Tonight we continued with appeals, and concluded the course.

RIGHTS OF APPEAL FROM THE CROWN COURT. A person convicted of an offence on indictment may appeal against conviction where he pleaded not guilty and/or against sentence whether he pleaded guilty or not guilty.

Appeal may be made to the Court of Appeal against either conviction or sentence. If a convicted person had legal representation for his trial this extends to initial advice on appeal and drafting grounds of appeal if the advice is that an appeal be pursued. The procedure is as follows:

(1) Within 28 days of conviction or sentence the appellant serves on the registrar of criminal appeals a notice of application for leave to appeal, accompanied by draft ground of appeal.
(2) If the appeal is against conviction then there will need to be a transcript provided, either of the judge’s summing up or, perhaps, of some part of the evidence, or even of most of the trial. The court’s short-hand writer will then be asked by the registrar to transcribe the appropriate part of his notes.
(3) The papers are then put before a single judge who may be either a Lord justice of Appeal or a Higg-h Court Judge sitting as a member of the Court of Appeal. The papers will include the grounds of appeal, transcript and any other relevant documents. This is a filtering stage at which a single judge considers whether leave ought to be given. If he does grant leave to appeal he will grant legal aid for the hearing itself. If the single judge refuses leave to appeal the appellant has 14 further days in which to serve notice upon the registrar that he wishes to renew the application before the full court. The papers are then put before the full court who again consider the papers, though without legal argument usually, since legal aid is not available at this stage. There may be legal argument if the person convicted is able to afford it privately. The judges are at this stage still considering the question of leave to appeal. If they are inclined to grant leave to appeal then they may also grant legal aid for the hearing of the appeal proper.

If the registrar in a preliminary look at the grounds of appeal considers that the appeal has a prima facie chance of success he may bypass the single judge procedure, grant legal aid himself and list the application for leave to appeal for hearing by the full court. He will ask the prosecution to be represented also. The court then, whilst considering the issue of leave to appeal, usually treats the application for leave as the hearing of the substantive appeal.

APPEALS - GRANTING BAIL. The Court of Appeal has power to grant bail to an appellant pending determination of his appeal and this may be exercised by the single judge when he considers the papers. Since the passing of the CRIMINAL JUSTICE ACT 1982 the Crown Court judge who passes the sentence may also give bail pending appeal. The vital factor will be the extent to which the time which may elapse between passing of sentence and the hearing of an appeal may render otiose the appeal itself. For example, if a sentence of only six months has been passed then that would be a cogent reason for granting bail pending appeal in a case which has some prospect of success since it would be not unlikely that the full period of the sentence to be served (i.e. four months with full remission) would pass before the appeal would be dealt with.

APPEALS AGAINST CONVICTION

Where the Court of Appeal grants leave to appeal or if the trial judge grants a certificate that the case is fit for appeal, the Court of Appeal shall allow an appeal against conviction if it thinks that the conviction is “unsafe”, s2 CRIMINAL APPEAL ACT 1968 as amended by the CRIMINAL APPEAL ACT 1995.

In deciding whether the conviction is unsafe, the Court of Appeal will listen to argument and may exceptionally hear fresh evidence under s23 CRIMINAL APPEAL ACT 1968, if that evidence:

(1) appears likely to be credible; and
(2) would have been admissible at the trial; and
(3) was not heard at the trial but there is a reasonable explanation for the evidence not being heard.

The court may:

(1) quash the conviction, in effect ordering an acquittal; or
(2) quash the conviction and order a retrial; or
(3) dismiss the appeal.

APPEAL AGAINST SENTENCE.

Leave is also required where the appellant seeks to appeal to the Court of Appeal against sentence. The grounds on which the appeal may be allowed:

(1) that the judge erred on a matter of principle; or
(2) that the sentence is manifestly excessive; or
(3) that the sentence was wrong in law.

Under s11(3) CRIMINAL APPEAL ACT 1968, the Court of Appeal does not have the power to increase the sentence.

ATTORNEY-GENERAL’S REFERENCES.

Under s36 CRIMINAL JUSTICE ACT 1972 where a trial on indictment results in the acquittal of the accused, the Attorney-General may refer to the Court of Appeal any point of law which arose in the case. (As has been earlier indicated the prosecution have no right of appeal against an acquittal.) This enables the Attorney- General to obtain clarification and perhaps a useful precedent on matters of law where he contends that there has been a misdirection or misinterpretation of the law favourable to the accused. Counsel will be briefed by the Attorney-General and the person who has been acquitted may also have counsel to present argument. The proceedings have a purely technical nature and the accused person’s acquittal is not called into question as such in the proceedings, so that whatever the outcome he remains acquitted. Under s36 CRIMINAL JUSTICE ACT 1988 the Attorney-General has power, with leave of the Court of Appeal, to refer to that court any sentence imposed by the Crown Court where it is considered by the Attorney General that the sentence was unduly lenient. The Court of Appeal then may quash any sentence originally passed and in place of that substitute such sentence (usually a heavier sentence) as they think appropriate for the case and which the court below had power to pass when dealing with the offender. This power of referral for review by the Attorney-General has been used quite frequently since the 1988 Act came into force.

APPEALS TO THE HOUSE OF LORDS

Under s33 CRIMINAL APPEAL ACT 1968 either prosecution or defence may appeal to the House of Lords from a decision of the Criminal Division of the Court of Appeal provided:

(1) the Court of Appeal certifies that the decision involves a point of law of general public importance; AND
(2) either the Court of Appeal or the House of Lords gives leave to appeal. Such applications for leave to appeal should be made immediately after the court’s decision or at the latest within 14 days of the decision.

APPEALS FROM MAGISTRATES’ COURTS.

These lie to the Crown Court against conviction and/or sentence. Notice of appeal must be given in writing to the clerk of the magistrates’ court and to the prosecution within 21 days of sentence. No detail is needed, the usual wording simply being that “the defendant proposes to appeal on the ground that the magistrates erred in fact and in law in convicting him”, or on the grounds that the sentence was excessive if the plea was one of guilty.

There is no filtering mechanism as with appeals to the Court of Appeal and no discretion to refuse to accept the appeal. There is a discretion to extend the time for giving notice of appeal. In the case of a person who has received a custodial sentence at the Magistrates’ Court an application for bail until the hearing of the appeal may be made, and if that is refused a further application may be made to the Crown Court itself.

Appeals to the Crown Court are usually heard by a Circuit judge sitting with two to four magistrates. It takes the form of a complete re-hearing of the case so that either side may call fresh evidence which they did not call in court below and may decline to call evidence which they did call in the court below. New arguments on law may also be advanced. There is no jury.

The powers of the Crown Court in disposing of the appeal are that it may confirm, reverse or vary the decision appealed against or remit the matter to magistrates with its opinion. Only the defendant may appeal to the Crown Court under this method.

Either party to proceedings before a Magistrates’ Court may challenge the decision of the court by applying to the magistrates to STATE A CASE for the opinion of the Queen’s Bench Divisional Court on a question of law.

In this situation, therefore, either side may call into question a ruling on a point of law. An application by the person aggrieved must he made to the magistrates within 21 days of the acquittal or conviction.

The application should be in writing and should identify the question of law on which the High Court’s opinion is sought. It may be by letter. The application is sent to the magistrates’ clerk.

A “statement of case” should outline the facts called into question; state the facts which the magistrates found; and then state the magistrates’ finding on the points of law in question, list any authority cited and finally pose the question for the High Court. The “case” is drafted by the magistrates’ clerk in consultation with the magistrates. Drafts of the “case” are usually sent to the parties who may suggest amendments. The final form of case must then be sent to the appellant who must lodge it at the Crown office of the Royal Courts of Justice. Notice must then be given to the respondent with a copy of the “case”.

Eventually the hearing, which will be by at least two judges of the Queen’s Bench Division, takes place with the appeal taking the form of a legal argument for both sides based solely on the facts as found in the case. The Divisional Court, when considering the appeal can reverse, affirm or amend the magistrates’ decisions or may remit the matter back to the magistrates with its opinion (for example, with a direction that they continue the hearing, convict, or acquit) or may remit the case to some other bench of magistrates.

APPLICATION FOR JUDICIAL REVIEW.

A full examination of the powers of the High Court to review inferior tribunals is beyond the scope of this text. There are three prerogative orders:

Quashing: the decision of an inferior court is quashed;
Mandatory: compels an inferior court to carry out its duties;
Prohibition: prevents an inferior court from acting unlawfully.

The clearest examples of the use of these procedures to challenge a Magistrates’ Court would be where the court acts in excess of jurisdiction as by failing to follow the statute which confers jurisdiction; or by acting in breach of the rules of natural justice (e.g. failing to allow an adjournment requested by a defendant on proper grounds; or failing to give proper time to prepare a defence; or, finally, where there is an error of law apparent on the face of the record).


At the hearing, argument is advanced and the court considers whether the application for the relief claimed is made out. If it finds that it is, then the appropriate order is issued to the court below.

We then looked at a previous examination paper, and will continue in the same vein after Easter.

There are a number of sentencing guidelines available for all either-way offences.

R v BARRICK [1985]. The Lord Chief Justice said that where there was a breach of trust in employee/employer situations sentences of imprisonment were inevitable, save in very exceptional circumstances or where the amount of money obtained is small.

The court went on to give certain indications as to the matters to which the court should give attention. For example, the court should have regard to:

(i) The quality and degree of trust reposed in the offender, including his rank.
(ii) The period over which the fraud or the thefts had been perpetrated.
(iii) The use to which the money or property dishonestly taken was put.
(iv) The effect upon the victim.
(v) The impact of the offences on the public and public confidence.
(vi) The effect on fellow employees or partners.
(vii) The effect on the offender himself.
(viii) His own history.
(ix) Those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like, or where, as sometimes happens, there has been a long delay, say over a period of two years, between his being confronted with dishonesty and the start of his trial.

The Lord Chief Justice also commented that if help was given to the police that also should be a mitigating feature.

There are a range of orders which the court may impose on an offender either additionally or instead of another punishment.

Under s43 POWERS OF THE CRIMINAL COURTS ACT 1973, where the offender is convicted of an offence punishable by more than two years’ imprisonment, it may order the FORFEITURE of any property in the control or possession of the offender at the time of arrest, if the property was used to commit or facilitate the commission of any offence or was intended for that use.

The Crown Court may also under s71 CRIMINAL JUSTICE ACT 1988, make a confiscation order in respect of the proceeds of the crime. Under the PROCEEDS OF CRIME ACT 1995, the court can order any sum to be confiscated where it is the benefit gained by the offender from the proceeds of the crime. The provision does not apply however to drug offences, where a similar provision is dealt with under THE DRUG TRAFFICKING OFFENCES ACT 1994.

A convicted offender may also be asked to pay the prosecution costs. Where a defendant is acquitted or discharged the court should normally make a defendant’s costs order unless the defendant’s own conduct brought suspicion upon himself and misled the prosecution into believing that their case was stronger than it actually was: PRACTICE DIRECTION: CRIME COSTS IN GENERAL PROCEEDINGS (NO. 2) [1999].

One of the most important features in recent times has been the emphasis of the need to consider COMPENSATION ORDERS. s35 POWERS OF CRIMINAL COURTS ACT 1973 states a court shall give reasons on passing sentence if it does not make a compensation order in a case where this section empowers it to do so. The Magistrates’ Association stresses that where it is appropriate to consider compensation. and a court considers that a fine is the most appropriate means of dealing with the offender, then compensation should be given preference, thereafter a fine, and then costs if they are relevant. Although the Criminal Injuries Compensation Board deals with a substantial number of cases of payments to victims of crime, the Magistrates’ Association also give certain guidelines. For example, if in an assault somebody suffers a black eye, then a guideline of £100 is suggested, and up to £75 is suggested for bruising.

When an advocate is making a plea in mitigation it may be that under the heading “capacity for reform” some optimistic claim is made (e.g. that the person will stay out of trouble for a certain time or is about to get married and take a job). In particular. offenders may claim that if allowed to keep their liberty they will pay compensation to the victims of the offence.

The court has a power under s1 POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 to defer passing any sentence for a period of up to six months. The reason why a Court may defer sentence is to enable it to take into account the offender’s conduct after conviction, and any change in circumstances.

When a court defers sentence the offender is released until the date when he is instructed to re-appear, which should be fixed by the court there and then. In principle it should be the same judge or magistrates who deal with the case after sentence has been deferred, although this is not essential. When the offender does re-appear before the court he will be expected to explain what he has done in the meantime. In principle, if he has carried out his promise and not re-offended, he should be safe from a custodial sentence.

CUSTODIAL SENTENCES

For an adult, a custodial sentence means a sentence of imprisonment. For a sentence of imprisonment to be imposed, the court must be satisfied that the custody threshold in s152(2) CJA 2003 has been passed: The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. The guidelines explain that the purpose of the threshold test is to reserve prison as a punishment for only the most serious offences and that even if the custody threshold is passed, that does not inevitably mean that a sentence of immediate imprisonment must follow.

The recommended approach is set out in the guidelines:

(1) Has the custody threshold been passed?
(2) If so, is it unavoidable that a custodial sentence be imposed?
(3) If so, can that sentence be suspended?
(4) If not, can the sentence be served intermittently?
(5) If not, impose a sentence that takes immediate effect for the term commensurate with the seriousness of the offence.

In assessing the seriousness of the offence the court will take into account:

 the presence of aggravating and/or mitigating factors;
 the extent of the defendant’s culpability in committing the offence;
 any relevant Court of Appeal or SGC sentencing guidelines; or
 the Magistrates’ Court Sentencing Guidelines (2004).

In determining whether the custody threshold has been met, the court may also refer to case law including the Court of Appeal’s important decision in HOWELLS [1999] which remains good law.

If, after having taken these factors into account, the court is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence, a custodial sentence will be passed.

When passing a custodial sentence, the court should explain why the offence is so serious that only custody is justified (s174(2)(b) CJA 2003). A PSR should normally be prepared before imposing custody (s156 CJA 2003).

Remember, in setting the tariff; the defendant will receive credit for pleading guilty (s144 CJA 2003). Also any time spent on remand in custody shall count as time served by the defendant as part of his sentence (s240 CJA 2003).

Where the defendant is sentenced to custody for a period of 12 months or more, ss237-268 CJA 2003 require the sentence to be served in full although half the sentence will be served on licence in the community. On the defendant’s release from custody the Probation Service may impose requirements on the defendant’s licence to prevent re-offending and/or to protect the public. A failure to comply with the requirements will result in the defendant being sent back to custody.

s271 permits the defendant to appeal to the Court of Appeal against the minimum term. The Attorney-General retains the power, under s36 CJA 1988, to appeal against an unduly lenient sentence.

Few defendants sentenced to imprisonment will serve the full term, although CJA 2003 has introduced the concept of extended sentences for dangerous offenders or where such a sentence is necessary for public protection.

Important changes were introduced to determinate custodial sentences of 12 months or longer by CJA 2003:

 all offenders (other than those regarded as “dangerous”) are released automatically half-way through their sentence;
 offenders remain on licence until the end of their sentence and may be recalled to serve the remainder of that sentence for the duration of the licence;
 all prisoners may be considered for home detention curfew. This scheme allows certain prisoners to be released before their normal release date, living outside the prison for part of their sentence but subject to a residence requirement and curfew - normally 7.00 pm to 7.00 am. An electronic tag is fitted to the prisoner and monitoring equipment installed at the address by a private contractor. If the prisoner breaks the curfew, the electronic tag alerts the contractors and the prisoner can be recalled to prison until his automatic release date. There is now no distinction in terms of eligibility for home detention curfew between sentences under and over four years. A similar scheme had operated prior to CJA 2003 but this was limited to prisoners serving sentences under four years.

The court also has the power to suspend a sentence of imprisonment. Under s189 CJA 2003 a suspended sentence of imprisonment may be imposed where the custody threshold test is met and the accused is aged 18 or over and the court imposes a term of imprisonment of at least 28 weeks but not more than 51 weeks subject to the statutory, maximum for a magistrates’ court. The period of suspension can be between six months and two years. A suspended sentence of imprisonment is also known as “custody minus”.

The court can order the defendant to undertake requirements in the community during the supervision period and where he fails to comply with the requirements, or commits a further offence, the presumption will be that the suspended sentence will be activated.

“Custody plus” (s181 CJA 2003) has not yet been introduced. This new sentence will apply to offenders sentenced to less than 12 months’ imprisonment. Instead of serving the full term, offenders will serve a maximum of three months in prison, followed by a period of compulsory supervision. Effectively, the court imposes a community order to commence at the point when the prisoner is released from prison and during the currency of his licence period. The sentence is expected to prove particularly effective for offenders known to be drug or alcohol users. During the short period of incarceration, the offender would be “detoxed”. On release from prison he would be subject to strict supervision, support and treatment that might help to prevent his reoffending.

“Intermittent custody” is presently being piloted in some areas, but is not yet universally available. Once fully in force, sentences of between 28 weeks and 51 weeks may be served intermittently, with periods of release on licence before the full sentence is completed. The aim of the scheme is to allow sentences to be served at weekends, enhancing the offender’s prospects of maintaining or seeking employment, yet marking his offending with a loss of liberty. Either custody plus or intermittent custody will eventually have to be imposed for all sentences of less than 12 months’ imprisonment.

COMMUNITY ORDERS

The threshold test for community sentences is laid down in s148(1) CJA 2003: A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence. s151 CJA 2003 allows a community sentence to be passed on a person over the age of 16 even where the seriousness threshold is not passed, providing the defendant has committed at least three previous offences for which the sentence has been only a fine and where it is in the interests of justice to impose a community sentence.

The community order allows courts to impose a variety of requirements on offenders, including:

 an unpaid work requirement under which the offender can be required to perform a specified number of hours’ work (40-300) over a 12-month period for the benefit of the community;
 an activity requirement, which may involve an offender attending a particular place or meeting a particular person for the purpose of undertaking tasks or receiving help or providing reparation;
 a programme requirement, which will focus upon the offending behaviour of the defendant and require involvement in anger management, sex offending or drug rehabilitation programmes;
 a prohibited activity requirement, which will prevent an offender from doing some activity such as making contact with a particular person or from visiting a certain place;
 a curfew requirement, which obliges the offender to remain at a specified place for between two and 12 hours each day for up to six months. This requirement may be supplemented by an electronic tag so that the offender’s movements can be effectively monitored;
 a residence requirement;
 a mental health treatment or drug rehabilitation requirement;
 a supervision requirement;
 an attendance centre requirement.

Breach of a community order will normally be dealt with by summary proceedings, except where the defendant was originally sentenced at Crown Court, in which event the case will normally be remitted to that court. The court may impose additional requirements, or may revoke the order and sentence the defendant for the original offence. Alternatively, the court may decide to fine the offender and/or leave the original order intact. Where a further offence is committed whilst serving a community order, this does not constitute a breach of that order.

FINES

Following the controversy regarding unit fines in the Magistrates’ Court, they were abolished by the CRIMINAL JUSTICE ACT 1993. Thus in the Magistrates’ Courts the maximum fine per offence varies according to its classification:

Level 1: £200
Level 2: £500
Level 3: £1,000
Level 4: £2,500
Either Way or Level 5: £5,000

In the Crown Court any fine is unlimited.

The maximum fine for an offender under 18 is £1,000, and for an offender under 14 it is £250.

DISCHARGES

Conditional or absolute discharges may be used in the case of relatively trivial offences. A court dealing with an offender which does not wish to punish him at all, for example because his offence was entirely technical, may give him an absolute discharge. It might be appropriate, for example, in the case of a driving offence of strict liability where there is no real moral blame on the defendant. For example, a defendant having just taken his car to a reputable garage to have it serviced, is driving away when the brakes fail. He would be guilty of the technical offence of driving a car with defective brakes for which no mens rea is required. However, in all the circumstances a court would not consider his offence in any way blameworthy and an absolute discharge would probably be imposed.

Conditional discharge is a little like a watered-down version of a suspended sentence in that if the offender does not re-offend during the period of the discharge the conditional discharge lapses. For example, an individual who is conditionally discharged for a year and commits no further offence is then free of any punishment in respect of the original offence. If, however, he does re-offend within the year then in principle he would be dealt with for the first offence.

This is also a convenient point to mention “binding over”. The offender may be bound over to keep the peace, a power which has its origins in the fourteenth century and is now contained in s115 MAGISTRATES’ COURTS ACT 1980. It will be appropriate to use the power where the offender has led the court to believe that a breach of the peace might arise from his future conduct. The offender will be hound over to keep the peace and be of good behaviour for a specified period. If the offender fails to keep his promise within the specified period the sum of money is forfeited.

ROAD TRAFFIC OFFENCES

Many road traffic offences carry endorsements, that is to say that a court must, on convicting the offender, endorse the number of points appropriate on the offender’s driving licence. It is open to a defendant to seek to argue that there are special reasons why this should not occur and that must be done in accordance with an established procedure whereby the defendant gives evidence. In WHITTAL v KIRBY [1947] the court said that a special reason means a mitigating circumstance not amounting in law to a defence to the charge, but directly connected with the commission of the offence and is one which the court ought properly to rake into account when imposing sentence. A defendant seeking to rely upon special reasons has the burden cast upon him although as is common the standard is only that upon the balance of probability. The appropriate number of penalty points is established by the ROAD TRAFFIC OFFENDERS ACT 1988. There is also procedure whereby if a defendant is convicted of an endorsable offence and his driving licence shows that with the points then to be endorsed on his licence he has more than 12 on his licence, then he becomes a “totter” under the provisions of the aforementioned Act. If he has no previous disqualification, then six months is the mandatory period. If, however, the defendant has one previous disqualification which is relevant then the period is extended to 12 months. If the defendant has more than one previous disqualification in the previous three years then an obligatory period of two years applies. It is, however, possible to seek, where somebody is a “totter”, mitigating circumstances. A mitigating circumstance is any circumstance which is not one which alleges that the offence is not serious, nor one which causes hardship unless the hardship is exceptional. Thus if a person comes before the court and has, for example, 14 points on his licence, if the loss of that licence is likely to lead to the loss of his employment and thus jeopardise his home and his family’s general position then it is open to the court to exercise its discretion and not impose the period of disqualification. It must be home in mind, however, that s35 ROAD TRAFFIC OFFENDERS ACT 1988 provides that a person is not entitled to use the same mitigating circumstances within a period of three years.

The court also has a power within its discretion to disqualify a person from driving if he appears before a court for any offence in respect of which an endorsement is obligatory. Thus it is open to a court to consider disqualifying a person who has pleaded guilty to careless or inconsiderate driving. Such an offence carries a variable point penalty of between three and nine and in a bad case a court could, in addition to imposing nine penalty points, order that somebody be disqualified from driving. In practice it is more likely to arise where somebody perpetrates a fairly dangerous piece of driving, and perhaps also pleads guilty to having no insurance. The court may then exercise its discretionary powers of disqualification. In addition to the court having discretionary powers to disqualify persons from driving there are also a number of offences, principally those relating to drinking and driving, which carry an obligatory disqualification. If a person drives or attempts to drive whilst unfit through drink or drugs or drives with excess alcohol or fails to provide a specimen for analysis on the Lion intoximeter then the court is obliged to impose a period of disqualification for a minimum period of 12 months. If a person has within the preceding ten years been convicted of one of those classes of offences, then on a second conviction the disqualification must be for a period of at least three years.

APPEALS

The Criminal Cases Review Commission, based on the recommendation of the Royal Commission on Criminal justice 1993, (the Runciman Committee) was established by s8 CRIMINAL APPEAL ACT 1995. The Commission, which is located in Birmingham, formally began its work on 31st March 1997 under the chairmanship of Sir Frederick Crawford. The Commission will formally investigate the 180 alleged miscarriages of justice inherited from the Home Office, and receives two to three new cases each working day. The new cases come from a number of sources. The Court of Appeal may, by s5, order it to investigate a case. A conviction on indictment may he referred to the Court of Appeal by the Commission, and this will then be treated as an appeal by the person convicted (S9). The Commission may at any time refer a Magistrates’ Court conviction or sentence to the Crown Court (s11); if the referral is about sentencing, it will be treated as an appeal under s108 Magistrates’ Court Act 1980. s13 provides that the Commission shall not refer any convictions unless it considers that there is a “real possibility” that they will not be upheld, and it so considers because an argument in relation to a conviction was not raised in the proceedings or in any appeal, or that a point of law was not raised in relation to a sentence. A referral in respect of a conviction (but not sentence) may however be made without the satisfaction of these criteria where the Commission considers that there are “exceptional circumstances”. The Commission has powers to obtain documents and direct officers to investigate and report (ss17-21), and non-disclosure of information to them may be an offence (ss23-25).

We will continue with this next week.

We continued our look at evidence of bad character.

IMPORTANT MATTER IN ISSUE BETWEEN DEFENDANT AND PROSECUTION (s101(1)(d)) is potentially the widest and most far-reaching gateway. The evidence, to be admissible, must have relevance either to a fact in issue or to the credibility of the defendant.

Matters in issue between defendant and prosecution include (s103(1)):

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

Evidence of propensity to commit offences of the kind with which he is charged may, by virtue of s103(2), be shown by proving that the defendant has been previously convicted of an offence either of the same description or the same category as the one with which he has been charged.

An offence of the same description is one that would have been written in the same terms in the charge or indictment (s104(4)(a)), so if a defendant is charged with rape and has two previous convictions for rape, those previous convictions would normally be admissible to show he has a propensity to commit offences of the kind with which he is charged.

Categories of offence are defined by the Secretary of State (s103(4)(a)). Two categories of offence have so far been prescribed: the Theft category and the Sexual Offences (persons under the age of 16) category. The previous convictions of defendants charged with an offence listed within either category will be disclosed to the court as evidence of propensity where the convictions are listed within the same category. Included within the Theft category are offences of theft, burglary or aggravated burglary where the intention is to steal, robbery, taking a motor vehicle without consent, aggravated vehicle taking, handling stolen goods, going equipped for stealing and making off without payment. The Sexual Offences category is equally wide, covering rape, intercourse with a girl under 16, incest, indecency, indecent assault and a whole range of other offences committed on persons under the age of 16.

Also admissible as evidence of propensity under s101(1)(d) will be evidence of misconduct previously admitted under similar fact evidence rules. Although CJA 2003 has abolished common law rules, it is likely that much of the case law on similar fact evidence will remain relevant, hence a short explanation of the previous law is necessary.

MAKIN v ATTORNEY-GENERAL FOR NEW SOUTH WALES [1894] was the first case to lay down rules for the admission of similar fact evidence. The case involved the trial for murder following the death of a baby who had been in the care of the Makins. It would seem that the couple ran an unofficial adoption service, taking on the care of children in return for payment by the parents. The prosecution was allowed to admit evidence that the bodies of 13 other babies had been found buried in the grounds of properties previously inhabited by the Makins. Lord Herschell in the Privy Council laid down the important rule that evidence of propensity or disposition to commit the sort of offence charged is insufficient unless that evidence is relevant to an issue before the jury. That rule remains of importance, in light of s103(1): evidence of propensity is admissible except where his having such a propensity makes it no more likely that he is guilty of the offence.

By way of example, suppose the defendant was charged with burglary and had six previous convictions for burglary. Under similar fact evidence rules, evidence relating to those previous convictions would be inadmissible because that evidence shows no more than a propensity to commit burglary. Suppose the burglary with which the defendant was charged was committed at 7 Elm Road; his six previous convictions for burglary related to offences committed sequentially at 1, 2, 3, 4, 5 and 6 Elm Road. In those circumstances the previous convictions might be admissible as similar fact evidence because the evidence has a high degree of probative force in identifying the defendant as the offender in the present case.

s101(1), (3) provides a discretion to exclude evidence under s101(i)(d) where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In exercising this discretion, courts must pay particular regard to the length of time between the matters to which the evidence relates and matters which form the subject of the offence charged (s101(4)).

s103(1)(b) admits evidence of a propensity to be untruthful, although evidence is inadmissible under this paragraph except where there is a suggestion that the defendant has been untruthful in the present trial.

IMPORTANT MATTER IN ISSUE BETWEEN DEFENDANT AND CO-DEFENDANT (s101(1)(e)) allows evidence of bad character to be admitted where it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. This gateway will apply where two defendants run “cut-throat” defences, each suggesting the other is the guilty party.

RANDALL [2003] provides a good illustration, although it was decided before CJA 2003 came into force. Two defendants were jointly charged with murder and ran cut-throat defences, each blaming the other for the murder. The first defendant’s previous convictions were serious and included convictions for violence; the second defendant’s convictions were minor. Their different convictions suggested that the first defendant was the more likely assailant. It is probable that, had s101 been in force, the first defendant’s convictions would have been admissible under s101(1)(e) as having a substantial probative value in relation to an issue between defendant and co-defendant.

CREATING A FALSE IMPRESSION (s101(1)(f): a defendant who suggests that he is honest and hard-working, yet has previous criminal convictions for dishonesty, is likely to fall foul of this gateway. s105(1) lays down that only such evidence as has probative value in correcting the false impression will be admitted, so where a defendant suggests he is honest but has a conviction for theft, that would be disclosed to the court. If he also had a conviction for assault, that would be inadmissible.

An accused will be “responsible” for creating a false impression through his own testimony in court, through responses made to questioning at a pre-trial stage, or through the testimony of defence witnesses or through the response of a prosecution witness during cross-examination (s105(2)).

s105(2)(a) states that a false impression may be created by a defendant through his conduct in the proceedings. Clearly, a defendant who purported to be a vicar by wearing a “dog collar” would be caught by this paragraph.

MAKING AN ATTACK ON ANOTHER PERSON’S CHARACTER (s101(1)(g)) allows admission of evidence of bad character where a defendant impugns the character of any other person. Under the previous law defendants could freely attack persons who were not called as witnesses by the prosecution; under s101(1)(g) no attack can be made upon anyone, so a suggestion that a third party might have committed the offence with which the defendant is charged will open this gateway.

PRIVILEGE. Although the general principle of litigation, civil or criminal, is in favour of full disclosure of all relevant evidence to the court so that witnesses must attend court if ordered to do so and must answer all relevant questions in court or produce any document when ordered to do so, there is one ground upon which they may legitimately refuse to do so, namely privilege. Privilege is usually subdivided into public privilege and private privilege.

PUBLIC PRIVILEGE. The principle is that where it is claimed that the disclosure of evidence (documentary or oral answers in cross-examination) would harm the public interest, the judge will weigh the conflicting principles (i.e. that litigation should be frank and open and that certain public bodies should have the right not to disclose) and decide whether to allow the claim to privilege. To make his decision the judge may demand to see any document involved and after consideration may disallow the claim for privilege and order the document to be produced or the witness to answer the questions.

PRIVATE PRIVILEGE covers:

(1) Legal professional privilege

The principle that a person should he able to be totally frank with his own lawyer is paramount. Therefore there is a privilege application to communications between client and a lawyer which has a partial extension to communications between the client or lawyer and third patties in litigation.

(a) Solicitor-client communications.

The rule is that neither client nor solicitor can be compelled to produce documents, or answer questions about communications which passed between them in their capacities as solicitor and client. This applies whatever the nature of the matter on which the communication passed provided it was bona fide concerned with legal advice) whether it was contentious or non-contentious.

(b) Communications between solicitor or client and a third party when litigation is imminent or contemplated.

There is an extension of the principle in (a) above in cases where litigation is imminent or contemplated. In such cases, in addition to the usual privilege between solicitor and client as in (a) above, there is a further privilege for communication between the solicitor (or the client) and third parties. The most common example of this is a simple witness statement obtained by the solicitor where litigation is pending. The written statement is privileged so that at trial the opposing side cannot make anyone produce the statement if; for example, it was decided not to call the witness. Thus the prosecution would never know what the witness had to say (or even who the witness was). Note that this privilege is confined to the legal profession and does not apply to other professional relationships (for example accountant-client, doctor-patient, priest-penitent). In the lawyer-client relationship the privilege is vested in the client, therefore if the client either expressly or impliedly waives the privilege then the lawyer cannot refuse to answer any questions in respect of the communications.

We then turned to what occurs after conviction. Surprisingly there are several things to consider before sentencing takes place.

TAKING OTHER OFFENCES INTO CONSIDERATION. A person who is charged by the police with one or more offences and is prepared to plead guilty may well be questioned by the police about other offences of a similar type which they have not as vet solved. It may be that the accused will be prepared to admit these also but only on the basis that he is not formally charged with them but rather that they are “taken into consideration”. This procedure is available in both the magistrates’ court and the Crown Court.

The police will prepare a schedule of these offences giving the time. date. place and surrounding circumstances in brief, to which the accused will be asked to agree. It is most important for the lawyer advising the accused to check this carefully with him as it may be that the police have been remarkably persuasive with the offender and if the offender has habitually committed similar types of crime undetected over a long period. say burglaries at week-ends on a more or less regular basis, which is a not uncommon situation. it may be that the suspect will have inadvertently admitted to things that for one reason or another he could not possibly have done. Once it is checked that all his “TICs”, as they are called, are properly attributable to him the court will be informed, after conviction on a guilty plea, that he is prepared to have a number of other offences taken into consideration.

This practice is not sanctioned by statute, or expressly by case law, but is extremely common. The effect of an offender asking for several other offences to be taken into consideration is that the offender “wipes the slate clean” of those offences and will not be charged with them at any time in the future. One might think in principle that a person who pleads guilty to, say, three offences and asks for another thirty to be taken into consideration would be admitting to the judge a consistent course of criminal conduct which would make the judge highly likely to sentence him most severely. In fact this does not happen and the effect of admitting, say thirty, more offences when already convicted of three may well be that only a very slight increase in the length of the sentence the judge originally had in mind may be imposed.

The police officer known generally as the “antecedents officer” will generally go into the witness box after this stage and read out from a prepared form details of the offender’s antecedents. This will contain very briefly an account of his criminal record with brief details of the nature of each offence and the date of release if the sentence he has previously had was custodial. He will also give details of the offender’s age, education, employment record and family circumstances. Increasingly, antecedents are presented simply by prosecuting counsel. The rules of evidence do not apply at this stage in their strict form. The purpose of antecedents was originally to indicate the offender’s personal circumstances to the court, no doubt in the kind of case where he would have been unrepresented. A defendant who is represented can, of course, rely upon his own advocate to put to the court any personal factors which ought to be known which will assist the court in sentencing him.

REPORTS ON THE ACCUSED. When the antecedents evidence and, where appropriate, the question of offences taken into consideration, has been dealt with the judge will read any report which has already been prepared on an offender. Usually such reports will be available at this stage only if the offender has been in custody. There is nothing, however, to stop an offender who is in a position to pay privately from having a specialist of his own, most usually a psychiatrist, prepare a report on him.

PRE-SENTENCE REPORTS, usually prepared by the probation service, will give details of the offender’s background and antecedents and may highlight the circumstances which led to the commission of the crime. The defendant’s attitude to the crime should be explored and any contrition or remorse mentioned. The reports usually conclude with a recommended sentence and may suggest the offender’s suitability for a community sentence. Generally, a report is needed in almost every case before a custodial sentence or before the majority of community sentences can be considered.

MEDICAL OR PSYCHIATRIC REPORTS. The court has the power to order medical or psychiatric reports and to remand the accused in custody or on bail for the preparation of them. In some cases, the court must obtain a psychiatric report, such as s4(1) CRIMINAL JUSTICE ACT 1991 which requires a court sentencing an offender “who is or appears to be mentally disordered” to obtain and consider a medical report before passing a custodial sentence.

MITIGATION. It is a vital part of the defence lawyer’s job to prepare for what may happen after conviction even if one is hopeful at the outset of securing an acquittal. A crucial part of this is to ensure that should the defendant be convicted he will be dealt with by the court as leniently as possible. From the first interview, therefore, information should be collected which might be useful in the event of conviction. As has been indicated earlier, unlike the civil courts (where in principle legal aid will be granted only to those who are felt to have a “winning case”), in criminal cases, legal aid is available even to those who propose to plead guilty so that a proper plea in mitigation may be made and the court thus made aware of all the factors which should move them towards leniency.

It is therefore an essential task if one is the advocate for the accused, to prepare a cogent speech in mitigation, and when preparing counsel’s brief for the Crown Court to include a summary of things that might be said.

It is generally considered prudent to arrange the factors to be discussed in a plea in mitigation under the following headings:

Factors connected with the offence.
Factors connected with the offender.
The accused’s conduct in relation to the investigation of and prosecution of the offence.
Capacity for reform.


It is usual to tell the judge details of:

the offender’s life,
previous history and family circumstances, at least if these are in any way helpful.
credit must be given for a good record in the past. Good record may mean no more than absence of a criminal record and in itself this is perhaps the most potent mitigating factor there can be. Matters which are actually creditable to the defendant should also be stressed, in particular good service record, a record of public service to the community (e.g. as a town councillor or scout master, charity work etc).
a good employment record is usually considered to impress favourably most judges and indeed cynical lawyers are often heard to advise unemployed clients who are shortly to appear before the Magistrates’ Court to leave no stone unturned in their efforts to get a job for this reason alone.
a happy and steady family situation is also thought to be a good mitigating factor and if a custodial sentence is feared, the effect on some other person such as the fact that a family will be thrown on social security if the bread-winner is sent to prison.
likewise another potent factor here is the fact that the offender has already been punished in some way (e.g. social disgrace or having been dismissed by one’s employer is a good mitigating factor)
even if an accused has a substantial criminal record and nothing particularly to commend him, one can usually find something in his past worth speaking about.
if he has a record of regularly offending and the time gap between his last offence and the present crime is longer than usual then this might be worth stressing. It should, of course, be checked that the reason why the offender has not re-offended for such a long period is not due to the fact that he was in prison for most of it!
it is generally considered a good mitigating factor that the accused co-operated with the police enquiries, for example by making an early admission of involvement, by helping the police to recover stolen property, and by helping the police to trace the accused’s accomplices.
a guilty’ plea is also given appropriate weight by the court as having saved the court’s time and public money and may lead to a discount on a custodial sentence of perhaps as much as a third, where it is made early in the process

SENTENCING. All sentences imposed by either the magistrates’ court or Crown Court must have regard to the following four factors:

(1) DETERRENCE

That by the accused being caught, tried and punished in some disagreeable way, will dissuade like-minded people from offending.

(2) RETRIBUTION

To express society’s outrage at the offender’s conduct and to take revenge, on society’s behalf, against the offender’s criminal behaviour.

(3) PREVENTION

Imposing conditions on the offender which will make his re-offending less likely, for example by taking away his liberty.

(4) REHABILITATION

This part of the sentencing process is aimed at reforming the offender that is, making him a useful member of society.

We will continue this next week.

EVIDENCE OF CHARACTER

In the context of criminal proceedings, "character" has three meanings:

(i) the accused's general reputation in the community
(ii) the accused's criminal convictions (if any)
(iii) the accused's propensity to behave in a certain way that is relevant to proving his guilt of the present offence.

The general rule is that evidence of the accused's bad character cannot be heard by the court.

The rules before CJA 2003 came into force were that the accused enjoyed a "shield", but could lose that shield in certain circumstances and lay himself open to cross-examination on previous convictions. Under CJA 2003 the bad character of an accused may be admitted through seven gateways laid down by CJA 2003. Before considering the bad character of the accused, a brief mention is required of the evidential value of the accused's good character and the position of a non-defendant.

EVIDENCE OF THE ACCUSED'S GOOD CHARACTER

An accused will wish to lay before. the jury evidence of his good character, if he has one, in an effort to show them that he is not the kind of person who would commit the offence with which he is charged. This is just one item of circumstantial evidence the jury may take into account, and is only marginally relevant. "Good character" will generally mean the absence of a criminal record.

The proper approach to a defendant's good character is to be found in Vye [1993] and Aziz and Others [1995], where the House of Lords considered the giving of good character directions. A defendant with no previous convictions is prima facie entitled to a good character direction both as to credibility and to propensity. The judge, however, has a residual discretion to qualify it or dispense with it if possible criminal conduct by the defendant has emerged during the trial. The judge should invite submissions on his proposed direction where he is considering giving one.

BAD CHARACTER OF NON-DEFENDANTS

Protection for non-defendants from disclosure of evidence relating to bad character is novel.

The pre-CJA 2003 position was that witnesses could always be cross-examined about previous convictions either at common law or under s6 Criminal Procedure Act 1865. Such evidence was regarded as relevant to the credibility of the witness. The admission of this evidence is now regulated by s100(I) CJA 2003, which provides three gateways for the admission of bad character evidence as defined by s98. Evidence relating to the bad character of a non-defendant will be admissible if, and only if

(a) it is important explanatory evidence;
(b) it has substantial probative value in relation to a matter which:
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole; or
(c) all parties to the proceedings agree to the evidence being admissible.

Leave of the court is required before evidence can be admitted under (a) or (b).
s 100(2) explains what is meant by important explanatory evidence: without it the court would find it impossible or difficult to understand other evidence in the case.
s100(3) identifies factors that must be considered in assessing whether evidence has substantial probative value under s100(1)(b):

the nature and number of events to which the evidence relates; in the case of evidence of misconduct that is said to have probative value by virtue of its similarity between that conduct and other alleged misconduct, the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct.

Suppose a defendant were charged with murder and claims that a prosecution witness committed that murder. It is highly likely that evidence relating to previous instances of violence committed by the witness on the complainant would be admitted because that evidence would have a substantial probative value in relation to an issue in the case and would be of substantial importance in the context of the case as a whole.

BAD CHARACTER OF DEFENDANTS

Bad character evidence relating to a defendant is regulated by s101(l) CJA 2003, which provides seven gateways through which bad character evidence can be admitted:

(a) all parties agree to the evidence being admitted;
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it;
(c) it is important explanatory evidence;
(d) it is relevant to an important matter in issue between the defendant and the prosecution;
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;
(f) it is evidence to correct a false impression given by the defendant; (g) the defendant has made an attack on another person's character.

The first two gateways under (a) and (b) are not contentious. A defendant will often volunteer evidence about bad character when he realises evidence will inevitably be admitted under one of the other gateways. By volunteering the information he can suggest he is being totally frank and honest with the court.

Important explanatory evidence (100(1)(c)) is defined in s102 in identical terms to those used in s100(2) (see 23.8.2). Evidence admissible under gateway (c) would include:

• evidence of events that occurred close in time, place or circumstance to the offence charged;
• evidence necessary to complete an account of the circumstances of the offences charged so as to make it comprehensible to a jury;
• evidence of a previous relationship between the defendant and the alleged victim of the offence charged;
• evidence to establish motive.

Important matter in issue between defendant and prosecution (s 101(1)(d)) is potentially the widest and most far-reaching gateway. The evidence, to be admissible, must have relevance either to a fact in issue or to the credibility of the defendant.

Matters in issue between defendant and prosecution include (s103(1)):

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

Evidence of propensity to commit offences of the kind with which he is charged may, by virtue of s103(2), be shown by proving that the defendant has been previously convicted of an offence either of the same description or the same category as the one with which he has been charged.
An offence of the same description is one that would have been written in the same terms in the charge or indictment (s 104(4)(a)), so if a defendant is charged with rape and has two previous convictions for rape, those previous convictions would normally be admissible to show he has a propensity to commit offences of the kind with which he is charged.

Categories of offence are defined by the Secretary of State (s103(4)(a)). Two categories of offence have so far been prescribed: the Theft category and the Sexual Offences (persons under the age of 16) category. The previous convictions of defendants charged with an
offence listed within either category will be disclosed to the court as evidence of propensity where the convictions are listed within the same category. Included within the Theft category are offences of theft, burglary or aggravated burglary where the intention is to steal, robbery, taking a motor vehicle without consent, aggravated vehicle taking, handling stolen goods, going equipped for stealing and making off without payment. The Sexual Offences category is equally wide, covering rape, intercourse with a girl under 16, incest, indecency, indecent assault and a whole range of other offences committed on persons under the age of 16.

Also admissible as evidence of propensity under s 101(1)(d) will be evidence of misconduct previously admitted under similar fact evidence rules. Although CJA 2003 has abolished common law rules, it is likely that much of the case law on similar fact evidence will remain relevant, hence a short explanation of the previous law is necessary.

Makin v Attorney-General for New South Wales [18941 was the first case to lay down rules for the admission of similar fact evidence. The case involved the trial for murder following the death of a baby who had been in the care of the Makins. It would seem that the couple ran an unofficial adoption service, taking on the care of children in return for payment by the parents. The prosecution was allowed to admit evidence that the bodies of 13 other babies had been found buried in the grounds of properties previously inhabited by the Makins. Lord Herschell in the Privy Council laid down the important rule that evidence of propensity or disposition to commit the sort of offence charged is insufficient unless that evidence is relevant to an issue before the jury. That rule remains of importance, in light of s103(1): evidence of propensity is admissible except where his having such a propensity makes it no more likely that he is guilty of the offence.

The second important case in terms of evolution of similar fact evidence rules was DPP v Boardman [1975]. The facts are unimportant, although the test remains of some interest. In order to be admissible under similar fact evidence rules, evidence must be (1) relevant to an issue in the case; and (2) its probative value must outweigh its prejudicial effect.

As a result of s 101(1)(d), propensity itself has been made a fact in issue in every case, so evidence of propensity will always be prima facie admissible. Although propensity evidence must have a probative value (it will not be admissible where the evidence makes it no more likely that the defendant is guilty of the offence charged), there is no longer a requirement for judges to weigh that probative value against its prejudicial effect.

The third important case on similar fact evidence was DPP v P [1991], which clarified the test in Boardman. The gist of that test was that similar fact evidence must have a sufficiently strong probative force to justify its admission despite its prejudicial effect. Again, there is no requirement for this balancing exercise to be performed where evidence of propensity is admitted under s 101(1)(d).

By way of example, suppose the defendant was charged with burglary and had six previous convictions for burglary. Under similar fact evidence rules, evidence relating to those previous convictions would be inadmissible because that evidence shows no more than a propensity to commit burglary. Suppose the burglary with which the defendant was charged was committed at 7 Elm Road; his six previous convictions for burglary related to offences committed sequentially at l, 2, 3, 4, 5 and 6 Elm Road. In those circumstances the previous convictions might be admissible as similar fact evidence because the evidence has a high degree of probative force in identifying the defendant as the offender in the present case.
Interestingly, of course, under CJA 2003 there would be no need to establish a high probative force in this scenario. Evidence of this defendant's previous convictions could be admitted as evidence of propensity, wherever the offences were committed, since they were offences of the same description and also offences within the Theft category.

s101(1), (3) provides a discretion to exclude evidence under s101(i)(d) where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In exercising this discretion, courts must pay particular regard to the length of time between the matters to which the evidence relates and matters which form the subject of the offence charged (s 101(4)).

s 103 (1)(b) admits evidence of a propensity to be untruthful, although evidence is inadmissible under this paragraph except where there is a suggestion that the defendant has been untruthful in the present trial.

Important matter in issue between defendant and co-defendant (s 1 O l (1)(e)) allows evidence of bad character to be admitted where it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Insertion of the words substantial probative value make it more difficult for a co-accused to cross-examine on previous convictions than for the prosecution under s 101(1)(d). This might lead to challenges under the "equality of arms" provisions within Art 6 ECHR, or on grounds that a co-accused has been denied the right to adduce relevant evidence. This gateway will apply where two defendants run "cut-throat" defences, each suggesting the other is the guilty party. Randall [2003] provides a good illustration, although it was decided before CJA 2003 came into force. Two defendants were jointly charged with murder and ran cut-throat defences, each blaming the other for the murder. The first defendant's previous convictions were serious and included convictions for violence; the second defendant's convictions were minor. Their different convictions suggested that the first defendant was the more likely assailant. It is probable that, had s 101 been in force, the first defendant's convictions would have been admissible under s 101(1)(e) as having a substantial probative value in relation to an issue between defendant and co-defendant.

Creating a false impression (s101(1)(f): a defendant who suggests that he is honest and hard-working, yet has previous criminal convictions for dishonesty, is likely to fall foul of this gateway.
s105(l) lays down that only such evidence as has probative value in correcting the false impression will be admitted, so where a defendant suggests he is honest but has a conviction for theft, that would be disclosed to the court. If he also had a conviction for assault, that would be inadmissible.

An accused will be "responsible" for creating a false impression through his own testimony in court, through responses made to questioning at a pre-trial stage, or through the testimony of defence witnesses or through the response of a prosecution witness during cross-examination (s105(2)).

s105(2)(a) states that a false impression may be created by a defendant through his conduct in the proceedings. Clearly, a defendant who purported to be a vicar by wearing a "dog collar" would be caught by this paragraph.

Making an attack on another person's character (s101(1)(g)) allows admission of evidence of bad character where a defendant impugns the character of any other person. Under the previous law defendants could freely attack persons who were not called as witnesses by the prosecution; under s 101(1)(g) no attack can be made upon anyone, so a suggestion that a third party might have committed the offence with which the defendant is charged will open this gateway.
The attack may be made by the accused in the course of testimony, by his legal representative during cross-examination of a witness, or on being questioned under caution or charged (s 106(1)). An ill-thought out and enthusiastic denial of involvement during police interview may be sufficient to trigger this gateway.

Previous case law is likely to prove useful to judges charged with interpreting s 101(1)(g). Defendants who suggest that a witness has lied: Britzman and Hall [1983] or that a confession has been obtained improperly: Cook [1959] or that a witness has behaved reprehensibly Selvey v DPP [ 1970] will have their bad character admitted, although a suggestion that a witness is merely mistaken will not open the gateway.

Under s101(3) CJA 2003, the court's discretion to exclude evidence of bad character is restricted to gateways (d) and (g). That section adopts the wording of s78(1) PACE 1984, providing that the court must exclude evidence where its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This discretion is triggered by an application from the defence.

s101(4) specifically states that nothing in the Act affects the exclusion of evidence on grounds other than the fact that it is evidence of the defendant's bad character, so judges, at least theoretically, could continue to exclude evidence of bad character under s78(1) PACE 1984 under paragraphs (c), (e) and (f).

s107 CJA 2003 provides that, on trials on indictment, the judge must stop the case if satisfied that:

• evidence is "contaminated"; and
• the contamination is such that having regard to its importance the conviction would be unsafe.

Where character rulings are made by a court the judge (or magistrates) must give reasons for those rulings (s 110).

We began with a look at a most important case on disputed identification evidence, that of R v Turnbull [1977]. It is an examiner’s favourite and is highly likely to figure in the case study in the examination. The case gave guidelines for the treatment of cases involving wholly or substantially the correctness of identification where there is a dispute. These guidelines are:

The judge must warn the jury of the special need for caution before convicting the accused in reliance on evidence of identification, and draw their attention to the risk of error in that a mistaken witness may still be a convincing one.
The judge should ask the jury to examine closely the circumstances of the identification. Is the identification one of good quality or poor quality (i.e. was the defendant related or well known to the identifying witness and what were the lengths of observation, lighting conditions, distance and also had the witness seen the suspect before?). The time lapse between the incident and the witness giving a description to the police is also a matter which the judge should draw to the jury’s attention.
The judge should specifically remind the jury of any weakness in the prosecution evidence.
If there is any discrepancy between the witness’s first description of the suspect to the police and his actual appearance the prosecution must inform the defence.
Where the quality of the identification is good (e.g. long observation in good light or where the witness knew the suspect by sight before, or indeed is related to him), the jury can safely be left to assess the evidence, even though there is no other evidence to support it.
Where the quality of the identifying evidence is poor, for example a fleeting glimpse of a witness, then the judge should withdraw the case nom the jury unless there is other evidence which goes to support the correctness of the identification. If this is the case the judge can leave the matter to the jury, warning them in the manner mentioned above and indicating to the jury the evidence which he adjudges capable of supporting the identification evidence.

If the accused puts forward an alibi (which obviously is of considerable importance in identification cases) the judge should direct the jury that if they disbelieve the alibi this need not in itself be conclusive evidence. Innocent persons may invent alibis out of stupidity or panic. The jury need only treat it as supporting evidence if satisfied that it was put forward out of a desire to deceive them and for no other purpose.

The failure to give a Turnbull warning in identification cases will almost inevitably lead to a conviction being quashed. It is important to recognise that in such cases corroboration is not required, but the judge must warn the jury of a need for special caution.

We then turned to an area of law once governed by the common law, but now mostly falling within the Criminal Justice Act 2003, that of HEARSAY EVIDENCE. A common definition of hearsay is:

“A statement, oral or written, other than one made by a person while giving oral evidence in the proceedings . . . to prove the truth of any fact stated in it. “

The most common example of hearsay is where a witness repeats to the court what some other person has said or done or heard. The rule covers a number of other situations, including a party presenting to the court a statement made by a witness on an occasion other than whilst giving evidence. This includes a confession made by the accused at the police station, one of the best-known exceptions to the hearsay rule. Another common example of hearsay, is a witness’s written statement being put in evidence to the court when he is not able to attend trial to give oral evidence.

The general rule is that hearsay evidence is not admissible in criminal cases because the common law required witnesses to attend court and give oral evidence about facts that they had perceived with one or more of their senses. Evidence falling within the hearsay rule offended this fundamental principle because it was not possible for the hearsay witness to be cross-examined by the other side.

The rule has recently been radically reformed by ss114-130 CJA 2003.

The wording of CJA 2003 suggests a new inclusionary approach to hearsay: instead of stating that hearsay evidence is inadmissible unless . . ., CJA 2003 states that a hearsay statement is admissible, but only if ... Although hearsay statements are more readily admissible under CJA 2003, however, it is still necessary for practitioners - and students - to identify the section of CJA 2003 or the common law rule under which a statement can be admitted, so the rule remains exclusionary, but subject to a wide range of exceptions.

Not every case where a witness wishes to repeat in court something that was said out of court will be hearsay. The vital point is whether the words are repeated in order to persuade the court of the truth of what was said or merely to tell the court that the words were spoken. This important distinction is clearly seen in Subramanian v Public Prosecutor Of Malaya [1956], in which the defendant’s defence was that he had been forced by duress - by threats to himself and his family - to commit the offence. At his trial the judge refused to allow him to repeat the words of the threats, holding that this would be hearsay. It was held on appeal to the Privy Council that the judge was wrong; the words were not hearsay because they were repeated not to prove the truth of their contents but merely to show that they were said and thus to show the likely effect on the accused’s mind.

As a result of Criminal Justice Act 2003 it is possible to recognise a statement as hearsay by asking three questions:

Was the statement made out of court?
Was the purpose of repeating the statement in court to prove that facts contained within the statement were true?
Was the purpose of the maker of the statement to cause another person to believe a matter stated?

If the answer to each of those questions is “Yes”, then the statement is hearsay; if the answer to any of those statements is “No”, then the statement is non-hearsay.

Under s118 Criminal Justice Act 2003 a number of common law rules have been preserved, but one of the rules that frequently appeared on examination papers, dying declarations, has been abolished. This is not a major concern since statements formerly admissible as dying declarations will now be admissible either as res gestae statements or under s116 CJA 2003.

PUBLIC DOCUMENTS are admissible in evidence to prove the truth of the matters stated in them, for example, in a public register (e.g. of births, deaths and marriages). To come within the rule the document does not merely have to be concerned with a public matter, or to come from some official source, it must relate to a public matter, have been made in pursuance of the duty of a public officer, be intended to be a permanent record and be available for inspection by members of the public.

RES GESTAE STATEMENTS. Res gestae means “transaction” or “series” of events. Under this rule, statements may be admitted if they are made at the very time of, or sufficiently contemporaneously with, a particular incident (usually the commission of a crime), because there is no opportunity to fabricate such evidence, so they have a special probative value.

Turnbull [1984] the words of a fatally wounded man who named his attacker as he staggered into a bar, and repeated in the ambulance, were admitted as evidence. He told both that “Ronnie Tommo” had stabbed him. This was Turnbull’s nickname. It was held that the person to whom the words had been spoken could repeat them because they were part of the res gestae, that is, they were said so close in time to the event in question as to have special probative value.

There are a number of statutory exceptions where Parliament has provided that hearsay evidence should be admissible in criminal proceedings, subject to complying with the appropriate conditions.

Section s114 (1) Criminal Justice Act 2003 admits hearsay evidence:

by statute (s76 PACE 1984, s9 Criminal Justice Act 1967 (CJA 1967), ss116 and 117 CJA 2003);
at common law (under the rules preserved by s118);
by agreement; or
in the interests of justice.

CONFESSIONS under s76 PACE 1984 have already been discussed; as have the common law rules preserved by s118. The remaining statutory exceptions are covered here. Before considering those, however, admission of hearsay by agreement and “the safety- valve” exception can be dealt with very shortly.

If both parties agree to the admission of hearsay (allowed by s114(1)(c)), then it is very unlikely to be excluded by a court.

STATEMENTS ADMISSIBLE UNDER S9 CRIMINAL JUSTICE ACT 1967. s9 CJA 1967 provides the most important statutory exception to the hearsay rule and the application of the rule is in daily use in the Crown Court and magistrates’ courts. s9 provides that written statements are admissible in all criminal proceedings provided:

they are signed; and
they contain a declaration in specified words as to their truth; and
the statement has been served on the opposing party; and
no objection was made to the statement being put before the court in the witness’s absence.

If the other party objects within seven days to the statement being used in the witness’s absence the witness will be required to attend trial to give oral evidence. In view of the requirement that the other side’s consent must be obtained before a s9 statement can be used at trial, such statements are generally used only for non-controversial matters.

s116(1) Criminal Justice Act 2003 is known as the unavailability exception: it admits both oral and written statements of absent witness in five situations, namely that the witness:

(1) is dead;
(2) s unfit to give evidence because of his bodily or mental condition;
(3) is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(4) cannot be found, although such steps as are reasonably practicable to take to find him have been taken;
(5) does not give (or does not continue to give) oral evidence in the proceedings because of fear, 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.

These conditions are almost identical to the previous legislation.

Where the reason for unavailability is one of those listed in (1) to (4), admission of the hearsay statement is automatic; where the reason for non-attendance is through fear, the statement will be admissible only where the judge is satisfied that its admission is in the interests of justice.

s116(3) explains what is meant by “fear”: for the purposes of s 116(2)(e) `fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. This suggests that the courts will construe the term widely.

Note that s116(2)(e) – where a witness is absent through fear – is the only paragraph to which a leave requirement is attached. The criteria for granting leave are established in s116(4). The court must be satisfied that the admission of the statement is in the interests of justice and must have regard to:

(a) the statement’s contents;
(b) any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement f the relevant person does not give oral evidence);
(c) in appropriate cases, the fact that a special measures direction under s 19 Youth Justice and Criminal Evidence Act 1999 could be made in relation to the relevant person; and
(d) any other relevant circumstances.

s117(1) CJA 2003 allows for the admission of a statement contained in a document as evidence of any matter stated provided that oral evidence on that matter would have been admissible and that the requirements of s117(2) are satisfied. The requirements of s117(2) are:

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the 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 a paid or unpaid office.

Under s117(4), where a document is prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, the additional requirements of s117(5) must also be satisfied: there must be a statutory reason for non-attendance of the supplier of the information. The statutory reasons are the five listed in s116(2), plus a sixth: the supplier of the information cannot reasonably be expected to recollect the matters dealt with in the statement, having regard to the length of time since he supplied the information and all other circumstances.

It is important to note that computer records in hearsay form are also admissible provided the conditions of s69 POLICE AND CRIMINAL EVIDENCE ACT 1984 are satisfied. The word “computer” means “any device for processing or storing information”. The definition includes word processors, calculators, adding machines as well as computers. Think of a till roll as a good example. A party therefore wishing to put hearsay computer evidence before the court must firstly satisfy the requirements of s69 PACE by showing that there are no reasonable grounds for believing the computer records to be inaccurate because of improper use and that the computer was operating properly. This burden is satisfied by the party producing a certificate to the court signed by a person occupying a reasonable position in relation to the operation of the computer.

Confessions provide the most important exception to the hearsay rule, and is where we shall begin next time.

Just a note to say that the blog for Thursday 1 March 2007 will be delayed, as I have internet problems at home. It will, hopefully, be fixed on Sunday 4 March, and I will endeavour to post then.

We began by looking at the course of testimony. As a general rule all evidence must be given on oath, and the form of the oath must be such as the witness declares to be binding on him: s5 OATHS ACT 1978.

Once a witness his sworn or affirmed, his evidence may have three stages:

examination-in-chief;
cross-examination;
re-examination.

EXAMINATION-IN-CHIEF. This is where the advocate for the party calling the witness (i.e. the party who believes that the witness’s evidence will help his case) tries to elicit the evidence required from the witness. There are four matters to consider in relation to evidence-in-chief:

leading questions;
refreshing the memory;
the admissibility and value of a witness’s previous consistent statement;
unfavourable and hostile witnesses.

Leading questions. These are questions which either suggest the answer desired or assume the existence of disputed facts. They are not permissible in examination-in-chief because they either prompt the witness or they may mislead the jury into thinking that the disputed fact has been established.

For example: “you then saw the accused punch Mr Smith in the face, didn’t you?” is a leading question because it suggests the answer to disputed facts.

Exceptionally, leading questions are permitted at the very start of a witness’s testimony for purely formal or introductory matter, or where the evidence is non-controversial: “your name is John Smith?” is permissible.

It should be remembered that the ban on leading questions applies only to the advocate calling the witness (i.e. it applies only to examination-in-chief and re-examination). In cross-examination leading questions are permissible and indeed, essential since the purpose of cross-examination is, in part, to try to persuade the witness to agree to the truth of an alternative version of the facts.

Refreshing the memory. This was originally covered by the common law, but is now covered by s139 Criminal Justice Act 2003. A witness may refresh his memory from a witness statement or proof of evidence about the facts on which he is to testify by referring – before going into court – to any previous statement that he has made.

In court a witness may refresh his memory by referring to a documentary record (e.g. a witness statement or similar) whilst actually testifying. Before he can do this, however, the following conditions must be satisfied under s139(1) Criminal Justice Act 2003.

(1) The witness must state in evidence that the document records his recollection of the matter at the time it was made.
(2) His recollection of the matter is likely to have been significantly better at that earlier time than at the time of trial.
(3) The document must have been written by the witness or verified as accurate by him at the time the document was made.
(4) The document must be handed to the opposing advocate to inspect and may be handed to the jury.

Where a witness relies on a note to refresh his memory, the advocate may inspect the document, and cross-examine upon matters not dealt with by the witness-in-chief. In those circumstances, the document becomes an exhibit in the case and, as such, is evidence of the truth of the matters stated in it (s120(3) CJA 2003).

The admissibility and value of a witness’s previous consistent statement. Before the coming into force of s120 Criminal Justice Act 2003, the general rule was that a party could not adduce evidence of his own or his witnesses’ prior statements to support his case at trial. The reason for the rule is clearly shown by Roberts [1942]: the accused shot his girlfriend when attempting to persuade her to return to him. Several hours after his arrest he told his father that his defence would be accident and wanted to call his father to give evidence of this conversation. It was held that this was not permissible because it added nothing to the testimony that was being given in the court. How would it assist the jury to know that some hours after his arrest Roberts had already thought of a line of defence. Anyone who had been arrested would clearly be applying his mind to what lines of defence were open to him and therefore it was of no evidential value.

There are now important exceptions to the general rule under s120 CJA 2003 which admits previous consistent statements as evidence of their truth in the following circumstances:

to rebut allegations of fabrication (s120(2));
documents used to refresh memory on which the witness is cross-examined (s120(3));
certain out-of-court statements covered by s120(4)-(7) (identity, facts fresh in the memory complaint by alleged victim).

Where previous consistent statements are admitted as evidence of the truth of their contents, the out-of-court statement will add to the evidence of the witness, not replace it.

s120(2) CJA 2003 has not changed the common law rule admitting a previous consistent statement to rebut allegations of fabrication; it has merely given that common law rule statutory force. In Roberts, had it been suggested to the defendant in cross-examination that his defence was a recent fabrication, he would have been allowed to adduce evidence of the conversation with his father.

The victim, male or female, of a sexual offence is allowed to give evidence that he made a complaint to someone as soon as reasonably practicable after the incident. It is then open to the prosecution to call the person to whom the complaint was made. R v Osbourne [1905] is the leading case on the conditions for voluntariness and spontaneity. The Court of Appeal has suggested that the test should be applied with a degree of flexibility so that the fact the complaint was not made at the first reasonable opportunity will not matter if it was not reasonable for the complainant to take that opportunity. The probative effect of evidence being admitted under the rule is that it supports the complainant’s consistency.

The negation of a suggestion of recent fabrication will almost always occur in re-examination rather than examination-in-chief but it is convenient to deal with the point here. If, after a witness has testified in examination-in-chief, the cross-examiner goes on to allege that the story has been recently concocted (e.g. after collaboration with other witnesses or with the accused), a previous statement concerning the nature of his evidence becomes admissible, and the previous statement can then be brought into evidence, usually in re-examination. To use this procedure it is not enough that the cross-examiner his attacked the truth of the witness’s evidence, however vigorously; there must have been a question in the nature of “when did you make this up?” or “you got together with X and agreed on this version didn’t you?” – R v Oyesiku [1971]. In that case a man was arrested for assaulting a police officer, and his wife went immediately to her solicitor to give a statement as to what had occurred, which was in effect that the police had assaulted her husband. By this stage she had not seen her husband in custody. At the trial when she gave evidence to this effect prosecution counsel had suggested to her that she had made up her evidence in collaboration with her husband. It was held proper to allow the solicitor to be called to prove that the wife had told him her version of events immediately after the incident and before she could possibly have collaborated with her husband about it. If it is permitted to prove such statements then in a criminal case they merely go to rebut the allegation of recent fabrication; they are not evidence of the facts stated in them. This is a distinction which it is suggested the average jury would have great difficulty in following!

Unfavourable and hostile witnesses. These terms relate only to certain special situations which may arise with a party’s own witnesses. (The other side’s witnesses, after all, may be expected to be unfavourable.)

Parties prepare their case by having their solicitor take a statement from each witness which is written down and signed by the witness. This is called a “proof of evidence”. A witness whose evidence in court is generally in accordance with his statement is said to be “coming up to proof’. The following part deals with the situation where a witness does not come “up to proof’.

There are two possibilities for such witnesses; they may be either “unfavourable” or “hostile.”

An unfavourable witness is simply one who is not “coming up to proof” and fails to prove some necessary fact. Such witnesses cannot be attacked by the party calling them, nor can their previous statements be put to them to remind them, or correct them. The best one can hope for if a witness proves to be unfavourable is that one has other witnesses as to the same point and that the jury will prefer the later evidence. Unfavourable witnesses may be so because they are forgetful, foolish or mistaken.

Hostile witnesses are those “not desirous of telling the truth at the instance of the party calling them”. So, the clearest instance is that of a witness who has deliberately changed his evidence since his previous statement, whether from a desire not to be involved; fear; malice, or some other motive. Where an advocate is examining-in-chief one of his own witnesses and finds that he is hostile, the following occurs:

He asks the judge to send the jury out of court.
In their absence he applies to the judge for leave to treat the witness as hostile.
The judge will decide whether the witness is hostile or merely unfavourable. He will try to judge this from such things as the witness’s demeanour, but he may also be shown the witness’s previous statement so that he can judge how glaring the departure from it is.
The jury are recalled and if the judge has ruled the witness only unfavourable, there is nothing much that the advocate can do about matters, except hope for better results with any other witness he has on the same point.
If the judge rules the witness hostile, however, the advocate can do a little more. He can now at least go some way towards undoing the harm to his case which the witness has done so far. He can now cross-examine the witness using leading questions and put to him his previous inconsistent statement. He cannot, however, attack the witness’s credibility further (e.g. by cross-examining him as to his previous character and convictions).

Where a witness is wholly discredited all his evidence must be disregarded.

CROSS-EXAMINATION. All witnesses are liable to be cross-examined. All parties have the right to cross-examine any witness not called by them. Therefore one accused’s witness can be cross-examined by the prosecution and by counsel for any co-accused.

There are two objectives in such cross-examination:

To elicit information about the facts in issue favourable to the party cross-examining.
To test the truthfulness of, and where necessary cast doubt upon, the evidence given in examination-in-chief

When conducting cross-examination it is an advocate’s duty:

To challenge every part of a witness’s evidence which is in conflict with his own case.
To put his own case to the witness insofar as the witness is able to say anything relevant about it.
To put to a witness any allegation against the witness which he may properly put.

In cross-examination leading questions may be put, indeed on the central matters such questions are essential. Cross-examination is directed to either:

the issues in the case, or
collateral issues, the only important one of which for us is the witness’s credit.

BIAS. This means generally taking a bribe or having very close relations with one party, or having a particular grudge against a party. If such an allegation of bias is put in cross-examination and denied, evidence in rebuttal may be called (e.g. a witness could be called to say that he knew that the first witness had a particular grudge against the accused).

Witness’s own previous inconsistent statements. We have already considered in the section on unfavourable and hostile witnesses the position where a party’s own witness departs from a previous statement. It sometimes happens that a party knows that an opponent’s witness had made a previous statement, written or oral, which is inconsistent with his present evidence. The effect of the inconsistency is precisely the same as in the case of a hostile witness - the jury should be directed to ignore both statements in a criminal trial, and not to speculate as to which of the two versions they prefer to believe.

Witness’s previous convictions. This is the difference between one’s own hostile witness and an opponent’s witness. Whilst both can be cross-examined and have their prior inconsistent statements put to them in an effort to nullify their testimony, only an opposing witness can be asked about his character and convictions. The matter is governed by s6 CRIMINAL PROCEDURE ACT 1865 (again applicable to both civil and criminal proceedings). By this section:

“A witness may be questioned as to whether he has been convicted of any offence and if he denies it . . . it shall be lawful for the cross-examining party to prove the conviction”. This is so however little relevance the conviction may seem to have (e.g. whether the convictions are for perjury or driving offences).

RE-EXAMINATION. After cross-examination, the party who has called a witness has the right to re­-examine him. This is an attempt to clarify any ambiguities in his testimony during cross-examination and to rehabilitate evidence which has been shaken by successful cross-examination. Leading questions may not be used and no new material may be introduced.

CORROBORATION. As a general rule the law does not give particular weight to particular types of evidence. It is open to a jury to convict of even the most serious crime on the evidence of one witness whom they find credible, or on an accumulation of circumstantial evidence.

EXAMPLE:

A is the beneficiary under T’s will. His business is in difficulties and he goes to T to ask for a loan. They quarrel and T tells him he will change his will. A fortnight later T dies from poison. It is proved that A had a key to T’s kitchen; that A had recently bought weed killer although he lives in a house with no garden; and that A had apparently behaved surreptitiously in relation to the weed killer, going to a distant town to buy it, and hiding it under his floorboards.

This is an example of circumstantial evidence, no one fact of which is sufficient to lead to A’s conviction but the accumulation of which may provide proof beyond reasonable doubt.

It is up to the jury, properly directed, to say whether they find that there is sufficient evidence to prove the guilt of the accused beyond reasonable doubt.

In certain exceptional cases corroboration is required, or desirable, because the nature of the case, or of the witness, is considered to be such as to require caution before a conviction is pronounced.

Corroboration is defined as “other independent evidence which supports the evidence which requires corroboration in a material particular and which implicates the accused.”

There are thus three requirements for corroborative evidence:

It must be admissible in itself.
It must be independent of the witness who needs to be corroborated.
It must implicate the accused in a material particular.

So long as the evidence has these three qualities it need not be in the form of direct evidence given by another witness. It can be, for example, fingerprints; or a partial admission by the accused; or a lie told by the accused about the crime which may indicate a guilty mind.

There are many sources of corroborative evidence. The principal sources are:

Circumstantial evidence. A number of items of themselves purely circumstantial have been held to be capable of amounting to corroborative evidence.

Lies told by the defendant. Lies told by the defendant in a statement out of court or a statement made in court are in certain circumstances capable of amounting to corroborative evidence. To be admissible as an out of court statement the court held in the case of R v O’Leary [1998] that the statement must:

be a deliberate statement;
relate to a material issue in the case;
be motivated by realisation of guilt and fear for the truth;
be proved to be a lie by evidence other than that which requires to be corroborated (e.g. by admission by the defendant or by evidence from an independent witness that the evidence is in fact a lie).

The judge must, however, warn the jury that people lie for many reasons and that only where they are satisfied that a lie is motivated by realisation of guilt and fear of the truth can it amount to corroboration.

Under s62(10) PACE if a person without good cause refuses to give consent to the taking of an intimate sample, this is capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material or in some other way significant.

A defendant, in giving evidence in court, may give evidence which serves to confirm the substance of the prosecution evidence or certain other circumstantial evidence and thus it is capable of being corroborative evidence.

In the leading case of DPP v Kilbourne [1973] evidence of similar misconduct was held to be capable of amounting to corroboration of later allegations. The defendant in this case faced a number of charges of indecency relating to schoolboys. The defence contended that any association was entirely innocent, and on appeal the House of Lords said that evidence of similar misconduct was admissible because it went to rebut the defence of an innocent association.

In R v Z [2000] previous acquittals were held to amount to similar fact evidence.

We will continue with this next week. I gave a handout with some questions requiring short answers, and we discuss these also next week.