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:
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:
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.
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:
- 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.
- 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.
- 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.
posted by John Robotham at 1:31 AM
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