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.

Thursday 8 February 2007

We began by concluding the course of the trial, that of the verdict. If the jury succeed in reaching a unanimous verdict they return to the courtroom and the judge then asks whether they have reached such a verdict. If the answer is “Yes”, then the jury foreman reads out the verdict in respect of each count on the indictment.

It may well be the case that an indictment contains alternative counts (e.g. of burglary and of theft). In such a case the jury are only expected to return a verdict on one count and they are then discharged from giving a verdict on the other count. It may be, however, that the jury actually convict on one and acquit on the other (e.g. as in the case above where they may convict of the theft and acquit of the burglary). The latter is undesirable because if there should be an appeal which is successful, the conviction will have to be quashed and it will be impossible to reopen the alternative charge. For this reason it is normal to ask the jury to return a verdict on one charge at a time and then discharge them from giving a verdict on any alternative charge if a guilty verdict is returned on the first charge.

Instead of the simple option of acquitting or convicting, the jury may sometimes have an option of convicting of a lesser offence, albeit not charged, under the provisions of the CRIMINAL LAW ACT 1967, e.g. charged with murder but convicted of manslaughter.

The jury when retiring are directed to attempt to achieve a unanimous verdict: s17 JURIES ACT 1974, however, allows for majority verdicts of 11 to one or ten to two, or, if the jury is reduced below 12, often to one or nine to one. A jury reduced to nine must, however, be unanimous. There may be either acquittals or convictions by majority verdict.

Before a majority verdict can be considered the jury must have retired for at least two hours and ten minutes or such longer period as is reasonable, having regard to the nature and complexity of the case. If at the end of that time they return and say that there is no possibility of a unanimous verdict, it may be that the judge will send them out for a further period. If however, he decides that he is willing to accept a majority verdict then the judge gives them direction on majority verdicts, that is, he tells them that they should continue to strive for a unanimous verdict but if they cannot he will accept a majority verdict and he then informs them what the requirements of a majority verdict are.

The jury will then return to court and will be asked whether at least ten of them (or nine in the case of a ten-person jury) have agreed upon the verdict.

There is a great deal of authority which stresses that no pressure should be placed on a jury to arrive at their decision. If there is such pressure, then any conviction is liable to be quashed.

R v Duggan and Others [1992]. At 3.35 p.m., following a majority direction, the judge told the jury that as they had worked hard enough they could stop, stay in a hotel, and consider their verdicts the following morning. A note was received at 3.52 p.m. indicating that some jurors had child-care commitments. The judge said that the jury bailiff could make arrangements but he would wait until 5 p.m. The Court of Appeal, quashing convictions returned by majority verdicts at 4.55 p.m., said that a time limit after which the jury would go to a hotel, where it was clear that there were commitments, was likely to be construed as pressure to reach a verdict.

After the jury have returned their verdict, if it is “not guilty” the accused will be discharged and applications for costs etc will be considered. If the verdict is “guilty”, then the case will proceed with consideration of matters relevant to sentence (later).

We then turned to a mish-mash of rules as we began on the law of evidence. It is a difficult and technical subject, based mainly on case law (much of it stemming from over a century ago) with a few piece-meal statutory reforms such as the POLICE AND CRIMINAL EVIDENCE ACT 1984, the CRIMINAL JUSTICE & PUBLIC ORDER ACT 1994 and the YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999.

The rules of evidence are concerned with admissibility of evidence, and this should eb borne in mind throughout. For example, if here is a dispute as to the admissibility of a confession allegedly made by the accused. In his opening speech, prosecuting counsel must not refer to this confession and when the time is reached to introduce evidence of it the jury is sent out of court whilst the judge hears the evidence as to how the confession was obtained, makes findings of fact (e.g. as to whether a policeman did in fact strike the accused) and then rules on admissibility by applying the law to the facts as found. If he rules that the confession is inadmissible, then when the jury are recalled no reference to the confession may be made. If he rules it admissible, then when the jury are recalled it may be put in evidence before them. This hearing takes place in the absence of a jury, and is known as a voir dire.

Don’t think that what we look at is all the rules, for it is nothing more than a scratch on the surface. However, they are the important rules.

We will begin with the LEGAL BURDEN OF PROOF. The general rule in criminal cases is that the prosecution have the legal burden of proving the defendant’s guilt. The rule derives from the leading case of Woolmington v DPP [1935]. The accused was charged with the murder of his wife. He admitted that he had shot her but claimed that the gun had gone off by accident. The trial judge, in directing the jury, stated that if the jury were satisfied that the accused had killed his wife then it was for him to satisfy the jury that it was an accident. The accused was convicted and appealed. The case went to the Court of Appeal where the direction and conviction were upheld, and to the House of Lords where the direction was overruled and the conviction quashed. The House of Lords reaffirmed the principle that it was for the prosecution to prove every element of the offence charged, including disproving any proper defence such as self-defence.

As an illustration of the Woolmington principle, in a case of theft the prosecution have the legal burden of proving that the defendant dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it.

There are three exceptions to the Woolmington principle:

1. Insanity. At common law, where the defence put forward that the accused was insane within the meaning of the McNaghten Rules [1843] at the time the offence was committed, the defence have the legal burden of proving that the accused was insane.


2. Express statutory exceptions. In some statutes, Parliament has expressly placed the legal burden of proof on the defence on or more of the facts in issue. For example, s139 CRIMINAL JUSTICE ACT 1988 creates an offence of possession of a knife in a public place. s139(4) provides that the possession in a public place is not an offence where the defendant can show he has good reason or lawful authority for possessing the knife. The defence have the legal burden of proving that the accused has such good reason or lawful authority. The same principle applies to ss 2 and 4 HOMICIDE ACT 1957 where Parliament has expressly provided that the defence has the legal burden of proving the defences of diminished responsibility under s2 or acting in pursuance of a suicide pact under 54.


3. Implied statutory exceptions. There are also some important exceptions where Parliament has by implication put the legal burden of proof on the defence for all or some facts at issue. The most important example of this exception is s101 MAGISTRATES COURTS ACT 1980 which provides: “… where a defendant relies for his defence on any exception, exemption, proviso, excuse or qualification … the burden of proving the exception, exemption, proviso, excuse or qualification rests on the defendant.” This simply means that where a person is charged with, say, driving a vehicle without a current MOT certificate it will be for him to prove that he has one, not for the prosecution to prove he hasn’t.

THE EVIDENTIAL BURDEN OF PROOF. The general rule is that the party which has the legal burden of proving a fact in issue also has an evidential burden. It is only by tendering evidence in relation to each fact in issue, that a party will discharge its legal burden. The evidential burden is therefore satisfied by producing evidence in a number of forms including most commonly the oral testimony of a witness in court; documentary evidence; photographic and video evidence or real evidence. The evidential burden is the practical way a party discharges its legal burden by putting evidence before the court.

THE STANDARD OF PROOF. The burden in any criminal trial as a general rule requires that the prosecution proves the accused’s guilt to a very high standard of certainty.

The phrase “beyond a reasonable doubt” is the most universally approved form but other forms of words have from time to time been approved for judges’ directions to the jury. Lord Morris in Woolmington’s case said:

“the basic necessity before guilt in a criminal charge can be pronounced is that the jury are satisfied of guilt beyond all reasonable doubt. This is a concept that a jury can readily understand or by clear explanation can readily be made to understand”. Although these words have been used for many years, judges nowadays commonly use a direction concluding with “so that you are really sure of the accused’s guilt”.

Where the burden of proof of an issue is on the defence (which would arise in cases of insanity, diminished responsibility in murder cases, proving in a drugs case that the defendant did not know or suspect that the substance in question was a controlled drug), the standard of proof on the defendant is not as high as the standard on the prosecution in proving the guilt of the accused. The standard required of an accused called upon to satisfy the jury of his defence is the civil one (i.e. he must satisfy them on the balance of probability that his defence is true).

R v Carr-Bryant [1953] – a defendant is not required to prove his innocence, simply to adduce sufficient evidence to discharge his evidential burden.

Facts in issue must normally be proved by admissible evidence. This normally takes the form of a witness testifying on oath as to matters which he has personally perceived. Other forms of evidence will also be put before the court; for example, if the case concerns a dispute over the terms of a lease or a will, the document itself may be produced or an item of real evidence such as a knife as the alleged murder weapon or a piece of bloodstained clothing. During the last ten years scientific evidence has become increasingly important in criminal cases through DNA profiling and other forensic methods of identification. However, there are four situations where the court may treat facts as being established without evidence having been adduced:

(1) Facts of which judicial notice is taken.
(2) Facts which are formally admitted by a party.
(3) Facts which are the subject of a presumption.
(4) Certain cases where the court may infer facts.

Facts which will be JUDICIALLY NOTICED are those which are so notorious as not to be capable of being the subject of any dispute, or are readily ascertainable by reference to a proper source. The more important examples of cases where judicial notice is appropriate are:

(a) Matters of common knowledge (e.g. that a fortnight is too short a period for human gestation: R v Luffe [1807]); that criminals have unhappy lives: Burns v Edman [1970].
(b) Political and administrative matters. After receiving an appropriate certificate from the Secretary of State the court is obliged judicially to notice certain political matters (e.g. as to the recognition of a foreign sovereign, or as to whether a state of war exists).
(c) Law, procedure and customs. Judges will take notice without formal proof of what English law is, but will also sometimes judicially notice other matters, e.g. the existence of commercial customs, or the practice of conveyancers.

FORMAL ADMISSIONS IN CRIMINAL CASES. In a criminal case a formal admission may be made by either prosecution or accused, either at the trial itself or prior to the trial. If an accused makes a formal admission it must be made by, or approved by, his solicitor or counsel (s10 CRIMINAL JUSTICE ACT 1967). It is open thus in a large-scale riot trial for the defence and prosecution formally to admit, if it is appropriate, that a riot has taken place. It is then for the prosecution to establish whether any one particular defendant was participating as part of a common venture.

PRESUMPTIONS. Certain matters are presumed by the court to exist without proof. This means that a person challenging the existence of a certain state of affairs has the burden of disproving it rather than vice versa. Presumptions are basically of two kinds, namely irrebuttable presumptions and rebuttable presumptions. Irrebuttable presumptions are, in reality, just statements of substantive law in reality. The irrebuttable presumption that a child under ten cannot commit a crime is well known.

As opposed to this there are rebuttable presumptions of which a number are important in various kinds of civil proceedings particularly the presumptions of legitimacy, death and res ipsa loquitur. The only rebuttable presumptions of any importance in criminal proceedings are the presumptions of regularity and legitimacy. The presumption of regularity means that official matters are presumed to be properly performed, official persons are presumed to be qualified to perform the functions which they perform etc. So, for example, a court will presume a priest who performed a marriage ceremony to have been properly ordained without formal proof (e.g. on a charge relating to bigamy). If D is charged with committing incest with his daughter and he denies that he has committed incest because the girl, though born to his wife while he was married to her, is not his daughter, then he must rebut the presumption of legitimacy.

An important area, as it is well-liked by examiners, is the competence and compellability of witnesses. A witness is competent if he can be called to give evidence and compellable if he can be made to give evidence. The general rule is that all persons are competent to give evidence and all persons are compellable. There are, however, certain exceptions to this concerning children, persons of unsound mind, the accused and his or her spouse.

In determining whether a child or young person is competent to give evidence in criminal proceedings, a distinction is drawn between a witness who is aged below 14 years and a witness who is aged 14 years and above.

Where the child is under 14 years of age, s33A CRIMINAL JUSTICE ACT 1988 deals with the issue of the child’s competence. s33A provides:

(1) A child’s evidence in criminal proceedings shall be given unsworn.
(2) A deposition of a child’s unsworn evidence may be taken -for the purpose of criminal proceedings as if it had been given on oath. (2A) A child’s evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony.

The court has no discretion to allow a child under 14 years to give sworn evidence: R v D [1995].

Where the child is competent to give evidence he is also compellable.

Historically, the English trial has been based on oral evidence given by a witness in open court through examination-in-chief by the party calling him and then being cross-examined by the other party. Appearing as a witness can be a daunting prospect for an adult, but in the case of a child witness, it has often been so traumatic that the child has been unable to cope with the cross-examination, or has been so terrified that he has been unable to give evidence at all.

In recognition of these difficulties, the following reforms have been introduced the following to alleviate the trauma of children and young people giving evidence. It also includes vulnerable and intimidated witneeses. Collectively they are known as “special measures”. The YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 provides:

• s16: applies to witnesses under 17, or those suffering a mental/physical disability. Automatically qualify for special measures.


• s17: intimidated witnesses. The court will consider the likelihood of trauma or distress.


• s21: additional safeguards for child witnesses giving evidence regarding sex, kidnap or assault, Video recorded evidence and live TV link is mandatory.


• s23: screens to prevent the defendant from seeing the witness.


• s24: live TV link, where in the interests of justice


• s25: giving evidence in private. Usually only available in sex offences.


• s26: removal of wigs & gowns


• s27: video recorded evidence-in-chief


• s28: video recorded cross-examination


• s29: examination through an intermediary, e.g. interpreter

For the purpose of giving evidence in criminal proceedings, a young person will be aged 14 to 17 years and will be presumed to be competent to give sworn evidence, i.e. evidence taken on oath or affirmation.

An accused is, of course, competent to testify on his own behalf He is not competent or compellable to testify for the prosecution (i.e. at his own trial the prosecution cannot make him give evidence although, under s35 CJPOA 1994 certain inferences may now be drawn if he does not do so). The corollary of this is that one of two or more co-accused cannot be called by the prosecution to testify against other co-accused. This should not be confused with the situation where one of a number of co-accused testifies on his own behalf. There is nothing to stop him giving evidence which is against the interest of his co-accused, and thus favourable to the prosecution case against his co-accused.

It is therefore important to discover whether people are co-accused or not. Co-accused means “jointly charged at the time when competence comes to be decided”. Once a person ceases to be a co-accused he is competent and compellable by the Crown. There are a number of ways in which a person may cease to be a co-accused even though concerned in the same crime. The two most common are:

(1) Where an order is made for the co-accused to be tried separately.
(2) Where he has pleaded guilty at the outset of the trial - the trial is therefore over so far as he is concerned, and he may then be called by the Crown. Note that it is generally desirable that he should have been sentenced before giving evidence (so that he will have no motive to shift blame on to his co-accused in order to receive a lighter sentence). The judge does, however, have a discretion on this and may exceptionally wait till the end of the trial to sentence all the defendants (e.g. if he needs to hear all the evidence against members of a gang before ascertaining their relative culpability). Such evidence is called accomplice evidence and is subject to the corroboration rules, below.

The accused has a right not to testify at his own trial. He has two options:

(a) To give evidence on oath like any other witness. He is then open to cross-examination.
(b) He may decline to testify.

Where the accused declines to testify, or has kept silent about certain potentially probative issues during interviews with the police, many of his traditional rights have been curtailed by the CJPOA 1994.

s34 of the 1994 Act permits such inferences as appear proper to be drawn from a defendant’s silence when questioned under caution before charge, or on being charged. The inferences can only be drawn if the point not mentioned is one on which the defence subsequently relies in court (s34(1)) and are the “proper” inferences that could be drawn in the circumstances. s34 covers the situation where the accused at the trial relies on a fact in his defence, for example self-defence, which he could reasonably have mentioned when he was charged with the offence, or when questioned under caution.

The accused’s silence cannot assist in establishing a prima facie case or where there is a submission of no case to answer, as the stage at which the defence is presented will not have been reached.

s168(3) and Schedule 11 proviso (b) to s1 CRIMINAL EVIDENCE ACT 1898 is repealed so that the prosecution can comment on the accused’s failure to testify. s35 provides for inferences to be drawn if the accused fails to give evidence at the trial

s36 allows inferences to be drawn by the accused’s refusal to account for certain objects, substances and marks found on his person, or on his footwear and clothing or otherwise in his possession. s37 allows inferences to be drawn from the defendant’s refusal to account for his presence at a particular place.

Before the coming into force of s80 PACE, a spouse was competent to testify against the other spouse only in certain limited classes of case and was never compellable by the prosecution. Under s80 the position is as follows:

(1) In any proceedings the wife of husband of the accused shall be competent to give evidence:

(a) subject to s80(4) for the prosecution; and
(b) on behalf of the accused or any person jointly charged with the accused.

(2) In any proceedings the wife or husband of the accused shall, subject to s80(4) be compellable to give evidence on behalf of the accused.
(3) In any proceedings the wife or husband of the accused shall, subject to s80(4), below, be compellable to give evidence for the prosecution or on behalf of any person jointly charged with the accused if and only if:

(a) the offence charged involves an assault on, or injury or a threat of injury to, the wife or husband of the accused or a person who was at the material time under the age of 16; or
(b) the offence charged is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c) the offence charged consists of attempting or conspiring to commit, or of aiding, abetting, counselling or procuring or inciting the commission of an offence falling within paragraphs (a) or (b) above.

Former spouses are now compellable at all times as if the parties had never been married. It is open to an accused to call his Spouse who is both competent and compellable to give evidence on behalf of the accused provided the spouse is not jointly charged. Furthermore a Spouse is competent but not compellable to testify on behalf of any person jointly charged with his or her spouse and is also compellable if the crime charged is one of those where he or she would be compellable by the Crown, but not otherwise. A Spouse is not compellable at any time if he or she is also a co-accused on the same indictment.

We will begin next time with the course of testimony, looking more closely at what goes on in the course of the trial.

Remember that there is no class next week, as it is half term. See you again on Thursday 22 February 2007.

Thursday 1 February 2007

This week we turned our attention to juries and jury trial.

Jury qualification changed radically with the introduction of the Criminal Justice Act 2003. The category of ineligible for jury service was abolished, meaning that judges, lawyers, police etc. are eligible to serve on juries. Excusal as of right is also abolished, though for full-time serving members of the forces there is discretion to excuse from service if the commanding officer certifies that it would be prejudicial to the efficiency of the service. This means that doctors and other medical staff will no longer be able to refuse to do jury service, though they can apply for a discretionary excusal.

Disqualification remains the same, and includes:

• Mentally disordered persons


• People on bail


• People sentenced to life imprisonment

Section 321 Criminal Justice Act 2003 states that a person may be summoned ofr jury service if:

• He is registered on the electoral role


• He is between the ages of 18-70 years


• He has bee resident in the UK for 5 years since the age of 13 yrs


• He is not mentally disordered


• He is not disqualified

A jury summons must be in writing and is properly served by post. The summons requires a juror to attend on a stated day at a stated Crown Court centre.

Jurors are entitled to travelling and subsistence expenses, and to some compensation for loss of earnings.

With the summons is served a notice setting out the rules on eligibility for jury service, the penalties for non-attendance and the availability of excusal from jury.

The jurors selected to make up the jury panel (the total number of jurors summoned on any day to a particular Crown Court centre) are selected at random from the electoral roll. The juror is selected to make up a jury panel which often substantially outnumbers those required. The panel is selected at random from the electoral roll.

There are Attorney General’s guidelines on jury checks, empanelling and challenges. The prosecuting counsel have for years had the right to require that a potential juror should “stand by” for the Crown. This right gives the Crown the opportunity to disqualify automatically any potential member of a jury. With the abolition of the defence right peremptorily to challenge a juror, the Attorney General issued guidelines concerning the use by the prosecuting counsel of “stand by”. That guideline in Paragraph 9 states that “no right of stand by” should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check, save with the personal authority of the Attorney General. Further there must be a strong indication of the fact that the potential juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict.

One of the most important features of the Attorney General’s guidelines is that the use by prosecuting counsel of the right of “stand by” should be used sparingly and in exceptional circumstances.

In R v Thomas [1989] Otton J considered that he had a discretion to ensure that a racially mixed jury were empanelled where appropriate. In essence, where a case (for example) concerned an incident at a community centre principally catering for black people, a racially mixed jury might be thought appropriate, particularly so if it was thought that the police officers participating in the incident were racially motivated.

In order to select a trial jury from the jury panel a “jury in waiting” of twenty (sometimes more) is either in court to hear the accused’s plea or brought into court immediately after a not guilty plea. The clerk of court then calls out names at random (in order to comply with s11 JURIES ACT 1974 which requires the selection of a trial jury by ballot in open court), usually by reading the names from a previously shuffled pack of cards, each one bearing a juror’s name.

R v Comerford [1998] – a number can be allocated to jurors to protect their identity, in order to prevent witness intimidation.

Once twelve names have been selected by ballot the individuals are called forward to take the jury oath. It is at this stage, before being sworn in as a juror, that the prosecution may ask a juror to “stand by” or the defence may seek to object showing cause as to why a juror should not sit. In the event of a successful defence challenge to a juror, or a “stand by”, a replacement is drawn from the jury in waiting.

Both the prosecution and the defence may challenge for cause; this is done orally and the application must be made before the juror is sworn (s12(3) JURIES ACT 1974). The party making the challenge carries the burden of proving to the judge that:

1. the juror is not qualified to serve; or
2. that be is biased; or
3. that he may reasonably be suspected of bias - R v Kray and Others [1969].

In the United States counsel are permitted to examine potential jurors as to their belief and knowledge of the case before deciding whether or not to challenge. In Britain this is most unusual (see the peculiar facts of R v Kray [1969] (below)) and is allowable (at the trial judge’s discretion) only if the challenging party can adduce prima facie evidence pointing towards a reasonable suspicion of bias.

The trial judge has a discretion to exclude a juror, even though neither party raises an objection, for example because of deafness, reading difficulty or infirmity.

Either party can challenge the whole jury panel; this is known as a “challenge to the array” and is allowed by s12(6) JURIES ACT 1974. The grounds are that the summoning officer was biased or might reasonably be suspected of bias. It hasn’t happened in well over 100 years!

If a procedural error occurs in the empanelling process and goes uncorrected, this is unlikely to provide a ground of appeal to a convicted defendant. Section 18 JURIES ACT 1974 prevents the quashing of a conviction solely because:

1. the Act’s summoning, empanelling or selection rules have not been complied with; or
2. a juror was not qualified; or
3. a juror was misnamed or wrongly described; or
4. a juror was unfit to serve.

The Court of Appeal has indicated its reluctance to interfere even where s18 does not apply – R v Box [1964] – juror biased by knowledge of the appellants’ previous convictions and bad character - appeal dismissed.

The trial judge has a discretionary power to discharge up to three jurors during the course of the trial. This discretion must be exercised judicially and is subject to review only on jurisdictional grounds.

s16 JURIES ACT 1974 provides that if a juror dies or is discharged by the judge, the remainder of the jury may continue to hear the case and return a verdict, provided that their number does not drop below nine.

s16 permits the judge to discharge a juror on grounds of illness rendering him incapable of continuing to act as a juror or “for any other good reason”.

In trials for murder only, proceedings may continue with less than twelve jurors only if both the prosecution and the defence give their written consent, s16(2) JURIES ACT 1974.

The trial judge has a discretion to discharge the whole jury. He must discharge the jury if a death or his decision to discharge a juror causes its number to drop below nine; otherwise he has a judicial discretion.

The circumstances in which the judge is likely to discharge the whole jury are:

1. where a juror has misconducted himself by talking to a prosecution witness (if he has thus discovered prejudicial material, the entire jury should be discharged unless he has had no opportunity to influence his co-jurors) – R v Sawyer [1980];
2. where the judge considers it better to empanel a fresh jury than to continue with fewer than twelve;
3. where inadmissible evidence prejudicial to the accused (or one of several accused’s) has accidentally been presented in the jury’s presence – R v Weaver [1968]; and
4. where the jury are unable to agree on their verdict.

THE PROSECUTION CASE.
The obligation upon the prosecuting counsel is to be the “minister of justice and not an advocate for his cause”. Having regard to this obligation, prosecuting counsel makes an opening speech to the jury after they have been empanelled. He outlines the facts of the case, explains relevant points of law, although always indicating that the judge is the sole arbiter when matters of law are raised and explains who his witnesses are and what he anticipates they will say in general terms. In particular in cases of fraud, opening speeches do take considerable time. It is not uncommon in more complicated cases for prosecuting counsel to take two or three days in opening a case to the jury. It is customary to outline the pieces of evidence which are to be called and explain how they will fit together to give a picture of the guilt of the accused. In cases where the evidence which the prosecution propose to call is either circumstantial, or is based on forensic evidence in the form of expert evidence from the Home Office laboratories or medical evidence, it is customary to detail the facts and then draw them together to show how the prosecution allege that the accused is guilty.

Where the defence objects to prosecution evidence on the grounds that it is not admissible, the question of admissibility is decided by the judge in the absence of the jury, so that if the evidence is found to be inadmissible the jury cannot have been prejudiced by hearing it. This procedure is known as a trial on the voir dire and it occurs most commonly with objections under ss 76 and 78 PACE 1984, though is not confined to those situations. We will look at this point more fully later.

It is important to remember that if the defence has indicated at any time that it will object to the admissibility of any evidence in the prosecution case, the prosecution counsel must not refer to these things in front of the jury before the judge has rule on their admissibility, which he will normally do when the item of evidence in question is reached. It is not unusual to find the issue of admissibility now dealt with at the outset of the case to enable the judge to rule on admissibility, and thereafter let the prosecution case be opened on the basis that the judge has already ruled as to admissibility and therefore the jury are not inconvenienced by repeated adjournments when matters of law are raised. It is further important to note the provisions of ss 76 and 78 PACE.

Prosecuting counsel should not use emotive language, however unpleasant or sensational the crime, nor should he play on the jury’s feelings. Prosecuting counsel should also detail the burden and standard of proof and indicate to the jury on whom the burden rests. It is not uncommon therefore for prosecuting counsel to open the case in this way:

“It is the prosecution who bring this case and it is the prosecution who have the burden satisfy you so that you are sure that the Defendant is guilty of this offence. If you are unsure then the defendant is entitled to the benefit of the doubt.”

Prosecuting counsel should also deal with the burden of proof on other issues.

Prosecution counsel will then call his witnesses to give evidence. There is no particular order required in which he will call his witnesses although the normal order will be to call the complainant first and then perhaps the police officer in charge of the case before calling other witnesses. He should in principle call all the witnesses whose evidence is in dispute. If the evidence of other witnesses has been served in the form of statements taken under s9 CRIMINAL JUSTICE ACT 1967 and no objection has been taken by the defence (i.e. purely non-controversial evidence, or formal continuity evidence) their evidence can be read out or the witness statements, if necessary, tendered to the jury to read. Each witness will in turn rake the oath, be examined in chief, cross-examined by the defence advocate and sometimes re-examined by the prosecutor. The exact nature of the examination in chief, cross-examination and re-examination is dealt with later in the text. Also dealt with later in the text are the provisions of s23 CRIMINAL JUSTICE ACT. By s23 CRIMINAL JUSTICE ACT 1988:

a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if

(i) requirements of sub-section (3) are satisfied
(ii) the requirements mentioned in sub-section (1) (ii) are…

(a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and
(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way”.

Seeing the judge in his room. In R v Pitman [1991] the Lord Chief Justice again re-emphasised how undesirable it was for counsel to see a judge in his private room. The appellant pleaded guilty to causing death by reckless driving. He was sentenced to nine months’ imprisonment and disqualified for four years. He had also been committed to the Crown Court for an offence of excess alcohol for which be had been sentenced to six months’ imprisonment without its being ordered to run concurrently. The Lord Chief Justice said:

“… a first principle of criminal law was that justice was done in public, for all to see and hear”.

By that standard, a meeting in the judge’s room was anomalous, the essence and, indeed, the purpose being that neither the defendant nor the jury nor the public were there to hear what was going on.

The leading authority on a submission of no case to answer is the Court of Appeal decision in R v Galbraith [1981]. In this case it was stated that a judge should accede to a submission of “no case” if:

(1) there is no evidence that the crime alleged has been committed by the defendant;
(2) there is some evidence, but it is of a weak or tenuous character;
(3) the judge concludes that the prosecution case, taken at its best, is such that a jury, properly directed, could not properly convict on it.

It needs to be remembered that the accused is not obliged to give evidence and therefore the defence is not obliged to call any evidence. Even if the judge has ruled against it on a submission of “no case to answer”, the defence is perfectly entitled to call no witnesses, but merely to make a closing speech, the nature of which is referred to hereafter.

If defence counsel is going to call evidence as to the facts of the case to make an opening speech to the jury, this speech will have the same nature as that of a prosecution opening speech in that he will outline the evidence he is about to call and perhaps comment on the prosecution evidence that has been heard so far, stating how his own evidence will go to rebut it.

Thereafter the defence witnesses will be called. If the accused is to testify then he should usually be called before his witnesses. If there are a number of accused persons on the indictment then the practice is that each gives evidence in accordance with the order appearing on the indictment. Thus if there are three defendants A, B and C facing a charge of theft and they appear in that order on the indictment, defendant A will give evidence first and thereafter call his witnesses. The further defendants will then be called and call their witnesses in like manner. The same procedure follows in relation to the order and manner of examination in chief, cross-examining and re-examination. Defence counsel examines his witness who is then cross-examined by prosecuting counsel and, if desired, by counsel for the other defendants. The defence counsel is then entitled to re-examine on matters raised in the course of cross-examination.

After the last defence witness has been stood down, it is the task of counsel for both the prosecution and the defence to make closing speeches. The nature of these speeches, in which defence counsel has the last word, is to summarise the nature of the evidence that the jury has heard. This can of necessity be rather boring for the jury and calls for advocacy skills on the part of the counsel addressing the jury. In a relatively short period of time a jury may well have to listen to two or more opening speeches, a number of witnesses to the same incident giving similar evidence, and then listen to counsel summarising what they have heard. In the course of making their speeches the prosecution will obviously emphasise points in their favour. Defence counsel may suggest to the jury inconsistencies, improbabilities and other weaknesses in the prosecution case. If, for example, prosecution witnesses have previous convictions and the defendant none then reference to this may well be made by defence counsel, suggesting that their credibility is such that they cannot be believed. Defence counsel may well refer to the way prosecuting counsel in his opening speech referred to how the evidence would unfold, and if there were differences between the account given at the outset of the trial and the evidence that has emerged, the emphasis may be placed on this. In an identification case the quality of the identification evidence will figure largely in both the prosecution and defence counsels’ speeches and the directions to be found in the case of R v Turnbull will be advanced to the jury by the respective advocates.

The judge then sums-up, directing the jury on the law and assisting them in considering the facts. The way in which judges do this varies considerably although in the course of judges’ training considerable attention is paid to how to sum-up to a jury. Some judges go to considerable lengths to withhold their own feelings about a case from the jury whilst others appear to make little secret of the way in which they view the evidence. It is essential, however, that the judge stresses repeatedly. in an appropriate case, that it is for the jury to decide on the facts. The following are the essential matters for the judicial summing-up:

(1) an explanation by the judge that the jury are the sole arbiters of fact but that they must accept what he directs them on the law;
(2) a clear direction on the burden and standard of proof (see later section on evidence, Chapter 18);
(3) a legal definition of the offence charged including an examination of all the ingredients in it;
(4) an examination of the evidence called. This should take the form of a stressing of the important parts together with any clear “technical” direction on specific matters of evidence.

The judge may go on to make his own comments on the witnesses whom the jury have seen (or not seen). He may, as counsel might have done in their closing speeches, suggest implausibility’s or answers which seem foolish; he may suggest motives of witnesses for lying and examine the factual circumstances to cast doubt on their evidence (e.g. that an eye-witness was actually standing 50 yards from the accused whom he purports to have identified correctly). Likewise the judge may comment on the failure of the accused to testify, although this must be done very carefully. Excessive comment in the nature of “don’t innocent men usually want to go into the witness box to give their own version - draw your own conclusions from his failure to do so” may lead to any conviction being quashed, but more limited comment is now permissible under s35 CJPOA 1994. This provides that a court or jury may “draw such inferences as appear proper” from the accused’s failure to give evidence or his refusal without good cause to answer any question.

There must be a clear direction in the case of a trial involving more than one defendant to treat the facts and evidence entirely separately in relation to each of the accused persons. An illustration of the kind of direction a trial judge gives can be found in the case of R v Ghosh [1982]. In this case, dealing with the issue of dishonesty, the judge said that whether a person acted dishonestly was a subjective test, but the standard of honesty to be applied was that of a reasonable and honest man and not the accused, and accordingly the jury should first consider whether the defendant had acted dishonestly by the standards of ordinary or decent people and, if they found that he had, then they had to consider whether the accused himself must have realised that what he was doing was by those standards dishonest.

Where the defendant is of good character the judge must give them a direction as to its relevance: R v Vye and Others [1993].

In R v Boyes [1991] B was convicted of rape and indecent assault. As the judge concluded his summing-up there was an outburst from the gallery from the mother of the complainant, alleging that four or five other girls had been attacked by B. The judge told the jury not to pay any attention to the outburst but to continue with their deliberations.

On appeal B’s convictions were quashed: the judge should not have referred at all to the fact that there had been other (unsubstantiated) complaints against B. If the jury had heard the outburst from the gallery, he should have considered ordering a fresh trial.

We will resume with the verdict next week.