cases relating to section 32 (1) of the CJPOA 1994 , the following guidelines enunciated by Lord Taylor CJ apply:
• “Section 32 (1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence simply because a witness falls into one of those categories.
• It is a matter for the judge's discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case.
• In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon unsupported evidence of a witness.
• If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.
• Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of his comments as to how the jury should evaluate it rather than as a set-piece legal direction.
• Where some warning is required, it will be for the judge to decide the strength and terms of warning. It does not have to be invested with the old corroboration rules.
• It follows that we emphatically disagree with the tentative suggestion made by the editors of Archbold in the passage at para. 16-36 … Attempts to reimpose the straightjacket of the old corroboration rules are strongly to be deprecated.
• Finally, this court will be disinclined to interfere with a trial judge's exercise of his discretion save in the case where the exercise is unreasonable …”
(iii) Corroboration and similar facts
Although the mandatory requirement for a corroboration warning in trials of sexual offences has been abrogated by section 32 (1) (b) of the CJPOA 1994 and the abolition extends to child victims (s.32 (2)), it is safe to assert that these statutory provisions do not affect the admissibility of similar fact evidence of one complainant as evidence supporting the allegation made by another (a technical corroboration) and giving the jury an appropriate direction on the evidence.
Two cases are worthy of note. In R v H , D was convicted of sexual offences carried out against his adopted daughter and stepdaughter. The trial judge directed the jury that if they found similarities between the girls' accounts and there was no evidence of concoction, the evidence of one girl was capable of corroborating the evidence of the other girl. D appealed. The Court of Appeal, dismissing the appeal, held that if there was a risk of contamination the evidence could not be used as corroboration but it did not follow that the evidence became inadmissible. Provided the jury received appropriate warnings and direction from the judge they had to assess the dangers of relying on it.
Again, in R v Whitehouse W was convicted of indecent assault on the evidence of two boys, R and D who attended his karate class. The two boys testified to the fact that W took Polaroid photographs of them in various karate positions and that other incidents occurred in a van and in a classroom. The trial judge directed the jury that it would be dangerous to convict on the evidence of the boys without corroboration and that each of the boys was capable of corroborating the other. W's appeal that the evidence was not capable of corroboration and that, if it was the direction was inadequate was dismissed by the Court of Appeal.
Section 107 (1) of the Criminal Justice Act 2003 allows a judge to stop a trial, direct the jury to acquit or order a retrial if the evidence is contaminated in the manner proscribed in section 107 (5).
(B) Claims against estate of deceased persons
The general rule is that a claim against the estate of a deceased person will not be allowed on the uncorroborated evidence of the claimant but there is no rule of law against admitting it.
(C) Other possible causes
The categories of circumstances and special types of case which call for directions and warnings from a trial judge cannot be considered as closed. Two examples are worthy of note: (i) that a court should look for corroboration of the evidence of a complaining spouse who alleges a matrimonial offence ; and (ii) where evidence of visual identification is adduced the trial judge must adhere to the Turnbull guidelines discussed in Chapter 9.
(6) CAN LIES IN COURT CONSTITUTE CORROBORATION?
In R v Chapman the trial judge warned the jury that false evidence was capable of amounting to corroboration. He was rebuked by the Court of Appeal. In Tumahole Bereng v R , Lord Macdermott delivering the opinion of the Board said:
“Corroboration may well be found in the evidence of the accused person; but that is a different matter, for there confirmation comes, if at all, from what is said, and not from the falsity of what is said. It is, of course, correct to say that these circumstances – the failure to give evidence or to give false evidence – may bear against an accused and assist in his conviction if there is other material sufficient to sustain a verdict against him. But if the other material is insufficient either in quality or extent they cannot be used as a make-weight …”
There is, however, a dictum in DPP v Boardman that a lie may constitute corroboration. The doubts and uncertainties about lies constituting corroboration were dispelled in R v Lucas where Lord Lane CJ expressed the opinion that subject to the same four safeguards as he required as a condition of out-of-court lies being acceptable as corroboration, a lie told by the accused during his evidence at trial might also be regarded as potentially corroborative of evidence called for the prosecution. However, Lord Lane made it clear that he did not intend to question the decision in Chapman on its own facts, but that “properly understood, it is not authority for the proposition that in no circumstances can lies told by the defendant in court provide material corroboration of an accomplice.” The four safeguards are as follows:
“(i) The lie told out of court must be deliberate.
(ii) It must relate to a material issue.
(iii) The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behavior.
(iv) The statement must be clearly shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is to say by admission or evidence from an independent witness.”
In two leading cases – R v Dowley and R v Barber - the above safeguards were adhered to. In Dowley , the accused was convicted of the rape of a woman to whom his marriage was in the process of being dissolved, a decree nisi of divorce having been pronounced but not yet made absolute. The complainant's evidence clearly amounted to evidence of rape, and required a corroborative warning. The accused at first denied having seen the complainant on the relevant occasions, but later admitted that he had seen her, had driven out of town, and that some sex-play had taken place between them. The accused maintained, however, that no rape had occurred and that he had lied only because he was afraid of the other woman he had been seeing since the break-up of his marriage might be offended by what had happened. The trial judge failed adequately to draw to the jury's attention the possibility that the motive for the accused's lies might be something other than guilt and fear of the truth. The appeal against conviction was allowed, since it was not clear that jury should have accepted the out-of-court lie as corroboration of the complainant's evidence, and the jury's decision to acquit the accused on a related charge of kidnapping arising from the same incident showed that the jury were not entirely satisfied with the complainant's evidence.
In Barber where the only evidence which went to prove that the accused way lying when he gave evidence that he had never had sexual intercourse with his daughter, the complainant, was the daughter's own evidence and the judge left the purported lie to the jury as corroborative evidence, the conviction was quashed.
There remains one pertinent question: When is a Lucas direction required? Kennedy LJ in R v Burge and Pegge identified the four situations in which a Lucas direction was required:
(1) cases involving alleged false alibi;
(2) cases where there is a need to look for corroboration or other supporting evidence;
(3) where the prosecution allege that a specific untruth, which is either proved or admitted to be a lie, is in turn evidence pointing to guilt ;
(4) where the prosecution have not adopted the approach in (3) above but the judge reasonably envisages that there is a real danger that the jury may do so.
It must be noted, however, that a Lucas direction is not required because the jury rejected the evidence of an accused about a central issue in the case covered by the general direction on the burden and standard of proof as in R v Hill or where the lies were not relevant to guilt but to credibility as in R v Landon .
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 500-501.
Sir Rupert Cross, Cross On Evidence (London: Butterworths, 1967), at 162.
J.D. Heydon Evidence: Cases and Materials (London: Butterworths, 1984), at 67.
G.D. Nokes, Cockle's Cases and Statutes On Evidence (London: Sweet and Maxwell, 1970), at 382.
[1916] 2 KB 658.
Ibid., p.667. For a critique of this definition, see S. Bronitt, “Baskerville revisited: The definition of corroboration reconsidered” [1991] Crim LR 30.
[1973] AC 296.
Ibid., p.325.
[1973] 1 All ER 440.
Ibid., p.448.
Supra, n.5.
(1962) 46 Cr App R 319.
[1929] 1 KB 99.
Ibid., p.102.
[1998] Crim LR 575, (1998) 162 JPR 391. see also R v K (1999) The Times, 16 July where a complaint of indecent assault elicited from a young child by the mother's questioning was held not to be an independent support of the allegation because of the danger of suggestibility of a young child.
R. May, Criminal Evidence (London: Sweet and Maxwell, 1990), at 330, n.46.
See Brighty v Pearson [1938] 4 All ER 127, Burton v Gilbert [1984] RTR 162 and Crosland v DPP [1988] 3 All ER 712. Cf Nicholas v Penny [1950] 2 KB 466.
R v O'Connor [1980] Crim LR CA.
R v Lamont [1989] Crim LR 813, R v Cox [1991] Crim LR 276 and R v Campbell [1995] 1 Cr App R 522.
Holland v Roberts (1938) 158 LT 313, Moore v Hewitt [1947] KB 381, Jeffrey v Johnson [1952] 2 QB 8 and Archer v Rogers [1980] 1 NZLR 570.
[1953] AC 378, [1953] 1 All ER 507.
R v Jennings (1912) 7 Cr App R 242 and R v Dixon (1925) 19 Cr App R 36.
R v Farid (1945) 30 Cr App R 168.
See Chapter 9.
See I. Dennis [1995] Crim LR 4 at 7.
[1960] 2 QB 464.
[1982] 1 All ER 807.
[1982] 1 All ER 183, PC.
(1983) 77 Cr APP R 94. See also R v Spencer (1986) 83 Cr App R 277, R v Lovell [1990] Crim LR 111 and R v Cheema [1994] 1 WLR 147.
[1995] 3 All ER 730, CA.
Ibid., p.732 (emphasis added).
J. Richardson, et al. , Archbold's Criminal Pleadings, Evidence and Practice (London: Sweet & Maxwell, 1995), Vol. 1, para 16-36.
[1995] 3 All ER 730 at 732.
There was no evidence adduced in Easton supra showing that the complainant was fantasising.
For articles and comments on s.32 (1) of the CJPOA 1994, see D. Birch [1995] Crim LR 524 and [1996] Crim LR 45; I. Dennis [1995] Crim LR 4; and P. Mirfield [1995] Crim LR 448.
[1995] 3 All ER 30 at 733.
[1994] 2 All ER 881, CA.
[1996] Crim LR 50, CA. For further discussion, see Chapter 12.
Re Hodgson, Becket v Ramsdale (1885) 31 Ch D 177.
People (A-G.) v Casey (No. 2) [1963] IR 33 at 38 (Supreme Court of Eire), per Kingsmill-Moore J.
Alli v Alli [1965] All ER 480.
[1973] QB 774, [1973] 2 All ER 624, CA.
[1949] AC 253, PC.
Ibid., p.270.
[1975] AC 421 at 428-9, per Orr LJ
[1981] QB 720.
Ibid., p.725B.
Ibid., p.724.
[1983] Crim LR 168.
(1988) The Times, 29 July. In R v Sharp [1993] 3 All ER 225, R v Goodway [1993] 4 All ER 225, R v Genns and Britton [1996] Crim LR 502 and R v Robinson [1996] Crim LR 417 the appeals were allowed because the Lucas direction was not given to the jury.
[1996] 1 Cr App R 163 at 173 D-F.
See R v Liacopoulos [1991] 10 Arch News 1 and R v O (A) [2000] Crim LR 617.
[1996] Crim LR 419.
Chapter 8: The Privilege Against Self-Incrimination and the Right to Silence
(1) THE ADVERSARY RATIONALE
The privilege against self-incrimination developed in opposition to the use of the ex officio or inquisitorial oath of the ecclesiastical and common law courts. The oath was compulsorily administered so that a person might be examined and himself provide the accusation to be made against him. In Lilburn's Case , Lilburn did not refuse absolutely to answer any incriminating question: he answered a good many of them but at last refused to go further. He merely claimed a proper proceeding of presentment or accusation. Lilburn was sentenced by the Court of Star Chamber to stand in the pillory, was whipped and fined £500. In May 1641, the House of Commons declared the sentence illegal, against the liberty of the subject, barbarous and tyrannical.
The right to remain silent is an offshoot of the privilege against self-incrimination. Although the Court of Star Chamber and other conciliar courts – the Council of North and of Wales and the Marches – were abolished in 1641, the two concepts subsist. In evidential terms, three rules emerge from these concepts, viz. (i) that the accused (and in certain cases the accused's spouse) is an incompetent witness for the prosecution and for the defence; (ii) that the accused has the right to remain silent before and at the trial; and (iii) that the accused and witnesses have the right to refuse to answer questions or produce documents which might be self-incriminating. The rationale for these rules is that it is repellent to public opinion to compel the accused or witness to give answers exposing them to criminal punishment and that people might not testify freely in the absence of some kind of privilege against self-incrimination.
(2) THE PRIVILEGE AGAINST SELF-INCRIMINATION
(A) Civil proceedings
Goddard LJ in Blunt v Park Lane Hotel Ltd. enunciated the rule in civil proceedings as follows:
“The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or [in a criminal case] forfeiture which the judge regards as reasonably likely to be preferred or sued for.”
In that case, an action for slander was based on an allegation that the plaintiff had been guilty of adultery and the defendants were allowed to administer interrogatories to her in support of their plea of justification. The Court of Appeal held that, formal ecclesiastical censure of the laymen for adultery being obsolete, the privilege against self-incrimination did not extend to liability for a finding of adultery.
The practice to be followed when someone objects to answering a question because he might be incriminated if he were to do so was laid down in R v Boyes by Cockburn CJ:
“(i) The witness's statement that his answer might have this effect is not sufficient.
(ii) The Court must see from the circumstances of the case and the nature of evidence which he is called to give that there is reasonable ground to apprehend danger to him.
(iii) There must be no nice balancing of the odds. The judge must come to the conclusion that such a danger is real and appreciable.”
The question is whether this privilege extends to answers which might incriminate the witness under foreign law. In King of the Two Siciles v Wilcox it was held that the privilege did not extend to foreign law but in United States of America v McRae it was held that where the provisions of a foreign law was admitted in the pleadings, there could be no order for discovery if the production of the document might have penal consequences thereunder. Again, in Arab Monetary Fund v Hashim it was held that although s.14 (1) of the Civil Evidence Act 1968 made it clear that there was no privilege against self-incrimination under non-UK law, the possibility of such incrimination is a factor which could be taken into consideration in the exercise of the court's discretionary power to grant an interlocutary injunction under the Supreme Court Act 1981.
(B) Search order (formerly known as Anton Piller order)
In Anton Piller KG v Manufacturing Process Ltd. the plaintiffs, German manufacturers of frequency converters for computers, claimed that the defendants were in secret communication with other German manufacturers and were giving them confidential information about the plaintiffs' power units and details of a new converter, the disclosure of which could be damaging to the plaintiffs. The plaintiffs applied for an injunction restraining the defendants from infringing their copyrights and an order for permission to enter the defendants' premises to inspect relevant documents and to remove them to the custody of the plaintiffs' solicitors. Brightman J granted the injunction but refused to order inspection or removal of the documents. On the plaintiffs' appeal to the Court of Appeal, an order to inspect and remove the documents was granted. The order to inspect and search was named after the first case in which it was granted and became the Anton Piller order. But in Rank Film Distributors Ltd. v Video Information Centre the nascent order received a hard knock when the House of Lords upheld the privilege against self-incrimination at common law. Immediately, section 72 (1) of the Supreme Court Act 1981 was enacted to revoke the privilege against self-incrimination in Anton Piller circumstances. However, in Cobra Gulf Inc. v Rata it was held that (i) where the dominant purpose of seeking the order to search for and seize documents was to use its fruits in committal proceedings, the order was liable to be set aside; and (ii) that the defendants were entitled to the privilege against self-incrimination for civil contempt save in cases involving intellectual property or passing off.
Anton Piller orders are now “search orders.”
(C) Fraud cases
Section 2 of the Criminal Justice Act 1987 empowers the Serious Fraud Office to compel a person charged with fraud to answer questions put to him by the office and refusal to answer constitutes an imprisonable offence. This, however, raises a constitutional problem, namely, the infringement of Art. 6 of the European Convention of Human Rights (the right to silence) discussed later.
In R v Director of Serious Fraud, ex p. Smith it was held that where a person has been charged with an offence he was not obliged to incriminate himself with reference to that offence by being compelled to answer questions pursuant to a notice issued by the Director of Serious Fraud under section 2 (2) of the Criminal Justice Act 1987. This decision must be contrasted with Bishopgate Investment Management Ltd. (in provisional liquidation) v Maxwell where it was held that the director of a company was not entitled to rely on the privilege against self-incrimination to answer questions put to him by provisional liquidators under sections 235 and 236 of the Insolvency Act 1986.
Again, in Re Arrows Ltd. (No. 4) N who had been examined by liquidators of a company under his control pursuant to section 236 of the Insolvency Act 1986 was charged with criminal offences. The Director of Serious Fraud under section 2 (3) of the Criminal Justice Act 1987 served notice requiring the liquidators to produce transcripts of the examination. The Director's application to be released from an undertaking to use the transcripts or affirmation except in certain specified circumstances was granted. N's appeal was dismissed by the House of Lords. Lord Browne-Wilkinson said: “If witnesses in such proceedings were able to rely on privilege against self-incrimination, the whole investigation could be frustrated by a refusal to answer sensitive questions.”
The question is whether the above decisions are compatible with Convention rights incorporated into UK laws by the Human Rights Act 1998 (HRA 1998) on 2 October 2000. Section 2 of the HRA 1998 enjoins judges to take cognizance of European Convention jurisprudence and by virtue of section 3 they must read and give effect to primary legislation and secondary legislation in a manner compatible with Convention rights. Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) was held to render unlawful the demand to produce self-incriminating documents. Article 6 (1) of the Convention provides:
“In the determination … of any criminal charge against him, everyone is entitled to a fair … hearing … by a … tribunal.”
Although the privilege against self-incrimination was not specifically mentioned in the Convention, the European Court of Human Rights has admitted that Article 6 (1) recognised the privilege and the right to remain silent under police questioning as international standards. But it seems that on matters of privilege the British courts have not warmed up to the Convention jurisprudence. This is exemplified by the attitude of the municipal courts to the decisions in Saunders v United Kingdom and IJL, GMR and AKP v United Kingdom . In Saunders the European Court held that the applicant was denied a fair hearing in breach of Article 6 (1) because of the use at his trial of statements obtained from him by DTI Inspectors in exercise of their statutory powers of compulsion. The Court also ordered the respondent State to pay the applicant within three months £75,000 in respect of costs. Again, in ILJ, GMR and AKP , the three applicants who were convicted along with Mr. Saunders subsequently became aware of materials favourable to their defence which were obtained by the prosecution prior to their trial had not been disclosed. They claimed that the criminal proceedings were contrary to Article 6 (1). The European Court held, inter alia, that there had been a violation of Article 6 (1) as regards the use made by the prosecution at the applicant's trial of transcripts of their interviews with the DTI Inspectors.
Saunders and ILJ, GMR and AKP were not followed by the municipal courts for two reasons: (i) the fact that there are statutory exceptions to the privilege against self-incrimination; and (ii) the doctrine of parliamentary sovereignty.
The first reason was articulated in R v Hertfordshire County Council, ex p. Green . In that case, the appellants were found to be in serious breach of the Environmental Act 1990 for failing to give information to the respondent council under section 71 (2) of the Act about all those involved in the disposal of waste in question. The appellants' refusal to give such information was due to the council's refusal to give an undertaking that answers would not be used against them in any subsequent proceedings.
The appellants argued that the use of statutory powers other than those under the Police and Criminal Evidence Act 1984 was an attempt to deprive them of the right to silence and the privilege against self-incrimination available to them under the 1984 Act. The appellants applied for judicial review. The application was dismissed by the Divisional Court and that decision was upheld by the Court of Appeal. On appeal to the House of Lords, it was held that whilst Article 6 (1) was fairly anchored to the fairness of the trial, there were statutory exceptions to the privilege against self-incrimination and that Saunders did not cast doubt on the propriety of the use of compulsory powers at the examination stage.
The second reason, and the real objection to European Convention jurisprudence in matters relating to the right to silence, and the privilege against self-incrimination, is our good old friend – parliamentary sovereignty.
There are two theories of parliamentary sovereignty, viz. (i) the traditional theory and (ii) the new theory. According to the traditional theory adopted by British judges, no act of the sovereign could be invalid in the eyes of the courts and, therefore, no Parliament could bind its successor. It is true that the declarations of incompatibility made by judges pursuant to section 4 of the HRA 1998 do not render the statutory provisions so declared invalid and only enjoins the Secretary of State responsible in the case of primary legislation or Her Majesty in Council in case of secondary legislation to make amends pursuant to section 10. But Acts of Parliament enacted before and after the coming into force of the HRA 1998 are subject to the interpretative obligations stipulated in sections 2 and 4: to take cognizance of European Convention jurisprudence and to interpret primary legislation and secondary legislation in a manner compatible with Convention rights.
The new theory of parliamentary sovereignty described by Hart as ‘self-embracing' states that Parliament can alter its manner and form without detracting from its sovereignty provided this alteration is consonant with rule of recognition. In Britain, the rule of recognition is that the Queen in Parliament makes laws, that is, any Bill complying with this rule by passing through the Commons, the Lords and receiving Royal Assent is the law even through the effect is to limit the sovereignty of Parliament. In other words, the question whether Parliament has complied with the rule of recognition is logically prior to any question of sovereignty.
British judges, as we shall see, are influenced by the traditional theory of continuing sovereignty. In R v Staines and Morrisey the appellants were convicted of counseling or procuring another to deal in securities whilst being prohibited persons. The defence argued, inter alia, that the admission of answers obtained from the appellants by DTI Inspectors, exercising coercive powers of interrogation by virtue of section 177 of the Financial Services Act 1986, affected the fairness of the proceedings so adversely that the answers should have been excluded by applying the decision of the European Court in Saunders v United Kingdom and section 78 of PACE. In dismissing the appeal, the Court of Appeal held that the answers given to the DTI Inspectors were admissible. Lord Bingham CJ said:
“Our domestic law remains as declared in Saunders [1996] 1 Cr App R 463. The United Kingdom is subject to a Treaty obligation to give effect to the European Convention [on] Human Rights as interpreted by the Court of Human Rights, but that again is not something this Court can enforce.”
This decision was followed in R v Secretary of State for Trade, ex p. McCormick where the transcripts of evidence which a director was compelled to give DTI Inspectors were held admissible. Perhaps the most authoritative decision on parliamentary sovereignty is R v Saunders, Parnes, Ronson and Lyons where it was held that even where the defendants' convictions resulted in part from procedures which the Convention categorized as unfair, the Court of Appeal could not properly declare them unsafe because of parliamentary sovereignty.
It is worthy of note that Staines and Morrisey and Ex parte McCormick were decided before the HRA 1998 came into force and as such are of limited authority. R v Saunders, Parnes, Ronson and Lyons , a decision of the Court of appeal under the HRA 1998, must be treated with some circumspection. As for the doctrine of parliamentary sovereignty and the HRA 1998, let Lord Cooke, a former President of the New Zealand Court of Appeal, speak:
“The Human Rights Act [1998] alone not merely departs from British legal tradition in its whole approach: once in force, it will also make a change to the relations between Parliament and the Executive on the one hand, and the courts on the other. Our old friend Parliamentary sovereignty will never be the same again.”
(3) THE RIGHT TO SILENCE
(A) At common law
At common law, the defendant was under no obligation to testify when charged but a strong comment might be appropriate where the defence case involved alleged facts which were at variance with the prosecution evidence or exculpatory and, if true, had to be within the knowledge of the defendant. As regards corroboration, there were two conflicting authorities: one suggesting that silence when charged constituted corroboration ; the other that it did not. But there was a sea change in 1994 when the Criminal Justice and Public Order Act 1994 (CJPOA 1994), sections 34 to 37 (as recently amended), whilst preserving the common law position , allow the court or jury to draw adverse inferences from silence in four specified cases. This radical change effectuated the recommendation of the minority of the 1981 Royal Commission on Criminal Procedure.
From the outset, it must be stated that the recent amendments to sections 34, 36 and 37 of the CJPOA 1994 by section 58 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) which purportedly made adverse inferences from silence Convention compatible addressed the objection of the majority of the 1981 Royal Commission which was stated as follows:
“Quite apart from the psychological pressures that such a change [ sc. abolishing the right to silence] would place upon some suspects it would … amount to requiring a person during investigation to answer questions based upon possibly unsubstantiated and unspecific allegations or suspicion, even though he is not required to do that at the trial. Such a change could be regarded as acceptable only if, at a minimum, the suspect were to be provided at all stages of the investigation with full knowledge of his rights, complete information about the evidence available to the police at the time, and an exact understanding of the consequences of silence.”
There are, however, profound constitutional and evidential issues raised by sections 34 to 37 of the CJPOA 1994 which must now be addressed.
(B) Criminal Justice and Public Order Act 1994, s.34
Section 34 of the CJPOA 1994 (as amended) provides:
“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or official informed that he might be prosecuted for it, failed to mention any such fact;
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) below applies.
(2) Where this sub-section applies –
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
(2A) Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in sub-section (1) above.
may draw such inference from the failure as appears proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”
Cutting away the frills, section 34 (as amended) which deals with pre-trial silence states that the court or jury may draw inferences from the accused's failure or refusal to mention facts when questioned provided he has been allowed an opportunity to consult a solicitor. This section has been supplemented by section 11 of the Criminal Procedure and Investigations Act 1996 which imposes a duty on the accused who is to be tried at the Crown Court for an indictable offence to set out the nature of his defence and give details of any alibi.
In order to draw adverse inference from pre-trial silence the specimen direction suggested by the Judicial Studies Board direction which applies to inferences under sections 34 and 35 must be adhered to but it might be necessary to adapt or add to it in particular cases.
In R v Cowan, Gayle and Ricciardi the Court of Appeal in a decision under section 35 stated that pursuant to that direction, it should be made clear to the jury:
“(i) that the burden of proof remained upon the prosecution throughout and what the required standard was;
(ii) that the defendant was entitled to remain silent;
(iii) that before drawing an adverse inference from the defendant's silence they had to be satisfied that there was a case to answer on the prosecution evidence;
(iv) that an inference from failure to give evidence could not itself prove guilt;
(v) that no adverse inference could be drawn unless the only sensible explanation for the defendant's silence was that he had no answer to the case against him or none that could have stood up to cross-examination.”
The first and second desiderata affirmed the right to silence protected by Article 6 (1) of the Convention and the Woolmington principle protected by Article 6 (2). But the court or jury, pursuant to section 34 (1) (a), can draw an adverse inference where the accused on being questioned by the police fails to mention any “fact” which he later relies upon in his defence. This inference could be drawn even if the accused did not give evidence. The pertinent question is: what is the nature of the “fact” which the defendant later relies upon in his defence? The answer to this question is stated in four legal propositions.
First , the fact must be a new fact. In R v McGarry , D was charged with causing grievous bodily harm. He gave the police a written statement that he struck the complainant in self-defence and refused to answer further questions. At the trial D gave evidence to similar effect but did not rely on a new fact not covered by his evidence. The trial judge stated that he would not invite the jury to draw an adverse inference under section 34 because D had not relied on a new fact but said that he would not direct them not to if that was what they wished to do on their own accord. D was convicted and the appeal was allowed because it was incumbent on him to direct the jury that they must not in anyway hold against D his failure to answer questions because he has not relied on a new fact.
Second , the “fact” must also relate to a matter which impinged on the accused's mind at the time he was being questioned as in R v B (MT) where the accused was convicted of raping his 14-year-old quasi stepdaughter (S) and unlawful sexual intercourse with a girl (B) under 16. During the police interrogation, the defendant was unable to put forward any motive for the two girls to make up allegations against him. S provided a motive during her evidence at the trial: that she did not like the defendant living with her mother. As a result the trial judge gave the jury direction under section 34 to draw adverse inferences if they were sure that he could reasonably have put forward the jealousy motive at the time of the trial. He appealed. The appeal was allowed and the conviction quashed because the accused did not know that the complainant was jealous of his relationship with her mother at the time of interview and could not be expected to mention that “fact” when questioned. Again, in R v N it was not known at the time the accused was interviewed about the alleged indecent assault on his stepdaughter that there was a semen stain on her nightdress. The accused could not be expected, therefore, to explain its presence.
Third , the “fact” must be independent of the central issues in the case. This was neatly illustrated by R v Gill where it was held that the jury should not have been invited to consider an adverse inference from failure to mention a relevant fact during police interview since the fact not mentioned was the central issue in that case.
Fourth , a “fact” arising from the nature of advice given by a solicitor may be the subject of adverse inferences if the accused decides to waive legal professional privilege. Where the accused has declined to give evidence after consulting a solicitor as in R v Milford it is inappropriate to draw an adverse inference without first ensuring that a prima facie has to be made against the accused. But where in the course of pre-trial questioning by the police a suspect went beyond stating that he declined to answer a question and he or his solicitor explained the basis on which he had been advised, a waiver of professional privilege is involved. The accused could be questioned on the nature of the advice and adverse inference may be drawn.
The impact of Article 6 of the Convention on section 64 (as amended) must now be considered. In R v Condron the defendants had remained silent when interviewed at the police station on the advice of their solicitors who, contrary to the opinion of the police doctors, considered them unfit to be interviewed. They were convicted of supplying and possessing heroin after the trial judge had directed the jury that it was a matter for them to decide whether any adverse inferences should be drawn against the defendants for their failure to mention facts at the interview. On appeal to the European Court, the Court unanimously held in Condron v United Kingdom that the trial judge had not properly directed the jury on the applicants' silence during police interview and as a consequence the applicants did not receive fair trial within Article 6 (1) of the Convention.
More recently, in Averill v United Kingdom the appellant was detained under section 14 (1) (b) of the Prevention of Terrorism (Temporary Provision) Act 1989 in connection with double murder. Access to a solicitor was deferred during the first 24 hours and he did not respond to police questioning about his movements at the time of the murder nor about fibres found on his hair and clothing which matched those found on the balaclava and gloves discovered in a burnt-out car used by the gunmen. The judge stated that he had been persuaded by the cogency of the forensic evidence linking the appellant to killings and drew strong adverse inferences from the applicant's silence in the face of police questioning. On appeal to the European Court, it was held that whilst denial of access to a lawyer violated Article 6 (1), (2) and 6 (3) (c) of the Convention, the right to silence and the privilege against self-incrimination implied into Article 6 (1) by decisions such as Murray v United Kingdom and Saunders v United Kingdom (cited above) were not breached in this case. In other words, the right to silence is not an absolute right. The issue whether or not the right to silence is violated must now be determined in the light of all the circumstances of the case; and in Averill the forensic evidence was overwhelming.
However, in Heaney and McGuiness v Ireland the applicants were arrested in connection with an explosion at a British Army/RUC checkpoint in Co. Derry. The trial judge drew adverse inferences from their refusal to account for their movement during a certain period pursuant to section 52 of the Offences Against the State Act 1939. The European Court unanimously held that that violated Article 6 (1) and (2) of the Convention.
In Beckles v United Kingdom where D refused to answer questions during police interview, on the advice of his solicitor, and was convicted, the European Court held that there had been a violation of Article 6 (1) of the Convention. The Court concluded:
“… whether the drawing of adverse inference from an accused's silence infringes Art. 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation. Of particular relevance are the terms of the trial judge's direction to the jury on the issue of adverse inferences.”
In R v Beckles , Lord Woolf, affirming the Strasbourg decision, held that the trial judge must make it plain to the jury that they should not draw an inference from silence if they considered that the defendant genuinely and reasonably relied on the advice of his solicitor to remain silent. D's conviction was declared unsafe, his appeal was allowed and a re-trial ordered. More recently, in R v Johnson, R v Hind it was held that the trial judge erred in directing the jury to draw section 34 inferences from the defendants' refusal to be interviewed based on the suggestion made by the Crown counsel in cross-examination that the defendants had not at the time thought up a convincing account to give at the interview.
Again, in Shannon v United Kingdom , the applicant was interviewed by a financial investigator under legislation relating to the proceeds of crime. He was subsequently sent a notice requiring his attendance at a further interview but declined because the financial investigators refused to issue a written guarantee that no information or statement obtained during the interview would be used in criminal proceedings. The criminal proceedings against the applicant for false accounting and conspiracy to defraud were struck out on grounds of delay but he was convicted of the offence of failing without reasonable excuse to comply with the financial investigator's requirement to answer questions or otherwise furnish information. The applicant claimed that his conviction violated Article 6 (1) of the Convention. The European Court of Human Rights unanimously held that the conviction violated Article 6 (1) of the Convention but in O'Halloran and Francis v United Kingdom where the applicants, owners of vehicles exceeding speed limit, were required to state the names of the drivers, it was held that there had been no violation of Article 6 (1). The Court cited with approval its ruling in Jallah v Germany where the right to silence was considered in the following terms:
“In order to determine whether the applicant's right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue; the existence of any relevant safeguards in the procedure; and the use to which many material so obtained is put”.
(C) Criminal Justice and Public Order Act 1994, s.35
Section 35 of the CJPOA 1994 which remains unchanged states that the court or jury may draw adverse inferences from the accused's silence at the trial as appears proper. In R v Cowan where the Judicial Studies Board specimen direction was adopted, three appeals were consolidated. The appeals of Cowan and Gayle were allowed because guidelines (iv) and (v) above were not adhered to by judges in the courts of first instance and Ricciardi's appeal was dismissed because the guidelines were adhered to. Cowan was followed in R v Napper where the defendant did not give evidence at the trial and the judge directed that the jury were allowed to draw inferences from his absence from the witness box.
In order to draw adverse inferences from a defendant's failure to testify, the jury had to be satisfied that the prosecution had established a case to answer as a precondition. Where the judge fails to direct the jury on the precondition either in terms of the standard direction in Cowan or in similar terms as in R v Birchall there is a clear risk of injustice.
Section 35 (1) (b) excludes from the ambit of the section a person whose physical or mental condition “makes it undesirable for him to give evidence.” This exclusion was explained in R v Friend . In that case, the Court of Appeal held that a 14-year-old defendant with a low I.Q. and cognitive age between nine and ten was not exempt from section 35; that the clear purpose of section 35 (1) (b) is to mitigate any injustice to a person who was physically or mentally handicapped; and that where the judge on a voir dire decides that a defendant's physical or mental condition makes it undesirable to give evidence he should direct the jury that they could not draw and adverse inference. The Court added, however, that merely because the defendant had a mental age of nine it did not mean that he had or should have the same immunity as a person under 14.
Before an adverse inference could be drawn from failure to give evidence by virtue of section 35 (3), a mandatory warning is specified by section 35 (2). Failure to give such a warning constitutes an irregularity in the proceedings.
(D) Criminal Justice and Public Order Act 1994, ss. 36 and 37
Section 36 (as amended ) allows adverse inferences to be drawn from the accused's failure or refusal to account for objects, substances or marks on his person or clothing or footwear or in his possession whilst section 37 (as amended ) allows adverse inferences to be drawn from the accused's failure to account for his presence at a particular place provided in both sets of circumstances he has been allowed to consult a solicitor. Sections 36 and 37 differ from sections 34 and 35 in that they do not require a fact to be mentioned at the trial which should have been mentioned earlier and the strength and nature of the inference depend on the circumstances of the case.
(E) The right to silence in Canadian courts
The principles of fundamental justice such as the right to silence and the privilege against self-incrimination when expressed in constitutional documents such as the Canadian Charter of Rights and Freedoms 1982 and the Human Rights Act 1998 may be broader and more general than the particular rules which exemplify them. In Hebert v R McLahlin J, in the Supreme Court of Canada, said:
“The common law rules related to the right in the pre-trial detention period must be based on the fundamental right to choose whether to speak to the authorities or remain silent.”
In that case, the Crown relied on statements made by the accused after he had consulted with his counsel and had indicated that he did not wish to make a statement. He was then placed in a cell with an undercover police officer to whom he made statements implicating himself in the robbery with which he was charged. The Supreme Court of Canada unanimously held that the statements should be excluded. Again, in R v Broyles the accused was charged with murder. The evidence against him was circumstantial but included a statement made to a friend after his arrest and after he had been cautioned. The friend who wore a recording device visited the accused in prison at the request of the police. The friend questioned the accused about the killing of the deceased. The statements made to the friend which implicated the accused were excluded pursuant to a provision of the Charter.
(F) The right to silence in Australian courts
In Australia , prior to 1995, the right to silence when charged and the right to refuse to produce documents which may be self-incriminating were similar to those asserted in English law.
The 1995 Codification of evidence legislation in Australia effectuated a transition from the narrow confession formula coupled with the discretionary power to exclude for unfairness to the informed choice spoken of in the Canadian cases discussed earlier. The Evidence Act 1995 (Commonwealth) and the Evidence Act 1995 ( New South Wales ) expressed the concept of unfairness in the widest possible form without proffering a definition of unfairness. Section 90 of both Acts reads:
“In a criminal proceeding, the court may refuse to admit evidence of admission, or refuse to admit evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”
In Swaffield and Pavic v R , the High Court of Australia grappled with the interpretation of the above provision. In that case Swaffield was charged with breaking and entering with intent to commit a crime and arson. Posing as a purchaser of illegal drugs, a constable engaged Swaffield in conversations. During the conversations, Swaffield made admissions about his involvement in the arson. Despite the objection of Swaffield's counsel that the admissions had been unfairly admitted, Swaffield was convicted.
Pavic was interviewed in connection with the murder of a man whose body was found in a river handcuffed to an electric motor casing. When questioned by the police, acting on his solicitor's advice, he made no comments on questions put to him. The police subsequently recovered from the river a garbage bag containing stained towels and clothing. A statement was made later obtained from one Clancy in which he identified some of the clothing as clothes which he had left in Pavic's vehicle some time before. Pavic had told Clancy that he had left the clothes and insisted that he accept $50 for them. The police were satisfied that they had sufficient evidence to arrest and charge him with murder. The police instigated a conversation between Pavic and Clancy who was fitted with a microphone. In the conversation Pavic made a number of inculpatory statements. Pavic, who pleaded guilty to manslaughter, was convicted of murder.
Pavic's appeal was allowed because the right to speak or be silent had been undermined and police would be encouraged to use family or close friends: a common feature of totalitarian societies that police and security forces enlist the aid of family and friends to inform on suspects. This practice, it was observed, has not until now been a feature of the Australian society.
Swaffield's appeal was dismissed because it was up to the court of first instance to consider these matters: whether the confession was voluntary; if so, whether it was reliable; and, if so, whether it should nonetheless be excluded from evidence in the exercise of an overall discretion. It was held that the resulting confessional statement ought to have been excluded in the exercise of the court's discretion. Brennan CJ added, however, that it was undesirable for the High Court of Australia to intervene except in cases where the decision of the trial judge was erroneously or manifestly wrong. In Swaffield's case, this condition was not satisfied.
(4) SUMMARY AND CONCLUSION
Inferences from silence in the UK are not limited to sections 34 to 37 of the CJPOA 1994. There are other statutory provisions. Sections 1 and 2 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 allow an inference of guilt not only to be drawn from a failure to mention something that is then later relied upon but also from refusal to answer questions asked by the police whether during the course of interrogation or after. Section 2 of the Offences against the State (Amendment) Act 1998 also allows inferences of membership of an unlawful organization to be drawn from the accused's failure to answer relevant questions before the charge. In view of this development, it is necessary to assess critically the arguments for or against the right to silence.
The argument against the right to silence is that it impedes the search for the truth and aids criminals but the arguments in favour are more compelling than the argument against. Zuckerman criticised the procedure under section 34 of the CJPOA 1994 as forcing the suspect to make a defence in ignorance of the case the police have against him and opined that
“Until adequate provision is made for supplying suspects with such information the process will not be unfair, but also dangerous, because it creates a considerable scope for abuse.”
It is true that the Criminal Procedure and Investigations Act 1996 (Part I) and the Codes of Practice (Part II) make provisions for disclosure but Zuckerman's foreboding materialised in DPP v Ara where it was held that the refusal of the police to release tapes of the interview and documents compiled when the accused surrendered to the police in the absence of a solicitor were an abuse of process and violated Article 6 (3) (d) of the Convention which guarantees the accused's “right to examine witnesses for the prosecution and to call and examine witnesses on his own behalf under the same conditions as witnesses against him.” Professor Zander also observed that:
“the matter [ sc., adverse inferences from silence ] having (rightly) been put to the Royal Commission on Criminal Justice which had the opportunity of considering the issue in depth, I regard the government's decision to override the view of the Commission as a debasement of decision-making.”
Apart from this debasement of the process of public decision-making, the principle that inferences could be drawn from failure or refusal to answer questions is inconsistent with the right to silence (Article 6 (1)) and the presumption of innocence (Article 6 (2)). What is to be done? Insofar as Convention rights are incorporated into British laws (not entrenched), it seems that adverse inferences from silence, despite its marginalised efficacy , has come to stay. Professor I. Dennis lamented that:
“Repeal of section 34 is politically unlikely, but it would certainly simplify the law and make the lot of trial judges an easier one if it were to go.”
Professor Dennis's lament is understandable in the temporal perspective but in the continuum a novel approach is possible. If the United Kingdom Government were to grasp the nettle and shift from incorporation to entrenchment of fundamental rights as the Canadian Government did in 1982, then the Australian and Canadian models interrogated above would be relevat
2. Corbett, Parl Hist 722, 762 and 853, 3 St Tr 1315-1368 excerpted in J.F. Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), Vol. 1, at 343.
See ss. 80 and 80A of the Police and Criminal Evidence Act 1984 and s.14 (1) (a) of the Civil Evidence Act 1968.
See A. Ligertwood, Australian Evidence (Sydney: Butterworths, 1993), at 239.
[1942] 2 KB 253.
Ibid., p.257.
(1861) 30 LJQB 301.
Ibid., pp.303-304.
(1851) 1 Sim NS 301.
(1868) 3 Ch App 79.
[1989] 3 All ER 466. See also Sociedale Nacional de Combustiveis De Angola v Lundqvist [1991] 2 WLR 280.
[1976] Ch 55.
[1982] AC 380.
See Tate Access Floor Inc. v Boswell [1991] 2 WLR 304; A.T. and T. Istel Ltd. v Tully (1991) The Times, 18 November; and Universal Thermosensors Ltd. v Hibben [1992] 1 WLR 840, Ch D.
(1996) The Times, 11 October, Ch D. Cf Dubai Aluminium Co. Ltd. v Sayed Reyadh S. Nasser Al Alawi (1999) The Times, 6 January, QBD.
See the Civil Procedure Act 1997, s.7 and CPR, r.25. 1 (1) (h).
[1992] 1 All ER 730.
[1993] Ch 1.
[1993] 3 WLR 656.
Ibid., p.663.
Funke v France (1993) 16 EHRR 297, Miailhe v France (1993) 16 EHRR 332, Cremieux v France (1993) 16 EHRR 357 and Serves v France (1999) 28 EHRR 265.
Murray v United Kingdom (1996) 22 EHRR 29.
(1997) 23 EHRR 313.
(2001) 33 EHRR 11, [2001] Crim LR 133.
[2000] HRLR 359, HL.
See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), Ch. 4.
For an overview of the doctrine of parliamentary sovereignty, see R. Clayton and H. Tomlinson, The Law of Human Rights ( Oxford : Oxford University Press, 2000), Vol. 1, at paras. 1-66 to 1-85.
[1997] 2 Cr App R 426.
Ibid., pp.443-444.
(1998) The Times, 10 February.
{2002) The Times, 1 February, CA.; affirmed in R v Lyons and others [2002] 4 All ER 1028, HL.
Lord Cooke of Thorndon, “The British Embracement of Human Rights” [1999] EHRLR 243 at 244.
R v Martinez-Tobon [1994] 2 All ER 90.
R v Mitchell (1892) 17 Cox CC 403, R v Christie [1914] AC 545, R v Chandler (1976) 63 Crim App R 1, Parkes v R (1977) 64 Cr App R 25 and R v Horne [1990] Crim LR 188.
R v Tate [1908] 2 KB 68 and R v Whitehead [1929] 1 KB 99.
CJPOA 1994, s.34 (5).
Report of the Royal Commission on Criminal Procedure, Cmnd 8092, (London: HMSO, 1981), para. 4.52.
Inserted by s.58 (2) of the YJCEA 1999.
See R v Betts and Hall [2001] 2 Cr App R 257, CA. In this case, the appellants were convicted of causing grievous bodily harm with intent. The appellants denied involvement in the attack and did not answer questions by the police on advice from solicitors. Allowing the appeal, it was held that the discretion should include, inter alia, that taking into consideration Betts' age and the extent of Hall's speech impediment as you find it to be, in deciding whether each defendant could reasonably be expected to mention … matters upon which he subsequently relied. See also Bingham CJ in R v Argent [1997] 2 Cr App R 27.
(1996) 160 JPR 165.
Ibid., pp.165-166.
R v Bowers (1999) 163 JPR 33, CA.
[1999] 1 Cr App R 377.
[2000] Crim LR 181, CA.
(1998) The Times, 13 February, CA.
[2001] 1 Cr App R 160, CA. See also R v Mountford [1999] Crim LR 575. Cf. R v Daly [2002] 1 Arch News 2 where the court found the reasoning in Gill difficult to understand and held that inference could be drawn where the “fact” is not independent of the central issue in the case.
[2001] Crim LR 330, CA.
R v Bowden (1999) 163 JPR 337, CA.
(1997) 161 JPR 1.
[2000] Crim LR 679.
[2000] Crim LR 682.
(2001) 33 EHRR 12.
(2003) 36 EHRR 13. See also R v Howell [2003] Crim LR 405; Cf. R v Knight (2003) The Times, 20 August.
Ibid, at [59].
[2004] ECWA Crim 2766 discussed in S. Cooper [2005] 69 J Crim L 119-122.
(2005) The Times, 3 May, CA.
(2006) 42 EHRR 31.
(2008) 46 EHRR 21.
App. No. 54810/00, 11 July 2006.
Ibid, para 117.
Supra, n.39.
(1997) 161 JPR 161.
[1999] Crim LR 511, CA.
[1997] 1 WLR 1433, CA. See also R v A [1997] Crim LR 883, CA where it was held that the trial judge was not to be criticised for ruling that the defence must produce evidence before the jury to establish that s.35 (1) (b) applied.
See Practice Direction: Crown Court (Defendant's Evidence) [1995] 2 Cr App R 192.
See Radford v Kent County Council (1998) 162 JPR 697, QBD and R v Gough [2002] Crim LR 526.
Section 36 of the CJPOA 1994 was amended by s.58 (3) of the YJCEA 1999 which inserted a new s.36 (4A) of the CJPOA 1994.
Section 37 of the CJPOA 194 was amended by s.58 (4) of the YJCEA 1999 which inserted a new s.37 (3A) of the CJPOA 1994. The Judicial Studies Board specimen directions on ss. 36 and 37 of the CJPOA (as amended) are available on the Board's website (www.jsboard.co.uk).
[1990] 2 SCR 151.
Ibid., p.181.
[1991] 3 SCR 595.
Petty v R (1991) 173 CLR 95 and Weissensteiner v R (1993) 178 CLR 217.
Pyneboard Pty. Ltd. v Trade Practices Commission (1983) 152 CLR 328 and Environment Protection Authority v Caltex Refining Co. Pty. Ltd. (1993) 178 CLR 477.
[19998] HCA 1 (20 January 1998): available on the Internet at http://www.austliiedn.au/do/displ./au.
See D. Morgan and G. Stephenson (eds.), Suspicion and Silence (London: Blackstone, 1994), Ch. 1. Cf. D.J. Seidmann and A. Stein, “The right to silence helps the innocent: a game-theoretic analysis of the Fifth Amendment Privilege” (2000) 114 Harv LR 430 where it was argued that the view that the right to silence impedes the search for the truth and aids criminals is mistaken.
A.A.S. Zuckerman, “Bias and Suggestibility: Is there an alternative to the right of silence?” in Morgan and Stephenson, supra n.74, at 139.
[2001] 4 All ER 559 discussed in J.H. Azzopardi, “Disclosure at the Police Station, the Right of Silence and DPP v Ara ” [2002] Crim LR 295.
R. Clayton and H. Tomlinson, The Law of Human Rights ( Oxford : Oxford University Press, 2000), Vol. 1, para. 11. 252.
M. Zander, “Abolition of the Right to Silence, 1972-1994” in Morgan and Stephenson, supra. n.66, at 146.
See I. Dennis, “Criminal Justice and Public Order Act 1994: The Evidence Provisions” [1995] Crim LR 4-18.
See I. Dennis, “Silence in the Police Station: the Marginalisation of Section 34” [2002] Crim LR 25.
Ibid., p.38.
[1995] Crim LR 338.
Chapter 9: Evidence of Identity
(1) THE PROBLEM OF MISTAKEN IDENTITY AND THE TURNBULL GUIDELINES
(A) R v Turnbull
The problem of mistaken identity has been a recurrent problem in the dispensation of criminal justice since the trial of Adolph Beck. Beck was convicted twice in 1896 and 1904 on the evidence of mistaken identity and doubly pardoned. The mistaken identification of Beck led to the setting up of a Committee of Inquiry, the report of which in 1905 led to the establishment of the Court of Criminal Appeal. Two other cases of mistaken identity which led to the prosecution and exoneration of Luke Clement Dougherty and Lazlo Virag led to the setting up of the Departmental Committee on Evidence of Identification in Criminal Cases on 1 May 1974 under the chairmanship of Lord Devlin. In a Report published on 26 April 1976, the Committee made several recommendations on the various means of identification. The recommendations were followed by the Court of Appeal in R v Turnbull where the following guidelines were enunciated.
• There is a special need for caution when the prosecution case depends on evidence of visual identification.
• The summing-up should contain a warning of the need for caution and an explanation as to why caution is needed.
• The summing-up should deal with the circumstances of the identification in the particular case.
• The judge should point out that a convincing witness may be mistaken.
Although judges are required to adhere strictly to these guidelines , in some cases it may not be appropriate to apply Turnbull . In Reid v R the Judicial Committee of the Privy Council stated that failure by the trial judge to give the general warning as to the dangers of not giving such a warning as prescribed in Turnbull would cause a conviction to be quashed. However, in R v Hewett and R v Oakwell the Court of Appeal held in both cases that identity problems confronting the Court were not within the scope of the Turnbull guidelines. In the former, the offence had been committed by the driver of a car. Police officers gave evidence that they had followed a man driving this car the defendant alleged the woman was driving. Since the issue was whether the man or the woman was driving, the Court concluded that Turnbull was not appropriate. In the latter, a police constable had been assaulted and knocked to the ground. It was alleged that while he was on the ground he might have been confused and thought that, because the defendant was standing beside him when he got up, the defendant must have been his assailant. It was held that this was not within the Turnbull guidelines.
(B) Withdrawing the case from the jury
The principle enunciated by Lord Widgery in R v Turnbull is as follows:
“When in the judgment of the trial judge, the quality of the identify is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroborated in the sense lawyers use the word; but it need not be so if its effect is to make the jury sure that there is no mistaken identity.”
This principle is neatly illustrated by R v Smith and Doe where the Court of Appeal held that the trial judge should have withdrawn the case where one of the identifying witnesses (who was elderly) was confused and unclear and Garner v Chief Constable of Manchester where the Divisional Court quashed a conviction which had depended on the identification of the defendant by a police officer who had only seen the assailant for a split second. Although an appellant court will not overrule the judge's decision to allow the case to go to the jury even if it is borderline and the judge has seen the witness , if at the end of the case the prosecution have not made the identification clear enough he should withdraw the case from the jury at the end of the prosecution case.
(2) MEANS OF IDENTIFYING THE ACCUSED
(A) Introduction
There are various means of identifying the accused, viz. visual identification; identification in court; identification out of court; video identification; the use of photographs; the use of photofits and sketches; and other forms of identification.
(B) Visual identification (or recognition?)
According to Professor W. Twining, the statement ‘X identified Y' is a paradigm of ambiguity. It could mean: X recognised Y or ‘X formed the belief that Y was the same as Z' or ‘X decided that Y was the same as Z' because in looking at the problem of identification it is obvious that “a complex variety of mental processes and human actions are involved: seeing, hearing, acquiring, storing, interpreting, and receiving information, asserting, communicating, describing, persuading, deciding, and so on”.
The adjudicative problem raised by treating “evidence of recognition” as one of “visual identification” was highlighted by three cases. In R v Ryan D was charged with the robbery of a chemist's shop. The only prosecution evidence was that of a 17-year-old schoolgirl who said that she recognised D as being the brother of a girl who was at her school and described D's hairstyle, the jumper he was wearing and that he had a bag round his neck. When police visited D his hairstyle differed from that described; he was not wearing the jumper nor did he have a bag around his neck. There was no identification parade and the judge declined to accede to a submission of no case made by the defence. D was convicted and appealed. It was held, dismissing the appeal, that the matters concerning the hairstyle and the absence of identification parade could be explained and the summing-up was impeccable. This case must be contrasted with R v Bentley where on a charge of “glassing” V with whom D was not on friendly terms, the only evidence that D was responsible came from V who had had about seven or eight pints of lager which had affected him significantly that the casualty officer noticed that he was under the influence of alcohol at the time of admission into the hospital. V did not identify D but said that as he (V) turned from the bar he had seen D's arm clad in red. Although D did not have a red jacket, he was convicted. D's appeal to the Court of Appeal was allowed on the ground that the judge did give a sufficient Turnbull direction. In a commentary on this case, Professor Birch said:
“The possibility to which the jury required to be directed in the present case was that [V] in his inebriated condition, might have interpreted the blue which he registered just before he was struck as [D's] arm, but this interpretation could have been based, not on observation, but on deduction from the history of the ill-feeling between the two, coupled with the altercation they had just had. By the time the case came for trial, this interpretation of events could have been ingrained in [V's] memory as though it had been observed by him, and in his testimony he could quite honestly have sworn that it was, because by that time, he had come to believe wholeheartedly in his own interpretation. The certainty with which honest witnesses testify incorrectly to visual identification or recognition is something outside the ken of the ordinary juror, and it is right and proper that no miscarriage of justice occurs simply because of the jury's ignorance of this “ghastly risk”, as it has been called.”
Again, in R v Taylor (Michelle Ann) , Michelle and Lisa Taylor, two sisters, were convicted of murder. The ground of the appeal was based on materials which came to light since the trial that the conviction was based on evidence of mistaken identity. The witness first stated that one of the girls leaving the scene of the crime may have been black but later said both girls were blonde. The defendants appealed successfully to the Court of Appeal. To avoid miscarriages of justice, where the prosecution case depends wholly or partly on evidence of visual identification or recognition, the judge should direct the jury along the established Turnbull guidelines. Evidence of visual identification must be supported by strong evidence which need not be corroborative evidence stricto sensu but must be such as to make the jury sure that there has not been a mistaken identification.
(C) Identification in court
The general principle is that unless there are exceptional circumstances a witness should not be allowed to identify a witness for the first time in the dock. The rationale is that the witness may be influenced in making an identification by sight of the defendant. Identification in court is allowed in the following cases: (i) where the defendant refused to participate in an identification parade ; (ii) where the police officer or investigating officer is prevented through illness from making an identification before the trial ; and where the witness had to pick out one person from two or more witnesses known to him. In all these cases, a dock identification is proper.
(D) Identification out of court
(i) Introduction
A witness may identify the defendant out of court in three ways: (i) at a confrontation; (ii) at a group identification; and (iii) at an identification parade.
(ii) Identification at a confrontation
An identification at a confrontation refers to a situation where a witness confronts the defendant alone, usually but not necessarily at a police station. Accidental confrontations such as the one in R v Campbell where a witness (B) recognised D at a confrontation at the magistrates' court will not be excluded provided an inferior form of identification is not used to wreck the prospect of a better one. Annex C to Code D of the Codes of Practice promulgated pursuant to section 66 of PACE states that a confrontation, if used at all, must be confined to rare and exceptional circumstances. For example, in R v Ladlow, Moss, Green and Jackson the defendants were amongst a group of 20 or so suspects arrested after a disorder in a pub. Because of the difficulties caused by the number of suspects it was decided to use the direct confrontation method of identification. The prosecution saw that it would have been necessary to hold 221 separate parades and moreover it was difficult to find any volunteers. In spite of these problems the trial judge accepted the defence submission that evidence derived from confrontation should be excluded.
It must also be noted that a confrontation must be in the presence of the suspect's solicitor and that the police cannot use reasonable force to make a suspect submit to a confrontation by a witness.
(iii) Group identification
Pursuant to Code D of the Codes of Practice, a group identification (i.e. one in which the identification officer – “I.O.” – not below the rank of an inspector must arrange that the subject is in a group of people) must be held where it is not possible to hold a parade or where it is not practicable or because of fear on the part of a witness or for some other reasons the IO thinks that it is more satisfactory than a parade (Code D 2.7).
(iv) Identification Parade
Annex A to Code D of the Codes of Practice sets out the detailed procedure for an identification parade. If the suspect wants one because of his unusual appearance, one must be held. The two features of the procedure are one-way screens and identification by numbers rather than pointing or touching.
(v) Is it mandatory to hold an identification parade if the defendant demands it?
Prior to 1997, the law seemed reasonably clear. In R v Gaynor the police had trouble in finding enough like individuals to form an identification parade and decided to have a group identification. The trial judge excluded the evidence on the ground that a parade could and should have been held. Again, in R v Conway (John) where the police officer giving evidence said: “An identification parade does not take place if we have a named person” – by which he meant where the victim thought he knew the suspect – the evidence of identification was excluded. Where the suspect agrees to take part in a parade but there were insufficient numbers of like individuals, evidence of group identification or confrontation will be excluded if the police do not take all reasonable steps to hold a parade.
The problem in the last few years has been the interpretation of Code D, paras. 2.3, 2.4, 2.7, 2.10 and 2.17 of the Codes of Practice. Code D 2.3 states:
“2.3. Where a suspect disputes an identification, an identification parade shall be held if the suspect consents unless paragraphs 2.4 or 2.7 or 2.10 apply. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents.”
Code D 2.4 states:
“2.4 A parade need not be held if the identification officer considers that, whether by reason of unusual appearance of the suspect or for some other reason, it would not be practicable to assemble sufficient people who resembled him to make the parade fair.”
Code D 2.7 has been discussed above and need not detain us here. Code D 2.10 states:
“2.10 The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory cause of action.”
Finally, Code D 2.17 states:
“2.17 A police officer may take a witness to a particular neighborhood or place to see whether he can identify the person whom he said he saw on the relevant occasion. Before doing so, where practicable a record shall be made of any description given by the witness of the suspect. Care should be taken not to direct the witness's attention to any individual.”
In R v Quinn the Court of Appeal quashed the conviction because of breaches of Code D and the failure of the trial judge to make specific reference to the breaches in his summing-up to the jury. Lord Taylor CJ said:
“We wish to emphasize that where a detailed regime is laid down in a statutory Code, it is not for police either at any one or more police stations to substitute their own procedure and their own rules for that which is laid down. We hope that either they will come into line immediately, or if it is thought necessary to change the rules that will be done in the appropriate manner. But as long as there is a statutory Code, it is there to be observed not to be varied at will .”
Code 2.3 is “there to be observed”. It states that an identification parade “shall be held”, that is, it is mandatory. Code 2.4 states that “[a] parade need not be held if … it would not be practicable …” The decisions of the Court of Appeal in Quinn and the line of cases discussed above and R v Macmath are authorities for the proposition that an identification parade is mandatory where the suspect requires it unless it is not reasonably practicable to hold a parade and that failure to accede to his request triggers the judge's discretion under section 78 of PACE to exclude other evidence of identification because it is adverse to the fairness of the proceedings.
In R v Malashev and the cases sequel to it , the Court of Appeal also developed a counterprinciple that there is no requirement under Code D 2.3 of the Code of Practice that an already identified suspect should be put on an identification parade simply because he disputes the identification. This counterprinciple was soundly rejected by the House of Lords in R v Forbes . In that case D was charged with attempted robbery. D denied the accusation and asked repeatedly for an identification parade to be held. At the trial the Recorder, following Popat , held that since there had been a full and complete identification of the defendant, an identification parade was unnecessary. She accordingly accepted the complainant's identification evidence without considering section 78 of PACE and gave no direction to the jury of any breach of Code D 2.3. On appeal to the House of Lords it was also argued that an accused right to a fair trial under Article 6 of the Convention had been infringed. Lord Bingham, delivering the judgement of the House, held:
• Code D 2.3 imposed a mandatory obligation on police officers, subject to certain exceptions specified in D 2.4, D 2.7 or D 2.10, to hold an identification parade whenever the suspect disputed the identification and consented to it.
• There had been a breach of Code D 2.3.
• The situations not covered by Code D 2.3 are as follows:
(i) where an eye-witness makes it plain to the police he cannot identify the culprit, it is futile to invite that witness to attend an identification parade;
(ii) where an eye-witness may be able to identify clothing worn by the culprit, but not the culprit himself, it is futile to mount a parade rather than inviting the witness to identify the clothing; and
(iii) if the case is one of pure recognition of someone well-known to the eye-witness, it is futile to hold an identification parade.
• The fair trial right under Article 6 of the Convention must be assessed on all the facts and the whole history of the proceedings. True, the Recorder did not exercise her discretion to exclude the evidence under section 78 of PACE. The evidence was compelling and untainted and had been rightly admitted.
The Code on identification parade has been revised twice after Forbes : first by Code D 2.15 then Code D 3.12 which states:
“Whenever a suspect disputes being the person the witness claims to have seen, an identification procedure (not, as before, identification parade) shall be held unless it is not practicable or it would secure no useful purpose .”
In R v Harris the victims of robbery claimed to have recognised one of their assailants. No identification parade was held. The trial judge ruled that it was a case of recognition and fell within Code D 2.15 where a parade “would serve no useful purpose” in proving or disproving whether the suspect was involved. The defendant was convicted and appealed. In allowing the appeal, the Court of Appeal held that it was a case of “recognition” rather than identification and did not fall within the specific example given in para 2.15 where the suspect is already known to the witness because the suspect did not accept that he knew, or was known to, the victims.
(E) Video film identification
Annex B to Code D of the Codes of Practice sets out the detailed procedure for a video film identification. The video identification must be arranged if this is the only satisfactory course of action because the suspect has refused to attend a parade or a group identification. In such a case, it is the responsibility of the identification officer or officers to arrange, supervise and direct the making of the film. The film must include the suspect and at least eight other people who resemble the suspect in age, height, appearance and position in life. The suspect and his solicitor, friend or appropriate adult must be allowed to see the film before it is shown to witnesses.
In R v Jones, Dowling, Jones and Brown a doorman was allowed to pick suspects from a video film. The video was then shown to the victim of an assault who picked the same suspects. The Court of Appeal rejected the contention that this method infringed Code D of the Codes of Practice.
It must be noted, however, that whilst it is inappropriate to give the full Turnbull directions – the jury should be warned of the risk of mistaken identification and the need to exercise particular care in any identification which they made for themselves.
(F) The use of photographs
The general principles in the use of photographs is that the police may show a witness a photograph in order to identify the suspect but once he is arrested and there is an opportunity to identify him in person, photographs should not be shown to witnesses before an identification parade. In R v Wright the Court of Appeal held that an irregularity had occurred where a witness had volunteered in examination-in-chief that he had seen a photograph of the defendant in the “rogues gallery” at New Scotland Yard. Again, in R v Lamb S and G were shown separately D's photograph from three albums containing 700 photographs. D demanded a confrontation and was physically identified. At the trial, the prosecution decided to produce the album of photographs to the jury to show them the photograph which had been picked by S and G. The page of the album containing the photograph was held up to the jury. The Court of Appeal held that the production of the photographs as part of the prosecution case was an irregularity which should not have occurred. Annex D to Code D of the Codes of Conduct sets out the detailed procedure for the showing of photographs.
(G) Photofits and sketches
Although it has been argued that the reception of photofits is obnoxious to the rule against consistent statements , the Court of Appeal in R v Cook held that they were admissible since they were in a class of their own. The Court added that it was necessary to give a Turnbull warning.
The question of admissibility of a sketch was considered in R v Smith (Percy) . In that case a witness had seen a man near the house where a woman was murdered and made a sketch of the suspect. It was held that the sketch was admissible.
(H) Other forms of identification
(i) Fingerprints, footmarks or similar body impressions and DNA evidence
Identification is often made by fingerprints. In Callis v Gunn it was held that fingerprint evidence was admissible although the accused had not been cautioned when asked by the police officer for his prints. Section 9 of the Criminal Justice Act 2003 (CJA 2003) replaces sections 61 and 64 of PACE by allowing fingerprints of persons arrested for recordable offence and who are held in a police station to be taken without their consent.
Section 62 of PACE deals with intimate samples which include blood, semen, urine or pubic hair from a suspect. The power to take intimate samples with consent is now governed by section 62 (1A) of PACE inserted by section 52 (3) of the CJPOA 1994.
Non-intimate samples include sample of hairs other than pubic hair, footprints and saliva. The power to take non-intimate samples without consent is now governed by section 10 of the CJA 2003.
DNA evidence involves comparing the genetic material extracted from the crime stain with a sample taken from the suspect. If the sample does not match there is lack of identity; but if it does match an expert will, on the basis of empirical statistical data, give the frequency with which the matching DNA characteristics are likely to be found in the population at large. This is called “the random occurrence ratio”. For example, in R v Cooke C was charged with rape. DNA profile of a hair sample provided by C was identical to the semen profile taken from an item of clothing at the scene of the crime. Expert evidence was adduced to show that the chance of the semen coming from another person was 1 : 73 million. C was convicted. This case must be contrasted with R v Adams where the appellant was charged with rape. His appeal was allowed because the judge failed to sum up properly the expert's exposition of the Bayes Theorem, a statistical method of analysis.
Recent amendments made to the law relating to the taking of fingerprints and samples are as follows:
• Section 78 of the Criminal Justice and Police Act 2001 (CJPA 2001) allows the police to retake fingerprints (including palmprints ) and samples where an individual has been convicted of a recordable offence and the initial set of fingerprints and samples was incomplete or of poor quality.
• Section 81 of the CJPA 2001 allows the police to check fingerprints and DNA samples and the profiles against records held by foreign police forces, the Ministry of Defence and the Armed Forces Police.
• Section 82 (2) of the CJPA 2001 abrogates the obligation in section 64 of PACE to destroy fingerprints and samples taken from an individual if that person was later acquitted and replaces it with the rule of law that fingerprints and samples retained in such circumstances can be used for “purposes related to the prevention and detection of crime, the investigation of an offence and the conduct of any prosecution”. The fons et origo of this rule is A-G's Ref. (No. 3 of 1999) . In that case the Court of Appeal held that there was no discretion on the part of the judge to allow the evidence. The House of Lords reversed the decision adding that the possibility that such evidence might be allowed did not violate Article 6 (right to a fair trial) and Article 8 (right to privacy) of the Convention. Again, in R (S) v Chief Constable of South Yorkshire S, aged 11, was arrested and charged with attempted robbery. His fingerprints and DNA samples were taken, he was tried and acquitted. Mr. Marper (M) was arrested and charged with harassment of his partner. His fingerprints and DNA samples were taken. M and his partner had become reconciled and the charge was not pressed. S and M asked for their fingerprints and samples to be destroyed and in both cases the police refused. S and M's application for judicial review of the police decision not to destroy their fingerprints and samples was rejected by the Administrative Court and the Court of Appeal. On appeal to the House of Lords, the Law Lords, dismissing S and M's appeal, were inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with private life (Article 8 (1) of the Convention) but stated that, if it did, it was within the margin of appreciation provided by Article 8 (2) of the Convention since the retention of fingerprints and samples were provided for by law, that is, s.82 of the CJPA 2001.
In S and Marper v United Kingdom , S and M applied to the European Court of Human Rights complaining that the retention of their fingerprints, cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued violated Articles 8 and 14 of the Convention. The European Court held that the retention of the fingerprints, cellular samples and DNA of persons suspected but not convicted or charged with offences was a violation of Article 8 (the right to privacy) and that it was not necessary to examine separately Article 14 (prohibition of discrimination). The Court stated that the retention constituted a disproportionate interference with the applicants' right to privacy and could not be regarded as necessary in a democratic society. In arriving at this decision, the Court observed that “the United Kingdom is the only member State [in the European Union] expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom proceedings have been discontinued” and noted the current position in Scotland, part of the United Kingdom, where the Scottish Parliament voted to retain DNA samples etc. only in case of adults charged with violent or sexual offences and for three years only with a possibility of extension for a further two years with the consent of a sheriff. The Court also took into consideration the fact that the fingerprints, cellular samples and DNA profiles stored on the Police National Computer for “purposes related to the prevention and detection of crime”, “the investigation of an offence” or “the conduct of a prosecution” were not only accessible to the police but also to “56 non-police bodies, including Government agencies and departments, private groups such as British Telecom and Association of British Insurers, and even certain employers”.
(ii) Possession of incriminating articles
Possession of incriminating articles may provide evidence of identity. In Thompson v R D was charged with gross indecency with two boys. The boys said that after committing the offences the defendant made an appointment to meet them at a public lavatory three days later. The police were informed. When the defendant kept the appointment one of the boys pointed him out. Powder puffs and indecent photographs were found in the defendant's possession. These articles had not been used in the offences. The House of Lords, however, held that the evidence of the accused's possession of such articles had been rightly admitted since it supported the identification of the accused. The flaw in this line of reasoning was expressed five years later when Sherman J in R v Manning held that in a breaking and entering charge skeleton keys found in the house of the accused were inadmissible if entry was effected by a jemmy. In other words, the incriminating articles found in possession or custody of the accused must directly link him to the alleged crime.
(iii) Similar facts
Similar fact evidence may be adduced to establish identity. A neat illustration of this proposition is R v Straffen . In that case, Straffen was charged with murder by manual strangulation of two little girls at Bath on July 15 and August 8, 1951 respectively. He was found unfit to plead and was committed to Broadmoor Institution. On April 29, 1952 he escaped from Broadmoor and was at large from 2.40 p.m. until 6.40 p.m. and was rearrested and returned to Broadmoor. At about 6.00 a.m. the following morning the body of Linda Bowyer was found in the village of Little Farley , Berkshire , and her bicycle was found some two hundred yards away. She had died from manual strangulation. Evidence was tendered by the prosecution to prove the similarities between the circumstances of the three cases and the method employed by Straffen in each. Cassels J admitted the evidence tendered on the ground that it was material to establish the identity of the murderer in the case before him. Where the only similar fact evidence adduced such as a voice identification is not strongly probative judges should exercise their discretion under section 78 of PACE and exclude the evidence because admitting it would be adverse to the fairness of the proceedings.
(iv) Voice identification
Although there is no Code of Practice stating the procedure to be adopted in voice identification, evidence of such identification based on the comparison of the suspect's voice with a recording of the perpetrator's voice may be admitted whether it is tendered in court by a non-expert or by an expert.
(v) Tracker dogs
In R v Pieterson Lord Taylor CJ held that the evidence of a dog's reaction to the existence of the scent of a particular individual could be admitted if the following safeguards were adhered to:
“First, the proper foundation must be laid by detailed evidence establishing the reliability of the dog in question. Secondly, the judge, must in giving his directions to the jury, alert them to the care that they need to take and to look with circumspection at the evidence of tracker dogs, having regard to the fact that dog may not always be reliable and cannot be cross-examined.”
In a South African case , it was regarded as unreliable. However, such evidence has been received in Scotland , Northern Ireland and New Zealand .
For an outline of Beck's case, see W.M. Best, The Principles of the Law of Evidence , ed. by S.L. Phipson (London: Sweet & Maxwell, 1922), 448-450 and N. Sweeney, “Adolf Beck: The Ghost of Justice” (2006) 170 JPN 150-152.s
Report to the Secretary of State for the Home Department of the Departmental Committee and Evidence of Identification in Criminal Cases, HC 338, London , 1976.
[1976] 3 All ER 549, [1977] QB 224.
R v Bentley [1991] Crim LR 620.
McShane v Northumbria Chief Constable (1980) 72 Cr App R 209 at 211, per Lord Widgery.
[1996] Crim LR 113.
[1978] RTR 174.
(1977) 66 Cr App R 174
[1977] QB 224 at 229.
(1987) 85 Cr App R 197.
(1983) The Times, 14 May.
R v Hayes [1977] 1 WLR 234.
Daley v R [1994] 1 AC 117, PC.
W. Twining, Rethinking Evidence: Exploratory Essays (Illinois: Northwestern University Press, 1994), at 169.
[1990] Crim LR 50.
[1991] Crim LR 620.
D. Birch [1981] Crim LR 622.
(1994) 98 Cr App R 361.
Shand v R [1996] 1 All ER 511, PC.
R v Long (1973) 57 Cr App R 871.
R v Cartwright (1914) 10 Cr App R 219, R v Hunter ([1969] Crim LR 262 and R v Howick [1970] Crim LR 403.
R v John [1973] Crim LR 113.
R v Caird [1970] Crim LR 656.
R v Hughes (1977) The Times, 8 November.
[1996] Crim LR 500.
Williams v R [1997] 1 WLR 548, PC.
[1989] Crim LR 219.
R v Jones, R v Nelson (1999) The Times, 21 April, CA.
See R v Gaynor [1988] Crim LR 242.
Ibid.
[1990] Crim LR 402.
See R v Britton and Richards [1989] Crim LR 144. Cf. R v Thorne [1981] Crim LR 702.
Emphasis added.
[1995] 1 Cr App R 480.
Ibid., p.488 (emphasis added).
[1997] Crim LR 58.
[1997] Crim LR 587.
See D v DPP (1998) The Times, 7 August; R v Anastasiou (1998) Crim LR 67; R v El-Hannachi [1998] 2 Cr App R 226; R v Popat [1998] 2 Cr App R 208; R v Nicholson (1999) The Times, 7 September; and R v Popat (No. 2) [2000] 1 Cr App R 387.
[2001] 1 Cr App R 430, HL.
Ibid., para. 27. See R v Miah [2001] 10 Arch. News 2.
2003 Revision; emphasis added.
[2002] ECWA Crim 174 (4 February 2003).
(1994) 158 JPR 293.
R v Blenkinsop [1995] 1 Cr App R 7, CA.
R v Chadwick (1917) 12 Cr App R 247.
(1934) 25 Cr App R 198.
(1980) 71 Cr App R 198. Cf. R v Allen [1996] Crim LR 426.
R v Okorodu (1982] Crim LR 747 and R v O'Brien [1982] Crim LR 746.
(1987) 84 Cr App R 369.
[1976] Crim LR 511.
[1964] 1 QB 405.
See R v Dallagher (2002) The Times, 21 August. In that case, the accused was charged with murder. Expert evidence which showed that the ear print found on a window at the scene of the crime was the accused's ear print was held admissible.
R v Shaw (1830) 1 Lew CC 116, per Parke B; R v Heaton (1832) 1 Lew CC 116, per Alderson B.
See section 63 (3A) of PACE inserted by section 55 of the CJPOA 1994.
For the procedure adopted in relation to DNA evidence, see R v Doheny [1997] 1 Cr App R 369.
[1995] Crim LR 369.
[1996] 2 Cr App R 467.
R v Tottenham Justice, ex p. ML (1986) 82 Cr App R 277, CA.
[2000] 2 Cr App R 416, CA; [2001] 1 Cr App R 475, HL.
(2004) The Times, 23 July, HL.
(Application nos 30562./04 and 30566/04), 4 December 2008 (European Court of Human Rights).
Ibid, para 47.
Ibid, para 109.
Ibid, para 87.
[1918] AC 221.
(1923) 17 Cr App R 85. See also R v Taylor (1923) 17 Cr App R 109.
R v Mustafa (1976) 65 Cr App R 109.
[1952] 2 QB 911.
See R v Johnson [1995] Crim LR 53. See ss.101 (1) (d) and (4) of the CJA 2003.
R v Pfenning (1995) 182 CLR 461, 539 (High Court of Australia) and R v Deenik [1992] Crim LR 578, CA. Cf. R v Johnson , supra n.69.
R v Robb (1991) 93 Cr App R 161, CA and R v Roberts (1999) The Times, 14 September, CA.
[1995] 1 WLR 293.
Ibid., p.298.
R v Tupedo (1920) AD 58.
Paterson v Nixon , 1960 JC 42.
R v Montgomery [1966] NI 120.
R v Lindsay [1970] NZLR 1002.
Chapter 10: Public Policy and Privilege
(1) INTRODUCTION
A person may be competent but may not be compellable on the grounds of public policy because of some public interest in the administration of justice.
Prior to the decision in Rogers v Home Secretary - a decision we shall discuss later – the term “Crown privilege” was inaptly attached to public interest in the administration of justice because it described the privilege (or liberty) claimed by the Crown to prevent the disclosure of relevant evidence on the grounds of national security (e.g. documents relating to the construction of a submarine ) and the implied presence, in Hohfeldian terms , of no-claim in litigants who rely on such documents to use them to prove facts in issue.
In time, the term “Crown privilege” became a misnomer for two reasons: (i) in most of the cases the Crown did not initiate the proceedings but intervened to claim the privilege; and (ii) the elasticity of public interest is so remarkable (as we shall see) that it has been applied to matters which are of no high national concern such as local government matters and commercial transactions. The phrase “public interest immunity” has therefore been substituted for matters excluded on grounds of public policy, the proliferation of which has not escaped judicial notice:
“I regret the passing of the term “Crown privilege”. It at least emphasized the very restricted area of public interest immunity … The very special case of D v NSPCC is not to be seen as a departure from this well-established principle.”
And Lord Hailsham also noted:
“[T]he categories of the public interest are not closed and must alter from time to time whether by restriction as social conditions and social legislation develop.”
The distinction between “public interest immunity” and “privilege” must be noted. Public interest immunity covers matters in which the safety and well-being of the state is directly affected such as national security, police matters, local government matters, confidential matters and proceedings in Parliament. Privilege covers matters which directly affect only the particular litigant or witness; for example, privilege as to legal advisers or privilege against self-incrimination discussed in Chapter 8. Public interest immunity cannot be waived: no secondary evidence of the excluded matter is allowed. The person entitled to privilege may waive it.
(2) PUBLIC INTEREST IMMUNITY CATEGORISED
(A) National security
Matters excluded because of public interest in national security are as follows:
• Communication between the governor of a colony and the Secretary of State
• A report of a military court to the commander-in-chief as to the conduct of an officer
• Confidential reports upon which the Home Secretary made a detention order under regulation 18B of the Defence of the Realm Regulations 1939
• Documents relating to the construction of a submarine
• Government plans relating to the conduct of a military campaign in the First World War
• Confidential documents to or from a foreign secretary concerning the interests of a foreign state in connection with a territorial dispute. ( This is not an exhaustive list .)
It was once thought that the ministerial certificate on this matter was conclusive and binding on the court. In Duncan v Cammel, Laird & Co. Ltd. , the submarine, ‘Thetis', which had been built by the respondents under contract with the Admiralty, was undergoing her submergence tests in Liverpool Bay when she sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface, with the result that all who were in her, except four survivors, were overwhelmed. Ninety-four men lost their lives. In an action instituted by the appellants (representatives and dependants of those men) against the respondents claiming damages for negligence, objection was taken to the production of documents including the reports as to the condition of the ‘Thetis'. Hilbery J refused inspection of the documents and his decision was unanimously confirmed by the Court of Appeal but the appellants were given leave to appeal to the House of Lords.
The House of Lords held that documents otherwise relevant and liable to production must not be produced if the public interest required that they should be withheld. The House further stated that the test could be found to be satisfied either (a) by having regard to the contents of a particular document or (b) by the fact that the document belongs to a class which on grounds of public interest must be withheld from production. This view was rejected in Conway v Rimmer where the plaintiff, a former probationary police constable, in an action for malicious prosecution against his former superintendent sought the disclosure of a list of documents including four made by the superintendent about him during his probationary period. The Secretary of State for Home Affairs objected. The House of Lords held that the documents must be produced for inspection and if it was found that disclosure would not be prejudicial to public interest or that any possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.
Conway v Rimmer is, therefore, an authority for the proposition that documents in certain exalted spheres , such as Cabinet minutes, reports from ambassadors, communications between Ministers or between Ministers and their advisers, would not be disclosed until they became of merely historical interest. But as social engineers, judges must reconcile two principles: (i) the principle of disclosure which has as its object the disclosure of all relevant and admissible evidence and (ii) the public interest immunity claimed by the Government on the ground of national interest or the likelihood of impairment of aspects of public service. In reconciling these principles, judges have been compelled to examine documents in certain exalted spheres . For instance, in Burmah Oil v Bank of England a term of an agreement involved the sale and transfer to the Bank of England nearly 78 million ordinary stock units in British Petroleum. It was held that the document should be produced for inspection for without inspection it was impossible to decide whether the balance of public interest lay for or against disclosure. In that case, the House of Lords upheld the Crown's objection after examination by a majority of their Lordships. That the courts should be prepared to examine documents in these exalted spheres was accepted in principle in Air Canada v Secretary of State for Trade . In that case, the plaintiffs, a group of international airlines, claimed that the increase in port and landing charges at Heathrow airport were excessive and discriminatory. They brought an action against the Secretary of State and the British Airports Authority alleging that the Secretary's order resulting in the increases were ultra vires .
In order to investigate the Secretary's dominant purpose, the plaintiffs sought production of documents for which the Secretary claimed public interest immunity. Two certificates were issued by Permanent Secretaries of the relevant government departments in support of documents categorized as A and B.
The documents in category A consisted of high level ministerial papers relating to the formulation of government policy whilst documents in category B consisted of interdepartmental communications between senior civil servants. Bingham J (as he then was) was provisionally inclined to order the production of category A documents but decided to inspect them first. He made an order for inspection but stayed the order pending the appeal. On appeal, the House of Lords held that when the Crown objects to the production of a class of documents on the basis of public interest immunity, the judge ought not to inspect the documents in question until he is satisfied that it contains materials which, either would give substantial support to a contention of the party seeking disclosure or an issue arising in the their case, or which would assist any of the parties to the proceedings and that disclosure is necessary for “disposing fairly the cause or matter” within R.S.C. Ord 24, r. 13 (1). (Under the Civil Procedure Rules 1998, the rule applicable to claiming immunity in civil cases is CPR, Pt. 31, r.19.) In the instant case, the plaintiffs were unable to show that the documents whose production they were seeking were likely to be necessary for fairly disposing the issue.
Recent cases on confidentiality and the ‘Arms to Iraq ' cases have brought into focus the need to overhaul the law relating to public interest immunity. The Freedom of Information Act 2000 (FOIA 2000) might be a solution but whilst the Act gave general access to information held by public authorities , information supplied by or relating to bodies dealing with security matters are exempt from disclosure.
(B) Local government
Public interest immunity attaches to local authority social work and analogous records. In D v NSPCC , the plaintiff claimed damages for injuries caused to her health by making false allegations that she maltreated her child. The society (incorporated by Royal Charter with power to bring care proceedings under the Children and Young Persons Act 1969) sought an order for excusing it from disclosing the identity of the informer. Lord Edmund-Davies held that where (i) a confidential relationship existed (other than that of a lawyer and client) and (ii) disclosure would be in breach of an ethical and social value involving public interest, the court had a discretion to uphold a refusal to disclose relevant evidence. Again, in Re M (A Minor) , it was held that public interest immunity extended to social work and analogous records and that this was justified by the particular circumstances of the welfare of children. It is noteworthy that the public interest immunity attaching to local authority social work and analogous records is not absolute. If the records are needed for criminal proceedings involving sexual abuse in order to prove innocence or avoid a miscarriage of justice such as false allegations by the complainants in the past, the records will be disclosed. Documents that will enable interminable cross-examination on peripheral matters are not disclosed.
(C) Police matters
(i) Informers
Public interest immunity is claimed to protect the identity of the informer for his own safety and to ensure that the supply of information in criminal cases does not dry up. Its origin has been traced to R v Hardy and the immunity covers not only the identity of the informer but also the identification of premises used for police surveillance.
There are two policies to be reconciled: the public policy that an innocent man is not to be condemned when his innocence can be proved and the public policy that the identity of the informer must be protected for his own safety and to prevent the supply of information from drying up. The convictions in R v Agar where the judge refused the disclosure of the name of the informer and in R v Langford where disclosure of the name of the agent provocateur was refused were both quashed. The need for a fair trial, therefore, requires that any information which impinges on an issue of interest to the defence, present and potential, as to confirm an alibi or to buttress the defence that the small amount of cannabis resin found in a criminal charge under the Misuse of Drugs Act 1971 was planted must be disclosed; otherwise the convictions would be quashed.
It must be noted, however, that a police informer who voluntarily wishes personally to sacrifice his anonymity is not prevented from doing so by the automatic application of the principle of public interest immunity at the behest of the relevant police authority.
(ii) Disclosure of documents and relevant materials
Withholding “relevant materials', that is, statements which undermine the prosecution case or strengthen the case of the defendant, brings into focus article 6 (3) (b) – “the right … to have adequate time and facilities for the preparation of his defence” – and Article 6 (3) (d) of the Convention – the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf”. The problem, however, is the balancing of the competing interests of public interest immunity and fairness to the defendant claiming disclosure. At common law, the prosecution has a duty to disclose earlier statements of a witness which are inconsistent with the evidence given at trial. Whilst Part I of the Criminal Procedure and Investigations Act 1996 (CIPA 1996) (as amended) enacts statutory provisions dealing with disclosure by the prosecution and Part II deals with criminal investigations and the duty of the Secretary of State to promulgate a disclosure code, the common law rules on public interest immunity remain unaffected. But reconciling public interest immunity and fairness to the defendant remains a thorny problem despite Lord Taylor CJ's guidelines in R v Keane :
“First, it is for the prosecution to put before the court only those documents which it regards as material but wishes to withhold … Secondly, when the court is [seised] of the material, the judge has to perform the balancing exercise by having regard on the one hand to the weight of public interest in non-disclosure. On the other hand, he must consider the importance of the documents to the issues of defence, present and potential, so far as they have disclosed to him or he can forsee them”.
The balancing exercise with regard to relevant materials is in a Heraclitan state of flux. In Keane where the prosecution refused on grounds of public interest immunity to disclose relevant materials to the defence, Lord Taylor said:
“Having examined the materials which the Crown put before us, we are wholly satisfied of two matters. First, there was undoubtedly a public interest in not disclosing the material withheld by the Crown. Second, that material had it been disclosed would not have assisted the defence at all.”
But in R v Ward the conviction of the defendant was quashed because the prosecution failed in their duty, which continued during the pre-trial period and throughout the trial, to disclose to the defence all relevant materials.
It must be noted that the term “relevant materials” includes documents. Documents in the custody of police authorities to which public interest immunity may attach include reports, correspondence, memoranda and notes as well as statements and other evidence.
In Rogers v Home Secretary , the Gamings Board refused Rogers ' application for certificate of consent to grant him a license under the Gamings Act 1968. Refusal followed a letter written by the Assistant Chief Constable of Sussex concerning Rogers . Rogers obtained a copy and laid an information for criminal libel against the Assistant Chief Constable. It was held that the summons should be set aside. In Neilson v Laugharne , the Court of Appeal held that confidentiality, the need for candor and frankness and the desirability of co-operation were all factors to be considered and weighed in the balance, and it was not right to allow the plaintiff to see statements taken for use in an investigation of police conduct.
That decision was followed in Makanjuola v Commissioner of Police and Halford v Sharples . In the former, M, the plaintiff, applied for discovery and production by the Commissioner of all witness statements taken in the course of an investigation under section 49 of the Police Act 1964, the transcripts of evidence given and formal decisions of the disciplinary tribunal. It was held that they were covered by public interest immunity. In the latter, a woman assistant chief constable made a complaint of unlawful sex discrimination to an industrial tribunal against the police authority for failing to interview her for the position of deputy chief constable and the chief constable of her own police force for refusing to recommend her for promotion. The woman sought discovery of, inter alia, the police complaints and disciplinary files. It was held that they were similarly covered by public interest immunity. In both cases, the documents were held to belong to a class to which immunity applied.
The turning point came in Metropolitan Police Commissioner v Locker where Knox J held that public interest immunity did not attach to statements made during the course of Metropolitan Police grievance procedure initiated by a police officer alleging either racial or sexual discrimination because such statements were distinguishable from statements made in complaints and disciplinary procedures. Relatively recently, the House of Lords in R v Chief Constable of West Midlands Police, ex p. Wiley held that there was no general public interest immunity in respect of documents coming into existence during an investigation into a complaint against the police under Part IX of the Police and Criminal Evidence Act 1984. Lord Woolf said that whilst he agreed with Lord Hailsham's dictum in D v NSPCC cited above that “the categories of public interest are not closed and must alter from time to time as conditions and social legislation develop” no sufficient case had been made to justify the case of public interest in Neilson .
The second problem with “relevant materials” is the introduction of a new concept of adjudication in criminal proceedings, namely, the ex parte application introduced in R v Davis, Johnson and Rowe . In that case, the defendants were convicted of murder and other offences and sentenced to long terms of imprisonment. During the trial, without notifying the judge, the prosecution withheld certain evidence from the defence on the grounds of public interest. The defendants were convicted and their appeals against convictions were dismissed. The cases were referred back to the Court of Appeal by the Criminal Cases Review Commission. In ex parte hearings with the benefits of submission from the Crown in the absence of the defence, the Court of Appeal held that it was not necessary for the prosecution in every case to give notice to the defence when it wished to claim public interest immunity provided certain procedures were adhered to. The defendants appealed to the European Court of Human Rights in Rowe and Davis v United Kingdom on the grounds that the procedure violated Article 6 (1) and (3) of the Convention and the Court, distinguishing its former decision in Edwards v United Kingdom , unanimously held that there had been a violation of Article 6 (1). Edwards was distinguished from Rowe because the appeal procedures in the former were adequate to remedy the defects at first instance since the Court of Appeal in Edwards received most of the missing information and was able to consider the impact of the new material on the safety of the conviction. More recently, in Fitt v United Kingdom and Jasper v United Kingdom , the European Court found no violation of Article 6 (1) where the procedure laid down by the Court of Appeal for ex parte prosecution in relation to trial on indictment were followed. The same procedure applies, insofar as is practicable, to ex parte prosecution in a magistrates' court. As stated in Keane , ex parte applications are contrary to the general principle of open justice in criminal trials and should be used sparingly. In R v H and C , the appointment of special counsel (as
a last resort) to represent a defendant in an ordinary criminal trial as an advocate in matters covering public interest immunity was mooted but Lord Bingham was quick to recognise that such an appointment bristled with ethical and human rights problems. It must also be noted that information held by public authority for the purposes of investigations and proceedings conducted by the authority is exempt from disclosure. This is a class exemption which covers a variety of military offences.
(D) Confidential matters
Whether public interest immunity should or should not be extended to commercial transactions undertaken by the Government or mercantile organizations (including commercial banks) is a moot point. Lord Denning MR in Burmah Oil v Bank of England said:
“But I do not think it [i.e. public interest immunity] should be extended to commercial transactions undertaken by the Governor of the Bank of England. This rescue operation of Burmah was par excellence a commercial transaction. Such as those which the City of London has undertaken many times in recent years.”
Although his learned brothers in the House of Lords were not persuaded, this is a category that requires a clear articulation of the policy considerations.
There are, however, other cases worthy of note. In Alfred Crompton Amusement Machines Ltd. v Customs and Excise Commissioners (No. 2) the Commissioners obtained information from customers of a company and others relevant to the company's liability for purchase tax. It was held that the Commissioners were entitled to withhold documents which would reveal the sources of their information. This must be contrasted with Norwich Pharmacal v Customs and Excise Commissioners where the appellants, the owners and licensees of a patent for a chemical compound known as furazolidone, alleged that their patent had been infringed by illicit importations of the chemical compound manufactured abroad. The Commissioners were compelled to disclose the relevant names and addresses of the importers. However, in Lonrho plc v Fayed & Ors (No. 4) it was held that public interest immunity extended to documents in the hands of the Inland Revenue relating to a taxpayer's tax affairs in the absence of the taxpayer, since as a matter of public policy the state should not by compulsory powers obtain information from a citizen for one purpose and then use it for another. It must be noted, however, that public interest immunity does not extend to confidential reports disclosed voluntarily by a banking institution to the regulatory body of which it is a member unless it could be demonstrated that there is a need to withhold such documents as a class.
Finally, we must consider three leading cases. In the first case, A-G. v Times Newspaper , Mr. Peter Wright, a former member of the British Security Service M15 resident in Tasmania , Australia entered into an agreement to publish an exposé of the Service entitled Spycatcher in Australia but, in view of the interim injunction granted there, took steps to have the book published in the USA . ‘The Observer' and ‘The Guardian' published in the UK an article on the Australian proceedings. ‘The Sunday Times' purchased the British newspaper serialisation rights to Spycatcher and published extracts of the book two days before its publication in the USA . The Attorney-General obtained an interim injunction. On hearing the action, Scott J held that ‘The Observer' and ‘The Guardian' were not in breach of their duty of confidentiality and that the Attorney-General was not entitled to an injunction to restrain further serialisation by ‘The Sunday Times' since the worldwide publication of Spycatcher had destroyed any secrecy of its contents and copies of it were readily available to any individual who wished to obtain them. This ruling was upheld by the House of Lords.
The second case is Attorney-General v Blake . In that case, the defendant was a former member of the Secret Intelligence Service (“S.I.S.”) who in 1944 signed an undertaking not to divulge official secrets. Between 1951 and 1960 he disclosed official secrets to the Soviet Union . In 1961 he was convicted of spying and sentenced to 42 years' imprisonment, but in 1966 escaped and went to live in Moscow , where he remained. In 1989 he wrote an autobiography substantial parts of which were based on information gathered in the course of his duty and entered into a publishing contract with Jonathan Cape Ltd. (hereafter ‘JC'). The defendant neither obtained permission from the Crown nor submitted the manuscript for approval. The Crown had no knowledge of the book until its publication was announced in the press. After the defendant had received some £60,000 from JC, the Attorney-General brought a private action against the defendant claiming damages on breach of fiduciary duties and payment of all moneys received or to be received by the defendant from JC.
Sir Richard Scott VC dismissed the action on the grounds
(i) that the lifelong duty owed by former members of the security service not to disclose a secret or confidential information acquired in the course of their employment did not extend to information no longer secret or confidential;
(ii) that the defendant had not expressly contracted not to publish any information relating to intelligence service without the Crown's prior approval; nor could such an equitable obligation be implied;
and
(iii) that the breaches of section 1 (1) of the Official Secrets Act 1989 did not establish any breach of duty under civil law for which the civil remedies could be claimed.
The Attorney-General appealed. The Court of Appeal dismissed the appeal challenging ground (i) above but reversed Sir Richard Scott VC on other grounds. The Court held that by submitting the manuscript of his autobiography for publication without having first obtained clearance from the Crown the defendant was in breach of the express undertaking signed when he joined the service of the Crown; that the obligation was not an unlawful restraint of trade since it did not exceed what was rendered unlawful by section 1 (1) of the 1989 Act; and, accordingly, awarded nominal damages since the Crown had not sought injunction to prevent publication. (Recall the decision of Scott J (as he then was) in A-G v Times Newspaper (above) which was affirmed by the House of Lords.)
The House of Lords held that the Attorney-General was entitled to an account of profit even though this would be appropriate in exceptional circumstances.
The third case is R v Shayler . In that case, a former member of the security service was charged with unlawful disclosure of information contrary to sections 1 and 4 of the 1989 Act. The House of Lords seized this opportunity to clarify the law on disclosure of information or documents relating to security or intelligence. The principles enunciated are as follows:
(i) that the ban on disclosure of information or documents relating to security or intelligence imposed by the 1989 Act on a former member of the security service is not absolute; and
(ii) that the ban is subject to two conditions, viz. –
(a) the former member of the security service might make disclosure to the appropriate staff counsellor (i.e. the Attorney-General, the DPP, the Commissioner of Metropolitan Police, the Prime Minister and other ministers); and
(b) if following disclosure to one of those persons mentioned in (a) above, effective action were not taken or there remained facts which should in the public interest be revealed to a wider audience, the former member might under section 7 (3) (b) of the 1989 Act seek official authorisation to make a disclosure to a wider audience.
The Law Lords felt that this procedure would provide sufficient safeguards to ensure that unlawfulness and irregularities could be reported and that the power to withhold authorisation to publish was not abused and proper disclosures were not stifled.
(3) PRIVILEGE
(A) Legal professional privilege
(i) In general
A client cannot be compelled and his legal adviser will not be allowed without the consent of his client to disclose communications or to produce documents passing between them in professional confidence. This privilege extends to communications made by other persons on behalf of the client to the legal adviser if obtained by the latter for the purpose of the litigation or other business. In Wheeler v Le Merchant the court ordered the production of letters which had been passed between the solicitors of the defendants and their surveyor, except such (if any) as the defendants should state by affidavit to have been prepared confidentially after dispute had arisen between the plaintiff and the defendants and for the purpose of obtaining information, evidence or legal advice with reference to litigation existing or contemplated between the parties to the action. Jessel MR said:
“[A] communication with a solicitor for the purpose of obtaining legal advice is protected though it relates to a dealing which is not the subject of litigation, provided it be a communication made to the solicitor in that character and for that purpose.”
Again, in R v Cox and Railton a solicitor was compelled to disclose what passed between the prisoners and himself on an occasion when they called to consult him to draw a bill of sale which was alleged to be fraudulent. More recently, in Dubai Bank Ltd. v Galadari (No. 6) the plaintiffs relied on fraud in order to displace the legal professional privilege otherwise enjoyed by the defendants in respect of documents of which the plaintiffs sought discovery.
Privilege could not be claimed if the dominant purpose is iniquitous as in Barclays Bank plc v Eustice where the documents in respect of which the defendants claimed privilege related to communications with their legal advisers with regard to the disposal of the defendants' assets at an undervalue. There was a strong prima facie case that the purpose of the transactions was to prejudice the bank's interest by depriving it of assets which would otherwise have been available to satisfy outstanding debts. Similarly, in The David Agmashenebeli there was an application on the part of the Defendant owners of the vessel “David Agmashenebeli” for further disclosure of documents by the claimant cargo owners. The claimants declined to disclose the documents because they said that the documents were privileged since, at the time in question, litigation with the Defendants was clearly contemplated and the documents were created for the dominant purpose of that litigation. It was held that there was a strong prima facie evidence of an attempt to concoct untrue evidence and that the document, being relevant to an issue in the action, could not be accorded privilege and ought to be disclosed.
(ii) Documents prepared in anticipation of litigation
Waugh v British Railways Board is authority for the proposition that a document proposed by a third party will not be protected by professional privilege unless submission to legal advisers in anticipation of litigation is at least the dominant purpose for which it is proposed. In that case, the plaintiff's husband, an employee of the defendants, was killed in a railway accident. In accordance with the defendant Board's usual practice a report was made concerning the circumstances of the accident. This report was made partly for the purpose of discovering whether such accidents could be avoided in the future and partly to inform with Board's solicitor in case of litigation. The plaintiff sued the Board for negligence and sought discovery of the report. Discovery was resisted by the Board on the ground of legal professional privilege. The House of Lords held:
(i) that public interest in the administration of justice strongly required that a document such as the internal inquiry report contained statements which would almost certainly be the best evidence as to the cause of the accident and should be disclosed; and
(ii) that for that public interest to be overridden by a claim of privilege the purpose of submission to the party's legal advisers in anticipation of litigation must be at least the dominant purpose for which it was proposed.
This must be contrasted with Belabel v Air India where the plaintiffs brought an action against the defendant, an Indian corporation, claiming, inter alia, specific performance of an agreement for an underlease of business premises. The plaintiffs sought discovery of three categories of documents, namely, communications between the defendant and it solicitors other than those seeking or giving legal advice; drafts, working papers, attendance notes and memoranda of the defendant's solicitors relevant to the proposed underlease; and internal communications. The defendant's claim of privilege covering the documents was upheld by the Court of Appeal.
It must be noted that in R v Derby Magistrates' Court, ex p. B the House of Lords held that a witness summons could not be issued to compel the production of documents subject to legal professional privilege which had not been waived since the principle that a client should be free to consult his legal advisers without fear of his communications being revealed was a fundamental condition on which administration of justice as a whole rested. Finally, in the context of legal professional privilege there was no relevant distinction between a translation of an unprivileged document in the control of the party claiming privilege and a copy of such a document.
(iii) Documents passing between lawyer and client (European Communities/Union)
Legal professional privilege attaches to documents passing between lawyer and client on an investigation by the Commission of the European Communities to decide whether the EC rules on competition have been infringed. This privilege applies to all legal matters relating to the European Union.
(iv) Items subject to privilege
“Items subject to legal privilege” cannot be included in a search or seized by the police. Section 10 (1) of the Police and Criminal Evidence Act 1984 (PACE) defines “items subject to legal privilege” as meaning:
“1. Communications between a professional legal adviser and his client or any person representing his client made in connection with giving legal advice to the client.
2. Communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.
3. Items enclosed with or referred to in such communications and made –
• in connection with the giving of legal advice
or
• in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in possession of a person who is entitled to possession of them.”
Section 10 (2) of PACE provides that “items held with the intention of furthering a criminal purpose are not items subject to legal privilege.” Items not subject to legal professional privilege include documents prepared with the intention of laundering the proceeds of illegal drug trafficking even though it was innocently held by a solicitor and where the dominant purpose of the documents was iniquitous.
(v) Statute overriding legal professional privilege: the iniquitous exception
In In re McE , the House of Lords held that the RIPA 2000 permits the Code made pursuant to RIPA to authorize surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the European Convention on Human Rights. The point, however, is that, as Lord Phillips rightly noted , the Divisional Court made a finding of law against the Secretary of State for the Home Department “that monitoring of legal consultations in police stations or prison cannot lawfully be authorised under the Code [for the authorisation of surveillance] in its present form ”. Lord Phillips continued: “The position was simply that unless and until she took the appropriate steps she could not lawfully continue to carry out surveillance on legal consultations in prison or police stations” without violating Article 8 (1) of the Convention. Nor is the surveillance within Article 8 (2) of the Convention simply because the surveillance is prescribed by law. There is also a need to show that it is not only prescribed by law but it is also proportionate to the legitimate interests of the State and necessary in a democratic society as recently stated in S and Marper v United Kingdom discussed in Chapter 9.
( vi) Once privileged always privileged
The aphorism is: once privileged, always privileged – i.e. privilege continues even after the termination of the lawyer/client relationship. There are exceptions.
Privilege is lost if document or information comes to the ears or possession of the other party even if obtained by mistake or wrongfully. If obtained wrongfully, the person in possession may be restrained by an injunction. In I.T.C. Film Distributors v Video Exchange the defendants obtained plaintiff's documents by trick in the precinct of the court and subsequently exhibited them as evidence. It was held that such evidence as had not yet been referred to should be excluded.
Privilege may be lost through fraud or iniquitous transaction as discussed above. It may also be waived. In Derby & Co. Ltd. v Weldon (No. 8) it was held that where privileged documents were inadvertently disclosed in circumstances where the solicitors must have realised that a mistake had occurred but had sought to take advantage of it, all copies of the documents in the solicitor's possession were to be returned and an injunction granted restraining the use of information contained in or derived from them. It must be noted, however, that by bringing legal proceedings against his solicitor the plaintiff implicitly waives legal professional privilege in respect of relevant matters. This implied waiver does not apply to confidential communications between the plaintiff and different solicitors instructed to pursue his claim against third parties.
(B) Communications with other persons who are not lawyers
(i) Journalists
The general rule is that journalists have no privilege to protect their sources. However, a limited statutory privilege is created by section 10 of the Contempt of Court Act 1981 so as to enable a person to refuse to disclose the source of information contained in a publication for which he is responsible. In Secretary of State for Defence v Guardian Newspaper Ltd. the Guardian came into possession of a secret document which it published. The Secretary of State for Defence, alleging the infringement of the Crown's copyright, sought an order for immediate delivery up of the document, which bore certain marks which, it was believed, could identify the person who had supplied it to the newspaper. The newspaper sought to rely on section 10 of the Contempt of Court Act 1981 as enabling it to refuse to disclose the source of the information. The House of Lords held that section 10 of the 1981 Act applied in all proceedings and that although the defendants had a prima facie protection of section 10, that entitlement had been negatived as a result of the Crown adducing sufficient evidence to discharge the burden of proof upon it showing that the delivery up of the document as necessary in the interests of national security.
Where national security is not an issue journalists have succeeded in claiming privilege under section 10. In Re An Inquiry under the Company Securities (Insider Dealing) Act 1985 , inspectors appointed under the Financial Services Act 1986 questioned a journalist responsible for two newspaper articles that appeared to have been based on unpublished price-sensitive information. The journalist claimed that he had reasonable excuse under section 10 of the Contempt of Court Act 1981. The House of Lords held that, although the section did not directly apply to section 178 of the 1986 Act, it recognised that it is in the public interest that a journalist should be entitled to protect his source of information. Recently in John v Express Newspapers the Court of Appeal held that a judge was wrong in ordering a journalist to disclose the identity of the person who had provided her with a confidential draft advice from counsel.
Since judges are enjoined to interpret primary legislation in a manner compatible with Convention rights pursuant to section 3 of the Human Rights Act 1998 and take cognizance of European Convention jurisprudence (s.2), it is necessary to consider the impact of Convention rights on journalistic privilege.
In X Ltd. v Morgan-Grampian (Publishers) Ltd. a confidential document concerning the affairs of the plaintiffs, two private companies, was wrongly removed from their premises and its contents disclosed to G, a journalist, who promised not to reveal the identity of the informer. The plaintiffs sought and were granted injunctive relief to restrain G and the publishers of the journal on which he worked from publishing the information so disclosed and to deliver up the notes made by G. The publishers resisted the disclosure orders in reliance on section 10 of the Contempt of Court Act 1981 and appealed unsuccessfully to the Court of Appeal. On appeal to the House of Lords, it was held that since the defendants were subject to an injunction restraining them from publishing information in breach of confidence, the court had power to order discovery of G's notes. In Goodwin v United Kingdom where G took the case to Strasbourg, the European Court of Human Rights held that notwithstanding the State's margin of appreciation (i.e. considering what was necessary in a democratic society) disclosure of the applicant's source was disproportionate in the circumstances and that the order requiring disclosure and the fine for contempt of court both violated Article 10 (freedom of expression) of the Convention.
It must be noted, however, that in Camelot Groups plc v Centaur Communications Ltd. Kay J said that there was not a great difference between section 10 of the 1981 Act as interpreted in X Ltd. v Morgan-Grampian (Publishers) Ltd. and Article 10 of the Convention as interpreted in Goodwin . It is submitted that section 10 of the 1981 Act must now be interpreted in a manner compatible with the right protected in Article 10 of the Convention.
(ii) Bankers
Bankers are not protected by legal privilege. Tournier v National Provincial and Union Bank of England is authority for the proposition that it is an implied term of a contract between a banker and his customer that the banker will not divulge to third persons, without the consent of the customer express or implied, any information relating to the customer acquired through the keeping of his account. The four exceptions to this proposition are:
“(a) where disclosure is under compulsion by law [i.e. the Bankers' Book Evidence Act 1879];
(b) where there is a duty to the public to disclose;
(c) where the interests of the bank require disclosure; and
(d) where the disclosure is made by the express or implied consent of the customer.”
In Tournier the plaintiff, a customer of the defendant bank endorsed a cheque drawn in his favour to a third person who had an account in another bank. On return of the cheque to the defendant their manager inquired of the last-named bank who the person was to whom it was paid, and was told it was a bookmaker. It was held that the disclosure constituted a breach of the defendant's duty to the plaintiff.
(a) Disclosure under compulsion by law
A banker may refuse to give evidence until he is ordered to do so. To support this proposition Tapper cites section 7 of the Bankers' Book Evidence Act 1879 which assumes that an application will be made to the court for the inspection of the banker's books.
It must be noted, however, that the obligation to disclose is not limited to the 1879 Act. For instance, in Christofi v Barclays Bank plc the plaintiff, whose husband had been adjudicated bankrupt, obtained a loan from the bank of £30,000, which was secured by a charge on the matrimonial home. Subsequently the trustees in bankruptcy registered a caution against dealings in respect of the property and the bank refused the plaintiff's request for further loans. The caution was warned off, then re-registered and she was unable to sell the property for four years and then only at a price well below the asking price. The plaintiff issued proceedings for damages against the bank that it had breached its implied duty of confidence in informing the trustee that the caution had been warned off. The master refused the bank's application to strike out the claim. On appeal by the bank, it was held that although a bank's implied duty of confidentiality extended beyond information which was secret, it did not apply to information which had been made available to the recipient as a matter of statutory right, in this case under section 22 of the Bankruptcy Act 1914.
(b) Public interest in disclosure
In Pharaon v Bank of Credit and Commerce International CA (in liquidation) Rattee J held that public interest in upholding the duty of confidentiality existing between bankers and customers was subject to be overridden by the greater interest in making confidential documents relating to an international bank available to the parties to a private foreign proceedings for the purpose of uncovering fraud. He added, however, that such disclosure must be limited to what was reasonably necessary to achieve the purpose of the public interest.
(c) Bank's interest in disclosure
According to Bankes LJ in Tournier , “[a] simple instance of [this exception] is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft.”
(d) Disclosure in breach of express or implied customer's consent
In Turner v Royal Bank of Scotland Sir Richard Scott VC held that an arrangement between banks to provide banker's references in reply to status inquiries without the customer's express consent was in breach of the implied contractual term of confidentiality established in Tournier .
(iii) Accountants
The information relating to a client in possession of an accountant is confidential but not privileged. The question is whether a firm of accountants should be enjoined from conducting an investigation for one client against a former client in respect of whom they retained confidential information relevant to the investigation. In Bolkiah (Prince Jefri) v KPMG (a firm) the defendant chartered accountants (KPMG) appealed against an order of Pumfrey J whereby he granted the plaintiff, an interlocutary injunction restraining KPMG from acting for the Brunei Investigation Agency (BIA) in an investigation of the plaintiff's financial dealings. The Court of Appeal vacated the injunction. Lord Woolf MR stated that there was no strict rule prohibiting accountants (like solicitors) from acting in such circumstances. He added, however, that in balancing the interests the courts must adopt the three tests propounded in Russel McVeagh McKenzie Bartleet and Co. v Tower Corporation , viz.
(i) whether there was confidential information likely to affect the former client adversely;
(ii) whether there was real or appreciable risk of disclosure; and
(iii) whether the nature and importance of the former fiduciary relationship meant that the confidential information ought to be protected by the court exercising its discretion.
On appeal by Prince Jefri to the House of Lords the injunction was granted. Lord Millet, in his leading judgment deprecated the tests proposed. He said:
“Many different tests have been proposed in the authorities. These include the avoidance of ‘an appreciable risk' or ‘an accepted risk'. I regard such expressions as unhelpful: the former because it is uninformative. I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure.”
(iv) Priests and penitents
The preponderance of authorities is against the existence of privilege. For instance, in R v Hay the defendant was charged with larceny of a watch. A Roman Catholic priest had handed it to the police, and he was asked in court from whom he had received the watch and was compelled to answer the question. However, in Broad v Pitt Best CJ said: “I for one will never compel a clergyman to disclose communications to him by a prisoner, but if he chooses to disclose them, I shall receive them in evidence.”
(v) Physicians and patients
From the latter part of the eighteenth century, the bench has declined to recognise any privilege for communications by a patient to a medical practitioner in private practice. In Garner v Garner the court compelled a doctor to disclose information, even though it was obtained in pursuance of a system for which secrecy was enjoined by statutory requirement.
More recently, in R v McDonald it was held that the trial judge had correctly exercised his discretion under section 78 of PACE to admit what a prisoner had said to a psychiatrist examining him for the purpose of preparing a report on his mental condition when the issue before the jury was the non-medical issue of provocation. However, the obligations of medical etiquette are not entirely ignored as was the case in X v Y where Rose J granted a permanent injunction restraining a national newspaper from publishing information obtained from hospital records identifying actual or potential AIDS sufferer.
The present position, therefore, is that the duty of confidence owed by a medical practitioner to his patient is subordinate to the public duty to disclose information obtained as a result of his examination of the patient to public authorities or to court.
(vi) Licensed Conveyancers
A new privilege similar to that attaching to the relationship of lawyer and client now extends to the relationship of licensed conveyancers and client by virtue of section 33 of the Administration of Justice Act 1985.
(4) STATEMENTS MADE WITHOUT PREJUDICE
(A) In general
It is a matter of public interest that statements may be made “without prejudice” in an attempt to settle a dispute. Such statements cannot be put in evidence without the consent of both parties; and where a party deploys materials which would not be admissible because it forms part of without prejudice communication the other party is entitled to refer to the context of the same communications in order to advance his own case on the merits. Whilst it is not mandatory that a letter be headed “without prejudice”, a statement to the effect that it is without prejudice to the writer's rights will suffice. If the first letter in a series is headed “without prejudice” or words to that effect incorporated, it might mean the privilege attaches to subsequent letters in the series.
(B) Husband and Wife
“Without prejudice” statements made between spouses personally or between their solicitors which take place with a view to compromising a matrimonial cause are privileged. Negotiations between spouses carried on through a mediator may be privileged. Nevertheless there is no rule which makes communications between husband and wife inadmissible in common law. The statutory privileges do not apply to such a communication, actual or intended, which is provided by a third party. In Rumping v DPP the mate of a Dutch ship was charged with the murder of a woman at a port in Wales . The accused was arrested when the ship arrived in Liverpool . He had given a letter in a closed envelope to a seaman for posting in a foreign port. The seaman gave the letter to the captain who passed it to the police. The letter was written by the accused to his wife and was tantamount to a confession of some grave crime. It was tendered in evidence by the prosecution and after objection was admitted. The accused was convicted. On appeal it was contended that the letter was inadmissible in evidence. Both the Court of Appeal and the House of Lords rejected this contention.
[1964] AC 814, HL.
[1973] AC 388.
Duncan v Cammel, Laird & Co. Ltd. [1942] AC 624, HL.
See W.N. Hohfeld, Fundamental Legal Conceptions , ed. by W.W. Cook (New Haven: Yale University Press, 1966), at 36.
D v NSPCC [1978] AC 171.
Burmah Oil v Bank of England [1980] AC 90.
Science Research Council v Nassé [1980] AC 1028 at 1087-1088.
[1978] AC 171 at 230.
Chatterton v Secretary for India [1895] 2 QB 189.
Lloyd v Mostyn (1842) 10 M&W 478; and Calcraft v Guest [1898] 1 QB 759.
Hennessy v Wright (1888) 21 QBD 509 and Chatterton v Secretary of State for India , supra n.8.
Home v Betnick (1920) 2 Brod &B 130 and Beatson v Skenne (1860) 4 H&N 838.
R v Secretary of State, ex p. Lees [1941] 1 KB 72.
Duncan v Cammel, Laird & Co. Ltd. , supra n.2. Cf. McGingley and Egan v United Kingdom (1999) 27 EHRR 1.
Asiatic-Petroleum Oil Co. Ltd. v Anglo-Persian Oil Co. Ltd. [1961] 1 KB 822.
Buttes Gas & Oil Co. v Hammer (No. 3) [1981] QB 233.
Supra n.2.
[1968] AC 910, HL.
For a case where it was held that a judge was right to protect documents without inspecting them, see Gaskin v Liverpool C.C. [1980] 1 WLR 1549.
Supra, n.5.
[1983] AC 394.
See Attorney-General v Blake [2000] 4 All ER 385, HL and R v Shayler [2002] 2 All ER 477, HL discussed below.
R v Henderson (the Matrix Churchill case), unreported, Central Criminal Court, 5 October 1992, Transcript T920175 and R v Blackledge (William Stuart) (No. 2) (1995) The Times, 8 November (the Ordtec appeal). In both cases the prosecution's decision to withhold documents on grounds of public interest immunity was scrutinised by Sir Richard Scott's Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (HC Paper 115, London: HMS), 1996). For a trenchant critique of the cases and the Report, see I. Leigh and L. Lustgarten (1996) 59 MLR 685.
For a stimulating discussion of the FOIA 2000, see P. Birkinshaw, Freedom of Information , ( London : Butterworths, 2001).
FOIA 2000, s.1.
Ibid., s.23.
Supra n.4.
(1980) The Times, 4 January.
R v Brushett , unreported, 21 December 2000, CA.
(1794) 24 St Tr 199.
R v Rankine [1986] 2 All ER 52, R v Brown and Daley (1987) 87 Cr App R 52, R v Johnson [1989] 1 All ER 121 and R v Hewitt and Davis (1992) 95 Cr App R 81.
Marks v Beyfus (1890) 23 QBD 494.
[1990[ Crim LR 183.
[1990] Crim LR 653. See also R v Patel [2002] Crim LR 304.
R v Turner [1995] 3 All ER 433.
R v Baker [1969] Crim LR 55.
R v Adams [1997] Crim LR 292.
Savage v Chief Constable of Hampshire Constabulary [1997] 2All ER 631, CA.
For rules relating to disclosure requirements, see the Criminal Procedure and Investigations Act 1996, ss.3-18 as amended by ss.32-37 of the Criminal Justice Act 2003 and FOIA, ss.1, 23 and 31.
[1994] 2 All ER 479 at 484-485.
Ibid., at 485.
[1993] 2 All ER 577, CA. See also R v Trevor Douglas K (1993)97 Cr App R 342 and DPP v Ara [2001] 4 All ER 559, DC.
Supra n.1.
[1981] 1 QB 736.
[1992] 3 All ER 617.
[1992] 3 All ER 624.
(1993) 143 NLJ 543 (Employment Appeal Tribunal).
[1994] 3 WLR 433, HL. See also R v Horseferry Road Magistrates' Court, ex p. Bennett (No. 2) [1994 1 All ER 289, DC; Cf . Taylor v Chief Constable of Greater Manchester (1995) The Times, 19 January and O'Sullivan v Commissioner of Police of the Metropolis (1995) The Times, 3 July.
(1993) 97 Cr App R 110.
The procedure to be adhered to is as follows: (i) that the prosecution are to give notice to the defence they were applying for a ruling and indicate the category of material held; (ii) and where the material in question reveal that which the prosecution contend should be revealed, the prosecution should still notify the defence; (iii) but in an exceptional case where to reveal the fact that an ex parte application would in effect be to reveal the nature of the evidence in question, the prosecution should apply to the court without notice to the defence. See (1993) 97 Cr App R 110 at 114.
(2000) 30 EHRR 1.
(1993) 15 EHRR 417.
(2000) 30 EHRR 480.
(2000) 30 EHRR 441.
See R v Smith (Joe) [2001] 1 WLR 1031, CA, R v Botmeh and Alami [2002] Crim LR 209, CA and R v Lawrence & Ors. [2002] Crim LR 585, CA.
See Lord Woolf in R (on the application of the DPP) v Acton Youth Court , unreported, 22 May 2001, DC.
[1994] 2 All ER 479 at 483 cd .
[2004] 2 Cr App R 10, HL.
FOIA 2000, s.30 (1).
Ibid., s.30 (5).
[1979] 1 WLR 473 at 486.
[1974] AC 405.
[1974] AC 133. See also Interbrew SA v Financial Times Ltd. (2002) The Times, 4 January, Ch. D.
[1994] 1 All ER 870, CA.
Kaufman v Credit Lyonnais Bank (1995) The Times, 1 February, Ch D.
[1988] 3 WLR 776.
[1998] 2 WLR 8095, CA; [2000] 4 All ER 385, HL.
[2002] 2 All ER 477, HL. See FOIA, ss.1 and 34.
(1881) 17 Ch D 675.
Ibid., at 682.
(1884) 14 QBD 153.
(1991) The Times, 22 April.
[1995] 4 All ER 511, [1995] 1 WLR 1238.
unreported, 20 November 2000, Queen's Bench Division ( Admiralty Court ).
[1980] AC 521, HL.
[1988] Ch 317, [1988] 2 All ER 246. See also Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [2004] 3 WLR 1274 where the House of Lords held that legal advice privilege is not restricted to advice about legal rights and liabilities but extends to presentational advice.
[1995] 3 WLR 681. See also R v Grant [2006] QB 60 where listening devices placed in the exercise yard resulted in the recording of conversations between Grant and his lawyers. The Court of Appeal held that this called for a stay of proceedings on the ground of abuse of process without proof of any prejudice to Grant.
See also R (on the application of Morgan Grenfell & Co. Ltd.) v Special Commissioner of Income Tax [2002] 3 All ER 1, HL where it was held that an inspector of taxes was not entitled to see documents relating to the advice that the taxpayer had obtained from leading counsel and solicitors about whether a tax avoidance scheme would work.
Sumitomo Corporation v Credit Lyonnais Rouse Ltd. [2002] 1 WLR 479, [2001] 2 LL R 517, CA.
A.M. & S. Europe Ltd. v Commission of the European Communities [1983] QB 878 (CJEC).
PACE, ss. 8, 9, 18 and 19. See R v Leeds Crown Court , ex p. Switalski [1991] Crim LR 559 and R v Central Criminal Court, ex p. The Guardian, The Observer and Bright [2002] Crim LR 64, DC.
R v Central Criminal Court, ex p. Francis and Francis [1989] AC 346, HL. Cf. R v Snaresbrook Crown Court , ex p. DPP [1987] Crim LR 824 DC where the DPP was seeking access to a legal aid application in connection with a possible charge of attempting to pervert the course of justice. The Divisional Court held that since the Law Society did not hold the form in furtherance of any criminal purpose, section 10 (2) of PACE did not apply.
Barclays Bank plc v Eustice , supra n.71 and The David Agmashenebeli , supra n.72.
[2009] UKHL 15.
Ibid, para 52.
Ibid (emphasis added).
(Applications nos 30562/04 and 30566/04), 4 December 2008 (European Court of Human Rights).
Calcraft v Guest [1898] 1 QB 759.
C v C (Privilege: Criminal Communications) [2001] 3 WLR 446, CA and Al Fayed & Ors. v Commissioner of Police of the Metropolis (2002) The Times, 17 June, CA.
Goddard v Nationwide B.S. [1986] 3 All ER 264, CA.
[1982] Ch 431.
(1990) The Times, 29 August.
Kershaw v Whelan [1996] 1 WLR 359.
Paragon Finance plc v Freshfields (a firm) (1999) The Times, 22 March.
British Steel Corporation v Granada T.V. [1981] Ac 1096, HL.
[1985] AC 339.
[1988] AC 660, HL.
(2000) The Times, 26 April, CA.
[1991] 1 AC 1.
(1996) 22 EHRR 123.
(1997) The Times, 15 July. See also Michael O'Mara Books Ltd. v Express Newspapers plc (1998) The Times, 6 March.
[1924] 1 KB 461, CA.
Ibid., at 473, per Bankes LJ.
C. Tapper (ed.), Cross and Tapper On Evidence , (London: Butterworths, 1995), at 495.
[1998] 2 All ER 484.
[1998] 4 All ER 455.
[1924] 1 KB 461 at 473.
(1999) The Times, 17 April.
[1999] 1 All ER 517.
See Rakusen v Ellis Munday and Clarke [1912] 1 Ch. 831, [1911-13] All ER Rep 813, CA.
unreported, 25 August 1998 ( NZ CA ).
[1999] 1 All ER 517 at 528, HL.
(1860) F&F 4. See J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge (London: Macmillan, 1948), Art. 126 and Note XXI, at 151 and 219-233 for a review of other authorities.
(1828) 3 C&P 518.
R v Kingston (1776) 20 St Tr 355.
(1920) 36 TLR 196.
(1990) The Times, 29 August.
[1988] 2 All ER 648. See also Ashworth Hospital Authority v MGN Ltd. [2003] FSR 17 and R (TB) v Stafford Crown Court .
W v Edgell [1989] 1 All ER 1985 and R v Crozier (1990) Guardian Law Reports, 8 May. Woolgar v Chief Constable of Sussex Police and UKCC [1999] Ll RM 335 is authority for the proposition that where confidential information in possession of the police is relevant to an inquiry pursued by UKCC (the national regulatory body for nursing, midwifery and health visiting) and there exists a public interest in disclosure, the public interest may override the duty of confidentiality.
Walker v Wilsher (1889) 23 QBD 335, Unilever plc v Proctor and Gamble Co. (1999) The Times, 4 November, Instance v Denny Bros. Printers Ltd. (2000) The Times, 28 February and Somatra Ltd. v Sinclair Roche & Temperley [2000] 2 Ll R 673, CA.
Cheddar Valley Engineering Ltd. v Cheddlewood Homes Ltd. [1992] 1 WLR 820.
Paddock v Forrester (1842) 3 Man & Cr 903.
Harris v Harris [1931] P.10.
McTaggart v McTaggart [1948] 2 All ER 754; Henley v Henley [1995] 1 All ER 59 and Theodoropoulas v Theodoropoulas [1963] 2 All ER 722. Cf. Bostock v Bostock [1950] 1 All ER 25.
Chapter 11: The Course of Evidence: Examination-in-chief, cross-examination and re-examination
(1) THE RIGHT TO BEGIN
In criminal cases the Crown has the right to begin. In civil cases the plaintiff has the right to begin unless the defendant has the burden of proof on every issue. In Mercer v Whall , an action for wrongful dismissal, the defendant admitted that he determined the plaintiff's contract of service prematurely but alleged that he was justified in doing so. It was held that the plaintiff ought to begin calling evidence because the damages claimed by him were not agreed. If damages had not been in issue the defendant would have had the right to begin.
(2) EXAMINATION-IN-CHIEF
(A) Introduction
The object of examination-in-chief is to adduce evidence in support of facts in issue. A party may call a witness who is hostile or adverse but the witness may not be asked leading questions.
(B) Leading questions
A leading question is one which suggests a desired answer or assumes the existence of a disputed fact or a state of affairs. For example, in a hit and run case: ‘Did you see a car driving at top speed?' Or, where the issue was whether James was at Courage Pub burned down by an arsonist, the question: Was James at the Courage Pub on 27 August 2002? These questions are leading questions?
Leading questions are objectionable because of the danger of collusion between the examiner-in-chief and the witness and the impropriety of suggesting facts which are not in evidence. Nevertheless, leading questions may be asked at the beginning of the examination-in-chief, for example, ‘Is your name Joseph? Are you a law student? Do you live at 1 Alpha Street , Erewhon?' These are introductory and undisputed matters. It may also be allowed in-chief at the discretion of the judge or put in cross-examination.
(C) Refreshment of memory in court
(i) General rule
The general rule is that a witness is not allowed to read from a document prepared for litigation as this will destroy spontaneity but a witness is allowed to refresh his memory from a document or photofit made contemporaneously with the facts. The rationale for this is that human memory is probably not as good as we believe and that notes made by witnesses are likely to be fuller and more accurate and, if referred to, may help to stimulate the memory to recall the facts.
(ii) Conditions
Refreshment of memory in court depends on the following conditions:
1. Contemporaneity
A witness is not allowed to refresh his memory from a deposition made by him three months after the event or from statements made a month after the relevant event. In R v Fotheringham a gap of twenty-two days was disregarded. However, in R v Da Silva the trial judge held that a statement made a month after the events related therein was not contemporaneous. But it was held on appeal that the court was not saying in Graham that a statement made after 27 days could not be contemporaneous. It was a question of fact and degree in each case.
2. Documents read over or accepted as accurate by the witness
It is not necessary for the document to have been made by the witness but it must be read over and accepted as accurate by the witness.
3. Production of the document
It must be handed over to the opposite party or his advocate to enable him to inspect it and to cross-examine.
4. Production of the original
The original must be produced.
5. Direction as to the real status of the document
The judge must direct the jury as to the real status of the document. In R v Vigo the appellant, the head of the Obscene Publications Squad, was charged with conspiracy and corruptly accepting bribes. At his trial, the judge granted permission to allow a leading prosecution witness – a self-confessed dealer in pornography and a very unsavoury character – to use his diaries to refresh his memory whilst giving evidence, and copies of the diaries were before the jury. In summing-up, the judge directed the jury that the diaries were the most important documents in the case against the appellant, that the entries were powerful evidence pointing to a corrupt relationship between him and the witness aforesaid and that although they did not amount to corroboration in law, they were very important in relation to the witness's evidence. The appellant was convicted and appealed on the grounds, inter alia, that the judge had misdirected the jury as to the corroborative nature of the diaries. It was held on appeal that the real status of the diaries was limited to helping witness to give accurate dates; that they did not constitute corroboration; and, accordingly, the jury had been misdirected. The appeal was allowed.
(D) Out-of-court refreshment of memory
R v Richardson is authority for these propositions: (i) that a witness may read over in private a statement made to the police at an earlier date in order to refresh his memory; and (ii) that this may be done even in circumstances where he would not have been allowed to do so by reference to the statement in open court. In that case, the Crown witnesses were allowed to read over their statements so as to refresh their memories before the trial took place. This was not revealed in the course of testimony of these witnesses but emerged from that of a police officer who was called to give evidence subsequently. The chairman of the quarter session directed the jury to take into account the fact that the witnesses had seen their statements before the hearing for the purpose of evaluating their testimony. The jury convicted and the Court of Appeal dismissed the defendant's appeal.
There are present dangers of collaboration, fabrication and imagination in out-of-court refreshment of memory. One possible solution has been suggested. The solution is that the choice lies between a rule of law whereby evidence of witnesses who have refreshed their memory out of court is excluded altogether and a rule of practice which allows them to do so subject to certain limitations. Howard supports the latter.
(E) Use of documents to refresh memory under section 139 of the CJA 2003
Section 139 (1) of the Criminal Justice Act 2003 (CJA 2003) provides that a person giving oral evidence in criminal proceedings about a matter may, at any stage in the course of doing so refresh his memory of it from a document made or verified by him at an earlier time where –
“(a) a sound recording was made,
(b) his recollection of the matter is likely to have been better at the time of the previous account than at the time of his oral evidence, and
(c) a transcript of the sound recording has been made.”
Section 140 of the CJA 2003 defines a “document” as “anything in which information of any description is recorded, but not including any recording of sounds or moving images”. “Video recording” is defined as “any recording, or any medium, from which a moving image may by any means be produced, and includes accompanying sound track”.
(F) Previous consistent statement
The rule against narrative or self-corroboration
The general rule is that a witness may not be asked in-chief whether he has formerly made a statement consistent with his present testimony. The reason for the prohibition of the reception of such statement is that it infringed the rule against hearsay and evidence of this nature may be manufactured. The rule has been abrogated by section 99 (1) of the Criminal Justice Act 2003. Section 120 (1) of the CJA 2003 allows a previous consistent statement made out of court to be read in court and the witness to be asked in chief whether the statement is true (section 120 (4)).
(G) Discrediting one's own witness: unfavorable and hostile witnesses
(i) Common law
At common law one can impeach one's own witness if he is an unfavorable or hostile witness. An unfavorable witness is one who merely fails to prove what the party hopes for. A hostile witness is one who shows clearly that he is not desirous of telling the truth at the instance of the party calling him.
(i) Unfavorable witness
At common law an unfavorable witness cannot be cross-examined but the party may call another witness. In Ewer v Ambrose someone whom the defendant called to prove a partnership proved the contrary. It was held that the defendant could rely on the testimony of another witness.
(ii) Hostile witness
The judge may allow the examination-in-chief of a hostile witness to be conducted in the manner of cross-examination. He may be asked leading questions. His character may be attacked and witnesses may be called to show that he is a liar.
The procedure recommended by the Court of Appeal in R v Maw is that if a witness fails to give evidence expected of him, it is undesirable to proceed immediately to treating the witness as hostile unless he is displaying excessive degree of hostility or animus. The first thing that should be done is to invite the witness to refresh his memory from relevant notes. If he refuses, then he should be treated as hostile. But there was some doubt whether his previous consistent statements could be proved.
(iv) Statutory provisions
Section 3 of the Criminal Procedure Act 1865 re-enacting section 22 of the Criminal Procedure Act 1854 (which applies to civil and criminal proceedings) was passed to clear the doubt. In Greenough v Eccles it was held that the effect of the section was that a hostile witness could, but an unfavorable witness could not, have his previous inconsistent statements proved against him.
(3) CROSS-EXAMINATION
(A) Introduction
Cross-examination follows after examination-in-chief. A witness may be cross-examined by any party who did not call him.
(B) Previous inconsistent statements
Proof of previous inconsistent statements of a witness under cross-examination is governed by sections 4 and 5 of the Criminal Procedure Act 1865. Section 4 provides that if a witness at his cross-examination does not distinctly admit that he has made an inconsistent statement proof may be given that he did in fact make it. Section 5 provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing being shown to him but his attention must be called to those parts of the writing which are to be used for the purpose of contradicting him. Section 119 of the CJA 2003 changes the procedure: it is for the fact finders to determine whether a previous inconsistent statement is true if it became evidence of the matter notwithstanding the denial of the witness.
(C) Civil cases
In civil proceedings, previous consistent statements and previous inconsistent statements admissible by virtue of sections 3, 4 and 5 of the Criminal Procedure Act 1865 are rendered admissible by section 6 of the Civil Evidence Act 1995.
(D) Cross-examination as to credit
(i) Finality on collateral matters
Questions as to credit are limited to matters relevant to the issue. A cross-examining party cannot introduce a matter not relevant to the issue to contradict the witness's answer as this will open the floodgates of collateral issues. The fons et origo of this principle is Harris v Tippett where in the Headnote the following proposition was stated:
“Any question may be put to a witness in cross-examination, the answer to which may have a tendency to discredit him; but if such a matter be collateral to the matter in issue, the answer which the witness gives must be taken as conclusive, and other witnesses cannot be called to contradict him.”
In that case, a witness for the defendant was asked in cross-examination whether he had attempted to dissuade a witness for the plaintiff, from attending the trial. He swore positively that he had not. Counsel for the plaintiff then proposed to call back the other to contradict him. Lawrence J held that this could not be done. The rule in Harris v Tippett has been abrogated by section 99 (1) of the CJA 2003.
(ii) Distinction between relevant and collateral matters
In case of rape where the issue is whether or not the complainant consented, she may be cross-examined about her previous connection with the accused or with other men. If she denies having previous connection with the accused she may be rebutted by evidence but if she denies having connection with other men she cannot be rebutted. However, she may be asked and contradicted by evidence if she denies that she is a prostitute or widely promiscuous and in the habit of having sex with first acquaintances.
(E) Sexual history evidence
The Heilbron Committee recommended the banning of questions on the past history of the complainant except where the line of questioning leads to evidence relating to a behavior on the part of the complainant which was strikingly similar to her alleged behavior on the occasion of the alleged offence or where the defendant had had sex with the woman or where it would be unfair to the defendant to allow it. The Committee also added a rider: that the prosecution may adduce sexual history evidence to show that the complainant is a happily married woman or a virgin and that if such evidence were to be challenged the judge should have a discretion to allow cross-examination and the calling of evidence is rebutted.
All the above recommendations except the “striking similarity” clause were enacted in section 2 of the Sexual Offences (Amendment) Act 1976. Section 2 (4) of the 1876 Act, however, provides: “Nothing in this section authorises evidence to be adduced or asked apart from this section.” This means that the section did not replace the common law restrictions such as the rule against narrative discussed above and the rule that evidence of recent complaint is admissible only when the complainant is called to give evidence , but only complemented them. To its supporters, the section protects the right of the accused to fair trial which is now guaranteed by Article 6 (1) and 6 (3) (d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention); to its critics, there are three objections. The first is that it is a defendant-oriented legislation and sexist. The second is that the discretion to allow cross-examination should not be left in the hands of judges because “many judges, at both crown court and the court of appeal level … use their discretion to perpetuate sexism rather than implement the reforms of the Sexual Offences (Amendment) Act 1976.” The third is that lacking from the discourse in R v Viola and later cases is any discussion of the degree of relevance needed to qualify matters relating to sexual history for admissibility. We shall discuss these objections in reverse order and in the light of sections 34, 35 and 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) enacted to effectuate the recommendations of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System.
The prohibition of cross-examination of complainants in proceedings for sexual offences by section 34 of the YJCEA 1999 and child complainants and others by section 35 of the same Act is problematic. In R v Seaboyer, R v Gayme where the Supreme Court of Canada held that a rape-shield legislation was compatible with the Canadian Charter of Rights and Freedoms 1982, McLachlin J, whilst concurring, presciently noted that the legislation had the potential of excluding relevant material evidence. He considered the example proffered by Tanford and Bocchino where a woman alleges that she was raped and the man claims she is a prostitute who agreed to sexual relations for a fee and afterwards threatened to accuse him of rape because he refuses to pay an additional fee. At the trial for rape, the defendant will not be allowed to cross-examine the woman on her sexual history. However, in the trial of the woman for extortion, the man will be entitled to cross-examine her. In other words, relevance depends on the crime charged and not the issue. The issue in both cases is whether the woman is a prostitute. And relevance, whatever the degree of relevance, is not equal to admissibility.
The relevance of evidence of sexual history is therefore a question of logic and experience; its admissibility depends on relevance and the satisfaction of auxiliary tests and extrinsic policies which include compatibility with Convention rights pursuant to section 3 of the Human Rights Act 1998. It is therefore submitted that the prohibition of cross-examination in sections 34 and 35 of the YJCEA 1999 violates Article 6 (3) (d) of the Convention as the only plank on which the defendant can establish his defense has been removed. True, there is a lee-way for the defendant in section 41 of the YJCEA 1999 which provides that no evidence may be allowed or questions asked about any sexual behavior except with leave of court. Whilst the caselaw on section 2 of the Sexual Offences (Amendment) Act 1976 which is superseded does not fall into desuetude, the evidential principles in the pre-existing laws are purportedly whittled down by the exclusion of materials the main purpose of which is to impugn the credibility of the complainant as a witness and by limiting questions to specific instances of sexual behavior; thus creating a blurred line of demarcation – a potential ground of appeal – between “sexual behavior” and “sexual experience”. Fortunately, in deciding two recent cases, British judges adopted a purposive interpretation of liberty rights as their counterparts in Canada and New Zealand by which there is a reconciliation between the individual and the community and their respective rights. In R v A (No. 2) the House of Lords held that a prior consensual sexual intercourse between the complainant and the defendant might in some circumstances be relevant to the issue of consent and that the absence of evidential material relevant to it might violate Article 6 of the Convention. Again, in R v T, R v H the Court of Appeal held that questions or evidence about false statement in the past by a complainant in a sexual offence about sexual assault or about failure to complain about the instant offence, were not about the sexual behavior of the complainant. They related not to her sexual behavior, but to her statements in the past or failure to complain and were, therefore, not prohibited by section 41 of the YJCEA 1999. This decision was followed in R v PB where the defendant was convicted of indecent assault. The trial judge refused to allow the defense counsel to cross-examine the complainant about allegations that the complainant had made against another man who was not prosecuted because of insufficiency of evidence, lack of opportunity for the commission of the alleged offence and lack of corroboration, along with the fact that the complainant would not talk about the alleged offence but would only write it down on a piece of paper. The defendant appealed. The Court of Appeal, allowing the appeal and ordering a retrial, held that, in the light of the authorities , the opportunity to cross-examine and put before the jury the fact of another complaint in respect of which the alleged abuser was not being charged was a valuable right and, therefore, the conviction was unsafe. It must be noted, however, that in R v Stephenson the Court of Appeal held that the defense case statement that the complainant had accused every adult male with whom she had any significant sexual contact was not founded in fact and, therefore, there was nothing wrong in the trial judge's ruling in refusing cross-examination pursuant to s.41 of the YJCEA 1999. More recently, in R v F (Complainant's sexual history) it was held that once the criteria for the admissibility of evidence as to complainant's sexual history were established, then subject to section 41 (4) of the YJCEA 1999, the court lacked any discretion to refuse to admit it, or to limit relevant evidence which was properly admissible.
It has been recognised recently that one of the reasons for miscarriages of justice in the trial of sex offenders is the “false-memory” syndrome and to this we now turn.
(F) False-memory
Repressed-memory, recovered-memory and false-memory are often used interchangeably. They are but different phases of reproduction. Whilst the concept of “repressed-memory” is the notion that personal histories of the most awful childhood can be hidden from consciousness for decades, “recovered-memory” denotes the recovery episodes when repressed feelings are released by unlocking the memory cage. Allegations of sexual abuse based on recovered memory are treated by the criminal justice system as delayed reports and there is no time limit for prosecuting the alleged sexual abuse. False-memory, a riposte to an alleged “repressed-memory syndrome”, has been defined as “the recollection of an event which did not occur but in which the individual strongly believes.”
Historically, the widespread use of memory recovery techniques was triggered by a self-help book co-authored by Bass and Davis in the United States of America in 1988, recovered memory narratives, television documentaries, films and chat shows. In the United Kingdom , the widespread use of recovered-memory technique began in 1990 and the British False Memory Association was formed in 1993 following reports that well-educated adult daughters in their late thirties were making allegations of childhood sexual abuse after undergoing therapy.
Matters came to a head recently in the prosecution for child abuse allegedly committed by care workers in the 1970s and 1980s after a full scale investigation in 34 of the 44 police forces in England , Wales and Northern Ireland . Most of the investigations are continuing but some have been completed amid a mounting concern about flawed prosecutions and possible miscarriages of justice. In some cases, in the absence of witness evidence and forensic materials, trawling of evidence produced what was colloquially (but inaccurately) described by the media as “‘corroboration' by volume”.
Whilst some retrospective allegations of sexual abuse are proved beyond reasonable doubt, evidence of recovered-memory are problematic for three reasons. First, scientific evidence pointing to the unreliability of recovery techniques used by therapists is overwhelming: disturbing number of cases are not investigated and the fact that the cases are based on such technique is either concealed or emerges when the accused is committed for trial. Dangerously suggestive techniques can lead to arguments for exclusion under section 32A (3) (c) of the Criminal Justice Act 1988 or sections 78 (1) and 82 (3) of the Police and Criminal Evidence Act 1984 as exemplified by relatively recent cases. In R v H , a brother and sister undergoing psychiatric treatment began to attribute their illness to sexual abuse within the family during the period of introspection and by means of “flashbacks” and “new memories” to others outside the family circle. Fortunately, a psychiatrist quickly recognised this as a false-memory syndrome. Again in G v DPP , a recovery technique called Thematic Emergence of Anomaly was held inadmissible but in R v Clarke facial mapping by video superimposition was held admissible. There is also the real danger that therapists, agencies and complainants espousing recovery memory beliefs will be sued successfully for negligence as is the case in the USA . In State of New Hampshire v Joel Hungerford (1997) the Supreme Court of New Hampshire ruled that recovered memory thesis did not satisfy the standard of evidential reliability sufficient to form a delayed recovery presentation. Even under English law where time does not run against the Crown, it is a moot point whether evidence of recovered memory satisfied the standard of proof and is compatible with Article 6 (2) of the Convention. On the other side of the Atlantic in R v Smolinski the conviction of S for the indecent assault of two females aged six and seven reported to the police twenty years after the alleged commission of the offence was quashed by the Court of Appeal. The Court held that when a long time had elapsed, the Court would expect that careful consideration would be given by the prosecution as to whether it was right to bring the prosecution at all.
Two recent cases on false memory are worthy of note. In R v H, R v G (decd) , H was convicted of indecent assault upon his daughter when she was aged four or five. Her witness statement given when she was aged 19, gave a detailed description of the incident including her own emotional reactions. G was convicted of offences of indecent assault and rape on the same complainant.
Following an unsuccessful appeal against conviction, the Criminal Cases Review Commission referred the two cases to the Court of Appeal. Under s.23 of the Criminal Appeal Act 1968 the Court of Appeal agreed to hear expert evidence on memory formation and development. The gist of the expert evidence given by Professor Martin Conway, Professor of Cognitive Psychology at Leeds University , as stated by the Court of Appeal was as follows:
“[M]emories of early childhood are qualitatively different from memories of later events. Adults cannot usually remember events of early childhood so as to be able to give a coherent narrative account. They may remember an event, and sometimes a visual image, but the recall will be fragmentary, disjointed and idiosyncratic. This period in early childhood of which the adult will have an impoverished memory is called “the period of childhood amnesia”. Usually childhood amnesia extends to the age of about seven. Adult memory of events relating to later childhood becomes gradually richer, more detailed and more organized.”
Professor Conway opined:
“[I]f evidence of an event said to have occurred at an early age was very detailed and contained a number of extraneous facts, it might be unreliable.”
The Court of Appeal held that Professor Conway's evidence was true expert evidence – representing facts beyond the knowledge and experience of the judge and jury – suitable for admission in a criminal trial. H's appeal was allowed and a retrial ordered. G's appeal was postponed. In R v S, R v W the Court of Appeal noted the dangers inherent in admitting expert evidence on memory formation: that the expert evidence may be read as evidence of the accuracy and truthfulness or otherwise of the allegations made. The Court added that whether the complainant's statements were based on experience of events is a critical issue for the jury. The Court stressed that unless the jury believes that the complainant is actually describing an actual experience the defendant is to be acquitted.
The second reason for regarding recovered-memory as being problematic is that there is no provision in the YJCEA 1999 making mandatory to video-tape interviews of adults making retrospective allegations of sexual abuse as in the case of children. Finally, complainants making retrospective sexual abuse allegations are adept at circumventing contradictory evidence when cross-examined because they have been trained by victim support specialists to get round tricky questions by saying ‘I can't remember' or ‘Could I clarify my answer?' in order to revise their testimony. This can be prevented by playing the video-tape of the interview in court. It is therefore necessary for the Government to set up a Royal Commission to consider:
• the enactment of a statutory provision making it mandatory to video-tape the interviews of adults making retrospective allegations of sexual abuse
• a review of the laws relating to similar fact evidence , corroboration and the doctrine of double jeopardy in their entire ramifications
• the feasibility or desirability of a statute of limitation for criminal proceedings and the review of evidential problems associated with recovered-memory or false-memory.
(G) Exceptions to the rule on finality
The five exceptions to the rule that evidence may not be called to contradict a witness on collateral matters are as follows:
1. Previous convictions. Section 6 of the Criminal Procedure Act 1865 provides:
“A witness may be questioned as to whether he has been convicted of any misdemeanor, and upon being so questioned, if either he denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such a conviction.”
However, section 4 (1) of the Rehabilitation of Offenders Act 1974 (as to spent conviction) forbids the questioning of a ‘rehabilitated person' about spent conviction unless the court is satisfied that justice cannot be done in the case except by reference thereto (section 7(3)). A person becomes rehabilitated in respect of a conviction which is spent when he has completed a period of rehabilitation which depends on the seriousness of the offence. Sentences of imprisonment for life and for more than30 months are excluded from rehabilitation. Two cases neatly illustrate this exception. In R v Paraskeva the appellant was charged, inter alia, with assault occasioning bodily harm. Unknown to the defense the complainant had a spent conviction in 1975 for theft. The appellant was convicted and appealed on the ground that there was a clear duty on the prosecution to inform the defense of a conviction thereby enabling the defense counsel to put it to the complainant. It was held that if the court of first instance had known of the spent conviction, the judge would have given his consent. The appeal was allowed. Again, in R v Prince the defendant was tried for robbery. His counsel led evidence that he had previous convictions for a number of offences; his defense was a complete denial that he was involved. In his summing-up the trial judge directed that a previous record, even a conviction for robbery, did not signify guilt, but that the jury should put in the balance with his previous conviction. The judge declined to accede to a prosecution request to reconsider this direction. The jury convicted the defendant who appealed. It was held, allowing the appeal and quashing the conviction, that the omission of the crucial matter of the defendant's credibility was a misdirection.
2. Bias or partiality. The fact that a witness is biased is relevant to his credit.
3. Reputation for untruthfulness. Independent evidence may be given of an adversary's witness (not a party's own witness) that he is unworthy to be believed on oath.
4. Medical evidence affecting the validity of a witness's evidence. Lord Pearce in Toohey v Metropolitan Police Commissioner said:
“… when a witness through physical … disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowed for medical science to reveal this vital hidden fact to them.”
(4) Re-Examination
The object of re-examination is to rehabilitate the evidence of the witness. He may not be asked leading questions but previous consistent statements may be put by leave of court. It must be restricted to those matters which arise from the cross-examination.
(1845) 5 QB 447.
Ex parte Bottomley [1909] 2 KB 14.
Parkin v Moon (1836) 7 C&P 408.
M. Newark and A. Samuels, “Refreshing Memory” [1978] Crim LR 408.
R v Woodcock [1963] Crim LR 273.
R v Graham [1973] Crim LR 628.
[1975] Crim LR 710.
[1990] Crim LR 200. See also R v South Ribble Stipendiary Magistrate, ex p. Cochrane (1996) The Times, 24 June.
Doe d. Church and Phillips v Perkins (1790) 3 Term Rep 749.
(1978) 67 Cr App R 323.
[1971] 2 WLR 889. See also Lan Pak Ngam v R [1966] Crim LR 443, PC, and A-G's Reference (No. 3 of 1979) (1979) 69 Cr App R 44.
See M.N. Howard, “Refreshment of memory out of court” [1972] Crim LR 351. See also Newark and Samuel, supra n.4.
Sections 139 to 141 of the CJA 2003 came into force on 5 th April 2004. See the Criminal Justice Act 2003 (Commencement No. 3 and Transitional Provisions) Order 2004 (SI 2004/829 (C.35)).
(1825) 3 B&C 746.
[1994] Crim LR 841.
(1859) 28 LJCP 160.
(1811) 2 Camp 637; 170 ER 1277.
R v Riley (1887) 18 QBD 481.
R v Bashir [1969] 1 WLR 1303.
R v Krausz (1973) 57 Cr App R 466.
The Report of the Advisory Group on the Law of Rape (the Heilbron Report), Home Office, London, December, 1975, para. 137 (b).
Ibid., para. 138.
For a stimulating discussion of the statutory provision, see A. McColgan, “Common Law and the Relevance of Sexual History Evidence” (1996) 16 OJLS 275.
R v Lillyman [1986] 2 QB 167.
See S. Lees, Carnal Knowledge: Rape On Trial (London: Penguin, 1997), at 130.
(1982) 75 Cr App R 125, CA.
See J. Temkin, “Sexual History Evidence – The Ravishment of Section 2” [1993] Crim LR 3 at 5-6.
Speaking Up For Justice (London: Home Office, June 1998), paras. 9.37 and 9.38.
(1991) 83 DLR (4 th ) 193.
Ibid., p.267. See J.A. Tanford and A.J. Bocchino, “Rape Victim Shield Laws and the Sixth Amendment” (1980) 128 U Pa L Rev 544 at 588.
See Chapter 2 ante .
See R v Lawrence [1977] Crim LR 492, R v Brown (1989) 89 Cr App R 97, R v Funderburk [1990] 2 All ER 482, R v Said [1992] Crim LR 433 and R v C [1996] Crim LR 37.
See the YJCEA 1999, s.41 (4).
See R v Amado-Taylor [2001] 8 Arch News 1.
See Law Society of Upper Canada v Skapinker (1984) 9DLR (4 th ) 161 and R v Big M Drug Mart Ltd. (1985) 18 DLR 321 at 359-360 ( per Dickson J).
See Palmer v Superintendent of Aukland Maximum Security Prison [1991] 3 NZLR 315 at 321 ( per Wylie J) and Ministry of Transport v Noart [1992] 3 NZLR 260 (Court of Appeal).
[2001] 2 WLR 1546, HL.
[2002] 1 All ER 683, CA. See also R v S (Evidence: Sex Abuse) (2004) The Times, 11 June.
[2001] EWCA Crim 3042.
R v Funderburk [1990] 2All ER 482; R v Nagrecha (1997) 2 Cr App R 401; and R v T, R v H (supra, note 38).
[2006] EWCA Crim 2325. Cf. R v C [2008] 1WLR 966 where the trial judge permitted cross-examination of the complainant to the effect that she had on three occasions made false allegations but refused her to be cross-examined about an alleged affair she had with a 16-year-old boy.
For an evaluation of s.41 of the YJCEA, see Liz Kelly, Jennifer Temkin and Sue Griffiths, Section 41: an evaluation of the new legislation limiting sexual history evidence in rape trials , Home Office Online Report 20/06.
(2005) The Times, 16 March, CA.
For an overview, see R. Scotford, “False memories – a peripheral issue?” In C. Feltham (ed.), Controversies in Psychotherapy and Counselling (London: Sage, 1999), at 48.
I. Glen, “True lies and false memories” [1999] 3 Arch News 5.
See E. Bass and L. Davis, The Courage to Heal (New York: Harper & Row, 1988).
For the history of repressed-memory, recovered-memory and false-memory, see M. Jervis, Submission to the Lord Nolan Review on Child Protection in the Catholic Church in England and Wales , British False Memory Society ( Bradford-on-Avon , 2001).
S. O'Neil, “Police face major overhaul of child abuse inquiries” (2000) The Daily Telegraph, 19 December.
Unreported, December 1998 (Bristol Crown Court) discussed in I. Glen, supra n.45.
[1997] 2 All ER 755.
[1995] 2 Cr App R 45.
See http://www.state.nh.us/court/supreme.htm
[2004] 2 Cr App R 40.
[2005] EWCA Crim 1828; [2006] 1 Cr App R 10.
Ibid, para 29.
Ibid, para 32.
[2006] EWCA Crim 1404; [2007] 2 All ER 974.
See, for example, R v Traynor , unreported, Case Nos T951411 and T960912 (Liverpool Crown Court, July 1996).
See Chapter 12 post.
(1982) 76 Cr App R 162.
[1990] Crim LR 49. See also R v Hacker (1994) The Times, 21 November.
[1965] AC 595 at 608.
Prince v Samo (1838) 7 Ad & EL 627.
Chapter 12: Evidence of Character
(1) Pre-CJA 2003
In ordinary parlance, the word “character” means “the collective qualities or characteristics, especially mental and moral constitution” or “the aggregate of peculiar qualities which constitute personal … individuality” , that is, disposition or reputation. At common law, there are three different meanings of “character”, viz. (i) reputation ( R v Rowton ); (ii) disposition; and (iii) specific conducts such as previous convictions.
Three common law rules are worthy of note:
(1) The rule against narrative or self-corroboration : the rule that a witness may not be asked in examination-in-chief whether he has formerly made a statement consistent with his present testimony because of the danger of manufactured evidence.
(2) The rule in R v Butterwasser states that:
“Where an accused person is not called to give evidence and does not put his character in issue, no evidence can be given by the prosecution of his bad character merely because he has attacked the character of the witness for the prosecution.”
(3) The rule as to finality or the rule in Harris v Tippett states that:
“Any question may be put to a witness in cross-examination, the answers to which may have a tendency to discredit him, but if such a matter be collateral to the matter in issue, the answer which the witness gives must be taken as conclusive, and other witnessed cannot be called to contradict him.
Cross-examination of the accused on his character was governed by the Criminal Evidence Act 1898 (as amended):
Section 1 (2) (formerly section 1 (e), as amended ) of the Criminal Evidence Act 1898 provides:
“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.”
Section 1 (3) (formerly section 1 (f), as amended ) of the Criminal Evidence Act 1898 provides:
“A person charged in criminal 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 the one with which he is then charged, or is of bad character, unless:
(i) the proof that he has committed or been convicted of such an offence is admissible evidence to show that he is guilty of an offence with which he is charged ; or
(ii) he has personally or by his advocate asked questions of the witness for the prosecution with a view to establish his own good character, or has given evidence of his own good character , or the nature of conduct of the defense is such as to involve imputations on the character of the prosecution or witness for the prosecution , or the deceased victim of the alleged crime ; or
(iii) he has given evidence against any other person charged in the same proceedings.”
(2) Evidence of bad character: sections 98 to 113 of the Criminal Justice Act 2003
The Law Commission's Consultation Paper No. 141 recommended a two-stage approach to the admissibility of evidence: an automatic inclusionary rule in respect of bad character that has to do with the alleged facts of the offence charged and the exclusion of evidence of bad character which falls outside the central sets of facts unless it comes within the specified exceptions, subject to an interest of justice test . In its White Paper Justice for All , the Government stated that “relevant evidence, including criminal convictions, should be admissible unless there are good reasons to the contrary, such as jeopardising the right to a fair trial.” Pursuant to this objective, section 99 (1) of the Criminal Justice Act 2003 (CJA 2003) abrogates the common law rules instantiated above, viz. (i) the rule against narrative or self-corroboration, (ii) the rule in R v Butterwasser , and (iii) the rule in Harris v Tippett but preserves some common law categories of admissibility of a person's reputation for the purpose of proving his bad character as recognised exceptions to the hearsay rule in section 118 (1) of the CJA 2003 .
Evidence of a person's “bad character” is defined in section 98 of the CJA 2003 as
“the 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 investigation or prosecution of that offence.”
In other words, a previous charge that resulted in an acquittal ( Maxwell v DPP , R v Cokar and R v Z ) and an allegation that did not result in a charge ( Stirland v DPP ) are evidence of bad character pursuant to section 98 (b) of the 2003 Act.
Section 98 (a) was considered in R v Machado . In that case, M with two co-accused T and R had been convicted of robbery and possession of a bladed article in the public place. It was held that M might not put question in cross-examination to the victim, H, tending to show that H had taken drugs and offered to supply M and the two co-accused with drugs because s.98 (a) that evidence of bad character is evidence of misconduct other than that evidence which had to do with the alleged facts of the offence; that the evidence that H had taken drugs or offered to supply them were matters contemporaneous with and closely associated with the facts of the alleged offence and, therefore, did not constitute evidence of bad character within the meaning of s.98 of the Act. In R v Bowell, R v Dowds , it was emphasized that evidence of previous conviction whether in relation to the accused or some other person must be made available to all parties in good time in order to make a decision as to the admissibility of the conviction.
Non-defendant's bad character
Section 100 (1) of the CJA 2003 allows evidence of bad character of a person other than the defendant if and only if –
“(a) it is an important explanatory evidence ,
(b) it has substantive 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.”
Defendant's bad character
Section 101 (1) of the CJA 2003 creates seven gateways of admissibility of evidence of the defendant's bad character. Section 101 (1) provides:
“In criminal proceedings evidence of the defendant's bad character is admissible if, but only if –
(a) all the parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in an answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is an 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 .”
“Important explanatory evidence” (s.101 (1) (c))
“Important explanatory evidence” is evidence so closely linked with the central facts that it would be nonsensical to exclude such evidence” (section 102).
“A matter in issue between the defendant and the prosecution” (s.101 (1) (d))
Section 101 (1) (d) replaces the R v P test but the common law rules on similar fact evidence will continue for the foreseeable future. What is similar fact evidence? Similar fact evidence is evidence of past crimes or discreditable conducts adduced to prove that the accused is guilty of the offence for which he is now charged. Similar fact evidence was first introduced in 1810 in R v Cole as an exclusionary rule of evidence. In 1894 in Makin v Attorney-General for New South Wales similar fact evidence became not only an exclusionary rule but also an inclusionary rule which admitted two categories of relevant evidence to prove plan or design and rebut a defense which would otherwise have been opened to the accused. In time, the categories were extended and in 1974 in DPP v Boardman two tests of admissibility were enunciated: (i) that the evidence is of positive probative value; or (ii) that it is uniquely or strikingly similar. In 1991 in R v P the aforementioned tests were replaced by a single test: that the probative value of the similar fact evidence is sufficiently great to make it just notwithstanding its prejudicial value and that such probative value could be derived from striking similarity or the former “categories” now regarded as examples . It is worthy of note that joinder of counts and of the accused under Rule 9 of the Indictment Rules Act 1971 and statutory provisions on similar facts – section 1 (2) of the Official Secrets Act 1911 and section 27 (3) of the Theft Act 1968 remain unaffected by section 101 (1) (d) of the CJA 2003.
Finally, section 101 (4) introduced a “fairness” criterion modeled on section 78 (1) of PACE.
“A matter in issue between the defendant and a co-defendant” (s.101 (1) (e))
“A matter in issue between the defendant and a co-defendant” is evidence which is relevant to the question whether the defendant has a propensity to be untruthful or the conduct of his defense is such as to undermine the co-defendant's defense (section 104).
“Evidence to correct a false impression” (s.101 (1) (f))
A defendant gives a false impression as to his good character by means of misconduct which means the commission of an offence or other reprehensible behavior (section 112) or conduct, and conduct includes appearance or dress (section 105 (5)). Evidence to correct a false impression need not be adduced if the defendant withdraws the assertion creating a false impression.
“Attack on another person's character” (s.101 (1) (g))
Section 106 (1) provides:
“For the purpose of section 101 (1) (g) a defendant makes an attack on another person's character if –
(a) he adduced evidence attacking the person's character,
(b) he (or any legal representative appointed under section 38 (4) of the Youth Justice and Criminal Evidence Act 1999 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 …”
Contamination of evidence
Section 107 (1) allows the judge to stop a trial, direct a jury to acquit or order a retrial if the evidence is contaminated in the manner prescribed in section 107 (5). In R v C , C appealed against his conviction for sexual assault on a child aged under 13 years. Both complainants had said that their mother had told them what to say, something the mother flatly denied. The appeal was allowed.
Bad character gateways: A quick look at the cases
Section 101 (1) (a) deals with matters so closely linked with the central facts that it would be nonsensical to exclude them. Section 100 (1) (b) deals with evidence falling short of “important explanatory evidence”, that is, those with high probative value but negligible importance. It must be noted, however, that except where all the parties to the proceedings agree to the evidence being admissible (section 100 (1) (c)), evidence of bad character of a non-defendant must not be given without leave of court (section 100 (4)).
Of the seven gateways of admissibility of bad character evidence under section 101 (1) of the CJA 2003, the three most likely to be relied on are: (d) where the evidence is relevant to an important matter in issue between the defendant and the prosecution, (f) where the evidence is to correct a false impression given by the defendant, and (g) where the defendant has made an attack on the character of another person will often, though not always, be the victim of the alleged crime, whether alive or dead.
Since the coming into force of the provisions of the CJA 2003 on bad character evidence on December 15, 2004, two cases have thrown some light on these provisions. The first is R v Bradley which is authority for the proposition that the provisions of sections 98-113 of the CJA 2003 apply to trials taking place after December 15, 2004. In that case, D was arrested on July 8, 2004 and charged with robbery and possession of firearms. At his trial which began on December 15, 2004 – the date the new provisions on bad character evidence came into force – the judge admitted D's previous conviction for robbery under section 101 (1) (d) and he was convicted of the two offences. On appeal on the ground that the new provisions only applied to criminal proceedings begun by the laying of a charge or information after December 15, 2004, the Court of Appeal held that “criminal proceedings” in section 141 has the same meaning as in section 112 (1), 134 (1) and 140, namely, “criminal proceedings in relation to which strict rules of evidence apply” and that if D's contention was right different rules of evidence would apply in joint trials where different defendants had been charged before and after December 15, 2004. It therefore follows that the new provisions apply to all hearings begun after the commencement of the relevant provisions.
The second case is R v Hanson, R v Gilmore, R v Pickstone . In these combined appeals, Rose LJ, VP enunciated the following guidelines on the admissibility of bad character evidence under sections 98-113 of the CJA 2003; viz.:
“(1) Judges and legal practitioners must bear in mind that the purpose in the new legislation was to assist in the evidence-based conviction of the guilty, without putting the innocent at risk of conviction by prejudice.
(2) That “matters in issue” under section 101 (1) (d) include: “(a) the question whether the defendant has a propensity to commit offences of the same 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” (section 103 (1)). Propensity to commit offences of the same kind with which the defendant is charged may be established (without prejudice to other way of doing so) by evidence of conviction of an offence of the same description or category as the one with which he is charged section 103 (2)) but this does not apply if the court is satisfied that this would be unjust “by reason of the length of time since the conviction or for any other reason” (section 103 (3)).
(3) Section 103 (2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity.
(4) A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behavior or where its circumstances demonstrate probative force in relation to the offence charged.
(5) The wording of section 101 (3) – “must not admit” – is stronger than the comparable provision in section 78 of PACE – “may refuse to allow”.
(6) Where there is a substantial gap between the dates of commission and conviction for the earlier offences, the date of commission will be regarded as being of more significance when assessing admissibility. Old convictions with no special feature shared with the offence charged, are likely seriously to affect the fairness of the proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.
(7) It is necessary, before determining admissibility and when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or the defendant's record as a whole.
(8) “Propensity to untruthfulness” is not the same as “propensity to dishonesty”.
(9) As to section 101 (1) (g) [where the defendant has made an attack on the character of another person, alive or dead], pre-2003 authorities will continue to apply when assessing whether an attack has been made on another person's character, to the extent that they are compatible with section 106.
(10) The Court of Appeal will be slow to interfere with a trial judge's ruling as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on evidence of bad character.
(11) It is highly unlikely that the Court will entertain an appeal against conviction after a ruling that the evidence of bad character is admissible and the defendant pleads guilty.
(12) Evidence of bad character cannot be used to bolster a weak case or to prejudice the minds of a jury against a defendant. The jury should be directed that they should not conclude that the defendant is guilty or untruthful merely because he had these convictions.”
In R v Edwards, Fysh, Duggan and Chohan , Rose VP proffered a further guidance to para [18] of Hanson that
“What the summing-up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt.”
This guidance was endorsed by Lord Phillips in R v Campbell where he stated:
“It is, or course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.”
In Hanson , D was charged with theft and burglary. He pleaded guilty to theft and was sentenced to nine months' detention in a young offender institution. He, however, pleaded not guilty to the burglary count and the prosecution sought leave for his previous convictions for dishonesty to be admitted pursuant to section 101 (1) (d) of the CJA 2003. It was submitted that the convictions were “an important matter in issue between the defense and the prosecution”, namely, whether D had a propensity to commit offences of this kind and whether he had a propensity to be untruthful within section 103 (1) (b) of the CJA 2003. It was agreed on behalf of D that previous convictions for dishonesty did not demonstrate a propensity to commit offences of the kind with which he is charged or a propensity to be untruthful as opposed to dishonest and that the evidence should be excluded pursuant to section 103 (3) above. The trial judge considered the time between D's previous convictions and the matters forming the subject of the offence before the court as required by section 101 (4) but refused to admit D's previous convictions on the basis that D had a propensity to be untruthful and refused to exclude the evidence pursuant to section 103 (3) for unfairness. He, however, looked at the previous dishonesty offences globally, without considering them individually, and concluded that they were relevant to demonstrate a propensity to commit burglary.
On appeal, the Court of Appeal held that the trial judge was in error in considering the previous offences globally – and not individually – but that the conviction was safe because D had a number of convictions for burglary and theft from a dwelling which demonstrated a propensity to commit an offence of the kind charged, namely, burglary.
In Gilmore D was convicted of theft of a fax machine and two adult videos on February 11, 2005. The prosecution case was that D stole those items he had taken from the alleyway knowing them to belong to somebody else. D's contention was that he believed them to be abandoned as rubbish. D gave evidence and that evidence included reference to three shoplifting offences – to which he had pleaded guilty – which were committed within a six-week period ending three months before the date of the offence charged. The Recorder concluded that the previous offences showed a recent persistent propensity to steal. D's application for leave to appeal against conviction was refused.
In Pickstone , D was convicted on counts 1 and 2 of indecent assault on a female and on counts 3, 5 and 6 of rape but acquitted on count 4 of rape. At D's trial, the Crown sought to have D's conviction in July 1993 for assault on an 11-year old girl and his statement, when interviewed, that the complainant's allegation was false admitted under gateways (d), relevance to an important matter in issue between the defendant and the prosecution, (f) evidence to correct a false impression given by the defendant, and (g) that the defendant has made an attack on another person's character. The judge ruled that the items of evidence were admissible under gateways (d) and (g) but not under (f). D's application for leave to appeal was refused. The Court of Appeal held that “the [judge's] conclusions as to (d) and (g) [were] unassailable” .
In spite of the professed currency of pre-2003 authorities (see Guidelines, proposition (9) above) on whether an attack has been made on another person's character, the Court of Appeal in Pickstone rejected the suggestion that the conviction be excluded pursuant to section 101 (3) because “an attack or imputation on a prosecution witness, made only in interview, would not have triggered the provisions of s.1 (3) of the Criminal Evidence Act 1898” since “[the] law of admissibility in a trial is that in force at the time of the trial” . True, sections 101 (1) (g) and 106 are the provisions in force but reference to the caselaw developed pursuant to the abrogated section 1 (2) and (3) of the Criminal Evidence Act 1898 will be made from time to time to resolve the definitional problems on the meaning of “an attack on another person's character” pursuant to section 101 (1) (g). Furthermore, the admissibility of bad character evidence as “a matter in issue between the defendant and the prosecution” pursuant to section 101 (1) (d) will depend on the caselaw on similar fact evidence for the foreseeable future. However, the admissibility of previous acquittals as similar fact evidence of guilt in R v Z which is preserved by the definition of “bad character” in section 98 of the CJA 2003 is problematic. One commentator opined, with refreshing candor, that
“… a risk attendant upon admitting acquittal evidence is that, over and above the familiar aura of prejudice that evidence of conviction and other misconduct can readily evoke, acquittal evidence conveys the insidious implication that there is no smoke without fire. No matter how anxiously the judge frets over the proffered evidence, no matter how conscientiously the jury attempts to make allowance for its distorting effect, the element introduces another incalculable into the nebula that is the similar fact rule.”
Recent decisions on gateway (d) are instructive. In R v Highton, Van Nguyen and Carp , the appellant in the second case, Van Nguyen, was convicted of cultivating a controlled drug, cannabis. The appellant thought the plants were a controlled drug of some kind but did not know they were cannabis. The appellant's heroin conviction was admitted under s.101 (1) (d) of the CJA 2003. The appeal was allowed because a warning of its limited relevance was not given. Again, in R v Delay and R v Humphris , two previous convictions were adduced to establish a propensity to commit offences of the kind charged under s.101 (1) (d) of the CJA 2003. It must be noted, however, that in R v Atkinson where the trial judge admitted evidence of two previous convictions pursuant to gateway (d), the defense, on appeal, contended that the previous convictions had been wrongly admitted and, even if admitted, ought not to have been treated as a propensity to be untruthful. Two further points on gateway (d) need to be stressed. The first is that if the prosecution wanted more than evidence of the conviction, they must ensure that they have available relevant evidence. In R v Ainscough it was held that where a dispute between the prosecution and the defense about facts which supported previous conviction, it was not enough for the police to rely on the Police National Computer. The second is the aberrant decision in R v Somanathan to the effect that bad character evidence which satisfied the requirement of s.101 (1) of the CJA 2003 was admissible in a trial notwithstanding that it might not have satisfied the pre-existing test for admissibility of similar fact evidence in R v P (instantiated above) provided the question of unfairness was dealt with under s.101 (3) and (4) of the 2003 Act. The test to gateway (e) as stated in R v Randall is that
“where there is an important matter in issue between co-defendants to where they directly blame each other … Evidence of bad character of one of the defendants will be said to have substantial probative value in relation to that issue if it tends to show that the version of the facts put forward by one defendant is more likely to be true than the version of the other defendant.”
In R v Lawson , where this test was applied, each of the two defendants tried for manslaughter gave an account of incriminating conversation with the other. During cross-examination of the appellant at the trial, without notice pursuant to s.35.5 of the Criminal Procedure rules 2005, the co-defendant put it to the appellant that he (the appellant) was not a man of good character and had a previous conviction for assault. The judge used his discretion under s.35.8 of the rules to allow evidence of bad character pursuant to s.101 (1) (e) of the CJA 2003 and the appellant was convicted. He appealed on the ground that the evidence of earlier conviction was wrongly admitted as relevant to truthfulness. The Court of Appeal, dismissing the appeal, held that pursuant to ss.101 (1) (e) and 112 of the CJA 2003 evidence of the defendant's character was admissible: (i) if it undermined the defense of the co-defendant; and (ii) if the bad character evidence had substantive probative value.
We return to R v Highton, Van Nguyen and Carp to highlight two important cases on gateway (g). The appellant in the first case, Highton, was charged with kidnapping, robbery and theft. At the trial he complained that the two complainants had lied to the police. Details of his convictions for dishonesty and violence were held to be rightly admitted. Again, the third appellant, Carp, was charged with two counts of common assault on the complainant, with whom he collaborated. The appellant's case was that he had acted in self-defense. The judge allowed details of the previous conviction to be admitted under s.101 (1) (g) of the CJA 2003. The appeal was dismissed on the ground that the recorder gave adequate warning to the jury not to place undue reliance on previous convictions as emphasized by Rose LJ in R v Hanson (discussed above), at para. 18.
(3) SIMILAR FACTS IN CIVIL PROCEEDINGS
Early cases rejected similar fact evidence in civil proceedings as res inter alios acta [a transaction between others which does not prejudice one who was not a party to it]. But there was some doubt as to “whether there was a special rule of exclusion at all, or whether it was not rather a question of simple relevance in each case.” Such lingering doubt was dispelled in Mood Music Publishing Co. Ltd. v de Wolfe where the plaintiffs in an action for infringement of copyright wished to tender evidence of previous infringement of copyright by the defendant. The trial judge decided the question of admissibility on considerations of ordinary relevance without reference to any special exclusionary rule. Whilst the Court of Appeal upheld the decision of the trial judge, Lord Denning MR seized the opportunity to enunciate the following principle:
“The admissibility of the evidence as to ‘similar facts' has been much considered in the criminal law … The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it.”
In Berger v Raymond & Son Ltd. where the question of forgery by a defendant of some share transfers was in issue, evidence of other transfers alleged to have been forged by the defendant was held admissible. Again, in West Midland Passenger Executive v Singh the Court of Appeal accepted that statistical evidence of consistent employment practice in relation to particular ethnic groups was both necessary and relevant to prove discrimination, and an order for discovery was upheld. However, in Thorpe v Greater Manchester Chief Constable the certificate of the results of disciplinary proceedings involving acts of similar misconduct by relevant policemen was held inadmissible in an action against the Chief Constable for assault, unlawful arrest, false imprisonment and malicious prosecution.
Recently, in O'Brien v Chief Constable of South Wales Police , the claimant was granted permission to rely on similar fact evidence in support of his claim for damages for malicious prosecution and misfeasance in public office. The Court of Appeal, dismissing the appeal of the Chief Constable, held that for similar fact evidence in civil proceedings to be admissible, it had to be logically probative of an issue in the case. The House of Lords affirmed this decision and added that in addition to the litmus paper test that the similar fact evidence be logically probative of an issue in the case, the trial judge must take cognizance of the policy considerations which had given rise to the complex rules on similar fact in criminal proceedings, namely, that the probative cogency of the evidence justified the risks of prejudice in the interests of fair trial.
D. Thompson (ed.), The Concise Oxford Dictionary (Oxford: Oxford University Press, 1995), at 220.
A.M. Macdonald (ed.), Chambers Twentieth Century Dictionary (Edinburgh: W&R Chambers, 1972), at 219.
(1865) Le & Ca 520. See also R v Redgrave (1982) 74 Cr App R 10.
[1948] 1 KB 4.
(1811) 2 Camp 637; 170 ER 1277.
By the Youth Justice and Criminal Evidence Act 1999, Sched. 4, para. 1 (4).
By the Criminal Evidence Act 1979, s.1 and by the Youth Justice and Criminal Evidence Act 1999, Sched. 4, para. 1 (5).
See R v Cokar [1960] 2 QB 207. Cf. R v Chitson [1909] KB 945 and R v Kurasch [1915] 2 KB 749.
See Jones v DPP [1962] AC 635.
For the meaning of “charged” see Maxwell v DPP [1935] AC 309, Stirland v DPP [1944] AC 315 and G (An Infant) v Coltart [1967] 1 QB 432.
See Cokar supra n8 and Maxwell v DPP [1935], supra n10.
See R v Dunkley [1927] 1 KB 323, R v Samuel (1956) 40 Cr App R 8, R v Malindi [1967] AC 439 and R v Bracewell (1978) 68 Cr App R 44. See also R v Winfield [1939] 4 All ER 164 which is authority for the proposition that the character of the accused is indivisible.
See R v Rouse [1904] 1 KB 104, R v Cook [1959] 2 QB 340, Selvey v DPP [1970] AC 304 (the locus classicus], R v Britzman [1983] 1 WLR 350 and R v Miller [1997] Crim LR 665.
The words emphasized were added by the Criminal Justice and Public Order Act 1994, s. 31. See R v Biggin [1920] 1 KB 213, R v Burke (1985) 82 Cr App R 156 and R v Wainwright [1998] Crim LR 665. It must be noted, however, that section 31 of the CJPOA 1994 engaged and violated Article 6 (2) and (3) (d) of the European Convention on Human Rights.
For the meaning of the words “has given evidence against any other person charged in the same proceedings”, see Murdoch v Taylor [1965] 2 QB 1, R v Varley [1982] 2 All ER 519, R v Adair [1990] Crim LR 571 and R v Crawford [1997] Crim LR 749.
Evidence in Criminal Proceedings: Previous Misconduct of a Defendant , HMSO, 1996, paras. 10.14 and 10.85.
Cm 5563, 2002, para. 0.11.
For an in-depth discussion of section 118 of the CJA 2003, see Chapter 13 of this book.
Emphasis added.
Supra n.10.
Supra n8.
[2000] 3 All ER 385, HL.
Supra n.10. See also R (X) v Chief Constable of West Midlands Police (2004) The Times, 8 August, CA.
(2006) 170 JPR 400. See also R v Tirnaveanu [2007] 4 All ER 301, R v Wallace (2007) 171 JPR 543; and R v McNeil (2008) 172 JPR 50.
[2005] 2 Cr App R 27.
Emphasis added.
Emphasis added.
[1991] 3 All ER 337, HL.
(1810) Judges' Notebooks on Crown Cases, Vol. 3 discussed in W.M. Best, The Principles of Law of Evidence , ed. by S.L. Phipson (London: Sweet & Maxwell, 1922) at 237.
[1894] AC 57.
See J.H. Wigmore, Evidence in Trials at Common Law , J.H. Chadbourn rev. (Boston: Little and Brown, 1979), Vol 2, 257.
[1975] AC 421.
Supra n.26.
The examples are as follows: (i) similar fact evidence admitted where unlikelihood of coincidence relied on ( Makin v AG for New South Wales , supra n.28 and R v Smith (1915) 1 Cr App R 229; Cf. Noor Mohamed v R [1949] AC 47), (ii) similar fact evidence to prove criminal propensity ( R v Ball [1911] AC 47, R v Straffen [1952] 2 QB 911, R v Berry (1986) 83 Cr App R 7, Fulcher v R [1995] 2 Cr App R 251 and R v Sawoniuk [2000] 2 Cr App R 220), (iii) similar fact as evidence of corroboration ( Boardman , supra n.32 and R v Whitehouse [1996] Crim LR 50), (iv) rebutting a defense of mistaken identity ( Thompson v R [1918] AC 221 and R v Johnson [1995] Crim LR 53), (v) connecting the accused wth the offence charged ( R v Tricoglus (1976) 65 Cr App R 16 and R v Carceres-Moreira [1995] Crim LR 489, and (vi) previous acquittals as similar fact evidence ( R v Z , supra n.22).
See Ludlow v MPC [1971] AC 29, HL.
See R v Smith and Currier [1918] 2 KB 415, R v Bradley (1979) 70 Cr App R 200, R v Wood [1987] 1 WLR 779, R v Fowler (1988) 86 Cr App R 219, R v Duffus (1993) 158 JPR 224 and R v Hacker [1995] 1 All ER 45.
[2006] 3 All ER 689.
(2005) 169 JPR 73.
Sections 98-100 and 112 of the CJA 2003 were brought into effect on December 15, 2004 by the Criminal Justice Act 2003 (Commencement No 6 and Transitional Provisions) Order 2004. The same statutory instrument repealed section 1 (2) and (3) of the Criminal Evidence Act 1898 adumbrated above.
(2005) 169 JPR 250 discussed in J.R. Spencer, “Bad Character Gateways” (2005) 155 NLJ 650, 668.
Ibid, 251-54 (excerpted with slight modifications).
[2005] EWCA Crim 1813;[2006] 1 Cr App R 3.
Ibid, para [3].
[2007] EWCA Crim 472; [2007] 2 Cr App R 28.
Ibid, para [41].
Ibid, 261.
Ibid, 261.
Ibid.
Supra n.22.
R. Munday, “Admitting Acquittals As Similar Fact Evidence of Guilt” [2000] 59 CLJ 468 at 471.
[2005] 1 WLR 3472.
[2006] EWCA Crim 110, (2006) 170 JPR 581.
[2005] EWCA Crim 2030, (2005) 169 JPR 441.
[2006] EWCA Crim 1424, (2006) 170 JPR 605.
[2006] EWCA Crim 694, (2006) 170 JPR 517, [2006] Crim LR 635.
(2005) The Times, 18 November, CA.
[2004] 1 Cr App R 26, HL.
Ibid, p375.
[2006] EWCA Crim 2572, [2007] 1 Cr App R 11.
[2005] 1 WLR 3472.
Spencely v De Wilmott (1806) 7 East 108 and Holcombe v Hewson (1810) 2 Camp 391.
C. Tapper (ed.), Cross and Tapper on Evidence (London: Butterworths, 1999), at 379.
[1976] All ER 763.
Ibid., at 766 c-d.
[1984] 1 WLR 625.
[1988] 2 All ER 873.
[1989] 2 All ER 827.
[2005] 2 All ER 931 HL. More recently, see Desmond v Bower (2009) The Times, 4 August, CA.
Chapter 13: The Hearsay Rule
(1) THE GENESIS OF THE HEARSAY RULE
Apart from two dissenting opinions, the consensus is that historically the rule is a product of the jury system and part of the Best Evidence rule.
For Wigmore, the fons et origo of the hearsay rule is Fenwick's Trial , a treason trial in the seventeenth century where the statement of a witness who was not called to give evidence was held inadmissible. By the seventeenth century, attempts were made to rationalize the hearsay rule as part of the Best Evidence rule. In Ford v Hopkins , Holt CJ said obiter: “The best proof that the nature of the thing will afford only is required.” In Althram v Anglesea where on a question of proving the contents of a paper sent over from Ireland on a deposition or by a witness who had gone to Ireland and verified the copy, it was agreed that “the best evidence that can be had must be given” and it was held that the deposition was admissible. Again, in Omichund v Barker Lord Hardwicke said: “The judges and sages of the law have laid it down that there is one general rule of evidence, the best that the nature of the case will allow.”
By the nineteenth century, a slender stream of authority was tapped from Holt CJ's dictum by text writers on evidence such as Best , Taylor and Gilbert to rationalize the hearsay rule as part of the Best Evidence rule which required the best evidence that the nature of the case would afford and if the best evidence were not available the next best was admitted. But there are two dissenting opinions. According to Morgan, the view that the hearsay rule is the product of the jury system was foisted upon the rule by judges and writers of the nineteenth century. He contends that the hearsay rule is the child of the adversary system of litigation. For Holdsworth, the modern hearsay rule emerged from the older rule that a witness must speak de visu et auditu (i.e. from his own personal knowledge). In time, the hearsay rule which was originally used to mark off the function of witnesses from those of jurors became, in the hands of text writers, a luminous phrase incorporating three rules, namely, the rule governing the admission of the contents of a document, the rule that you must produce the attesting witnesses to prove the execution of an attesting document and the rule excluding hearsay, that is, an oral or implied assertion of a witness not called for whatever reason to give evidence.
The modern version of the hearsay rule, encapsulating the three strands instantiated above, as enunciated by Cross, is as follows:
“Express or implied assertions of persons other than the person who is testifying, and assertions in documents produced to the court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted.”
(2) THE SCOPE OF THE RULE
(A) Introduction
The rule applies to all kinds of assertion whether made orally, in writing, on tapes, microfilms, microfiche, discs, and computer printouts or by conduct.
(B) Oral assertions
The leading case is Subramaniam v Public Prosecutor . In that case the defense to a charge of unauthorized possession of ammunition was that the accused was acting under duress. He sought to testify to threats as offered to him by terrorists but it was held at the trial that such evidence was hearsay. The Privy Council pointed out, however, that since it was the belief of the accused that was relevant, it was sufficient to prove merely that the threats were made. In R v Gibson a conviction for unlawful wounding was quashed because the prosecutor had been allowed to narrate a statement which he heard an unidentified woman make immediately after a stone had been thrown at him. Again, in R v Saunders a conviction for conspiracy to defraud was quashed on account of the reception of a police witness's answer to certain questions.
It must be noted that as long as the assertion is not being used as evidence of the truth, it is admissible to show that it was in fact made as in Woodhouse v Hall and R v Wilson . In the former, it was necessary for a policeman to prove that the premises in question were being used for immoral purposes. The policeman was allowed to give evidence of an oral offer of immoral services on the premises. In the latter, the defendant was charged with knowingly living wholly or partly on the earnings of prostitution. Evidence that police officers noticed in a shop window an advertisement which read ‘Miss Victoria 821-6864' (a telephone number) was held admissible. Proving a fact by the combination of the testimony of two witnesses bristles with evidential problems. In R v McLean the person who observed the number of a car could no longer remember what it was, and the person who recorded it could not testify to having observed it. The Court of Appeal felt obliged to reject the evidence of the recorder as hearsay and that of the observer as irrelevant. If the observer had taken it down himself, he could have used it to refresh his memory.
(C) Writing
Whilst statements in writing may be used to refresh memory when appropriate conditions have been met, at common law written assertions of third parties are hearsay statements and are inadmissible. However, they may be admitted as circumstantial evidence as in R v Rice . In that case, it was relevant to establish that Rice flew from London to Manchester on a particular day. The prosecution proposed to do so by putting in evidence a used ticket for the relevant flight bearing Rice's name. Both the Recorder and the Court of Appeal agreed in holding that the ticket, having been produced from the repository of tickets used on the flight, could be admitted as circumstantial evidence from which the jury could draw what inference it chose.
(D) Tapes, videotapes, microfilm/microfiche and computer printouts
Tapes and videotapes may be direct evidence if they are tendered to show that they are in fact made. It is only where they are compiled by an investigator that documentary evidence, and therefore hearsay, may be in issue. Videotaped reconstructions of crimes, microfilm and microfiche are also admissible. Statements in computer printouts are hearsay statements. They are only admissible if they come within one of the statutory exceptions to the hearsay rule discussed later in this Chapter.
(E) Conduct and signs
The general rule excluding conduct on other occasion is expressed by the Latin maxim res inter alios acta alteri nocere non debet which simply means that a party is not to be affected by what is done behind his back. However, if the conduct on other occasion is similar to the one in issue and is strongly probative it is admissible. However, assertions made by signs are inadmissible hearsay. In Chandrasekera v R the accused was charged with the murder of a woman by cutting her throat. Before her death she had in the presence of a witness and in response to the question of who had attacked her, made signs indicative of driving oxen, and had pointed at a policeman and made signs of slapping her face. These signs were immediately interpreted as referring to the accused who drove oxen and had been in trouble for slapping a policeman's face. It was held that evidence as to signs made in questions put to the deceased were admissible, but that the statements of witnesses as to what interpretations they put upon signs were inadmissible.
(3) HEARSAY IN CIVIL PROCEEDINGS
(A) The Civil Evidence Act 1995
The Civil Evidence Act 1995 (CEA 1995) implemented the recommendations of the Law Commission in its Report entitled The Hearsay Rule in Civil Proceedings (1993).
The CEA 1995 received the Royal Assent on November 8, 1995 and all its provisions except sections 10 and 16(5) [admissibility and proof of Ogden Tables] came into force on January 31, 1997. Sections 10 and 16 (5) came into force on April 27, 1997.
The Law Commission considered the two options of reform available to them, viz.: (i) reforming the Civil Evidence Act 1968 (CEA 1968) by making few amendments and (ii) the abolition of the hearsay rule as in Scotland . After much deliberation, the Law Commission settled for the simplification of the admissibility of hearsay in civil proceedings and the abrogation of the rule against hearsay in civil proceedings. Whilst the CEA 1995 succeeded in the former objective, it was unsuccessful in jettisoning the hearsay rule. The CEA 1995 is considered under six headings.
(B) Hearsay
Section 1 of the CEA 1995 provides:
“1 (1). In civil proceedings evidence shall not be excluded on the ground that it is hearsay.”
The section further provides that “references to hearsay include hearsay of whatever degree” (section 1 (2) (b)). This renders both first-hand and multiple hearsay admissible. Then section 1 (2) (a) liberally defines “hearsay” as follows:
“a statement made other than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated therein.”
Apparently, it seems that the hearsay rule has been abrogated as intended by the Law Commission but in reality the hearsay rule is much alive for the following reasons.
First , hearsay evidence may still be excluded due to considerations relating to weight under section 4 of the CEA 1995 or on ground other than hearsay (section 14). In estimating the weight to be attached to an admissible hearsay, section 4 (2) provides:
“Regard may be had, in particular to the following-
(a) whether it would have been reasonable and practicable for the party by whom evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matter stated;
(c) whether evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited document or was made in collaboration for another purpose;
(f) whether the circumstances in which the evidence is addressed as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
Lurking within the above clauses, concealed in the interstices of the CEA 1995, is the recognition of the hearsay rule. The Law Commission acknowledged the fact that “it is important that the concept of hearsay should continue to be understood and recognised” as reference to existing caselaw would be made from time to time to resolve the definitional problems. Speaking in a similar vein whilst introducing the Civil Evidence Bill to the House of Lords, Lord Mackay LC opined: “The concept of hearsay evidence will remain and hearsay evidence may well be less reliable than direct evidence. But, it should not be excluded because it is hearsay.” Balcombe LJ in Ventouris v Mountain (No. 2) The Italian Express recognised the currency of the Best Evidence rule which is part of the hearsay rule when he said: “[T]he modern tendency in civil proceedings is to admit all relevant evidence and the judge should be trusted to give only proper weight to evidence which is not the best evidence.”
We must take cognizance of section 14 (1) of the CEA 1995 which provides:
“14-(1) Nothing in this Act affects the exclusion of evidence on other grounds than it is hearsay.”
Examples of other grounds of exclusion are the rule against opinion – an offshoot of the hearsay rule - and inadmissible similar fact evidence. The joint effect of sections 1, 4 (2) and 14 of the CEA 1995 is obvious. Documents such as letters written by an attorney and a summary of proceedings taken or contemplated declared inadmissible by virtue of sections 2 and 4 of the CEA 1968 in a petition for winding up in Re Koscot Interplanetary (UK) Ltd. are now rendered admissible by section 1 or section 8 (proof of statements contained in records) of the CEA 1995 subject, of course, to the weighing provisions in Section 4. Similarly, a series of articles and letters adduced from medical journals and declared inadmissible as proof of the harmful effects of drugs in an action for negligence in H v Schering Chemicals Ltd. are now rendered admissible but will infringe the rule against opinion if the maker of the statements is not called to give evidence. In other words, the statements are rendered inadmissible by section 14.
The second reason is that the overlap between sections 4 and 5 of the CEA 1968 was noted by the Law Commission and a simpler provision for computer-generated recommended which are now admissible by virtue of section 8 (statements contained in documents) or section 9 (records of business or public authority). Nevertheless, statutory provisions were not incorporated into the Act for the reception of Electronic Data Interchange System (EDI) – paperless transactions – but this is left to trade usages such as codified Uniform Rules of Conduct for Interchange of Trade Data by Teletransmission (UNCID). It must be noted that a paperless regime relies on a network of hearsay evidence and the problems of manufactured evidence and multiplicity of issues go to admissibility and not to weight.
The third reason is that although documentary evidence is admissible by virtue of section 8 (statements in documents) and section 9 (1) (proof of records of business or public authority) of the CEA 1995, section 9 (4) provides that “records” mean “records in whatever form”. What constitutes “records” is not clearly defined despite the definitional problems encountered in cases decided under the pre-existing law.
The fourth, and the most important reason, is that all but one of the common law exceptions preserved by section 9 (2), (3) and (4) of the CEA 1968 with all the feudal anachronisms are still retained by section 7 of the CEA 1995. As Cross rightly observed, “the statements admissible under the common law exceptions are statements not in favor of its maker and are generally made ante litem notam (i.e. before the dispute has arisen) and are hearsay upon hearsay.”
Fifth, an array of relevant or insufficiently relevant evidence masquerading as res gestae was excised from civil proceedings by section 9 of the CEA 1968. Sections 9 (1) – (4) of the 1968 Act preserved only the common law exceptions stipulated in the section. In accordance with the canon of statutory interpretation expressio unius est exclusio alterius (the mention of one thing is the exclusion of another), and the exceptions to the hearsay rule not specifically mentioned such as res gestae are excluded. But a statement admissible as part of the res gestae comes within the ambit of admissible hearsay as defined by section 1 (2) (a) of the 1995 Act, that is, “a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matter stated.” It is submitted that res gestae excised from the 1984 Act is now incorporated by stealth into the 1995 Act.
The final observation is that although the CEA 1995 replaced Part I of the CEA 1968 with simpler provisions, it has not succeeded in abrogating the hearsay rule in civil proceedings. Perhaps Wigmore was rights, after all, when he said:
“The problem for the coming generation is to preserve the fundamental value of the [hearsay] rule, while allowing the amplest exceptions to it and abstaining from petty meticulous exceptions.”
(C) Previous statements by and cross-examination of witnesses
Previous inconsistent statements of a witness admissible by virtue of sections 3, 4 or 5 of the Criminal Procedure Act 1865 which discredit a witness preserved by section 3 (1) of the CEA 1968 and previous consistent statements admissible by section 3 (2) of the CEA 1968 to rebut a suggestion of recent fabrication and those arising out of the use of documents to refresh a witness's memory are retained by section 6 of the CEA 1995. Section 6 of the CEA 1995 provides:
“the provisions of this Act as to hearsay evidence in criminal proceedings apply equally (but with any necessary modifications) in relation to a previous statement made by a person called as a witness in the proceedings.”
These “necessary modifications” are the weight provisions in section 4 of the CEA 1995 discussed earlier and the new notice procedure made pursuant to section 2 of the CEA 1995. The new procedure rules stipulated by RSC Ord. 38, rr 20-24 (High Court) and CCR Ord. 20, r. 15 (County Court) have been superseded by rules made under the Civil Procedure Act 1997. The Civil Procedure Rules 1998 make provisions for (i) serving of notice to rely on hearsay , (ii) the circumstances in which notice is required ; (iii) cross-examination on hearsay pursuant to section 3 of the 1995 Act ; (iv) attacking the credibility of absent witnesses pursuant to section 5 (2) of the 1995 Act ; and (v) for the first time, tendering evidence through video link and other means. In Bairstow v Queen Moats Houses plc the Court of Appeal held that section 87 (3) of the Supreme Court Act 1981 did not give the Supreme Court Rule Committee jurisdiction to amend section 16 (3) of the CEA 1995 so as to make the Act apply retrospectively. Rules made under the new procedure do not apply to civil proceedings commenced in 1993.
(D) Business, computerised and other records
In agricultural Britain documents were admissible provided they were compiled by persons who had the duty of inquiring and compiling (i.e. parsons, vicars and rectors) and had personal knowledge of the facts recorded. These documents were regarded as public documents because the public had the right to refer to them. It must be stressed, however, that the perception of the facts and the compilation of records could be accomplished by two different persons. The crucial question: what is a document? has been variously answered. In the Evidence Act 1938, a paraphrastic definition was adopted. Section 6 (1) of the 1938 Act defined a document as including “books, maps, plans, drawings and photographs”. This paraphrastic definition which was extended by section 10 (1) of the CEA 1968 to include discs, tapes, sound track and microfilms applies to civil and criminal proceedings. The use of radars , computer printouts, tapes and microfilms was recognised.
The Law Commission in its Report decided that no special recommendation was necessary in respect of computerised records because “nothing in (the) proposal will either encourage abuse, or prevent the proper challenge to the admissibility of computerised records, where abuse is suspected.” The Commission proposed instead a definition of document wide enough to render admissible computer-generated information (hitherto admitted under section 5 of the 1968 Act). Accordingly, section 13 (1) of CEA 1995 defines a “document” as “anything in which information of any description is recorded” and a “copy” as “anything onto which information recorded has been copied by whatever means whether directly or indirectly. Under the 1995 Act documents are rendered admissible by section 8 (statements contained in documents) or by section 9 (records of business as public authority). The liberal definition of “copy” in section 13 of the CEA 1995 dispelled the doubt that has lingered on the admissibility of copies of a copy.
(E) Common law exceptions to the hearsay rule
The common law exceptions placed on statutory footing by section 9 (2), (3) and (4) of the CEA 1968 (except adverse admissions) were all preserved in section 7 (2) and (3) of the CEA 1995 for the simple reason that they presuppose the existence of common law rules about public register.
Adverse admissions became otiose because of the definition of “hearsay” in section 1 of the 1995 Act which superseded section 9 (2) (a) of the CEA 1968. Adverse admissions may now be tendered by virtue of section 1 of the 1995 Act but subject to new notice procedure and weight provisions.
Section 7 (2) of the 1995 Act retained the common law rules preserved by section 9 (1) and (2) (b) to (d) of the CEA 1968, viz. (i) published work dealing with matters of public nature such as histories , scientific work , dictionaries and maps ; (ii) public documents (e.g. public registers and returns made by public authorities with respect to matters of public interest); and (iii) records of certain courts, treaties, Crown grants, pardons and commissions.
Section 7 (3) of the CEA 1995 retains the common law rules preserved by section 9 (3) and (4) of the CEA 1968, viz. (i) evidence of a person's reputation for the purpose of proving good or bad character or evidence of reputation or family tradition for the purpose of proving or disproving pedigree or the existence of marriage ; or (ii) proving the existence of any public or general right or of identifying any person or thing.
(F) Ogden tables
Section 10 of the CEA 1995 was introduced at the Committee state in the House of Lords by Lord Mackay LC at the request of Lord Mishcon to effectuate the recommendation of the Law Commission's Report on structural settlements accepted by the Government on March 22, 1995. The section renders admissible actuarial tables (the Ogden tables) issued from time to time by the Government Actuary Department and published by the HMSO. The tables are used to determine the sums to be awarded by courts as future pecuniary loss in personal injury and fatal accident cases as defined by section 10 (3) (a) and (b) of the 1995 Act.
Section 16 (5) extends admissibility and proof of the tables to Northern Ireland .
(G) Miscellaneous provisions
Hitherto, Part I of the CEA 1968 did not apply to magistrates' courts and to wardship jurisdiction of the High Court. Section 11 of the CEA 1995 defines “civil proceedings” as “civil proceedings, before any tribunal, in relation to which the strict rules of evidence apply by law or agreement.”
The 1995 Act does not apply to civil proceedings commenced before January 31, 1997 but takes cognizance of other statutory provisions which render hearsay statements admissible such as the Bankers' Book Evidence Act 1879, section 18 of the Solicitors Act 1879 and sections 7 and 96 of the Children Act 1989.
As civil proceedings in magistrates' courts are governed by strict rules of evidence , the effect of the 1995 Act is to apply sections 1 to 9 to magistrates courts and to leave the door open to similar jurisdiction of the High Court and coroner's court by agreement of parties.
(4) HEARSAY IN CRIMINAL PROCEEDINGS
(A) Old law
Prior to the enactment of the Criminal Justice Act 2003 (the CJA 203), sections 23-26, 30 and 32A of the Criminal Justice Act 1988 (CJA 1988) [as amended] were the statutory exceptions to the hearsay rule which rendered admissible hearsay statements in breach of the principle of orality (discussed in Section 1 above).
Section 23 of the CJA 1988 allowed first-hand hearsay statement with leave of court if certain fundamental requirements were satisfied. Section 24 rendered admissible statements made in business etc. documents if certain fundamental requirements stipulated in the
section were satisfied. Section 26 limited the admission of statements in documents that appeared to have been prepared for the purposes of criminal proceedings and investigations and that would be otherwise admissible under provisions including sections 23, 24 and 30 of the CJA 1988; and section 30 rendered admissible the reports of experts whether or not they were called to give evidence but with leave of court. These sections were enacted to give effect to the recommendations of the Frauds Trial Committee.
Cutting away the frills, these statutory provisions rendered admissible statements in documents, including those where (i) the maker was dead or physically or mentally unfit to attend; (ii) the maker was abroad and it was not reasonably practicable to secure his attendance in court; (iii) the maker was unable to attend through fear or because he was kept out of the way; and (iv) live television link and video-taped interviews. In (i) to (iii) above, the statements must be made to “a police officer or person charged with investigating offences or charging offenders.”
There were three important common law exceptions to the hearsay rule in criminal proceedings, viz. (i) declarations made by a deceased person against his pecuniary or proprietary interest; (ii) dying declarations as to homicide; and (iii) statements admitted as part of the res gestae.
(B) New law
The Government in its White Paper Justice for All believed that the right approach to reforming the exceptions to the hearsay rule in criminal proceedings was to automatically let in evidence where the original maker was absent through illness or death or where those records have been properly compiled by businesses subject to the judge’s discretion to exclude – an approach similar to the one developed in civil proceedings . Pursuant to this philosophy, the Law Commission recommended a general rule against hearsay, subject to specific discretion ( the safety valve ) . This scheme renders admissible four categories of hearsay, viz.
(i) where the witness is unavailable ( s.116 of the CJA 2003 );
(ii) business documents ( s.117 of the CJA 2003 )
(iii) confessions and admissions subject to s.76 and s.78 of PACE ( s.128 of the CJA 2003 ) [ discussed in Chapter 15 ]; and
(iv) various pre-existing statutory and common law exceptions, viz. public information, reputation as to character, reputation or family tradition, res gestae , confessions etc., admissions by agents etc., common enterprise and expert evidence ( s.118 (1) of the CJA 2003 ).
Admissibility of hearsay in criminal proceedings
Section 114 (1) of the CJA 2003 provides that in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if –
“(a) any provision of [Part II, Chapter 2 of this Act] or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 (above) makes it admissible,
(c) all parties to the proceedings agree to it being made admissible, or
(d) the court is satisfied that it is in the best interests of justice for it to be admissible.”
(2) In deciding whether a statement not made in oral evidence should be admitted under subs (1) (d), the court must have regard to the following factors (and to any others it considers relevant) –
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in para. (a);
(c) how important the matter or evidence in para. (a) is in context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statements;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.”
Analysis of the effect of s.114 (1) (d) and s.114 (2) of the CJA 2003 : meaning of hearsay admitted “in the interests of justice” and meaning of “the court must have regard to the following factors”
In R v Taylor the appellant, who attacked another youth, appealed against his conviction for causing grievous bodily harm with intent. One of the prosecution witnesses had received information from her ex-boyfriend that the appellant was a participant in the attack. The prosecution applied successfully for the hearsay evidence to be admitted under s.114 (1) (d) of the CJA 2003 on the ground that “it was in the interests of justice” to do so.
In view of the fact that the trial judge was unable to form a clear view on some of the factors set out in s.114 (2) above, counsel for the appellant argued, inter alia, that the judge had wrongly admitted hearsay evidence in relation to the naming of the appellant, that pursuant to factor (g) in s.114 (2) the judge should have conducted some sort of investigation into “whether oral evidence of the matter can be given and, if not, why it cannot”; and that the evidence against the appellant was not as strong as that against the co-accused who was acquitted.
The Court of Appeal held, dismissing the appeal, that s.114 (2) did not impose an obligation on the judge to embark on an investigation on factor (g) or reach a conclusion (as he had properly done in that case) as to whether or not the oral evidence should be admitted in the interests of justice.
Recently, the impact of European Convention jurisprudence on s.114 was considered in two cases. In R v Xhabri the appellant was charged with false imprisonment, rape, and threats to kill and control of prostitution for gain. At the trial, the defense objected to hearsay evidence which related to communication made pursuant to s.114 (1) of the CJA 2003 which states that in criminal proceedings a statement not made in oral evidence in the proceedings is admissible of any matter stated if, but only if “(d) the court is satisfied that it is in the interests of justice for it to be admissible.” Section 126 of the CJA 2003 provides that the court could refuse to admit a statement if the court is satisfied that the case for excluding the statement substantially outweighs the case for admitting it, taking into consideration the value of the evidence. The judge admitted the evidence and the defendant was convicted. He appealed contending that s.114 and other hearsay provisions were incompatible with Article 6 (3) (d) of the Convention. The Court of Appeal held that s.114 was not incompatible with Article 6 (3) (d) of the Conventi9on.
Again, in McEwan v DPP the appellant had been convicted of causing criminal damage of a car by scraping a beer can against its bodywork. C, a witness, was so ill as to be unable to attend the court. G, another witness, might have been missing from home on the morning of the trial. In spite of the CPS's request on at least six occasions asking the police to obtain a more detailed report which could be used at the trial, the prosecution applied to have C's witness statement admitted under s.114 (1) (d) or s.116 (2) (b) of the CJA 2003. The appellant appealed on the ground that C's statement had been wrongly admitted under s.114 and, to the extent that C's evidence was not open to cross-examination, the admission of C's statement violated Article 6 (3) (d) of the Convention. The Court of Appeal, quashing the conviction, considered some features of the case striking, viz. the number of adjournments, the regular attendance of the appellant at all hearings with his witness or witnesses, the prosecution failure to clarify once and for all C's medical condition, to mention a few. The Court stated that the safety valve, s.114 (1) (D) is there to prevent injustice. Gross J stated:
“[T]he decision of the European Court of Human Rights in Luca v Italy (2003) 36 EHRR makes clear, in considering whether or not there has been a fair trial, the ability of the defendant to challenge the evidence of the witnesses is a matter of first importance. It is, of course, right to underline that the Strasbourg Court leaves the question of the admissibility of evidence to national law.”
He then cited R v Sellick with approval. In that case, the trial judge found it “highly probable”, although he could not be sure that a witness was not giving evidence through fear. The defendants were convicted and appealed on the ground that failure to give them an adequate opportunity to challenge the statements violated Article 6 (3) (d) of the Convention. The Court of Appeal, dismissing the appeal, held that a defendant's right under Article 6 (3) (d) of the Convention could not be infringed where he kept a witness away through fear. The problem, however, is that the decision in Sellick and Xhabri and Gross J's ruling in McEwan are incompatible with Article 6 (1) and (3) (d) read conjuntively. This is the position of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom where Mr. Imad Al-Khawaja, a British national, alleged that his trial for indecent assault had been unfair because one of the two women who made complaints against him died before his trial and her statement to the police was read to the jury. Mr. Ali Tahery, an Iranian national alleged that his trial for wounding with intent to do grievous bodily harm had been unfair because the statement of one witness who feared attending trial was read to the jury. The Court held that, in both cases, there had been a violation of Article 6 (1) read in conjunction with Article 6 (3) (d) of the Convention. The Court noted that the question whether there had been compliance with Article 6 (1) and (3) (d) has arisen in two different contexts: “anonymous witnesses” and “absent witnesses”. The Court also noted that in Sellick the Court of Appeal was concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear but emphasized that that was not the case in either of the present cases. The European Convention jurisprudence on Article 6 (1) and (3) (d) was summarised by the Court as follows:
“Article 6 (3) (d) is an aspect of the right to fair trial guaranteed by Article 6 (1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument ( Kranski v Czech Republic , no. 51277/99, para. 75, 28 February 2006) … As minimum rights, the provisions of Article 6 (3) constitute express guarantee and cannot be read, as it was by the Court of Appeal in Sellick , as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barber à , Messegu é and Jabardo v Spain , 6 December 1988, paras 67 and 68, Series A no 146; Kostovski v Netherlands , 20 November 1989, para 39, Series A no 166) … [I]n Unterpertinger v Austria , 24 November 1989, para 39, Series A no 110 the Court held that the reading out of statements of witnesses without the witness being heard in a public hearing could not be regarded as inconsistent with Article 6 (1) and (3) (d) of the Convention but it went on to emphasize that the use made of this in evidence had nevertheless to comply with the rights of the defense which it was the object and purpose of Article 6 to protect. This meant that, in principle, the accused had to be given a proper and adequate opportunity to challenge and question a witness against him either when the witness made the statement or at a later stage.”
We now turn to the use of anonymous witnesses in criminal proceedings. In R v Davis , the House of Lords held that protective measures which ensured the anonymity of three witnesses without whose evidence the defendant could not have been convicted, rendered the trial unfair and unlawful. This decision was abrogated by the Criminal Evidence (Witness Anonymity) Act 2008 which puts on statutory footing the power of courts to grant witness anonymity orders in criminal proceedings where this is consistent with the right to fair trial. The pertinent question is: Is the 2008 Act compatible with Article 6 (1) and (3) (d) of the Convention?
It seems on the authority of Strasbourg jurisprudence in A-Khawja and Tahery v United Kingdom instantiated above, the Criminal Evidence (Witness Anonymity) Act 2008 engages and violates the Convention
The effect of s.115 (3) of the CJA 2003
The effect of s.115 (3) is to render admissible “implied assertions” and “negative assertions”. The decision in R v Kearley on a disjunctive reading supported in R v Singh and R v N (K) are abrogated. In Singh it was stated obiter that the view of the majority in the House of Lords in Kearley in relation to hearsay had been set aside by the 2003 Act. In N (K) where N unsuccessfully appealed against his convictions for indecent assault on the ground that the diary kept by the complainant did not fall within the terms of s.119 owing to the provisions of s.115 of the 2003 Act, McCombe J stated:
“[I]f the diary was intended to be read by anyone else, it fell within s.115 and was admissible under s.119 as evidence of the truth of its content. If it was not, it was outside the hearsay rule and admissible provided it was relevant.”
This line of reasoning is flawed for two reasons. First, relevance is not equal to admissibility. Admissibility is equal to relevance plus the satisfaction of auxiliary rules and extrinsic policies. The second is that ss.115 and 119 must be read conjuntively with s.126 of the CJA 2003: that s.78 of PACE applies across Part II, Chapter 2 of the CJA 2003 which covers all the hearsay provisions of the Act.
The changes effectuated by the CJA 2003 are cosmetic. To highlight this point and facilitate exposition, the changes are presented in the following Tables:
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Old Law Statutory Exceptions |
New Law |
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Section 23 (1) of the CJA 1988 renders admissible statements made by a person who is unavailable to give evidence for the reasons stated in s.23 (2) or through fear or because he or she is kept out of the say (s.23 (3)); and section 26 (1) of the CJA 1988 renders admissible statements made in contemplation of criminal litigation. |
Statements now admissible under section 116 (1) of the CJA 2003. |
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Section 24 of the CJA 1988 renders admissible “business etc. documents”. [The judge, however, has a discretion to exclude the above statements in the interests of justice by virtue of ss.25 and 26 (i) – (iii) of the CJA 1988.] |
Statements now admissible under section 117 (1) of the CJA 2003. Statements may be proved either by document or a copy of the document (s.133). The admissibility of the statements in a document depends on its accuracy. |
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Section 30 of the CJA 1988 renders admissible (with leave of court) an expert report whether or not the person making it intends to give evidence. |
Section 118 (1), para. 8 of the CJA 203 preserves s.30 of the CJA 1988 and s.127 of the CJA 2003 extends it by allowing experts to give evidence of facts and opinions stated by others. |
Table 1
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Old Law Common Law Exceptions: |
New Law |
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Common law exceptions to the hearsay rule in criminal proceedings are as follows: (i) Statements in public documents and public works; (ii) evidence of a person's reputation which is admissible for the purpose of proving good or bad character; (iii) evidence of reputation or family tradition for the purpose of proving (a) pedigree or the existence of marriage; (b) the existence of public or general right; and (c) the identity of any person or thing; (iv) statements admitted as part of the res gestae ; (v) dying declarations; (vi) common enterprise: the rule in respect of acts and declarations in furtherance of a conspiracy or joint enterprise; and (vii) admissions made by an agent of a defendant or statements made by a person to whom a defendant refers a person for information |
Section 118 (1) of the CJA 2003 preserves these common law exceptions. Section 118 (2) provides that with the exception of the preserved common law rules, all other common law rules of admissibility are abrogated. In other words, the common law rule relating to dying declarations is hereby abrogated. |
Table 2
Principal statutory exceptions considered
(1) Unavailability of witnesses
Hitherto, Section 23 of the CJA 1988 rendered admissible statements made by a person in a document as evidence of any fact of which direct oral evidence by that person would have been admissible if he or she was unavailable for any of the reasons set out in section 23 (2) or through fear or because he or she is kept out of the way (s.23 (3)). The judge, however, has a discretion to exclude the statements by virtue of section 25 of the CJA 1988. Section 26 of the CJA 1988 also rendered admissible a statement made in contemplation of criminal litigation.
Section 116 (1) of the CJA 2003 renders a statement admissible if oral evidence by the identified declarant “would be admissible as evidence” and the five conditions mentioned in subsection (2) are satisfied, viz. –
“(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken.
(e) that through fear the relevant person does not give or does not continue to give) oral evidence in the proceedings either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence.”
The pertinent question is whether the conditions of admissibility ((a) to (e) above) are compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention); and to this we now turn.
i) Absent witness is dead or unfit to attend (s.116 (2) (a) and (b of the CJA 2003)
Article 6 (3) (d) of the Convention provides:
“3. Everyone charged with a criminal office has the following minimum rights …
(d) 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 …”
This provision reaffirms an ancient constitutional right stated in the Magna Carta that: “To no one will we sell, to no one will we deny or delay, right or justice.” To admit the statement of a witness who is dead or unfit to attend through physical or mental infirmity becomes problematic because the defendant is denied the opportunity of cross-examining the witness to test the veracity of the statement and the jury of observing the demeanor. Although leave under section 116 to admit the statement in the interest of justice will be given by having regard to the statement's contents, to any risk that its admission or exclusion will result in unfairness to any part of the proceedings, such a statement might be inadmissible and violate Article 6 (3) (d) of the Convention.
(ii) Absent witnesses abroad (s.116 (2) (c) and (d) of the CJA 2003)
Cases decided under section 23 (2) (b) (i) of the CJA 1988 (the old law) will continue to be pressed into service in interpreting s.116 (1) (c) and (d) of the CJA 2003. These cases fall into three categories. The first category is where the witness is outside the UK and it is reasonably practicable to secure his attendance but no reasonable step has been taken. In Henriques v R , an appeal from Jamaica to the Privy Council, it was held that the evidence of a pathologist who had left Jamaica six months prior to a murder trial was admissible even though no other evidence regarding his whereabouts or whether it was reasonably practicable to secure his attendance was given. This does not represent the position in the United Kingdom . The leading authority is R v Case where G (a Portuguese tourist) and S (another tourist) made statements to the police about theft committed by D. G gave a Portuguese address but made no reference to where she normally lived nor the length of time she had been in the UK or intended to remain. S's statement had the address of a London hotel with a clear indication that it was temporary and that she was willing to attend court before departure or any other time she was in the UK . No attempt was made to find out whether either of the witnesses was willing to attend. At the time of the trial S and G were outside the UK . The trial judge inferred from S's statement that she would be unwilling to attend. D was convicted and successfully appealed. His appeal was allowed on the ground that there was no evidence on which the criminal burden of proof could have been satisfied.
The second category is where the statement is admitted because reasonable steps have been taken to find a witness but that he could not be found. A neat illustration is R v Castillo where on an issue regarding airline tickets in Venezuela in D's trial for the importation of cocaine, it was held that the inability to attend trial to give oral evidence could be proved by the statement of another witness pursuant to section 23 (2) (b) of the CJA 1988.
Castillo was followed in R v Yu where the defendant was convicted of false imprisonment and blackmail. The police travelled to China to collect statements from witnesses who asserted their willingness to travel to the United Kingdom to give evidence if called. It was held, dismissing the appeal, that the judge was justified in finding that it was “not reasonably practicable to secure [the] evidence of each witness pursuant to s.23 (2) (b) of the CJA 1988. In R v C and K it was held that the expression “reasonably practicable” in s.116 (2) (c) of the CJA 2003 must be judged on the basis of steps taken, or not taken, by the party seeking to ensure the attendance of the witness.
The third category is where the absent witness is living abroad and refuses to attend; in which case, examination of the witness on commission (i.e. on oath at any place out of the jurisdiction of the court) is mandatory. In R v Radak the Court of Appeal held that the examination of the witness on commission did not constitute attendance for the purpose of section 23 (2) (b) (ii) of the 1988 Act but it was necessary to safeguard the defendant's right to equality with the prosecution as regards the summoning and examination of witnesses in accordance with Article 6 (3) (d) of the Convention. The Court further held that the prosecution could have obtained evidence on commission in the United States of America instead of relying on written statements of absent witnesses. The Court finally held that since evidence on commission was relevant to the trial court's consideration under section 26 of the CJA 1988, the court had failed to exercise its discretion. The Court's concern was that obtaining evidence on commission would have allowed for cross-examination which would have been fairer.
Turning now to the vexed question of the potential incompatibility between provisions of the old law – which are similar to the provisions of the new law – and the Convention, the Court of Appeal recently, in R v Martin James Owen considered and summarised European Convention jurisprudence
in the area of absent witnesses. The principles enunciated by the Court are as follows: (i) Article 6 does not lay down any rules on the admissibility of evidence as such but the test to be applied is whether the trial as a whole is fair ; (ii) the use at trial of statements made by a person not present is acceptable provided the accused is given the opportunity at some stage to challenge and question witnesses against him ; (iii) the absence of such opportunity will not necessarily deprive the accused of a fair trial but the conviction should not be based solely on the statement ; and (iv) if the above condition is observed, then there is a balancing exercise to be done taking into account rights of the accused and the opportunity afforded to him to challenge the authenticity of the statement .
The Court of Appeal went on to note that in English courts Article 6 (3) (d) has been considered in R v Gokal and R v Thomas , both cases dealing with evidence admitted under sections 23-26 of the CJA 1988. These cases are considered in a little detail below.
Gokal was decided before the passage of the Human Rights Act 1998. Ward LJ, giving a judgment of the court, accepted that “at first blush the use of (the evidence from an absent witness) in circumstances where it is not possible to examine the witness may seem a breach of Article 6 (3) (d)” but he went on to observe that “that is not, however, how the European Courts construe the Article.” The Court of Appeal thereafter gave consideration to three of the more important European cases in this area: Unterpertinger v Austria , Barbera, Messegue and Jabardo v Spain and Kostovski v Netherlands and Ward LJ set the scene for their conclusion by quoting from the judgment of the European Court in Unterpertinger :
“In itself, the reading of statements in this way cannot be regarded as inconsistent with Article 6 (1) and (3) (d) of the Convention, but the use made of them as evidence must nevertheless comply with the rights of the defense, which it is the object and purpose of Article 6 to protect. This is especially so where the person “charged with a criminal offence”, who has the right under Article 6 (3) (d) to “examine or have examined” witnesses against him, as not had an opportunity at any stage in the earlier proceedings to question the persons whose statements are read out at the hearing.”
In Unterpertinger what was ultimately determinative, as the Court of Appeal in Gokal acknowledged, was that the applicant was deprived of the opportunity of challenging the credibility of two witnesses who the appellate court had mainly based conviction on. In the result, the applicant's right were appreciably restricted. The facts of Barbera and Kostovski were similarly extreme. In Barbera , important documentary evidence was admitted without being exposed to public scrutiny resulting in the conclusion of the Court that all the evidence must in principle be produced in the presence of the accused at a public hearing with a view to adversarial argument, whilst in Kostovski the Court condemned the conviction by a Netherlands Court on the documentary evidence of an anonymous witness.
The Court of Appeal in Gokal observed that the facts of those European cases were a ‘far cry' from the facts before them and concluded:
“Since the whole basis of the exercise of the discretion conferred by section 26 is to assess the interests of justice by reference to the risk of unfairness to the accused, our procedures appear to accord fully with our treaty obligations”.
Two key issues emerge from the above. First, European jurisprudence has clearly identified the need to ensure that reading the statements of absent witnesses does not restrict defense rights to the point where trial becomes unfair. Secondly, there is a risk of unfairness being found if the conviction is wholly or largely dependent on such evidence. In that regard it is of interest to note that the decision in R v Dragic would probably not survive the passage of the Human Rights Act 1998. In that case, it was decided that the fact that the absent witness provided the only significant (identification) evidence against the accused was not sufficient to render the admission of written evidence from that witness contrary to the interests of justice. It would appear that the arguments founded on the Convention were not considered in that appeal.
(iii) Witnesses unable to attend through fear (s.116 (2) (e) of the CJA 2003)
Admission of written statements made by witnesses who are unable to attend through fear pursuant to section 16 (1) (e) of the CJA 2003 is often the plank on which the prosecution case rests but one that bristles with evidential problems. A quick look at cases decided under the old law corroborates this position
R v Ashford Magistrates' Court, ex p. Hilden is authority for the following propositions: (i) that a witness's written statement is admissible because the witness has refused to “give evidence through fear” not only when a witness literally uttered not a word and stood mute but, having stepped into the box to give evidence, refuses through fear to give any significant evidence ; and (ii) that the written statement is also admissible when the witness, having started to give evidence, is prevented by fear from giving further evidence . In that case, the examining magistrate formed the opinion from the witness's demeanor and responses to questions put to her. As rightly observed by Watkins LJ in R v Acton Justices, ex p. McMullen; R v Tower Bridge Magistrates' Court, ex p. Lawlor , the two unruly horses – “not to give evidence through fear” and “kept out of the way” – must be construed disjunctively. In that case, the prosecution witness in the case of McMullen charged with aggravated burglary, violent disorder, malicious wounding and criminal damage and the witness in the case of Lawlor charged with the attempted murder of a drug addict both refused to testify through fear and their written statements were admitted under section 23 of the CJA 1988. Whilst the demeanor of a witness can be assessed in open court to determine whether he is not testifying through fear as in Ex parte Hilden , it is difficult, if not impossible to determine whether a witness who has not appeared in court has truly been “kept out of the way” or is not “giv[ing] evidence through fear”. The difficulty was highlighted in R v Ricketts where S, the defendant's friend, made a statement to the police about what the defendant had told him. As a matter of fact, the defendant's story was more than what the friend had narrated to the police. The trial judge's discretion to allow this statement under section 23 was based on a letter allegedly written by the defendant intimidating S and another witness. After the jury had retired S's presence was announced to the judge. The judge later interviewed S in his chambers and found that S's delayed presence was not due to fear but to the fact that he had been working in the north of England and nobody had his address. The defendant was convicted but on appeal the conviction was quashed and a retrial was ordered. This decision and the recent decision in R v Miller that a witness whose written statement is admitted pursuant to section 23 of the CJA 1988 is a prosecution witness within the meaning of section 1 (3) (ii) of the Criminal Evidence Act 1898 (as amended) bring Article 6 (1) and (3) (d) of the Convention into focus. In Miller , the defendant representing himself called P as a witness who could make imputations against C. The statement of C, a prosecution witness, was read pursuant to section 23 of the CJA 1988 because C failed to attend through fear. The judge accordingly permitted the cross-examination of the defendant on his previous convictions. He was convicted and appealed. The Court of Appeal dismissed the appeal.
R (on the application of Robinson) v Sutton Coldfield Magistrates' Court is worthy of note. In that case, the hearsay statement consisted of the complainant's statement admitted under s.116 (2) (e) of the CJA 2003 on the ground that the complainant would not give evidence “through fear”. The claimant appealed by way of judicial review against his conviction on the ground that admitting the complainant's statement without considering the fairness of the procedure violated his right “to examine or have examined witnesses against him” as guaranteed by Article 6 (3) (d) of the Convention. It was held (dismissing the application) that the admission of a sole (compelling) evidence did not automatically amount to a violation of Article 6 (3) (d).
As regards compatibility with the Convention, there are two countervailing considerations. On the one hand, the written statement of a witness who is unable to attend through fear or because he is kept out of the way is the plank on which the prosecution case rests and arguably should be admitted in the interests of justice pursuant to section 116 (2) (e) of the CJA 2003. On the other hand, the right of the accused to a fair hearing is guaranteed by Article 6 (1), (2) and (3) (d) of the Convention. As Lord Chief Justice Goddard in R v Clewer succinctly stated:
“… the first and most important thing for the administration of criminal law is that it should appear that the prisoner is having fair trial, and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury.”
It is worth mentioning that there is arguably a third consideration – the need to protect a witness which is recognised under Articles 3 and 8 of the Convention. The question is: how do the courts reconcile these countervailing considerations? In R v Thomas we find an attempted reconciliation of these interests. In that case, the appellants were charged with conspiracy to supply heroin and causing grievous bodily harm with intent. The written statement of a prosecution witness who had been severely beaten by one or more of the appellants and who had refused to give evidence was admitted under sections 23-26 of the CJA 1988 and held not to be in breach of Article 6 of the Convention.
(2) Business and other documents
Section 117 of the CJA 2003 re-enacts the provisions of section 24 of the CJA 1988 but shorn of the drafting error in section 24 (4) (b) (3) of the CJA 1988 so that the person who must be unavailable, or unable to recollect the matter dealt with, is the person who supplied the information.
Section 117 (1) of the CJA 2003 states that in criminal proceedings statement contained in a document is admissible as evidence of any matter stated if oral evidence given in the statement would be admissible as evidence and the requirements of subsection (2) are satisfied. The requirements of subsection (2) are satisfied if –
(a) the document or the part containing the statement was created or received by a person in the course of trade, business or profession or other occupation, or as holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of paid or unpaid office.”
Subsection (3) provides that the persons mentioned in paras. (a) and (b) of subsection (2) may be the same person.
In Maher v DPP D was convicted of careless driving and for failing to report an accident. At the time of the accident, a public-spirited person (E) who saw the accident left a note of the registration number on D's car on the windscreen of the stationary vehicle which D's car collided with in a supermarket car park. The girlfriend of the owner of the stationary vehicle gave the police D's registration number over the telephone, and the police recorded it in the Police Incident Log. At the time of the trial the original note had been lost. In spite of the objection of the defense counsel, the Police Incident Log was admitted at the trial as a business or other document under s.117 of the CJA 2003. D appealed on the ground that the Police Incident Log was inadmissible as hearsay and wrongly admitted. It was held, dismissing the appeal, that the Police Incident Log as admissible under s.117 (business or other documents) or s.121 (1) (e) (multiple hearsay) of the CJA. It is submitted that on the authority of R v McLean (discussed above) the statement dictated to the police was inadmissible because the girlfriend of the owner of the stationary vehicle did not witness the incident and the Police Incident Log was also inadmissible hearsay because the police officer who recorded the number did not see the number.
Proof of statements in documents
Section 133 of the CJA 2003 provides that where a statement in a document is admissible as evidence in criminal proceedings the statement may be proved either by the document or (whether or not the document exists) a copy of the document or the material part of it, authenticated in whatever way the court may approve.
The word “document” is defined in section 140 of the CJA 2003 meaning “anything in which information of any description is recorded, but not including any recording of sounds or moving images.”
With regards to computer printouts, the certification required by section 69 of PACE that the computer was functioning properly was abrogated by section 60 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). This infringed the concept of equality of arms. Section 129 of the CJA 2003 restored the balance by stating that the admissibility of a representation of fact made otherwise by a person depends on its accuracy.
(3) Live television links and video-taped interviews
The provisions of section 32 of the CJA 1988 which introduced the use of television link in criminal proceedings are replicated in section 23 (1) of the YJCEA 1999 and extended by defining “a live link” as “a television link or other arrangement whereby a witness, while absent from the court room or other place where the proceedings are held, is able to see and hear a person there and to be seen by the persons specified in s.23 (2) (a) to (c) [of the CJA 1988].” This extension brings within the ambit of “live link” other arrangements such as the use of video conferencing in criminal as in civil proceedings.
The new section 32A of the CJA 1988 was inserted by section 54 of the Criminal Justice Act 1991 to implement the recommendations of the Pigot Committee on diagnostic video-taped interviews in child abuse cases by allowing them to be admitted as evidence-in-chief. Supports of the Bill had hoped that if video-taped interviews were expressly allowed in evidence by a new clause in the Bill, the clause would at the same time free them from restrictive rules relating to children's evidence. This hope was not fully realised due to the prompting of Mr. David Mellor, the then Minister of State at the Home Office, who insisted on safeguarding the principle of orality. As a result of his prompting a discretionary power to exclude video-taped interviews in the interests of justice was vested in judges by section 32A (3) (c) of the CJA 1988. Although section 32A which is not mandatory has been added to and tinkered with , diagnostic video-taped interviews have been admitted under the section but excluded in the interests of justice for infringing the rules against hearsay and opinion .
Section 27 (1) of the YJCEA 1999 renders admissible video-taped evidence-in-chief and section 28 (1) of the 1999 Act renders admissible video-taped cross-examination and re-examination subject to the safeguards incorporated.
Section 137 (1) of the CJA 2003 enables the prosecution witness as well as the defense witness (but not the defendant) to have their testimony recorded on video where the offence in question is triable on indictment or a “prescribed offence” or triable either way. The witness is asked in-chief to what extent the content of the recording is the truth in his oral evidence (section 137 (1)) and it is immaterial that the recorded account was not made on oath (section 137 (5)).
Preservation of certain statutory and common law categories of admissibility (section 118 of the CJA 2003)
The following common law categories of admissibility have been retained:
(1) published works dealing with matters of public nature such as histories, scientific works, dictionaries and maps; public documents such as public registers and returns made under public authority with respect to matters of public interest; records such as records of certain courts, treaties, Crown agents, pardons and commissions, and evidence relating to a person's age or date of birth may be given by a person without personal knowledge of the matter (section 118 (1), para. 1);
(2) evidence of a person's reputation which is admissible for the purpose of proving his good or bad character (section 118 (1), para. 2); and
(3) evidence of reputation or family tradition which is admissible for proving or disproving (a) pedigree or the existence of a marriage, (b) the existence of any public or general right or (c) the identity of a person or thing (section 118 (1), para. 3).
(4) Res gestae (section 118 (1), para. 4).
(5) Confessions – dealt with in Chapter 15 (section 118 (1), para. 5).
(6) Admissions made by an agent of a defendant or statements made by a person to whom a defendant refers a person for information are admissible against the defendant (section 118 (1), para. 6).
(7) Common enterprise: the rule in respect of acts and declarations in furtherance of a conspiracy or joint enterprise is retained by section 118 (1), para. 7 of the CJA 2003. A statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated .
(8) Expert evidence: section 118 (1), para. 8 of the CJA 2003 preserves “any rule of law under which in a criminal proceeding an expert witness may draw on the body of expertise relevant to his field”. Section 30 (4) of the CJA 1988 which provides that an expert's report when admitted under section 30 (1) – (3) “shall be evidence of any fact or opinion of which the person making it could have given evidence” remains in force. Section 127 of the CJA 2003 allows experts to give evidence of facts or opinions stated by others.
Finally, it must be noted that with the exception of the rules preserved above, all other common law rules of admissibility of hearsay evidence are abrogated by section 118 (2) of the CJA 2003. In other words, the common law rule relating to dying declarations is hereby abrogated.
Res gestae revisited
The term “res gestae” which simply means “transaction” has been variously described as “redundant” , “the lurking place of a motley crowd of conceptions in mutual conflict and reciprocating chaos” and “a shibboleth which encourages looseness of thinking and uncertainty of decision” . Evidence relevant to a transaction and arising contemporaneously with it are admissible as an exception to the hearsay rule.
In spite of the opprobrious epithets instantiated above, the doctrine of res gestae is preserved pursuant to the Law Commission's recommendations but limited to three categories of statements:
“(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction and distortion can be disregarded; or
(b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or
(c) the statement relates to a physical sensation or a mental state (such as intention or emotion).”
An evaluation of caselaw previously subsumed under four overlapping categories corroborates the opprobrious epithets and to this evaluation we now turn.
(a) Statements made by a person so emotionally overpowered by an event that the possibility of concoction and distortion can be disregarded
The statement is admissible to prove the maker's mental or emotional state and not what he knew or believed. In R v Andrews where Andrews was convicted of manslaughter and aggravated burglary and the spontaneity test was elaborately enunciated, it was held that the victim's statement was admissible under the doctrine of res gestae in spite of the fact that he had drunk to excess and had a motive to fabricate or concoct. This and other cases to be discussed show that attempts to use this pigeon-hole are fraught with evidential problems.
In R v Wainwright it was held that the evidence of a statement made by a victim of a murder on leaving her lodging that she was going to the accused's premises was inadmissible because it was only a statement of intention which might or might not be carried out. Again, in R v Thompson , the defense to a charge of using an instrument on a woman in order to procure a miscarriage was that the woman, who had died before the trial, had operated on herself. The Court of Criminal Appeal held that evidence, in support of the defense, that the woman had made a statement some weeks before her miscarriage that she intended to operate on herself had been properly excluded as inadmissible hearsay. However, in R v Moghal the Court of Appeal expressed the opinion that in a murder trial a tape-recorded statement made some six months before the murder that D's mistress who was tried separately and acquitted intended to kill the woman would have been admissible on D's behalf.
We must also note R v Gilfoyle decided by the Court of Appeal. In that case, the appellant was alleged to have murdered his wife and made it appear as suicide. He had asked his wife to write out some examples of suicide notes saying that he was doing a suicide project at work as part of his course work for a course he was attending on counseling. The appellant was an auxiliary nurse. His wife mentioned this to several friends. His wife was later found hanging in her home. The question was whether her conversations with her friends were admissible. The Court of Appeal held that they were admissible to prove her state of mind. Were they admissible as part of the res gestae, namely, statements made about the maker's mental or emotional state? It seems that on the authority of Wainwright and Thompson they were inadmissible but on the authority of Moghal they were admissible. R v Edwards is also a dubious authority which supports the contention that the conversations were admissible as part of the res gestae. In Edwards , a deceased wife, shortly before her violent death, deposited a large axe and a carving knife with a neighbour declaring at the time that she would thus feel safer in view of the husband's threat. Quain J ruled that the evidence of what was said by the deceased to the witness was admissible. It must be noted, however, that the report of this case was barely a page in length and the decision was condemned by Phipson in the following terms:
“No reasons are given; and the declaration could hardly have been received as accompanying and explaining a crime a week later. The act of deposit, which they did accompany and explain, would seem to have been irrelevant: while, if tendered to prove previous threats, the declaration infringed the rule that they must explain the facts the accompany and not prior to subsequent acts.”
In R v Devereux , A was charged with the murder of B. His defense was that it was suicide. Evidence that two years earlier C, B's brother, had disappeared leaving behind a letter which showed his (C's) suicidal tendencies was held inadmissible.
Finally, we must note what Professor Julius Stone calls res gestae and the principle of completeness: the principle that if one is examining a particular matter one should also examine the circumstances immediately attendant upon it . Relevant evidence that came to light about the emotional state of the deceased in Gilfoyle's case which, if taken into consideration by the investigating officers would have weakened the prosecution case, was not taken into consideration and this casts serious doubts on the decision of the Court of Appeal.
(b) Statements accompanying an act
The relation between the statement and the act must be direct and the statement must be spontaneous . In Teper v R the accused was charged with arson and the Judicial Committee advised that the trial judge should have rejected a police officer's evidence of the remark of an unidentified bystander made to a passing motorist. In R v Bedingfield the accused was charged with murder by cutting a woman's throat and his defense was that she committed suicide. The deceased came out of the room in which the accused was later found. Her throat was cut and she immediately cried “See what Bedingfield has done to me”. Cockburn CJ did not allow her statement to be proved because “it was something stated after it was all over, whatever it was, and after the act was completed.” Cockburn CJ also ruled against an argument that the statement was admissible as a dying declaration because the woman was not aware that she was dying. Despite the criticism of Bedingfield in Ratten v R , Bedingfield has been defended on its own fact.
In Ratten the accused was charged with and convicted of murdering his wife by shooting her. His defense was that a gun went off accidentally when he was cleaning it. There was evidence that the deceased was alive and apparently well at 1.12 p.m. and the accused said that, after he had phoned for an ambulance, the police phoned him about 1.20 p.m. The prosecution called a telephone operator who swore that about 1.15 p.m. a woman with an hysterical voice had phoned from the accused's house asking for the police who in their turn had phoned the accused. The Judicial Committee held that the telephone operator's evidence had been rightly received. Lord Wilberforce explained the position as follows:
“The mere fact that the evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arise when the words are relied on “testimonially”, i.e. as establishing some fact narrated by the words.”
This passage was adopted in two leading cases – R v Harry and R v Kearley - which we now discuss.
In Harry , D and a co-defendant were charged with possessing and supplying cocaine contrary to the Misuse of Drugs Act 1971. Whilst D and the co-defendant were arrested and taken to the police station, the police remained in their flat to keep an observation during which time several calls were made asking for a man Sacha (the co-defendant's nickname). D sought to rely on these calls to show that it was Sacha doing the drug deals. Both the prosecution and the co-defendant's counsel objected on the ground that the evidence was hearsay. The judge agreed but ruled that counsel for D could ask whether the calls were in fact made. The co-defendant was acquitted and D was convicted. On appeal, the Court of Appeal dismissed the appeal saying that D was trying to rely on the calls testimonially and that infringed the hearsay rule.
In Kearley , where the facts were similar, D was charged with possessing amphetamine with intent to supply contrary to the Misuse of Drugs Act 1971. At his trial, the police sought to adduce evidence that calls were made to his flat, after his arrest but not in his presence or hearing, enquiring for drugs. D did not give evidence nor were any of those who made the enquiries called by the prosecution to give evidence. A defense objection that the evidence would be hearsay and inadmissible was overruled by the trial judge. D was convicted and appealed. The Court of Appeal dismissed his appeal on the ground that the inference from the inquiries that they were customers was admissible. The Court, however, certified a point of law for the opinion of the House of Lords in the following terms:
“Whether evidence may be adduced at a trial of words spoken (namely a request for drugs to be supplied by the defendant), not spoken in the presence or hearing of the defendant, by a person not called as a witness, for the purpose not of establishing the truth of any fact narrated by the words, but of inviting the jury to draw an inference from the fact that the words were spoken namely that the defendant was a supplier of drugs).”
Lords Griffiths and Browne-Wilkinson (dissenting) rejected the submission by Mr. de Navarro, QC that Wright v Doe d. Tatham applied. In that case concerning land owned by one Mr. John Marsden (deceased), the defendant, Wright, claimed as a divisee under Marsden's will. The plaintiff, Tatham, claimed as heir-at-law, alleging, inter alia, that the will was void on the ground of the testator's mental incompetence and he introduced evidence to this effect. Wright sought in rebuttal to produce letters which had been written to Marsden by persons who knew him well to show that they treated him as sane. The trial judge excluded these letters as inadmissible hearsay and the jury found for Tatham. Both the Court of Exchequer Chamber and the House of Lords affirmed the verdict in favor of the plaintiff.
Lord Griffiths accepted that some inferences could not be drawn but argued that other inferences could be drawn. The pertinent question is: what is the juridical basis for drawing such inferences? Lord Griffiths also relied on two Commonwealth authorities – Davidson v Quirke and McGregor v Stokes which are (persuasive but not binding) authorities that it could be inferred from the telephone calls made to a betting shop that the shop was used for illegal gambling. Lord Browne-Wilkinson (also dissenting) agreed with Lord Griffiths in many respects but went further to rely on Ratten as rendering admissible the whole call made by the deceased in that case as one composite act “made up of manual operations together with words.”
The decision of the House of Lords (allowing the appeal) by a majority of 3 to 2 was reached as follows. First, Lords Bridge , Ackner and Oliver, delivering the majority decisions, accepted Mr. de Navarro's submission that Wright v Doe d, Tatham was the classic case citing USA v Zenni (a United States authority) with approval. Lord Bridge maintained that if one call was inadmissible, on the authority of Myers v DPP , a plurality of calls was also inadmissible.
I agree entirely with Professor J.C. Smith that “the logic of the majority is impeccable” because neither the dissenting judges nor the commentators advanced a cogent principle of evidence which rendered a plurality of calls admissible when one of such calls was inadmissible. It must be noted, however, that the effect of section 115 (3) of the CJA 2003 which defines “matter stated” is to render admissible “implied assertions” and “negative assertions”. The decision in Kearley is therefore abrogated but the judges' discretion to exclude hearsay statements by virtue of section 78 of PACE applies across Part II, Chapter 2 of the CJA 2003.
(c) Statements of contemporaneous physical sensation
Statements of contemporaneous physical sensation are admissible provided nothing was added in the nature of a narrative as to what caused the symptoms or how they were caused. In Gilbey v Great Western Rail Co , Cozens-Hardy MR held that a workman's assertion of the cause of his condition was inadmissible at common law. However, in R v Black the accused had been convicted of murdering his wife by arsenic poisoning, and statement made by the deceased concerning her bodily symptoms after taking the medicine procured by the accused were proved at the trial by the persons to whom they were made.
Multiple hearsay
Declarants of multiple hearsay statements have no personal knowledge of the statements which are derived from another source. Multiple hearsay statements are unreliable for four reasons: (i) there is room for distortion; (ii) errors in transmission; (iii) it is sometimes impossible to challenge the source; and (iv) the need to give juries more complex directions than first-hand hearsay statements.
Section 121 (1) of the CJA 2003 provides that a hearsay statement is not admissible to prove the fact that an earlier statement was made unless either the statement is admissible under sections 117, 119 or 120 of the CJA 2003 or all the parties to the proceedings agree or the court is satisfied that the interests of justice require that the statement be admissible.
(1696) 14 How St Tr 537. See J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers Revision (Boston: Little, Brown, 1983), Vol. 5, at 12.
(1700) 1 Salk 283.
Ibid.
(1709) 11 Mod 210.
(1744) Willes Rep 550.
Ibid.
W.M. Best, The Principles of the Law of Evidence , 12 th edn. (London: Sweet & Maxwell, 1922), at 415-417.
J.P. Taylor, A Treatise On the Law of Evidence , 11 th edn. (London: Sweet & Maxwell, 1931), Vol. 1, at 272-273 and 361-364.
J. Gilbert, The Law of Evidence (New York and London: Garland Publishing, 1979) [a reprint of the 1754 edn.] at 106-112. See also T. Peake, A Compendium of the Law of Evidence (New York and London: Garland Publishing, 1979) [a reprint of the 1801 edn], at 6-9.
E.M. Morgan, “Hearsay Dangers and the Application of the Hearsay Concept” (1948-49) 62 Harv LR 177.
Sir W.S. Holdsworth, History of the English Law (London: Methuen and Sweet & Maxwell, 1926), Vol. IX, at 214.
Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967), at 387; the version adopted in the 11 th Report of the Criminal Law Revision Committee, 1972, Cmnd. 4991, at 132.
[1956] 1 WLR 965, PC.
(1887) 18 QBD 537.
[1989] 1 QB 490.
(1980) 72 Cr App R 39.
(1983) 78 Cr App R 247.
(1967) 52 Cr App R 80.
Myers v DPP [1965] AC 1001.
[1963] 1 QB 857.
R v Maqsud Ali, R v Ashiq Hussain [1965] 2 All ER 464 and R v Ali (1991) The Times, 19 February.
Kajala v Noble [1982] Crim LR 433 and Fowden v White [1982] Crim LR 585.
Li Shu-Ling v R [1988] 3 All ER 138, PC and Lam Chi-Ming v R [1991] Crim LR 914, PC.
Police and Criminal Evidence Act 1984, s.71.
R v Neville [1991] Crim LR 288.
Manchester Brewery v Coombs (1900) 82 LT 347. See also Chapter 12 ante .
[1937] AC 220, PC.
Law Comm. No. 216.
See the Civil Evidence Act 1995 (Commencement No. 1) Order 1996 (S.I. No. 3217 (c.101)).
See the Civil Evidence ( Scotland ) Act 1988. and D. Field, “Civil Evidence Act: A Quantum Leap”, 1988 SLT 349.
Law Comm. No. 216, para. 4.1.
See Dunn International Ltd. v CDE unreported, 20 November 1997, QBD where written statements of witnesses in France who could be called to give evidence in the United Kingdom but were not called to do so were declared valueless. Cf. Leeds City Council v Harte , reported, 14 January 1999, CA where it was held that the hearsay evidence was rightly received under the CEA 1995 because the trial judge had cautioned himself as to the weight which it would be right to place upon it.
Law Comm, No. 216, para. 4.6.
Hansard, HL, Vol. 564, col. 1050.
[1992] 3 All ER 414.
Ibid., at 426.
See C. Tapper (ed.), Cross and Tapper On Evidence (London: Butterworths, 1999), at 513.
[1972] 3 All ER 829.
[1993] 1 WLR 143.
Law Comm, No. 216, para. 4.43.
See S.E. Salako, “Transition to a ‘Paperless' System Using EDI Techniques: the Evidential Minefield” (1992) 6 IYLCT 59.
H v Schering Chemicals Ltd. , supra n.39, Savings and Investment Bank v Gasco Investments (Netherland) BV [1984] 1 WLR 271 and Arab Monetary Fund v Hashim [1993] 1 HLR 543, 556.
Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967) at 395.
See J. Stone, “Res Gesta Reagitata” (1939) 55 LQR 66.
J.H. Wigmore, Students' Textbook of the Law of Evidence , 241 in R. Cross, Cross On Evidence (London: Butterworths, 1967), at 395. For a critique of the Civil Evidence Act 1995, see S.E. Salako, “The Hearsay Rule and the Civil Evidence Act 1995: Where Are We Now?” (2000) 19 CJQ 371.
CPR, r. 33.1 and r. 33.2 (1), (2) and (3).
CPR, r. 33.3.
CPR, r. 33.4.
CPR, r. 33.5.
CPR, r. 32.3. This replaces RSC Ord. 38, rr. 3 and 28 which were stretched almost beyond their elastic limits to render admissible pursuant to s.2 of the Civil Evidence Act 1968 evidence through television link in Garcia v Amerindo Investment Advisors Ltd. [1991] 1 WLR 1140, a civil case, where fraud was alleged. The other means include the use of video conferencing equipment.
[1998] 1 All ER 343.
Irish Society v Bishop of Derry (1846) 12 Cl & F 641, Doe d. Francis v Andrews (1850) 15 QB 756, Sturla v Freccia (1880) 5 App Cas 623, HL and Lyell v Kennedy (1887) 56 LT 647.
R v Sutton (1816) 4 M&S 532 where it was held that the recital in public statutes and royal proclamation as to disturbances of the peace were admissible in a prosecution of seditious libel.
Mercer v Denne [1904] 2 Ch. 534, affirmed [1905] 2 Ch 538 and Lilley v Pettit [1948] KB 401.
R v Halpin [1975] 1 QB 907 where the admissibility of the Companies Register pursuant to the Companies Act 1948, s.124 (1) was in issue. It was held that the responsibility could be split between (i) the person who had the knowledge and the duty to make accurate return to the registrar, and (ii) the registrar who had the duty to keep the returns and make them available for public inspection.
See the Police and Criminal Evidence Act 1984, s. 72 (1), as amended by s. 15 (1) of and Sched. 1, para. 9 (1) to the Civil Evidence Act.
Sapporo Maru (Owners) v Statue of Liberty [1968] 1 WLR 739.
Law Comm, No. 216, para. 4.43.
See Everingham v Roundell (1838) 2 M&R 138 and Lafone v Griffin (1909) 25 TLR 308.
Read v Bishop of Lincoln [1892] AC 644 and Fowkes v Berrington [1914] 2 Ch 308.
McCarthy v The Melita (Owners) (1923) 16 BWCC 222, CA (standard medical texts concerning the aetiology of a disease).
Kerr v Kennedy [1942] 1 KB 409 at 413.
Knight v David [1971] 3 All ER 1066.
For a map made under the authority of the Sovereign's commission admitted to ascertain the boundaries of New Romney, see New Romney (Mayor) v New Romney (Commissioners of Sewers) [1892] 1 QB 840; 61 LJQB 558.
Goodright d. Steven v Moss (1977) 2 Cowp 591 and Whitelock v Baker (1807) 13 Vesey511.
The word “pedigree” or “genealogy” is defined as “the relationships by blood or marriage between two or more persons” (G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967), at 320) arising in claims to peerages, proceedings involving legitimacy and cases of succession to property. See Goodwright d. Steven v Moss (supra), Berkeley Peerage Case (1811) 4 Camp 101 and Re Jenion [1952] Ch 454.
See Butler v Mountgarett (1859) 7 HL Cas 633 where a letter by one member of the family to another was adduced to prove a disputed marriage but as the letter showed that the dispute then existed, the House of Lords excluded the proffered evidence.
R v Bliss (1837) 7 Ad & El 550 and Mercer v Denne [1905] 2 Ch 358.
Hansard, HL, Vol. 565, col. 217, 218.
See F v F (1996) The Independent, 26 February (Fam. Div.), Longden v British Coal Corp. [19998] 1 All ER 289, HL, Wells v Wells [19998] 3 WLR 329, HL and Worral v Powergen plc (1999) The Times, 10 February, QBD.
The view that strict rules of evidence apply in magistrates' courts was corroborated by Lord Hoffman in R v Governor of Brixton Prison, ex p Levin [1997] 3 All ER 289 at 294j, HL.
Bradford City Metropolitan Council v K [1990] Fam 140.
Re W (Minors) (Wardship Evidence) [1990] 1 FLR 203.
See the CJA 1988, ss.25 and 26.
The term “business” is not confined to activities of commercial nature. “Business etc. documents include books of account, police custody record ( R v Hogan [1997] Crim LR 349) and computer printouts ( Sophocleous v Ringer [1988] RTR 52, R v Spiby [1991] Crim LR 199, R v Shephard [1993] 1 All ER 225 and R v Boulkhrif [1999] Crim LR 73).
See the Report of the Committee on Frauds Trial (Roskill Committee), 1986 (HMSO), paras. 5.27, 5.35, 5.36, 5.38, 5.40, 5.42, 5.48 and 5.49.
See the CJA 1988, s.23 (3) (a).
Cm 5563, 2002, para. 4.61.
Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Commission Report No. 245), para. 6.53.
Discussed in Chapter 14.
[2006] EWCA Crim 260, [2006] Crim LR 639, (2006) 170 JPR 353, CA.
[2006] 1 All ER 776, CA
(2007) 171 JPR 308. See also R v Horncastle & Ors (2009) The Times, 3 June where it was held that a criminal trial could be fair although the defense did not have the opportunity of examining every witness.
(2007) 171 JPR 308 at 309.
[2005] 1 WLR 3257, CA.
See Unterpertinger v Austria (1990) 13 EHRR 175, Fischer v Austria (Case 33382/96) [2002] ECHR 6, and Luca v Italy (2003) 36 EHRR 46.
(Applications nos 26766/05 and 22228/06), 20 January 2009 (European Court of Human Rights).
Ibid, para 34.
[2008] UKHL 36.
[1992] 1 AC 288 discussed at pp216-218 infra.
(2006) 170 JPR 222.
(2007) 171 JPR 158.
Ibid, para 22.
See Ch. 2.
“Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam” . (Quoted at p.iv of the Roskill Report, note 76 above.)
See R v Lockley and Corah [1995] 2 Cr App R 554 where a transcript of the evidence of a witness who had testified at the trial but who had disappeared before the retrial was held inadmissible as first hand hearsay under s.23 of the CJA 1988 and also inadmissible as a business etc. document (s.24). See also R v Kennedy [1992] Crim LR 37.
[1991] Crim LR 912, PC. This decision is based on s.34 of the Justices of the Peace Jurisdiction Act Jamaica where provisions are more restrictive than the English equivalent – ss.23 and 24 of the CJA 1988.
[1991] Crim Lr 192. See also R v French and Gowhar (1993) 97 Cr App R 421 and R v Hurst [1995] 1 Cr App R 82.
[1996] 1 Cr App R 438.
[2006] Crim LR 643.
[2006] Crim LR 637.
[1999] 1 Cr App R 187. See also R v M [1996] 2 NZLR 659.
Unreported, 11 April 2001, CA.
See Schenk v Switzerland (1991) 13 EHRR 242, para. 46; Ludi v Switzerland (1993) 15 EHRR 173, para. 43; Asch v Austria (1993) 15 EHRR 597, para. 26; Doorson v Netherlands (1996) 22 EHRR 330, paras. 66-67; and Visser v Netherlands [202] Crim LR 495.
See Asch above, para. 27; Kostovski v Netherlands (1990) 12 EHRR 425, para. 41; and Delta v France (1993) 16 EHRR 574, para. 36.
See Delta above, paras. 32 and 37, Schenk above, para. 48, Saidi v France (1994) 17 EHRR 251, para. 44; and Doorson above, para. 76
See Ludi above, para. 46; Schenk above, para. 47; Asch above, para. 29; and Trivedi v UK [1997] EHRLR 521.
[1997] 2 Cr App R 266.
[1998] Crim LR 887.
[1992] 2 Cr App R 266 at 279.
Ibid.
(1991) 13 EHRR 175.
(1989) 11 EHRR 360.
(1990) 12 EHRR 435.
Supra n.96, at para. 31.
Supra n.92, at 280.
(1996) 2 Cr App R 232.
[1993] 2 All ER 154, QBD.
Ibid. at 158 (McCowan LJ).
Ibid. at 159 (Popplewell J).
(1990) 92 Cr App R 98. See also R v Waters (1997) 161 JPR 249 and R v Bird (1997) 161 JPR 96.
[1991] Crim LR 915. See also R v O'Laughlin and McLoughlin (1987) 85 Cr App R 157 (Central Criminal Court) where it was held that deposition taken at committal proceedings by two women living abroad who were said to be too frightened to give evidence in the light of threats they had received should be excluded under s.78 of PACE.
[1997] Crim LR 217. See also R v Wainwright [1998] Crim LR 665.
[2006] EWHC 307 (Admin), (2006) 170 JPR 336, QBD.
(1953) 37 Cr App R 37.
Ibid. at 40.
[1998] Crim LR 887.
See Prof. J.C. Smith [1994] Crim LR 426 and R v Deroda [2001] 1 Cr App R 41. For the relevant cases, see note 75 above.
[2006] EWHC 271 (Admin), (2006) 170 JPR 441, QBD. See also Wellington v DPP (2007) 171 JPR 497 where it was held that the PNC record of W's use of the alias ‘Robert Vernon' satisfied the requirements of s.117 (2) (b) and (c) of the CJA 2003.
Supra, note 18.
These provisions were enacted to effectuate the recommendations of the Frauds Trial Committee (see note 76 above). See HM Advocate v Birkett (1992) The Times, 29 October.
See the YJCEA 1999, s.24 (8).
See CPR, r.32.3.
See The Report of the Advisory Group on Video Evidence ( London : Home Office, 199), para. 2.35.
See G. Williams, “Children's Evidence By Video” (1987) 151 JPN 339; E. Goldstein, “Photographic and Videotape Evidence in the Criminal Courts of England and Canada ” [1987] Crim LR 384; and J. Temkin, “Child Sexual Abuse and Criminal Justice” (1990) 140 NLJ 353, 355 and 410-411.
See D. Birch, “Children's Evidence” [1992] Crim LR 262 at 273.
See the Criminal Justice and Public Order Act 1994, s.50.
See the Criminal Procedure and Investigations Act 1996, s.62.
See R v H (1990) The Times, 31 October, R v Rawling and Broadbent [1995] 1All ER 580, R v Day (Barry) (1996) The Times, 8 March, R v Welstead [1996] Crim LR 48, R v B [1996] Crim LR 499, R v Parker [1996] Crim LR 511 and R v Duffy [1999] 1 Cr App R 307.
R v P (GR) [1998] Crim LR 663. See also R v B (an accused) [1987] 1 NZLR 362.
See R v Blake (1844) 6 QB 126, R v Gray [1995] 2 Cr App R 100, R v Devonport [1996] Crim LR 255 and R v Murray [1997] 2 Cr App R 136.
D. Ormerod, “Redundant Res Gestae” [1998] Crim LR 301.
J. Stone, “Res Gestae Reagitata” (1939) 55 LQR 66.
S.J. Odgers, “Res Gestae Regurgitated” (1989) 12 UNSWLJ 22.
Evidence in Criminal Proceedings: Hearsay and Related Topics , Report No. 138; see also Report No. 245. See section 118 (1), para. 4 of the CJA 2003.
Sir Rupert Cross divided the cases of admissible res gestae into four categories, viz: (a) statements accompanying and explaining relevant acts; (b) statements concerning an event in issue; (c) statements about the maker's mental or emotional state; and (d) statements of contemporaneous physical sensation. See C. Tapper (ed.), Cross and Tapper on Evidence (London: Butterworths, 1999) at 547.
[1987] 1 All ER 513 at 520-521. See also R v West , unreported, 14 September 1999, CA.
(1875) 13 Cox CC 171.
[1912] KB 19, CCA.
(1977) 65 Cr App R 56, CA.
[1996] Crim LR 198.
(1872) Cox CC 230.
J.H. Buzzard, et al., Phipson on Evidence (London: Sweet & Maxwell, 1982), paras. 7-29 and 7-30.
(1905) The Times, 28 July; Phipson on Evidence , note 135 above, para. 7-30.
See J. Stone (1939) 55 LQR 66 at 81.
See R v Andrews , above, n.148.
[1952] AC 480.
(1879) 14 Cox CC 341 discussed in D. Wilde, “Hearsay in criminal cases: res gestae and dying declarations: R v Bedingfield revisited” (2000) 4 E&P 107.
Ibid.
[1972] AC 378.
Ibid. at 387.
(1988) 86 Cr App R 105, CA.
(1992) 95 Cr App R 88, HL.
Ibid. at 95.
(1837) 7 Ad & El 313.
[1923] NZLR 552.
[1952] VLR 347.
(1992) 95 Cr App R 88 at 128.
(1980) 492 Fed Supp 464.
[1965] AC 1001.
J.C. Smith, Criminal Evidence (London: Sweet & Maxwell, 1995), at 65.
See P.B. Carter (1993) 109 LQR 573 and A. Rein (1994) 110 LQR 431.
See section 126 of the CJA 2003.
(1910) 102 LT 202.
(1922) 16 Cr App R 118.
See Maher v DPP , note 129, above.
Chapter 14: OPINION EVIDENCE
(1) GENERAL RULE AND RATIONALE
Historically, the rule against opinion is an offshoot of the hearsay rule. The general rule is that witnesses must state facts, not opinions and the rationale for the rule is that if they are allowed to give their opinions on ultimate issues, there is a serious danger that the jury will be unduly influenced.
However, Lord Mansfield CJ in 1782 in Folkes v Chadd formulated an exception to the general rule when he stated:
“On certain matters, such as those of science or art, upon which the court itself cannot form an opinion, special study, skill or experience being required for the purpose, “expert” witnesses may give evidence of their opinion.”
In that case, the question arose whether a certain bank, created for the purpose of preventing the sea overflowing certain meadows, contributed to the choking and decay of a certain harbor. The evidence of one Mr. Smeaton, a chartered engineer, was allowed.
Lawton LJ in R v Turner , relying on Lord Mansfield's formulation, described the purposes for which expert evidence could be deployed in the following terms:
“Opinions from knowledgeable persons about a man's personality and mental make-up play a part in many human judgments … An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behavior within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.”
In that case, the accused unsuccessfully pleaded provocation in an answer to a charge of murder and was not allowed to call a psychiatrist to testify that the deep relationship which subsisted with his deceased girlfriend was likely to cause an explosive outburst of rage at her confession of infidelity. However, in Lowery v R where Lowery and King were charged with a murder which must have been committed by either or both of them, King was allowed to call a psychiatrist to swear that he was less likely to have committed the crime than Lowery. The Privy Council held that the trial judge had acted properly.
According to Cross , one method of reconciling the two cases would be to treat the fact that Lowery put his character in issue as the reason for allowing the psychiatrist evidence to impugn the credibility of his testimony. Another method would be to treat Lowery as an aberrant case because in spite of the aberration the formulation in Turner had been accepted by the courts and the text writers. The latter method is exemplified by the fact that opinions of experts are admissible on a variety of subjects such as handwriting , medical negligence , voice identification , ear print , DNA evidence and recovered memory (to mention a few) provided they are not on ultimate issues. It is not clear whether lip reading is expert evidence but opinions of experts on psychological profiles and psychological autopsies are inadmissible.
Expert and non-expert opinions are discussed in the sections that follow.
(2) EXPERT OPINION
Expert witnesses have been allowed to testify where the evidence to be adduced was not on the very issue to be decided by the court. Lord President Cooper in Davie v Edinburgh Magistrates described the duty of the expert as follows:
“The duty of the expert is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions. Neither the judge nor the jury is bound by the views of the expert even if it is uncontradicted.”
This dictum, however, raises three questions: (i) Who is an expert?; (ii) What are the duties of an expert?; and (iii) What are the functions of the judge and jury? These questions are now answered in the lexical order they are posed.
The answer to the first question is in R v Silverlock where a solicitor for the prosecution who had for ten years, and quite apart from his professional work, given considerable study and attention to handwriting (especially to old parish registers and wills) was allowed to be called as an expert in order to prove by comparison with genuine letters that an advertisement was the handwriting of the accused. Lord Russell CJ said:
“It is true that the witness who is called upon to give evidence founded on a comparison of handwriting must be peritus ; he must be skilled in so doing; but we cannot say that he must have become peritus in the way of his business. The question is, is he peritus ? Is he skilled? Has he an adequate knowledge? … When once it is determined that evidence is admissible, the rest is merely a question of its value or weight, and that is entirely a question for the jury, who will attach more or less weight to it according as they believe the witness to be peritus .”
As suggested by Lawton LJ in Turner , the qualifications of the expert constitute an indicium of being peritus (i.e. skilled) but “this does not make his opinion on matters of human nature and behavior within the limits of normality any more helpful than that of the jurors themselves.” The other indicium is the acquisition of experience on the issue in question over a period of time as in Silverlock .
The duties of an expert (the answer to the second question posed above) in criminal cases are those laid down at common law which are not different from those in the Civil Procedure Rules , which were stipulated to regulate the experts, first by keeping the costs down and second by guaranteeing their reliability. The duties of an expert (on which the CPR provide a gloss) were stated by Cresswell J in The Ikarian Reefer as follows:
1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert influenced as to form or content by the exigencies of litigation.
2. Independent assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert witness. An expert witness in the High Court should never assume the role of an advocate.
3. Facts or assumptions upon which the opinion was based should be stated together with material facts which could detract from the concluded opinion.
4. An expert witness should make it clear when a question or issue falls outside his expertise.
5. If the opinion was not properly researched because it was considered that insufficient data was available then that had to be stated with an indication that the opinion was provisional. If the witness could not assert that the report contained the truth, the whole truth and nothing but the truth then that qualification must be stated on the report.
6. If, after exchange of reports, an expert witness changed his mind on a material matter then the change of view should be communicated to the other side through the legal representatives without delay and, when appropriate, to the court.
7. Photographs, plans, survey reports and other documents referred to in the expert evidence had to be provided to the other side at the same time as the exchange of reports.
Finally, the role of the judge, the answer to the third question, was stated recently by Mackay J in XYZ v Schering Health Care Ltd. Re the Oral Contraception Litigation as follows:
(1) He must select the issues that appear to matter.
(2) He cannot transform himself into some kind of super-scientist with access to a level of expertise superior to those who have given the evidence.
(3) His role is to evaluate the evidence.
(He must also make clear to the jury that they were not bound by an expert witness's opinion. ) The role of the jury is to arrive at their own conclusion but when the evidence of experts differ on a trial by jury, the jury must decide the issue. On a trial by the judge sitting alone, the judge must decide as in XYZ v Schering Health Care Ltd. where the claimants were a number of women who alleged that they had suffered a variety of cardio-vascular injuries, which came under the description of venous-thrombolism, as a result of taking various brands of third generation combined oral contraceptives manufactured by the defendants whether the defendants were liable. The judge heard evidence from ten epidemiological experts who were largely irreconcilable in their differences and ruled that the case of the claimants was not proven on a balance of probabilities.
(3) EXPERT WITNESSES AND ULTIMATE ISSUES
An expert witness must be peritus (i.e. skilled or suitably qualified) and, according to the principle in Turner , must deal with matters beyond the jury's knowledge. He must not state his opinion on the ultimate issues. The problem, as we shall see, is that the prohibition on ultimate issues has been honored more in the breach than the observance.
In DPP v A and BC Chewing Gum Ltd. the defendants were charged with contravening section 2 (1) of the Obscene Publications Act 1959 and section 1 (1) of the Obscene Publications Act 1964 in that they had for publication for gain certain obscene articles, part of which were sold together with the bubble gums, which would be seen and read by children of five years and over. The Divisional Court held, reversing the justices, that the evidence from child psychiatrists on the likely effects of the cards upon children of various ages was admissible at common law independent of the Act. The decision was doubted in DPP v Jordan where a bookseller charged with possessing obscene articles for publication for gain contrary to section 2 (1) of the Obscene Publications Act 1959 as amended, raised the defense of “public good” under the Act and sought to call expert evidence that the material in question would be psychologically beneficial to persons with abnormal sexual tendencies. The House of Lords held that the evidence had been rightly excluded. It seems, therefore, that the evidence of a psychiatrist under the Obscene Publications Act 1959 is admissible not to show that the materials in question are capable of corrupting and depraving the children (the ultimate issue) but to assist the jury in understanding the effects on the special audience to which they are directed.
It must be noted, however, that expert psychiatric testimony is admissible because it is legally necessary as in criminal cases where the plea of diminished responsibility is raised by the defense or where it will help the jury in its assessment of the pleas of insanity and automatism (whether of the sane or insane variety).
The inadmissibility of psychological and psychiatric evidence established in R v Chard has been confirmed in a shoal of cases. However, there is a blurred line of demarcation between cases where the evidence is rejected outright on the ground that it impinged on the ultimate issue and where it is admissible, in the luminous expression of Faquharson LJ, because “It would have been impossible for the layman to divine the data” presented in open court by the expert.
In view of the fact that the House of Lords in R v Camplin laid down as a matter of substantive criminal law that when determining an issue of provocation, a jury should take into consideration those factors including the age and physical characteristics of the accused which would affect the gravity of the provocation to him. Expert opinion has been rejected in R v Roberts because
“[T]he jury were aware of R's disabilities and characteristics which were highlighted during the judge's summing-up; and the medical evidence would not have added any enlightenment to what they already knew.”
However, judges are prepared to allow medical (be it psychological or psychiatric) evidence if, consonant with the principle in Turner , it is based on “scientific information which is … outside the experience of a judge or jury” or because “it would have been impossible for the layman to divine the data.” This is subject to two limitations: that the evidence does not infringe the hearsay rule and the rule against opinion.
In R v Maish it was held that if the defendant's I.Q. had been 69 or below and insofar as mental defectiveness was relevant expert evidence could have been admitted but because he had an I.Q. of 72, expert evidence was not necessary and was properly excluded. However, in Silcott, Braithwaite and Raghip , Hodgson J observed that it was artificial to draw a strict line at 69/70 I.Q. but the Court of Appeal took a different view. Raghip, a man chronologically aged 19 years and seven months at the date of interview which was subject to section 77 of the Police and Criminal Evidence Act 1984 (PACE) with a level of functioning equivalent to a child of nine years nine months and of reading of a child of six with an I.Q. of 74 could not be said to be normal. Faquharson LJ said it would have been impossible for the layman to divine that data from Raghip's performance in the witness box, still less his suggestibility. The Court held that in the context of the reliability of his confession pursuant to section 76 (2) (b) of PACE, psychological evidence was required to assist the jury and should have been admitted at his trial.
Again, in R v Toner the Court of Appeal held that the possible effect of a mild hypoglycaemic attack on negativing the accused's specific intent for attempted murder and wounding with intent was outside the experience of the jurors who should have been permitted to consider expert evidence.
Relevant expert evidence may still be excluded in civil and criminal proceedings because it infringes the hearsay rule or the rule against opinion. Although section 1 of the Civil Evidence Act 1995 (CEA 1995) renders admissible all forms of hearsay statements (whether they are first-hand or multiple hearsay) in civil proceedings, judges still have the power under section 4 (2) (the weight provisions) and section 14 (1) (exclusions on other grounds) of the CEA 1995 to exclude the evidence.
In criminal proceedings, section 30 of the Criminal Justice Act 1988 renders admissible the reports of experts whether or not they are called to give evidence with leave of court. This section remains in force after the enactment of the Criminal Justice Act 2003 (CJA 2003) . Section 127 of the CJA 2003 allows experts to give evidence of facts and opinions stated by others. It must be noted, however, that expert evidence may be excluded if it is infringes the hearsay rule and that section 78 of PACE applies across Part II, Chapter 2 of the CJA 203. For instance, in R v Weightman the Court of Appeal held that the evidence of a psychiatrist was inadmissible when its purpose was to tell the jury how a person not suffering from mental illness was likely to react to the stresses and strains of life. Again, in R v B (An Accused) the evidence of a child psychologist who had interviewed a sexually abused 12 year-old girl was declared inadmissible. McMullin J said:
“I think that the challenged evidence is inadmissible for two reasons: first, it is hearsay evidence in that it involves the psychologist in saying what the defendant told her, not by way of complaint but as the truth of what the Crown contends; secondly, that it involves a judgment by the psychologist on the complainant's credibility which is a matter on which the jury alone can express an opinion.”
More recently in R v Gilfoyle , the appellant's pregnant wife was found hanging in their garage. He was convicted of murder because prior to the wife's death, the appellant had asked the wife to write out examples of suicide notes saying that he was doing a suicide project at work as part of the course he was attending on counseling. The appellant was an auxiliary nurse. His wife mentioned this to several friends. The Court of Appeal held that they were admissible to prove his state of mind. On a reference by the Criminal Cases Review Commission, counsel for the appellant sought to adduce evidence of psychological autopsies or posthumous profiling by an eminent psychologist to cast doubt on the deceased's state of mind. The Court of Appeal declined to accept fresh evidence on the grounds, inter alia, that psychological autopsy, like psychological profiling, was not recognised as expert evidence and that English, Canadian and United States cases pointed against the admission of such evidence.
(4) EXPERT WITNESSES AND FOREIGN LAW
(a) Common law
At common law, a person whose knowledge of foreign law was derived solely from study without actual practice might be held incompetent to give evidence. The authority for this proposition is Bristow v Sequeville . In that case, it was necessary to prove the law in force in Cologne . A witness who stated that he was a jurisconsult and adviser to the Prussian Consult in England, had studied law at the University of Leipzig, and knew from his studies that Code Napoleon was in force at Cologne, was not allowed to prove the law of Cologne.
Even at common law this was not a definite rule as opinions of persons legally qualified but not practising in jurisdictions in question and the opinions of bankers on foreign banking laws were admitted as expert evidence on foreign law.
(b) Civil Evidence Act 1972, ss.3 and 4
Section 3 of the Civil Evidence Act 1972 (as amended ) provides:
“3 (1) Subject to any rules of court made in pursuance of … this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) …
(3) In this section “relevant matter” includes an issue in the proceedings in question.”
Section 4 of the Civil Evidence Act 1972 provides:
“(1) It is hereby declared that in civil evidence a person who is suitably qualified on account of his knowledge or experience is competent to give expert evidence as to the law of any country or territory outside the United Kingdom …
(2) Where any question as to the law of any country … outside the United Kingdom … with respect to any matter has been determined … in any [civil] proceedings …
(a) any findings made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country … with respect to that matter; and
(c) if that finding or decision, as so reported or recorded, is adduced for the purpose, the law of that country … with respect to that matter shall be taken to be in accordance with the finding or decision unless the contrary is proved.”
Section 3 (1) of the Civil Evidence Act 1972 (CEA 1972) renders admissible expert opinion in civil proceedings and section 4 (1) of the CEA 1972 renders admissible opinions of experts on foreign law who are persons “suitably qualified on account of [their] knowledge or experience.” This is a retreat from Bristow v Sequeville and an enactment of the position in cases sequel to it.
Section 4 (2) (a) of the CEA 1972 allows earlier judicial findings on foreign law made in civil proceedings to be adduced in evidence in subsequent proceedings and accepted as proofs of the findings until the contrary is proved (section 4 (2) (b)).
(5) NON-EXPERT OPINION
At common law, a lay or non-expert witness may state his opinion or impression on questions of identification, condition, comparison or resemblance of persons or things, although he has no special knowledge, skill or experience on such matters. Non-expert opinions have been admitted to prove the publication of a libellous pamphlet and to prove that the damaged window, on a charge of malicious damage, was worth more than five pounds. On a charge of drunken driving, a non-medical witness was allowed to testify that he formed an impression that the accused had been drinking because his eyes were glazed and he spoke with a blurred voice.
The common law position adumbrated above is preserved in section 3 (2) of the CEA 1972 which provides:
“(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.”
See C. Tapper (ed.), Cross and Tapper On Evidence ( London : LexisNexis, 2004), at 558.
(1782) 3 Doug 157.
Ibid.
[1975] QB 834.
Ibid., at 841.
[1974] AC 85, [1973] 3 All ER 662, PC.
Supra n.1, at 517.
R v Silverlock [1894] 2 QB 766.
Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 and Bolitho v City and Hackney Health Authority [1997] All ER 771, HL.
R v Robb (1991) 93 Cr App R 161.
R v Dallagher (2002) The Times, 21 August.
R v Cooke [1995] Crim LR 39, R v Adams [1996] 2 Cr App R 467 and R v Doheny [1997] 1 Cr App R 369.
R v Clarke [1995] 2 Cr App R 45. Cf. R v H , unreported, December 1998 (Bristol Crown Court) and G v DPP [1997] 2 All ER 755.
R v Chard (1971) 56 Cr App R 268 where medical evidence concerning the intention at the material time of someone charged with murder was excluded.
See A. Campbell-Tiech, “Lip reading as expert evidence” [2002] 5 Arch News 5.
R v Stagg [1994] 9 Arch News 4.
R v Gilfoyle [2001] 2 Cr App R 57
1953 SC 34.
Ibid., at 40.
[1894] 2 QB 766.
Ibid., at 771.
[1975] QB 834 at 841.
CPR, Parts 26-29 and 35.
National Justice Compania Naviera SA v Prudential Assurance Co. Ltd. (Ikarian Reefer) (1993) The Times, 5 March, [1993] 2 LL R 68 at 81-82 cited with approval by Otton LJ in Stanton v Callaghan [1999] 2 WLR 745 at 774..
Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce.
Polivitte Ltd. v Commercial Union Assurance Co. Plc [1987] 1 LL R 379 at 386, per Garland J and Re J [1990] FCR 193, per Cazalet J.
Derby & Co. Ltd. v Weldon and others (1990) The Times, 9 November, per Staughton LJ.
[2002] All ER (D) 437 (Jul.) (Approved Judgment, QBD summarised by Lexis Nexis UK editors).
Ibid., para. 34.
R v Fitzpatrick (Gerald) (1999) The Times, 19 February, CA.
R v Jennion [1962] 1 WLR 317.
[1968] 1 QB 159, DC.
[1977] AC 699, HL.
Homicide Act 1957; s.2 (2). See also R v Dunbar [1957] 2 All ER 737 and R v Martin (Anthony) [2002] 2 WLR 1, [2002] 1 Cr App R 323.
Supra, n.14.
R v Silcott, Braithwaite and Raghip (1991) The Times, 9 December, CA.
[1978] AC 705, HL.
[1990] Crim LR 122 at 123, CA. In that provocation case, the Court of Appeal refused leave to call psychiatric evidence that the past physical abuse of the profoundly deaf accused by his father contributed to his loss of self-control.
[1986 Crim LR 395.
Supra n.36. See also R v O'Brien (2000) The Times, 16 February, CA.
Lexis.
[1991] Crim LR 627. See also R v Stockwell (1993) The Times, 11 March, CA where in their Lordships' view a facial mapping expert called to give evidence should have been allowed to do so.
See CPR, r. 32.1 and 32.1.2.
See Liverpool Roman Catholic Archdiocese Trustees Incorporated v Goldberg (No. 2) [2001] 4 All ER 950, Ch D where Evans-Lombe J excluded the friend of a party as an expert witness.
See section 118 (1), para. 8 of the CJA 2003.
See section 126 of the CJA 2003.
(1990) The Times, 8 November, CA.
[1987] 1 NZLR 362.
[2001] 2 Cr App R 57, CA discussed in D. Ormerod, “Psychological Autopsies: Legal Applications and Admissibility” [2001] 5 E&P 1.
(1850) 19 LR Ex 298.
Wilson v Wilson [[1903] P 157, Brailey v Rhodesia Consolidated Ltd. [1910] 2 Ch 95 and Barford v Barford [1918] P 140.
De Beéche v South American Stores, Etc., Ltd. [1935] AC 148, HL and Ajami v Comptroller of Customs [1954] 1 WLR 1405, PC.
By the Civil Evidence Act 1995, s.15 (2), Sched. 2.
Group Torras SA v Sheik Fahad Mohammed Al Sabah & Ors. (1999) The Independent, 25 February, CA.
Fryer v Gathercole (1849) 13 Jur 542.
R v Beckett (1913) 8 Cr App R 204.
R v Davies [1962] 3 All ER 97.
Chapter 15: Illegally Obtained Evidence and Confessions
(1) THE LAW BEFORE PACE 1984
At common law, confessions were excluded if made involuntarily. The test enunciated by Lord Sumner in Ibrahim v R and slightly modified by Lord Hailsham in DPP v Ping Lin was that: “[T]he contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority.”
The principles relating to illegally or improperly obtained evidence evolved in a series of cases culminating in R v Sang . The first in this line of cases is R v Warickshall . In that case, a woman was charged as an accessory after the fact to theft and as a receiver of stolen goods. She was improperly induced to make a confession in the course of which she said that the property in question was in her lodgings where it was found. Counsel for the accused argued that the evidence of finding the stolen property in her custody should be excluded since it was obtained in consequence of the inadmissible confession. The trial judge rejected the argument.
In R v Voisin the accused was convicted of the murder of a woman, part of whose body was found in a parcel in which there was a piece of paper with the words “Bladie Belgiam”. The accused had been asked by the police if he had an objection to writing down the words “bloody Belgian” and he said: “Not at all” and had written down “Bladie Belgiam”. The accused appealed unsuccessfully on the ground that he had not been cautioned before being asked to write the words down. Again in Kuruma, Son of Kaniu v R where the accused had been convicted of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches and in R v Maqsud Ali, R v Ashiq Hussain where tape-recording of incriminating conversation was tendered in evidence, the appeals were dismissed because the probative value of the evidence tendered in each case outweighed the probative value. However, in R v Barker where incriminating books of account of impeccable reliability were obtained by deception, the evidence was excluded and in R v Payne where the accused was persuaded to submit to a medical examination which yielded perfectly reliable evidence, the conviction was quashed. Sang states the common law position as follows: (i) that a judge has a discretionary power to exclude relevant evidence if its prejudicial value to the accused outweighs its probative value; and (ii) that a judge does not have a discretionary power to exclude relevant evidence because it is illegally or improperly obtained. The common law position in cases such as R v Maqsud Ali, R v Ashiq Hussain , Kuruma , Barker and Payne is preserved by section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) which provides:
“Nothing in this Part of the Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”
That this is so is highlighted by two relatively recent cases – R v Ali and R v Stagg . Section 76 (4) (a) and (b) of PACE also preserves the common law positions in Warickshall and Voisin .
It must be noted, however, that the regime under Sang is different from the discretion under section 78 (1) of PACE. Whilst the common law discretion preserved by sections 76 (4) (a) and (b) and 82 (3) is exercised to exclude the admission of evidence “prejudicial to the accused”, section 78 enjoins the judge to exercise his discretion to exclude relevant evidence if “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.” That “prejudice to the accused” is a different concept from “adverse effect on the fairness of the proceedings” is succinctly put by Judge R. May in this illuminating passage:
“It is submitted, with respect, that the view expressed in Fulling accords with the intention of Parliament, which, in sections 78 (2) and 82 (3) of [PACE], preserved the common law rules. As a result, it would appear that section 78 [of PACE] must be considered on its wording.”
In a similar vein, Kean opined: “Although s.78 operates without prejudice to the common law discretion to exclude, s.78 has in very large measure superseded the common law power.”
(2) PACE 1984
(A) Introduction
The law relating to illegally obtained evidence and confessions as stated in PACE can be discussed under three headings: (i) confessions that are obtained by oppressive means or are unreliable; (ii) confessions by mentally handicapped persons; and (iii) entrapment. Each category is worthy of consideration.
(B) Confessions that are obtained by oppressive means or are unreliable
(i) Discretion to exclude evidence obtained by oppression
Section 76 (1) of PACE provides that a confession made by an accused person may be given against him in any proceedings. Section 76A (1) of PACE (inserted by section 128 of the Criminal Justice Act 2003 (CJA 2003) allows an accused person to adduce the evidence of a co-accused but makes no further provision for a third party who is neither before the court nor charged with the offence in question .
While section 76 (2) (a) of PACE confers on judges the discretion to exclude relevant evidence because it was obtained by oppression, section 76 (2) (b) allows the judge to exclude relevant evidence “in consequence of anything said or done which renders it unreliable.” This discretion can be exercised under section 78 of PACE or triggered by breaches of the Codes of Practice promulgated by the Home Secretary pursuant to section 66 of PACE or a combination of these provisions.
(ii) Oppression
In R v Fulling the Court of Appeal held that the word “oppression” should be given its ordinary meaning as stated in the Oxford English Dictionary : “The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc.; the imposition of unreasonable or unjust burdens.” In that case, the Court decided that it was not oppressive for the police to tell the defendant that her lover had been having an affair with another woman which so affected her that she made a confession. However, in R v Samuel the Court of Appeal recognised the fact that the denial of access to a solicitor might be oppressive even though the counsel for S had not suggested that was such a case. Again, in R v Davison D had been arrested at home at 6.30 a.m. for handling a stolen ring, the proceeds of an armed robbery. He was questioned at various stages during the course of the day both about the offence and a bullion robbery. Eventually he confessed but there were breaches of the rules of PACE and the Codes of Practice. It was held that all the evidence after the interview had to be excluded under section 76 (2) (a).
The problem with section 76 (2) (a), as intimated by Professor I. Dennis , is that although the issue of torture has been contested in Republic of Ireland v United Kingdom , it has surprisingly been overlooked in cases decided in municipal courts before the passage into law of the Human Rights Act 1998 (HRA 1998). And yet, the issue should have been raised in, at least, three English cases. In R v Miller the Court of Appeal considered a confession of a paranoid schizophrenic who confessed to killing his girlfriend. At the trial, it was argued that the confession should be excluded under section 76 (2) (a) because it had been obtained as a result of protracted interviews which had caused him to suffer an episode of schizophrenic terror. Medical evidence was given that the style and length of questioning had produced a state of involuntary insanity in which his language reflected hallucinations and delusions. The trial judge refused to exclude the evidence and the defendant was found guilty of manslaughter. On appeal, the Court of Appeal held that although questions which were asked deliberately with the intention of producing a disordered state of mind would amount to oppression, the mere fact that questions addressed to the defendant triggered hallucinations was not evidence of oppression. But the new section 76A (7) of PACE (inserted by section 128 of the CJA 2003) re-enacts section 76 (8) of PACE by stating that “oppression” includes torture, inhuman or degrading treatment and the use of threat of violence (whether or not amounting to torture) and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) provides:
“No one shall be subjected to torture or to inhuman or degrading treatment as punishment.”
The pertinent question is: what is inhuman and degrading treatment? In The Greek Case the Commission defined “inhuman treatment” to be such “as deliberately causes severe suffering, mental or physical” and “degrading treatment” as that which “grossly humiliates the individual before others or drives him to act against his conscience.” Again, in Republic of Ireland v United Kingdom the European Court of Human Rights held that for the purpose of Article 3 of the Convention “torture” included particular intense and cruel forms of inhuman or degrading treatment. In that case, the five techniques of interrogation practised for a short period in 1971 on a group of terrorist suspects in Northern Ireland were aimed at disorientation or sensory deprivation of suspects and involved wall-standing, hooding, subjection to continuous noise, deprivation of sleep and deprivation of food and drinks. The court held that all these techniques amounted to inhuman and degrading treatment.
More recently, in Keenan v United Kingdom it was held that lack of adequate medical supervision before the death of a known suicide risk prisoner combined with internal disciplinary punishment amounted to degrading treatment and a violation of Article 3 of the Convention. In Napier v The Scottish Ministers it was held by the Court of Session that denial of toilet facilities to a person in detention violated Article 3. Again, in McGlinchey v United Kingdom it was held that the prison authorities' treatment of a heroin addict who died after suffering withdrawal symptoms contravened the prohibition against inhuman and degrading treatment contained in Article 3 of the Convention. This case must be contrasted with Peers v Greece where the applicant was arrested at Athens airport on suspicion of drugs-related offences and held in Karidallos prison first on remand and then following conviction until his release on probation. It was held that the conditions of his detention in a segregation unit did not amount to inhuman and degrading treatment under Article 3. And yet, in R (Limbuela) v Secretary of State for the Home Department it was held that to require an asylum seeker to sleep rough was inhuman or degrading treatment. Finally, one case on torture is worthy of note. In Veznedaroglu v Turkey the applicant alleged that she was tortured after being arrested on suspicion of membership of Kurdistan Workers Party. It was held that there had been a violation of Article 3 on account of the failure of the authorities to investigate the applicant's complaint of torture. The two other cases on oppression within the meaning of section 76A (7) of PACE are Barry v Trussler and R v Crampton . In the former, the judge excluded the confession of drug addict because he had been in police custody for 18 hours without any rest whereas the Codes of Practice required that he be given at least eight hours' rest in any twenty-four hours. That made the confession unreliable. In the latter, it was held on appeal that the trial judge had rightly refused to exclude admissions made in an interview by a heroin addict suffering from withdrawal symptoms because nothing had been said or done within the terms of section 76 (2) (b) to render the admission unreliable.
Whilst the decision in Barry v Trussler was right, even though the European Convention jurisprudence was ignored, the decision in Crampton remains suspect. It is submitted that the confession of a drug addict suffering from withdrawal symptoms violates Article 3 of the Convention. The desperate need of the addict for a fix “drives him to act against his conscience” and comes within “degrading treatment” as defined above.
Finally, in Saadi v Italy , the Government of the United Kingdom intervened in the case to try to overturn the absolute prohibition on torture and ill-treatment. The European Court of Human Rights held that the transfer of individuals to countries where they face a real risk of torture and ill-treatment is prohibited absolutely by Article 3 of the Convention and that the law cannot allow for exceptions.
(iii) Unreliability
Section 76 (2) (b) of PACE gave the court a discretion to exclude from evidence a confession which was or might have been obtained “in consequence of anything said or done” which was “likely, in the circumstances”, to render unreliable “any confession” which the accused might make “in consequence thereof”.
The words “in consequence of anything said or done” were interpreted in R v Goldenberg as meaning anything said or done by someone other than the suspect. Denial of access to a solicitor as in Samuel or a confession extracted from a drug addict suffering from drug withdrawal symptoms as in Barry v Trussler were things said and done.
In a line of cases, it has been decided that the test for the interpretation of “which was likely in the circumstances existing at the time” was objective and hypothetical. It is objective because it is not what police officers thought about the mental state of the suspect that is relevant but what it actually was. It is hypothetical because the court would have to consider whether any confession made would be likely to be unreliable and not whether they were in fact true. In R v Everett the appellant pleaded guilty to indecent assault after the trial judge ruled that evidence of admissions to the police should not be excluded. The appellant was aged 42 but tests revealed that he had a mental age of 8. His appeal against conviction was allowed because the trial judge erred in law by deciding the question of admissibility only by reference to the tapes of the interviews and not by taking into account the medical evidence of the mental condition of the appellant. Again, in R v Harvey and R v Delaney the conviction of defendants with low I.Q. have been quashed on the basis of psychiatric evidence which showed in the former it was possible that hearing her lover's confession had caused her to confess and in the latter that the defendant was poorly equipped to cope with sustained interrogation and that the longer the pressure the greater the confusion. In both cases the confessions were unreliable within the meaning of section 76 (2) (b). More recently, in Re Proulx, R v Bow Street Magistrates' Court, ex p Proulx , an extradition proceeding, it was stated, inter alia, that a magistrate ought only to exclude evidence under powers conferred on him by section 78 of PACE where to admit it would outrage civilised values. In that case P, who was living in England , was suspected by the Canadian police of having committed a murder in Canada . During the course of undercover police operation, P made some statements to the Canadian police confessing to the killing. The question that arose in the extradition proceeding was whether the statement was unreliable within the meaning of section 76 (2) (b) and should be excluded under section 78 of PACE. It was held that provided the magistrate had correctly directed himself on the law, the Divisional Court would not interfere with the decision.
Finally, the words “any confession” mean “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise.”
(C) Confessions by mentally handicapped persons
Section 77 (1) of PACE provides:
“77 (1) … where at such a trial –
(a) the case against the accused depends wholly or substantially on a confession by him; and
(b) the court is satisfied –
(i) that he is mentally handicapped ; and
(ii) that the confession was not made in the presence of an independent person ,
the court shall warn the jury that there is a special need for caution before convicting the accused in reliance on the confession …”
The term “independent person” does not include “a police officer or a person employed for, or engaged on, police purposes”. “Police purposes” within the ambit of section 77 (1) is defined as having the meaning assigned to it by section 101 (2) of the Police Act 1996. The term “mentally handicapped” in relation to a person is liberally defined as including any person “in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.” In other words, persons with low I.Q.s whose confessions were held unreliable under section 76 (2) (b) discussed above such as in Everett , Harvey and Delaney were subject to the provisions in section 77 and the Codes of Practice.
In R v Lamont the Court of Appeal quashed a conviction for attempted murder and assault occasioning bodily harm where the judge had failed to give warning. The defendant was mentally sub-normal with the reading age of a child of eight and an I.Q. of 73. Again, in R v Cox C was handicapped with an I.Q. of 58. He was charged with burglary. In an interview with the police in the absence of an independent person he admitted being party to two burglaries. C was unable to read and the notes of his interview were read to him and he signed them. C himself gave evidence. In a voir dire (a trial within a trial) police officers were called to give evidence, three of whom did not know C and the fourth said the he was unaware that C was backward. C also confessed to being a party to one of the burglaries in the voir dire and pleaded guilty following the judge's ruling that the interview should be admitted. He was convicted and the appeal was allowed on two grounds. The first was that since it has been conceded that C was mentally handicapped within section 77 of PACE there was a breach of Code C of the Codes of Practice (absence of an independent person at the police station) and because the judge should have asked himself not whether the confession in the police interview was true but whether it was made in consequence of anything done likely to render it unreliable in accordance with section 76 (2) (b) of PACE. The second ground was that the purpose of the voir dire was to decide the admissibility of the interview notes and that confessions made in a voir dire were inadmissible.
This raises the question: What is an interview for the purpose of Code C of the Codes of Practice? In R v Matthews, Voss and Dennison the Court of Appeal said that normally any discussion or talk between a suspect or a prisoner and a police officer would amount to an interview whether instigated by the suspect or prisoner or police officer. Again, in R v Absolam A who had been arrested for threatening behavior was asked by the custody officer to empty his pocket and he did so. The officer, knowing that he had previous convictions for possession of cannabis, then asked him to put the drugs on the table whereupon A produced a bag containing cannabis from his trousers and admitted selling drugs. It was held that the altercation between A and the police officer was an interview which should have been recorded contemporaneously. The conviction was quashed. More recently, in Batley v DPP where the police suspected after hours drinking and asked the publican to explain what the arrangements were in the public house, it was held that the question amounted to an interview under Code C of the Codes of Practice.
(D) Entrapment
(i) Introduction
Hitherto, the courts have consistently declared that the defense of entrapment was not recognised in English law in spite of occasional dicta in favor of its existence and the trenchant critiques of the preponderance of English authorities. However, with the passage into law of the Human Rights Act 1998 which incorporated Convention rights, we are beginning to notice a sea change. This change is discussed under two headings, viz. (i) the use of tricks or ruse by the police; and (ii) secretly-taped conversation.
(ii) The use of tricks or ruse by the police
The position at common law which is preserved by section 82 (3) of PACE is that evidence obtained by trick is excluded not because on balance the probative value does not outweigh the prejudicial value – in fact, it does – but because of the deterrence factor: the exclusion removes the incentive for the police to engage in deceptive practice or in a ruse. In Barker and Payne , two pre-PACE cases, a radically different position was taken. In the former incriminating books of account of impeccable reliability were obtained by deception whereas in the latter the accused was persuaded by similar means to submit to a medical examination which yielded perfectly reliable evidence. In Barker the evidence was excluded as inadmissible written confession and in Payne the conviction was quashed because the trial jury should have exercised his discretion to exclude the confession.
The position adopted under section 78 of PACE is fundamentally different from the common law position summarised in Sang , as explained above. And, what is more, section 78 of PACE can be invoked on its own without being triggered by section 58 (denial of access to a solicitor) , section 76 (2) (a) (oppression) , section 76 (2) (b) (unreliability) and section 77 (interviewing a mentally handicapped person in the absence of an independent person as defined) as in R v Mason . Mason is also authority for the proposition that where the police practice a deception on the defendant or his counsel, the evidence obtained by deception will be excluded. In that case, the police practised a deception upon the defendant and his solicitor by telling them untruthfully that the defendant's fingerprint had been found on the fragment of broken bottle used in starting a fire. The solicitor then advised the defendant to answer police questions and the defendant confessed. The Court of Appeal held that, because of the deceit practised on the defendant and his solicitor, the evidence should have been excluded. Again, in R v H where the police instigated a telephone conversation between a complainant and inculpatory statements were secretly recorded, Gatehouse J exercised his discretion under section 78 of PACE to exclude the evidence.
Fairness within the meaning of section 78 of PACE must now be construed subject to Article 6(1), (2) and (3) (d) of the Convention. The position in Australia as well as Canada is to exclude the evidence where the defendant is deliberately tricked into surrendering his right to silence at the instance of law enforcement officers who seek the defendant's confidence as a friend and not as a police agent. In Stagg , S was charged with murdering Rachel Nickell on Wimbledon Common on 15 July 1992. The evidence tendered by the prosecution consisted of correspondence and taped conversations between S and an undercover policewoman (“Lizzie James”) who induced S to reveal his sexual fantasies to her and a psychological profile of S was compiled by an eminent psychologist. Ognall J held that the conduct of fair trial required the exclusion of the evidence under the powers preserved by section 82 (3) or under section 78 of PACE. He added:
“The notion that a psychological profile is in any circumstance admissible in proof of identity is to my mind redolent with considerable danger; first because of the rule against evidence going solely to propensity; and second because the suggested analogy between this case and the authorities on the so-called similar fact evidence is prima facie highly questionable; and third because of the question of whether this is truly described as expert evidence at all.”
Finally, one must consider the adoption of a ruse in Williams v DPP . In that case, plain clothes police officers placed a van containing an apparently valuable load of cartons of cigarettes which were in dummy cartons and watched the defendants walking around and then removing the cartons. Although the defendants were rightly convicted under the Criminal Attempts Act 1981, the issue raised by a conviction obtained by a ruse is whether the police officers involved were investigating a crime or exercising an influence such as to incite the commission of a crime. To this and other related issues we must now turn.
(iii) Secretly-taped conversations
The principal statutory provisions which regulate the admissibility of secretly-taped conversations are sections 78 and 82 (3) of PACE and sections 2 and 9 of the Interceptions of Communications Act 1985 (IOCA 1985) as amended by sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000).
The 1985 Act was enacted following the decision in Malone v United Kingdom to provide a clear statutory framework within which the interception of communications or public systems would be authorised in a manner commanding public confidence. Part III of the Police Act 1997 creates a legal framework for the authorisation of entry upon and search of property by the police, Customs and Excise officers, the National Criminal Intelligence Service Authority and the New Crime Squad. Constables, Crown servants and members of Her Majesty's forces have been added to that list.
Section 1 of the IOCA 1985 makes it a criminal offence to intentionally and without lawful authority, intercept a communication in the course of its transmission by means of a public postal service or a public telecommunication system. Section 9 of the IOCA, which is now replaced by s.17 of RIPA 2000, provides that no evidence shall be adduced which tends to suggest that an offence has been committed under section 1, or that a warrant has been issued for an interception. An offence is not committed under section 1 (2) of IOCA 1985 [now replaced by sections 3 and 5 of RIPA 2000] if the interceptor has lawful authority or where the person by whom or to whom the communication is sent had consented and the interception took place in the course of authorised surveillance.
Before the passage into law of the HRA 1988, it was firmly established that entrapment was not a defense in English law. In R v Bailey it was held that evidence of secretly taped conversations between two remand prisoners who had been placed in the same cell were admissible and did not trigger the discretion to exclude under section 78 of PACE. Again, in R v Smurthwaite and Gill and R v Dixon and Mann the appellants in both cases were charged with soliciting to murder their spouses. In both cases the persons solicited were undercover police officers passing as contract killers. The appellants contended that the undercover officers were agent provocateurs and the secretly taped conversations should be excluded under section 78 of PACE. In both cases the Court of Appeal held that a judge had no discretion to exclude evidence merely on the ground that they were improperly or unfairly obtained and the evidential requirement in section 78 that evidence might be excluded, having regard to the circumstances in which it was obtained, had not altered the rule of substantive law that entrapment and the use of agent provocateur did not per se afford a defense in law to a criminal charge.
Under the old law, the principle on the construction of section 9 of IOCA 1985 was stated in R v Effik , namely, that the law did not prevent the admission of the product of telephone intercept to which the Act applied provided, as modified in R v Preston , it related to a warranted intercept.
However, technological development has advanced since the passage into law of IOCA 1985. As the 1985 Act is limited to interception of communications in the course of their transmission by post or by means of public telecommunications systems, it did not cover the new technologies, viz. (i) e-mails; (ii) the use of secret listening devices; (iii) “the international simple resale” by which companies buy international line space and resell it to the public; and (iv) the encryption of data. This lacuna in the law was exposed by two cases which we now discuss.
The first is R v Khan (Sultan) . In that case the appellant was secretly taped by attaching a listening device to a house he visited to discuss a drug deal with another man. The tape showed that the appellant was involved in the importation of drugs. He appealed to the House of Lords on the following grounds: (i) that the installation of the bugging device amounted to civil trespass; (ii) that the admission of the tapes violated his right to private and family life guaranteed by Article 8 of the Convention; (iii) that the tape was in breach of the IOCA 1985; and (iv) that the tape should have been excluded under section 78 of PACE. The House of Lords, dismissing the appeal, held that under English law there was nothing unlawful about a breach of privacy. It was also held that the common law rule that relevant evidence obtained by improper and unfair means was admissible in criminal trial applied to evidence obtained by the use of surveillance devices invading a person's privacy and that there was no defense of entrapment in English law. Finally, it was held that the fact that evidence was obtained in circumstances amounting to a breach of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion. Lord Browne Wilkinson, however, entered a caveat:
“Whether or not such right exists is currently a matter of considerable public debate. This country is a party to the European Convention on Human Rights …, art. 8 of which provides for a right of privacy, but always subject to exceptions.”
Counsel of prudence, presciently and succinctly put! The right to privacy antedates the promulgation of Article 8 of the Convention. It is traceable to two eighteenth century English cases – Wilkes v Wood and Entick v Carrington (the so-called “search and seizure” cases). Unfortunately, this right was left to atrophy in the UK but was incorporated into the Constitution of the United States of America through the Fourth Amendment.
True, Article 8 is a factor to be considered; the fact that conversations are covered by the notions of “private life” and “correspondence” referred to in Article 8 (1) is incontrovertible. The pertinent question is: When is the violation of the right to privacy “necessary in a democratic society”? For Kempees there are two indicia of what is necessary in a democratic society, viz. (i) the existence of a “pressing need” for the interference in question; and (ii) the margin of appreciation left to the State which remains subject to review by the court. These indicia were applied in Teixeira De Castro v Portugal where the European Court of Human Rights stated:
“While the rise in organized crime undoubtedly requires that appropriate measures be taken, the right to fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 (of the Convention) apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement.”
In that case, the applicant complained that he had been deprived of a fair trial due to his conviction being based mainly on the statements of two police officers who had incited the commission of the offence. He also claimed that there had been violations of Articles 3 and 8 of the Convention. By eight votes to one, it was held that Article 6 (1) of the Convention had been violated. Again, in Khan v United Kingdom it was held that the covert policing in Khan (Sultan) violated Article 8 of the Convention. The European Court held that it was not disputed that the surveillance carried out by the police interfered with Article 8 (1). The principal issue was whether it was justified under Article 8 (2) as being “in accordance with the law” and “necessary in a democratic society.” The Court found that at the time of the events in that case, there existed no statutory system to regulate covert policing although the Police Act 1997 now provides such a framework. In accordance with Govell v United Kingdom the Court found that the listening device invaded the applicant's privacy.
In Halford v United Kingdom European Court held unanimously that there had been a violation of Article 8 in relation to the interception of calls made on the applicant's office telephones but that there was no violation of Article 8 in relation to the interception of calls made on the applicant's home telephone. Recently, in Armstrong v United Kingdom it was held that covert surveillance violated Article 8 (1) of the Convention because the covert measures were not used in accordance with the law within Article 8 (2).
The two issues raised in Khan (Sultan) namely, the provenance of materials obtained by telephone intercept and entrapment have been resolved by judicial pragmatism and by statute. The law relating to interception of communications has been adapted to the technological age by sections 17 and 18 of the RIPA 2000. Evidence of materials obtained by interception for which no warrant had been issued were held inadmissible and inconsistent with the defendant's right to fair trial by the House of Lords in Morgans v DPP . Similarly, in R v Sargent , the House of Lords held that a telephone engineer who for unauthorized purposes in breach of section 1 (1) of IOCA 1985 recorded a conversation implicating the appellant in a crime was a person within section 9 (2) (c) of the 1985 Act and accordingly the evidence was inadmissible by virtue of section 9 (1) of the Act.
The principle enunciated in R v Aujla that foreign intercept was admissible was elaborated in R v P . In P it was held that where telephone conversations between a national of a Country A and the appellant had been lawfully monitored in Country A by the prosecuting authorities of that country, the tape recordings of the conversations were admissible in evidence at the appellant's trial in England on drug charges. Lord Hobhouse enunciated the principles applicable under IOCA 1985 as follows :
1 All relevant and probative evidence is admissible but where surveillance is concerned the use of evidence comes at a price.
2. This means that disclosure has to be made and the secrecy of the means and extent of the surveillance has to be sacrificed.
3. The object of section 9 of the IOCA 1985 is to preserve secrecy. Therefore, the section prevents any questions being asked which tend to suggest that an official may or may not have had authority under the Act to intercept a communication.
4. There is no basis for the argument that there is a rule of English public policy which makes this evidence, which is admissible in country A, inadmissible in England .
We must now discuss, at some length, sections 17 and 18 of RIPA 2000 which bristle with evidential problems as highlighted in two recent cases. In R v E , one of a number of defendants accused of drugs-related offences, challenged at a preliminary hearing the admissibility of telephone conversations recorded as a result of a surveillance device installed in the appellant's car. The judge ruled that the evidence was admissible. On appeal, the appellant's contention that the consequence of section 17 of RIPA 2000 was to make the material derived from the device inadmissible or, alternatively, that it should be excluded under section 78 of PACE was rejected. In Attorney General's Reference (No. 5 of 2002) where the conversations of three police officers suspected of passing confidential and sensitive information to known criminals were intercepted pursuant to IOCA 1985, which did not apply to private communication system, and were charged with conspiring to commit misconduct in a public office and tried in May 2002 when IOCA 1985 had been replaced by RIPA 2000. The telephone system used to make the interception linked several police stations and comprised private automated branch exchanges linked together via BT Megastream lines which were part of the public telephone system. The trial judge ruled that section 17 of the RIPA prevented the defense from asserting that the interception had taken place on the public side of the system and prevented the prosecution from adducing evidence that it had taken place on the private side. He also ruled that pursuant to section 78 of PACE it would be adverse to the fairness of the proceedings to allow the prosecution to adduce evidence that the interception was on a private side if the defense were not allowed to adduce evidence to the contrary. The three defendants were acquitted on the judge's direction and the Attorney General referred to the Court of Appeal the following questions:
“(1) whether s.17 (1) of RIPA operated so as to prevent, in criminal proceedings, any questions being asked, evidence being adduced, assertion or disclosure made so as to ascertain whether a telecommunications system was a public or a private telecommunications system;
(2) whether the answer to question (1) was different if the questions being asked etc. related to events which took place before RIPA came into force; and
(3) whether an interception of a communication had taken place on a private telecommunications system, it was permissible, in criminal proceedings, to ask questions or adduce evidence etc. to establish that interception had been carried out by or on behalf of the person with the right to control the operation or the use of the system.”
The Court of Appeal answered the first two questions in the negative and the third question in the affirmative. This decision was affirmed by the House of Lords in a judgment which is illuminating and problematic. The decision of the House of Lords can be summarised as follows:
• That section 1 (1) of RIPA 2000 re-enacted the offence created by section 1 (1) of IOCA 19085 of intentional interception without authority in respect of public telephone system;
• that section 1 (2) of RIPA 2000 created an offence of intentional and without lawful authority making an interception in respect of a private system; and that references to lawful authority and criminal liability were clarified in sections 1 (5) and 1 (6).
• that the first source of lawful authority to tap a private system, as defined in section 3, is where consent was given by a party to the communication, and the second source, defined in section 4, permitting an employer to monitor compliance with regulatory requirements;
• that if the court concluded that it was public, that was the end of the matter, and that if it was private but unlawful that would also be the end of the matter;
• but if it was private but unlawful, the court might, subject to any other argument, admit the evidence; and
• that the European Convention on Human Rights permitted necessary and proportionate interference with the right to privacy (Article 8 (1) and (2) of the Convention).
The problem with RIPA 2000 is with section 17 (1) which sets out the rules of admissibility and section 17 (2) which lists five forbidden categories of information about provenance. As these rules are blanket rules of inadmissibility, it is difficult to see how the section can be interpreted in a manner compatible with Articles 6 and 8 of the Convention.
Again, section 18 bristles with evidential problems. Although section 18 (7) of RIPA 2000 deals with the procedure where disclosure is made to the judge alone, there are no circumstances in which prohibited materials may be disclosed to the defense and there is a real prospect of violation of Article 6 of the Convention.
Recently, the House of Lords had to consider in In re McE whether s.27 (1) of RIPA 2000 and the Code authorize surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. Section 27 (1) provides:
“(1) Conduct to which this Part applies shall be lawful for all purposes if –
(a) an authorisation under this Part confers an entitlement to engage in that on the person whose conduct it is; and
(b) his conduct is in accordance with the authorisation.”
Section 28 governs the authorisation of direct surveillance.
In this case, a solicitor called Manhoman Sandhu was charged with incitement to murder and four counts of doing acts tending and intended to prevert the course of justice. The case against him was based on covert electronic surveillance carried out by the police of conversations between himself and his clients who were purporting to consult him in the serious crime suite at Antrim Police Station in Northern Ireland . This led to request made of the police on behalf of each of the appellants for assurances that no such monitoring was to take place in respect of their consultations with their lawyers or psychiatrist. The police declined to give such assurances. The Divisional Court held that monitoring of legal consultations in police stations or prisons cannot be lawfully authorised under the Code [for authorisation of surveillance] in its present form. The Home Secretary chose not to appeal against this finding of law but regarded the finding as a “concern” and felt that it was open to her to “take steps necessary to remedy the concern identified by the Court.”
In answering the question certified for the opinion of the House of Lords on the impact of RIPA on legal professional privilege, the majority of the Law Lords, after considering Brennan v United Kingdom and other Strasbourg cases but excluding S and Marper v United Kingdom , discussed in Chapter 9, held that RIPA permits the Code to authorize surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. Lord Phillips noted that the monitoring of legal consultations in police stations or prisons cannot lawfully be authorised in its present form until the Home Secretary took appropriate steps to ensure that such authorisation complies in all respects with the requirements of the Convention. This is problematic. The fact that such surveillance is prescribed by law is not sufficient to bring the statutory provision and the Code within the ambit of Article 8 (2) of the Convention. The law, as clarified by amendment made by the Home Office, must also be proportionate to the legitimate interests of the State and necessary in a democratic society as stated in S and Marper v United Kingdom which, regrettably, was passed over in silence by the House of Lords.
Finally, we must consider R v Loosely, Attorney General's Reference (No. 3 of 2000) , a case on entrapment where Lord Nicholls categorically stated:
“It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and to then seek to prosecute them for doing so. That would be entrapment … The role of the courts is to stand between the state and its citizens and make sure this does not happen.”
In that case, the first defendant, Loosely, was convicted of supplying a class A controlled drug contrary to section 4 of the Misuse of Drugs Act 1971. The second defendant was charged with supplying heroin to an undercover police officer known as “Rob”. Rob was given the defendant's name and telephone number and told that the defendant could obtain drugs. Rob telephoned the defendant who agreed to supply heroin. Undercover officers offered contraband cigarettes to the defendant at a cheap price and asked him if he could get them some heroin. The trial judge stayed the proceedings on the ground that the police officers had incited the commission of the offence and the defendant would be deprived of his right to fair trial guaranteed by Article 6 of the Convention. The case was referred by the Attorney-General to the Court of Appeal and the Court ruled that the trial judge had erred in staying the proceedings. On appeal by the defendant in the first case and on further reference by the Court of Appeal at the request of the defendant in the second case, the House of Lords dismissed Loosely's appeal and held that the judge was entitled to conclude that the officers' conduct did not constitute incitement but in the Attorney-General's Reference the judge was right to rule that the prosecution should be stayed on the ground that the police officers had instigated the offence.
The principles of law were stated as follows: (i) that it would be unfair and an abuse of process if a person had been incited or pressurized by an undercover police officer into committing crime; but (ii) it would not be objectionable if the officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime, and that person freely took it.
[1914] AC 599 at 609.
[1975] 3 All ER 175 at
[1980] AC 402 at
(1783) 1 Leach 263.
[1918] 1 KB 531, [1918-19] All ER Rep 491.
[1955] AC 197, [1955] 1 All ER 236, PC.
[1966] 1 QB 688, [1965] 2 All ER 464. Cf. PG and JH v United Kingdom (2001) The Times, 19 October; (2008) 46 EHRR 51 where the use of covert listening devices at a police station violated Articles 8 and 13 of the Convention.
[1941] 2 KB 381.
[1963] 1 WLR 637.
(1991) The Times, 19 February, CA. In that case, recordings of conversation between the accused and his family taken in an interview room where the police had planted a microphone was held admissible in evidence. Cf . Brennan v United Kingdom [2002] Crim LR 216 where it was held that the presence of the police at D's consultation with his lawyer violated Article 6 (1) read in conjunction with Article 6 (3) (c).
Infra, n.46.
See D.W. Elliot, Manual of the Law of Evidence (London: Sweet & Maxwell, 1987), at 201. See also Li Shu-Ling v R ([1988] AC 270, [1988] 3 All ER 138, PC; Lam Chi-Ming v R [1991] Crim LR 914, PC; and Commentary [1991] Crim LR 914-915.
R. May, “Fair Play at Trial: An Interim Assessment of section 78 of the Police and Criminal Evidence Act 1984” [1988] Crim LR 722 at 723.
A. Keane, The Modern Law of Evidence ( London : Butterworths, 2000), at 373.
See R v Hayter [2005] 1 WLR 605, HL and R v Johnson (2007) 171 JPR 574. Cf. R v Finch [2007] 1 Cr App R 33.
[1987] QB 426.
[1988] QB 615.
[1988] Crim LR 442.
I. Dennis, “The Admissibility of Confessions under sections 84 and 85 of the Evidence Act 1995: An English Perspective” [1996] 18 Syd LR 34 at 44.
(1978) 2 EHRR 25.
[1986] 1 WLR 1192.
(1969) 12 Yearbook of the European Convention on Human Rights 186.
Supra n.19.
(2001) 33 EHRR 38.
(2001) The Times, 15 November. See also R v Secretary of State for the Home Department, ex p Turgut [2000] HRLR 337 and Bensaid v United Kingdom (2001) 33 EHRR 10.
(2003) The Times, 1 May.
(2001) 33 EHRR 51.
See also R (Nasseri) v Secretary of State for the Home Department [2008] 1 All ER 411.
(2001) 33 EHRR 59.
[1988] Crim LR 416.
[1991] Crim LR 277.
(Application no 37201/06), 28 February 2008 (European Court of Human Rights).
[1988] Crim LR 678.
[1988] Crim LR 826.
[1988] Crim LR 241.
(1989) 88 Cr App R 338. Cf. R v Crampton , supra n.31.
[2001] 1 All ER 57, DC.
PACE, s.82 (1). See R v Sat-Bhambra [1988] Crim LR 453. Cf . R v Watson [1980] 1 WLR.
PACE, s.77 (3).
Ibid.
Supra n.28.
Supra n.29.
Supra n.30. See also R v Silcott, Braithwaite and Raghip (1991) The Times, 9 December.
Annex E, Code C. See also R v Campbell [1995] 1 Cr App R 522.
[1999] Crim LR 813.
[1991] Crim LR 276. Note also that in R v Bailey [1995] 2 Cr App R 262 the confession in the absence of an independent person was excluded.
Section 76 of PACE requires the issue of admissibility to be determined in a voir dire before evidence is given ( F v Kent Chief Constable [1982] Crim LR 682).
See Wong Kam-Ming v R [1980] AC 247, PC.
[1990] Crim LR 190.
(1989) 88 Cr App R 332, CA.
(1998) The Times, 5 March, DC.
See R v H [1987] Crim LR 47 and R v Stagg [1994] 9 Arch News 4.
See P.B. Carter, “Evidence Obtained by the Use of a Covert Listening Device” (1997) 113 LQR 468; A. Ashworth, “Should the Police be Allowed to Use Deceptive Practices?” (1998) 114 LQR 108; and A.F. Jennings and D. Friedman, “The Future of Covert Policing: Will it rest in peace?” [2000] 8 Arch News 6-8.
Supra n.8.
Supra n.9.
Supra n.3.
R v Samuel [1998] QB 615.
R v Miller [1986] 1 WLR 1191.
R v Goldenberg [1988] Crim LR 678 and R v Everett [1988] Crim LR 826.
PACE, s.77 (3).
(1988) 86 Cr App R 349. See also Matto v DPP [1987] Crim LR 641 where mala fides was found in the police. It was suggested to him that he could sue if wrongly arrested. The evidence was excluded under section 78 of PACE.
[1997 Crim LR 47.
See Swaffield and Pavic v R [1998] HCA 1 (20 January 1998): available on the Internet at http://www.austlii.edn.au/do/displ./au
Hebert v R [1990] 2 SCR 151 and R v Broyles [1991] 3 SCR 595 (Supreme Court of Canada).
Supra n.46.
Ibid.
[1993] 3 All ER 365.
For an overview, see P. Mirfield, “Regulation of Investigatory Powers Act 2000 (2): Evidential Aspects” [2001] Crim LR 91.
(1985) 7 EHRR 14.
Interception of Communications in the United Kingdom . February 1985, HMSO, Cmnd. 9438.
RIPA 2000, ss.17 (3) (b) and 81 (6) (a).
[1993] 3 All ER 512, (1993) 143 NLJ 579, CA.
[1994] 1 All ER 898.
(1994) The Times, 31 December. See also R v Latif and Shahzad [1996] Crim LR 415 where the use of an undercover officer in Pakistan and a customs officer in the UK to entrap the importers of heroin in the UK did not trigger the judge's discretion under section 78 of PACE to exclude the evidence obtained.
(1992) 95 Cr App R 427, CA.
[1994] 2 AC 130, HL. See also R v Rasool, R v Choudhary (1997) The Times, 17 February, CA.
[1996] 3 All ER 289, HL.
In both Nottingham City Council v Amin [2001] 1 Cr App R 426 and R v Shannon [2001] 1 Cr App R 168 this position was affirmed. The House of Lords also relied on the authority in Schenk v Switzerland (1988) 13 EHRR 242 and Ludi v Switzerland (1993) 15 EHRR 173 that Article 8 of the Convention is not violated on interception of communication if it is done “according to the law” even though in Ludi it was held by eight votes to one that there had been a violation of Article 6 (1) in conjunction with Article 6 (3) (d).
[1996] 3 All ER 289 at 291.
(1763) 19 St Tr 1153.
(1765) 19 St Tr 1029.
The Fourth Amendment to the US Constitution enacts: “The right of people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizure shall not be violated.”
See Klass v Germany (1978) 2 EHRR 24, Malone v United Kingdom , supra n.62 and Niemetz v Germany (1993) 16 EHRR 97.
Article 8 (2) of the Convention.
P. Kempees, A Systematic Guide to the Case-law of the European Court of Human Rights, 1960-1994 (The Hague: Martinus Nijhoff, 1996), Vol. 1, at 601.
(1999) 28 EHRR 101.
Ibid., at para. 36.
[2000] Crim LR 684.
[1999] EHRLR 121. In that case, the police drilled a hole into the applicant's living room wall from the adjoining house that would enable someone to listen from the next door or attach a listening device. The evidence gathered as a result of this surveillance was not sufficient to justify a prosecution though the applicant was arrested in possession of Class A drug during an unrelated matter. The Commission found (unanimously) that there had been a violation of Articles 8 and 13 of the Convention.
(1998) 24 EHRR 523.
(2002) The Times, 6 August.
[2000] 2 Cr App R 113, HL.
[2001] 3 WLR 992, HL.
(1997) The Times, 24 November.
[2001] 2 WLR 462, HL.
Ibid., at 476-478.
See Armstrong v United Kingdom , note 91 above. See also Allan v United Kingdom (2002) The Times, 12 November.
[2004] ECWA Crim 1243, [2004]] 2 Cr App R 29.
[2004] UKHL 40, [2005] 12 Cr App R 20.
Ibid.
See R v Togher, Doran and Parsons [2001] 3 All ER 463 at 467 ( Per Lord Woolf CJ).
See Edwards and Lewis v United Kingdom (2003) The Times, 29 July where E and L complained that they had been deprived of a fair trial because they had been entrapped into committing offences by agent provocateurs and the procedure followed by the domestic courts concerning non-disclosure of evidence had been unfair. In its Chamber judgment, the European Court held that the fair trial provisions of Article 6 (1) of the Convention had been breached. The UK Government then informed the European court that it no longer wished to pursue the case to the Grand Chamber and the Court concluded that there had been a violation of Article 6 (1) for reasons stated by the Chamber and awarded the applicants €47,000 for costs and expenses under Article 41 of the Convention (see The Times, 3 November 2004).
[2009] UKHL 15.
Ibid, para 52.
(2001) 34 EHRR 507.
(Applications nos 30562/04 and 30566/04), 4 December 2008 (European Court of Human Rights).
[2001] 1 WLR 2060, HL.
Ibid., at 2063-2064.
