Evidence: Christopher Allen Stephen Guest

Evidence
Christopher Allen Stephen Guest
2004 LLB BSc Accounting with Law / Law with Accounting BSc Management with Law / Law with Management 2660007 2770305 2770305
This subject guide was prepared for the University of London External Programme by: Christopher Allen, LLM, PhD, Barrister, Inner Temple and Grays Inn, formerly Senior Lecturer in Law, Inns of Court School of Law, City University, London and Stephen Guest BA, LLB, BLitt, PhD, Barrister, Inner Temple, Professor of Legal Philosophy, University College London. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.
Publications Office The External Programme University of London 34 Tavistock Square London WC1H 9EZ United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2004 Printed by Central Printing Service, University of London Cover design by Omnis Partners, Glasgow All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.
University of London External Programme
Contents
Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12
Introduction Basic concepts Competence and compellability The course of testimony Burden and standard of proof The rule against hearsay Judicial warnings to the jury Identification evidence Confessions and improperly obtained evidence Character evidence Opinion evidence Privilege and public interest immunity
5 17 29 39 53 65 85 93 99 119 135 143
Chapter 1 Introduction
Contents
Introduction 5 1.1 1.2 1.3 Studying the law of evidence 6 A suggested approach to study 6 The examination 12
Introduction
This subject guide is designed to help you to study evidence in English law. Each chapter will highlight the most important aspects of the topic and give guidance as to essential and further reading. Within each chapter you will find exercises (activities) designed to test your understanding of the topic and self-assessment exercises to monitor understanding and progress. There are also sample examination questions with advice on possible approaches to the questions. The key to successful study of evidence is understanding, not rotelearning. Evidence law can be found in a mixture of common law and statutory sources, including codes of practice made under statutory powers. You must be able to adopt a critical approach to these sources, and to apply them to factual situations. The Criminal Justice Act 2003 (CJA 2003) affects the law of evidence substantially, especially in relation to hearsay, character evidence and previous statements of witnesses. Its provisions are due to come into force in stages and at times as yet unspecified, but candidates will be expected to be fully conversant with its provisions to the extent that they affect this subject. The examination will be set and marked on the basis that the evidence provisions of CJA 2003 are fully in force, regardless of whether this is in fact the case. Students should therefore be careful to avoid using textbooks or collections of statutes that are out of date, particularly when studying the topics mentioned above.
Learning outcomes When you have completed this chapter (which does not contain any readings) you should be able to: approach the study of evidence in a systematic way understand what the various elements of this subject guide are designed to do begin your study of evidence with confidence.
Evidence
1.1
Studying the law of evidence

The law of evidence is a vital subject for anyone who is going to be concerned with criminal investigation or the conduct of criminal trials. Even if your concern is going to be solely with civil litigation, the subject is useful as background knowledge. Further, there are topics, such as the competence of witnesses, where the rules applicable in civil trials differ significantly from those in criminal trials. The law of evidence that you will study deals with three main topics: What facts or materials are admissible to prove something that is in dispute? How should the judge in a criminal trial by jury exercise any discretion that he or she may have in relation to the admissibility of an item of evidence? What directions should the judge in such a trial give to the jury to help them assess the weight to be attached to items of evidence that are particularly difficult to evaluate? The bulk of the law of evidence that you will study relates to the conduct of criminal trials in the Crown Court. This is because the law is most highly developed in this context. In civil trials, the vast majority of which are tried by a judge alone, the law of evidence has been considerably relaxed by the removal of many of the restrictions on admissibility that apply in criminal jury trials. In magistrates courts, generally because of the absence of a jury, the rules of evidence are different to some extent in practice. You will not be asked questions in the examination that are specifically directed to trials in magistrates courts. In many tribunals and in arbitrations the rules of evidence have little or no application at all. Evidence law is a mixture of principles, rules, guidelines and discretions. The difference between principles and rules will be referred to in Chapter 2. You will be introduced to guidelines and discretions as and when they arise in later chapters.
1.2
A suggested approach to study

See also the Student Handbook and the subject guide on English for Law and Legal Study Skills. You should start with this subject guide. Start at the beginning and work through the guide sequentially, reading the textbook and doing the activities as directed. It may be tempting to start with, say, hearsay, or identification evidence, but this is not a good idea. The guide builds on the basic foundations without which an understanding of particular topics later in the unit cannot be understood.
1.2.1
Essential reading
Allen, C. Practical Guide to Evidence. (London: Cavendish Publishing, 2004) third edition [ISBN forthcoming].1 Dennis, I.H. The Law of Evidence. (London: Sweet & Maxwell, 2002) second edition [ISBN 0421742003].
1
Primary textbooks
At the time of writing, the page proofs of this new edition were not available. References to Allen are therefore by chapter only. Note that there is some variation in the numbering of chapters in this new edition.
Further reading Andrews, J.A. and M. Hirst Andrews and Hirst on Criminal Evidence. (London: Jordans, 2001) fourth edition [ISBN 0853087024]. Birch, D. and R. Leng Blackstones Guide to the Youth Justice and Criminal Evidence Act 1999. (London: Blackstone Press, 2000) [ISBN 1841741124]. Roberts, P. and A. Zuckerman Criminal Evidence. (Oxford: Oxford University Press, 2004) [ISBN 0198764979]. Reference can also be made to current editions of Archbold, Criminal Pleading, Evidence and Practice, and Blackstones Criminal Practice. Your IOLIS CD will also provide much useful material. Official reports There are several official reports relating to various aspects of the law of evidence: Criminal Law Revision Committee: 11th Report, Evidence (General), Cmnd. 4991, 1972.
Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases
[the Devlin Report] (London: HMSO, 1976). Law Commission: Evidence in Criminal Proceedings: Hearsay and Related Topics, Consultation Paper No 138, 1995. Law Commission: Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, Consultation Paper No 141, 1996. Law Commission: Report on Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 245) Cm 3670, 1997. Also available on the Internet at http://www.gtnet.gov.uk/lawcomm/homepage.htm/ Law Commission: Report on Evidence of Bad Character in Criminal Proceedings (Law Com No 273) Cm 5257, 2001. Also available on the Internet at http://www.lawcom.gov.uk/ Monographs These two monographs deal with important aspects of the law of evidence: Choo, A. L-T. Hearsay and Confrontation in Criminal Trials. (Oxford: Clarendon Press, 1996) [ISBN 0198258917]. Mirfield, P. Silence, Confessions and Improperly Obtained Evidence. (Oxford: Clarendon Press, 1997) [ISBN 0198262698]. Statute book2 A list of materials that you are permitted to take into the examination is given in the Regulations. You should check the current version for details. Casebook It is useful to have a casebook, if only to avoid having to spend too much time searching for frequently cited cases in a library. The following is recommended as containing reasonably full extracts from the reports, especially some older reports that may be difficult to find. It also contains extracts from some recommended articles.
2
You must not annotate your statute book
in any way: if you do, you will not be allowed to take it into the examination.
Evidence
Allen, C. Sourcebook on Evidence. (London: Cavendish Publishing Limited, 1996) [ISBN 185941110X]. Legal journals In additional to the essential texts, you should consult a range of legal journals to keep yourself up to date with academic writing on the subject. Read the law reports in: The Times The Criminal Law Review The Criminal Appeal Reports. The Criminal Law Review has helpful commentaries on new cases. Useful short articles on evidence can sometimes be found in The New Law Journal. Case notes and longer articles sometimes appear in: The Law Quarterly Review, The Cambridge Law Journal, and The Modern Law Review. The International Journal of Evidence and Proof (E&P) is, as its title indicates, a journal devoted exclusively to evidence.
1.2.2
Structure of the subject guide

Each chapter follows the same basic structure: 1 Title 2 List of Contents main section headings 3 Introduction telling you what the chapter deals with 4 List of learning outcomes the things you should be able to do after completing the chapter successfully 5 The main text divided into short sections 6 Sample examination questions these are the kind of questions you may have to answer in your examination. You are also given advice on how to answer them.
1.2.3
How to proceed
For general advice on studying law courses and managing your study time, see the Student Handbook. For advice on strengthening your command of the English language, see the English for Law and Legal Study Skills subject guide. This guide takes you through the entire subject of evidence in a logical and systematic way, with each chapter covering a particular topic or group of topics. It is centred on the textbook Practical Guide to Evidence (third edition) by Christopher Allen, who is also the main author of this subject guide; The Law of Evidence by I.H. Dennis, and Criminal Evidence by Paul Roberts and Adrian Zuckerman. References in the text to Allen or Dennis or Roberts and Zuckerman are references to these textbooks. You do not need to read both Allen and Dennis. You can choose one or the other. But you may prefer to read both to get a fuller picture. Where Roberts and Zuckerman is part of Essential reading, it should be read in addition to any other textbook listed.
Much of your study time should be taken up reading the textbooks, though you will also need to study numerous case reports and statutes. Working through a chapter of the subject guide 1 Begin each chapter of the subject guide by noting the contents and then reading the Introduction. 2 Next you will see a heading Essential reading. This tells you what parts of the textbook are required reading for the topic you are studying. Note: essential means that you must read this material: this is where you will find the information that you will need to pass your exam. Do not skip the readings. You should read the readings at the point that they are referred to. As an example, this is what should happen when you read Chapter 11: Opinion evidence. 3 After reading the Introduction, you will see that the Essential reading is Chapter 13 of Allen. Read this chapter before going any further into the subject guide. You will be told to read parts of it again later. 3 When you have finished the readings, look at the list of Learning outcomes for the chapter. Keep these in mind as you work through the rest of Chapter 11. You will be reminded of these Learning outcomes from time to time. 4 Now proceed to work through the sections of Chapter 11. In Chapter 11, section 11.1 immediately gives you some more Essential reading: Allen, plus some further material some pages from Dennis, s.3(2) of the Civil Evidence Act 1972, and a number of cases. Read this material carefully and in detail. Make notes of anything you do not understand, and add any new words and phrases to your vocabulary index cards (see the English for law and legal study skills subject guide). 5 Now read the rest of section 11.1. and go on to section 11.2. 6 At the end of most sections you will find a reminder of the Learning outcomes that are relevant to them. Test yourself against these. For example, you should now be able to explain who may qualify as an expert witness. Ask yourself: Can I explain who may qualify as an expert witness? (You might also ask yourself Can I define the words expert witness?) If you can do so, then it is safe to proceed. If you cannot do so, you should go back over the work you have done until you can. Activities In sections 11.111.3 you will find Activities. These are exercises that are designed to help you learn and understand important issues. They do this by getting you to think about a question and devise a response. Activities will not have simple yes or no answers: often you will need to write down a few sentences, so activities also give you useful practice in using legal English. In most cases, feedback is provided at the end of the chapter, but it is essential to do the activities before you look at the feedback.
3
We are using Chapter 11 of this subject
guide as an example only. You should study the chapters in their numerical order.
Evidence
Do each activity to the best of your ability, then check the feedback. How well did you do? If your answer to the activity was incorrect or incomplete, think carefully about what went wrong. Do you need to re-read part of the textbook, or work through the subject guide chapter again? Self-assessment questions are a little different. These are factual questions designed to test your memory of the chapter you have just worked through. You may find it useful to ask a friend, fellow student or family member to test you on these questions. No feedback is given to SAQs because you can always find the answer somewhere in the text of the subject guide chapter. Sample examination questions Most chapters contain one or two Sample examination questions. These are examples of the kind of questions that have been asked on the particular topic in previous years. You should answer the examination questions fully. This will give you practice in presenting your knowledge and understanding of the topic in a thorough and integrated way. Think about each question. Ask yourself: What does this question relate to? What data do I need to answer it, in terms of theoretical approaches, case law, statutes or codes of practice? Is this a topic on which there are differing academic views? What is an appropriate balanced solution to the question? Next read the advice on answering the questions that follows. This will help you put together an effective answer. Spend 1530 minutes writing your answer. By writing down answers you will develop the skill of expressing yourself clearly and logically on paper. It will also help you to approach the examination at the end of the year. You need as much practice as possible in writing fluently and lucidly throughout the academic year. Cases Numerous cases are mentioned in the text, or listed as essential reading. These cases are not chosen at random: they are the important cases that have established or modified the law. You should read them in full whenever possible, and make notes. Further reading When you have completed your study of a section or chapter of the guide and textbook, check whether any Useful further reading is recommended.
1.2.4
Ten golden rules for studying evidence

1 Learn each topic as you study it and frequently revise. Evidence is not a subject that you can cram in at the last minute. 2 Read each chapter in your textbook at least twice. What is unclear at first reading will often become clear on a second or subsequent reading.
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3 Read as many of the important cases as you can. Textbooks have to summarise cases succinctly, and summarising can be an obstacle to understanding. You are more likely to understand a decision in a particular case if you have read the case itself. 4 Read as much of the recommended further reading as you can. This will be important for essay questions in the examination. 5 Take full notes of what is said in any lectures and tutorials that you attend, and of everything that you read chapters in textbooks, articles and cases. Keep these notes in a loose-leaf file so that you can add new material to each section as the need arises. 6 Read with a book of statutes at hand for reference. You are allowed to bring a statute book into the examination hall, but you will not be able to use it effectively unless you are already familiar with its contents. Statutes are not easy to read, and you will need to take trouble with this, reading each section that your book or article refers to several times to ensure that you have grasped all its details. 7 Condense your own full notes into a skeleton set of notes. Your skeleton notes will be infinitely more valuable than someone elses, and are essential to ensure that you learn and revise properly. You will need an ordinary, bound notebook, with separate sections for each topic that you learn. Ask at a law stationers for some counsels notebooks if you can; they are more substantial than ordinary school exercise books and come in ruled and unruled varieties. When you have finished studying one topic in evidence, go through all your full notes and condense them into a pattern of rules set out under headings, sub-headings and any further divisions that are convenient. Do this at first on rough paper so that you can find the best way of setting things out and of summarising your full notes. Then copy your final version onto the right-hand page of your notebook, making sure that you add the names of the cases and statutory references that support each rule. On the left-hand page summarise each case referred to on the right-hand page in not more than three or four lines. When you have done that, put your skeleton notes aside, take some more rough paper, and see if you can write out from memory what you have just written. Check it with the skeleton and, if need be, repeat the exercise until you have the whole section clearly in your memory. 8 Practise answering the sample examination questions. Begin by looking up as much as you need to answer the question. Make any notes you think necessary, including a framework for an answer. Then put your notes aside and try to write your answer in 3540 minutes. Later, choose another question and try to answer it in the same period of time, but without any preliminary reading. Make a plan for your answer as part of the unseen exercise within the 3540 minute period. 9 Keep up to date. To some extent, every textbook is out of date as soon as it appears in the bookshops because the law is constantly
11
Evidence
changing. Read the law reports in The Times and the appropriate law journals (see section 1.2.1 above). 10 Try to see the law in action. What you read in books often make more sense if you go to see criminal trials in the Crown Court. Pay particular attention to any legal arguments that take place in the absence of the jury; very often they will be about points of evidence.
1.2.5
Study time
You should spend at least eight hours a week on this subject, increasing the amount to two hours daily in the six weeks before the examination. Remember, though, that individuals vary greatly in their needs; the time to stop studying is when you know the topic thoroughly, and not till then. It is very important to plan your time carefully. Use the diary in the Student Handbook to create a study plan. Do not forget to leave time every week and month for revision in addition to the period before the examination. Revision must be a continuous process.
1.3
The examination
Essential reading: The LLB Guide to Examination Techniques (latest edition, which you should have been sent).
1.3.1
General advice
At the end of the academic year of course there is the examination. If you have worked consistently and well throughout the year this should not be too daunting. All you are being asked to do is to demonstrate to the examiners that you have mastered the subject to the required standard; you will be able to do this if you have undertaken sufficient study throughout the year. Where too many students go wrong is to think that they only have to study and revise four, five or six topics. That is a mistake. The topic you were relying on may not appear on the examination paper, or it may appear, but in a way which you have not expected. You may therefore not have the confidence to attempt an answer. Or one topic might be combined with another and then you will find that you have only revised half the question. If you have worked conscientiously and covered the syllabus fully you will not fall into any of these difficulties.
1.3.2
The format of the examination

Important: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this we strongly advise you to check the rubric/instructions on the paper you actually sit.
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The examination is divided into two parts, and you must answer at least one question from each part. Part A consists of essays. These require you to show knowledge of the law and a critical approach to the law. It follows that reading a single textbook and some of the cases referred to in it is not enough to satisfy the examiners. You must be aware of major proposals for reform of the law, as well as arguments that have been advanced by writers who are critical of the present state of the law. This means that you must read as widely as you can among recommended articles. But a mere parroting of other peoples views is still not enough. You must show a capacity for independent thought. It follows that during your studies you must: think for yourself about the persuasiveness of the arguments put forward in what you read read around the topic discuss problems with your tutor or lecturer, if you are studying at an institution or receiving tuition discuss problems with fellow students. Part B consists of problem questions. These require you to apply your knowledge of the law to specified sets of facts. To cope with these successfully, you must be able to see what issues arise on the facts and advise on them accurately and succinctly, referring always to the sources of law upon which you rely for your conclusions. The law may well be uncertain. If so, you must explain why, then choose what you believe to be the decision most likely to be made by the court, giving reasons for your choice.
1.3.3
Ten golden rules for developing examination technique

1 Prepare thoroughly. In particular, practise doing the sample examination questions at the end of each chapter of this subject guide. 2 Read the examination paper carefully. Then choose the four questions that you want to answer, and make a rough allocation of time. 3 Once you have chosen your four questions, make rough notes on the answers to all four questions before you begin to write a full answer to any of the questions. We do not always remember at once all the information that we have learned. If you adopt this plan, you give your memory the maximum opportunity to remember what you need for all the questions. Pieces of information can be recalled, apparently as the result of subconscious mental activity, while the mind is concentrating on something else. But you need to have stimulated the memory by trying to plan all your questions first. 4 Answer the question set. This is particularly applicable to essay questions, and it involves two prohibitions. First, dont just write all you know about hearsay or whatever the general topic is. Very little, if any, credit will be given for that. The question will be designed to elicit arguments about a specific problem or problems in relation to a topic in the law of evidence. Make sure that you deal with those problems and nothing else. Secondly, dont write an
13
Evidence
essay about a different problem. At the root of both these faults is failure to prepare properly. You do not prepare properly by question-spotting. 5 Write tidily and legibly. If you practise writing questions under examination conditions during your studies, you should find that you are able to write at speed, but also tidily and legibly, in the examination. Generally, it is easier to write legibly with a fountain pen. Practise using one every day during your studies. 6 Follow the instructions on the front page of the answer book. The instruction that candidates most commonly fail to obey is that which tells them to tie in any extra pages at the end of the book, inside the back cover. If you tie your extra pages into the book in an inappropriate place, the examiner may be unable to assign them to the correct question and you will lose all credit for them. Do not write in the space reserved for examiners. Remember that you are asked to fill in a space that sets out the numbers of the questions you have attempted in the order in which they have been attempted not in numerical order. 7 Do not write notes to the examiner. It is foolish to write, for example, No time for more at the end of the last question; the examiner can see that for herself or himself. It is even more foolish to write the same message after every question, as we have seen some candidates do. 8 Do not abbreviate the names of the people referred to in problem questions. Full names are given in the questions to avoid accidental muddles, and you defeat the object of the exercise by abbreviating Archie to A, Bertie to B and so on. 9 Do not write too much or too little. In particular, remember that you are allowed to bring a collection of statutes into the examination hall to give you more time to answer the questions effectively. You are not expected to spend time reproducing substantial extracts from statutes. You will gain no credit for doing so, and you will lose the time required to write a good answer, so you will lose marks as well. Good planning of your time at the start of the examination should prevent you from writing too much. So should attention to the question, which itself will impose limits on what has to be covered. Of course, the careless or badly prepared student who settles down to write all he or she knows about a particular subject is likely to end up writing far too much and failing. As a rough guide, approximately three to four pages should be enough for a good answer. This, of course, assumes that you write, as you should, on every line, and that your handwriting is not over-large. 10 Refer appropriately to cases to support your propositions of law. When doing so, show some knowledge of the facts; dont just refer to the name of the case as you would in a legal encyclopedia. Above all, dont try to use the name of a case to support a conclusion of fact as opposed to a proposition of law. Underline case names by all means, but not references to statutes or anything else. Avoid totally the use of highlighting materials. Spell the names of cases correctly. If you read the cases and note them properly, this should not be a problem.
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1.3.4
Read the question!

The final piece of advice on the examination is a reminder to read the question carefully. You must answer the question the examiner has asked, not some variation on this. Irrelevant material will not earn you any marks. Thus in Chapter 11 of this subject guide, the Sample examination question expects you to demonstrate knowledge of the rules on expert evidence generally, but mainly on the particular role allowed to psychiatrists and psychologists. You are then asked to give an opinion about whether the limitations on the evidence of such experts denies fact finders valuable help on difficult issues. Dont forget to give (and explain) your conclusions.
Good luck! Christopher Allen and Stephen Guest
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Evidence
Notes
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Chapter 2 Basic concepts
Contents
Introduction 17 2.1 2.2 2.3 Relevance, weight and admissibility 18 Classification of evidence 20 Development and current objectives of evidence law 23
Introduction
When you begin to study a new legal subject, you soon find that you come across words and expressions that you have not encountered before, or that you suspect are being used in a special way. This is especially so for evidence law. You need to understand the most important of these early on in order to get to grips with the subject. This chapter introduces you to these words and expressions. Besides learning the language of evidence, you need to begin to develop a critical attitude towards the law so that you can write good answers to essay questions in the examination. But its impossible to adopt a critical attitude if you have no opinion about what the objectives of the law should be, and so this chapter introduces you to that topic too.
Learning outcomes By the end of this chapter and the relevant readings you should be able to: explain what is meant by relevance, weight and admissibility present arguments defending or attacking the relevance of a given item of evidence explain what is meant by the following major technical terms used in evidence law: the best evidence rule, circumstantial and direct evidence, collateral facts, documentary evidence, facts in issue, original evidence, real evidence, hearsay, the best evidence rule and the voir dire describe two important characteristics of evidence law: its limited application, and its mixture of principles, rules and discretions explain the functions of judge and jury in a Crown Court trial describe the impact of the Human Rights Act 1998 and the European Convention on Human Rights on evidence law outline the way in which modern evidence law has developed explain the main theories about the current objectives of evidence law and comment critically on them.
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Evidence
2.1
Relevance, weight and admissibility

Essential reading Allen, Chapter 1: Introduction. Dennis, Chapter 3: Relevance and admissibility, pp.5069.
R v Blastland [1986] AC 41.
2.1.1
Relevance
It is crucial to have a working definition of relevance. The best is the one given by Lord Simon in DPP v Kilbourne [1973] AC 729, 756: Evidence is relevant if it is logically probative or disprobative1 of some matter which requires proof. The idea of relevance is fundamental to evidence law because: all relevant evidence is prima facie admissible, but no irrelevant evidence is ever admissible the relevance of an item of evidence can determine what rules or principles of law govern its admissibility. For example, the rule against hearsay excludes an out-of-court statement only if it is adduced in order to establish the truth of what was stated. If it is relevant for a different reason, the rule does not apply. You need to be able to construct an argument for or against the relevance of a given item of evidence. In constructing such arguments you need to realise how important it is to use generalisations about what the world is like. You should note carefully what is said about generalisations in Allen. A major problem, which you should study, is the extent to which courts take into account the weight of an item of evidence in determining its relevance, and whether they are right to do so at all.
Evidence is probative of a proposition if
it tends to show that proposition to be true; evidence is disprobative if it tends to show that proposition to be false.
2.1.2
Weight
The weight, or probative worth or probative value of an item of evidence will generally, though not always, be determined in a criminal trial in the Crown Court by the jury. But sometimes judges do decide questions of weight, for example on a submission of no case to answer, and in exercising the judicial discretion to exclude prosecution evidence where its potential for causing unfair prejudice to a defendant is greater than its probative value. Note also the problem of whether weight is an element to be taken into account when determining relevance.
2.1.3
Admissibility
Admissibility is clearly a matter of law unlike relevance and weight, which are matters of logic and common sense. But note that questions of admissibility may turn on the relevance that a particular item of evidence has in the circumstances as with the rule against hearsay. It follows that before you can tackle the legal question of admissibility, you will often have to clarify the logical or common sense question of relevance. Note the position in civil trials under the Civil Procedure Rules (CPR), where the judge has a wide discretion under CPR r.32.1(2) to exclude evidence that is relevant and admissible so as to secure the overriding
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objective, as defined in CPR r.2.1(2). In order to exercise this discretion it is inevitable that the judge will have to consider questions of weight.
Activities 2.12.4 2.1 Describe, in not more than 150 words,2 how to use generalisations to show the relevance of an item of evidence. 2.2 Write a note for a colleague in not more than 200 words on two cases where a court appears to have taken the weight of an item of evidence into account when determining its relevance. 2.3 Find out and make a note of the overriding objective referred to in the Civil Procedure Rules. 2.4 Herbert, a man with no previous convictions, has been charged with burglary of a quantity of antique silver. The prosecution wishes to adduce evidence that when the police lawfully searched his house they discovered a collection of books about antiques, which contained articles on antique silver among other topics. Herbert is a bank manager. They also discovered a file of newspaper cuttings containing articles about owners of collections of antique silver, but these did not contain any references to the victim of the burglary with which Herbert has been charged. Take a sheet of paper and divide it into two columns. Make a list in the first column of all the items of evidence that you consider to be relevant. In the second column state in relation to each item the argument on which you base its relevance. (Remember the importance of generalisations.) Feedback: see page 26.
2
Where we have given word limits, you
should stick to them strictly. The ability to write succinctly to a word limit is an important ability that you will need for the examination.
Self-assessment questions 1 What was the definition of relevance given by Lord Simon in DPP v Kilbourne? 2 Define: (a) relevance (b) weight (c) admissibility. 3 Sarah is charged with stealing a bottle of gin from a supermarket. She pleads not guilty. She has seven previous convictions for theft from supermarkets. Are these convictions relevant to the present charge? Give reasons for your answer. On the assumption that the convictions are relevant, construct arguments to show that, in an ideal legal system, the convictions ought to be (i) admissible, and (ii) inadmissible. No feedback is given to self-assessment questions, as you can find the answers in the text of the chapter.
Summary
Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. Irrelevant evidence is inadmissible. The weight of an item of evidence will, in a Crown Court trial, generally be decided by the jury. Admissibility is a
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Evidence
matter of law unlike relevance and weight, which are matters of logic and common sense.
Reminder of learning outcomes By this stage you should be able to: explain what is meant by relevance, weight and admissibility present arguments defending or attacking the relevance of a given item of evidence.
Useful further reading Choo, A. L-T. [1993] The notion of relevance and defence evidence, Crim LR 114. Roberts and Zuckerman, Chapter 3. Redmayne (1999) Drugs, money and relevance 3 E&P 128.
2.2
Classification of evidence
Essential reading Allen, Chapter 1: Introduction and Chapter 3: Documentary and real evidence. Dennis, Chapter 1: An introduction to the law of evidence, pp.417. Cases: Brown v Stott [2001] 2 All ER 97; Heaney and McGuinness v Ireland [2001] Crim LR 481.
You should make yourself thoroughly acquainted with definitions of the following. You will not be able to understand evidence law without a confident understanding of them. In particular, you should be prepared to provide examples of each. circumstantial evidence collateral facts documentary evidence facts in issue original evidence (note the two different meanings) real evidence hearsay the best evidence rule the voir dire. Grasping the law of Evidence also requires that you should be able to explain the importance of principles and discretions as well as rules, and the functions of judge and jury. You should also be able to explain in outline the impact on evidence law of the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). A fundamental point is that the European Court of Human Rights (ECtHR) adopts a flexible approach to the interpretation of
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the Convention, despite the apparently absolute character of some of the articles. You should pay particular attention to the speeches of Lord Steyn and Lord Hope in Brown v Stott (2001). But note also Heaney and McGuinness v Ireland (2001), where the ECtHR held that in some circumstances the very essence of a Convention right can be destroyed, and so give rise to a violation.
Activities 2.52.6 2.5 Write a note for a colleague explaining, in not more than 500 words, the distinction between rules and principles. 2.6 Write a note for a colleague explaining, in not more than 250 words, the functions of judge and jury in a Crown Court trial. Feedback: see page 26.
Activity 2.7 Adolphus Griggs has been charged with the murder of Luke Rowan. The case for the prosecution is that Griggs quarrelled with Rowan in the Fox and Fiddle public house3 and shortly afterwards stabbed him in the street outside, as a result of which Rowan died. Read these extracts and summaries of witness statements, then answer the questions below. MARTHA TAPPITT: On 25 January this year I was present in the Fox and Fiddle public house at about 7.30pm, when a quarrel broke out between Mr Griggs and Mr Rowan. The voices of both men were raised, and I heard Mr Griggs say, Rowan, youre lower than a snake! This town would be a better place if you were dead and buried! DOROTHEA PRIME: Mr Griggs has been my lodger for the last two years. I remember the evening of 25 January this year. Mr Griggs came home at about 8.30pm. I saw him as he entered the hall. He was breathing heavily, his face was very pale, and I saw what looked like splashes of blood on his coat. DETECTIVE CONSTABLE GOODALL: DC Goodalls statement describes how he searched Griggss room and took away a coat and knife, which were afterwards found to have on them stains of blood of the same blood group as that of Luke Rowan. The statement also refers to an interview with Griggs at the local police station. Part of a transcript of the interview reads as follows: DC GOODALL: You were angry with Luke Rowan, werent you? GRIGGS: I suppose I was. DC GOODALL: And you stabbed him because you were angry, didnt you? GRIGGS: Yes, all right. I cant go on denying it any longer. I stabbed him. But he deserved it! However, Griggs pleads not guilty. He wishes to testify that at the time of the attack on Rowan he was in a cinema several miles away. He will say that Martha Tappitt is mistaken, that she is both short-sighted and deaf, and bears a grudge against him because he broke off his engagement to marry her. He says that he confessed to DC Goodall only because Goodall visited him in his cell shortly before the interview and said to him, Youd better confess. If you dont, you wont sleep very well tonight. Ill send one of my colleagues to see you. You
In the UK, a public house is a place that
exists for the purpose of selling alcoholic drinks for consumption on the premises, and is licensed for this purpose. It will normally contain one or more bars, and will also sell non-alcoholic drinks, and often food.
21
Evidence
wont like him, I can tell you. Hes our boxing champion and he doesnt like people who dont co-operate with the police. Questions (a) What are the facts in issue in this trial? (b) What circumstantial evidence is there of the offence charged? (c) What alleged facts are collateral? (d) What evidence, if any, is original, as opposed to hearsay, evidence? (e) What real evidence is the prosecution likely to adduce? (f) What items of evidence, if any, will need a voir dire to determine their admissibility? Feedback: see page 26.
Self-assessment questions Define and give an example of each of the following: 1 circumstantial evidence 2 collateral facts 3 documentary evidence 4 facts in issue 5 original evidence (note the two different meanings) 6 real evidence 7 hearsay 8 the best evidence rule 9 the voir dire.
Summary
Evidence can be classified in various ways. The law of evidence consists of principles and discretions as well as rules. It has recently been affected by the Human Rights Act 1998 and the European Convention on Human Rights.
Reminder of learning outcomes By this stage you should be able to: explain what is meant by the best evidence rule, circumstantial and direct evidence, collateral facts, documentary evidence, facts in issue, original evidence, real evidence, hearsay, the best evidence rule and the voir dire describe two important characteristics of evidence law: its limited application, and its mixture of principles, rules and discretions explain the functions of judge and jury in a Crown Court trial describe the impact of the Human Rights Act 1998 and the European Convention on Human Rights on evidence law.
22
Useful further reading Dworkin, R.M. Is law a system of rules? in Dworkin, R. M. (ed.) The Philosophy of Law. (Oxford: Oxford University Press,1977) Oxford Readings in Philosophy [ISBN 0198750226] pp.3865. Note particularly Dworkins contrast of strong and weak discretion. You might see his distinction between policy arguments (which are consequentialist arguments) and principled arguments (which are rights-based arguments) in his Taking Rights Seriously. (London: Duckworth, 1977) [ISBN 0715611747] Chapter 4.
2.3
Development and current objectives of evidence law

Essential reading Allen, Chapter 2: Development and current objectives. Dennis, pp.1722 and Chapter 2: The aims of the law of evidence.
You need to read in outline only about the development of the law of evidence. Questions will not be set directly on this topic, and that is why no further reading on the subject has been given. But there is a lively debate about the current objectives of the law of evidence, and this may be the subject of a question in the examination. This debate may be important when the prosecution wishes to rely on evidence that was obtained illegally or as the result of some other impropriety (see Chapter 9). You need to distinguish three basic lines of argument: rights-based arguments consequentialist arguments arguments based on the moral legitimacy of the verdict.
Activity 2.8 Suppose that, in the case of Adolphus Griggs, DC Goodall had entered Griggss room unlawfully. He found Griggs there and said, Youve got a coat and a knife. Give them to me. At first Griggs denied having any such articles. Thereupon, DC Goodall broke Griggss arm and said, Ill break the other one if you dont give them to me. Fearing a second assault, Griggs handed over the bloodstained coat and knife. The prosecution wishes to produce these as evidence against Griggs. (a) Write down a consequentialist argument in favour of admissibility. (b) Write down a consequentialist argument against admissibility. (c) Write down a rights-based argument against admissibility. (d) Write down an argument based on the legitimacy of the verdict against admissibility. Compare this argument with the argument you wrote down in answer to (b). Feedback: see page 27.
23
Evidence
Summary
Theories about the current objectives of the law of evidence can depend on explicitly rights-based arguments, on explicitly consequentialist arguments, or on arguments relying on the legitimacy of the verdict.
Reminder of learning outcomes By this stage you should be able to: describe in outline the way in which modern evidence law has developed explain the main theories about the current objectives of evidence law and comment critically on them.
Useful further reading Duff, R.A. Trials and Punishments. (Cambridge: Cambridge University Press, 1986) [ISBN 0521407613] Chapter 4. Dworkin, R.M. Principle, policy, procedure in R.M. Dworkin, A Matter of Principle. (Oxford: Clarendon Press, 1986) [ISBN 0198255748] p.72. Roberts and Zuckerman, Chapters 1 and 2.
Sample examination question The test of relevance operated by the courts is more complex than is usually assumed owing to institutional constraints. (Zuckerman) Discuss. (1996)
Advice on answering the question

1 The first step is to state what the test of relevance is supposed to be. The quotation from Lord Simon in DPP v Kilbourne [1973] AC 729, 756 can be used here to good effect. You might also summarise at this stage the institutional constraints, such as time limits on trials and the capacity of the jury to assess evidence, that you think affect the courts assessments of relevance. 2 Next, consider how that might be expected to work in practice. Describe how logical relevance is established by reference to an argument based on an acceptable generalisation about the way things are in the world. Illustrate the courts acceptance of this procedure by reference to Bracewell (1978) 68 Cr App. R 44. Give an example. It neednt be a case just something that convinces the examiner that you know what logical relevance means. 3 Look now at civil trials in which evidence that appeared to be relevant was nevertheless rejected: a reference to Hollingham v Head [1858] 27 LJCP 241 would help here. Why was this case decided as it was? You might point to the constraints imposed by the strictly limited amount of time available to try cases on assize in the 19th century. It would help if you showed how this approach has been ratified by the modern Civil Procedure Rules, with reference particularly to the effect of CPR r.1.1(2) and r 32.1(2). You could then return to the quotation in the question, and
24
consider the question of whether relevance in civil trials is affected by institutional constraints, such as the desire to make the most efficient use of the time available, given the finite number of judges available to hear claims. 4 Turn now to the criminal context, and a discussion of the decision on relevance in Blastland [1986] AC 41. Consider whether the House of Lords was right to decide that the evidence of Marks state of mind was not only inadmissible, but irrelevant. Consider whether the decision was the result of a desire to ensure that the jury could handle the evidence put before them. Make a judgment on the House of Lords conclusion that the evidence in question was irrelevant because it could lead to no more than speculation on the part of the jury. Return to the question. Consider whether Blastland shows that relevance is affected by institutional constraints. In particular, to what extent was the institution of the jury a determining factor in assessing relevance? 5 Finally, summarise your conclusions.
25
Evidence
Feedback to activities: Chapter 2

Activity 2.1 See Allen, Chapter 1. Activity 2.2 Good examples are Hollingham v Head [1858] and Blastland [1986]. See Allen, or Dennis, pp.5764. (Note that Dennis discusses these cases in terms of sufficient relevance.) Activity 2.3 See CPR r 1.1(2), quoted in Dennis, p.48. Activity 2.4 You might have selected the following as relevant items of evidence: Herberts position as a bank manager; his lack of previous convictions; the discovery of books containing articles, among others, on antique silver; the discovery of newspaper cuttings about owners of antique silver collections. When formulating generalisations, begin with the information said to be relevant. For example: (i) A person who is a bank manager is unlikely to commit burglary. (ii) The possessor of books containing articles, among others, on antique silver may be interested in antique silver. (iii) A person who is interested in antique silver is more likely than someone without such an interest to steal antique silver. Note the form of the last generalisation. Someone who steals antique silver is likely to be interested in that subject wont do because it approaches the facts by assuming the very thing that has to be proved that Herbert is in fact the burglar. Dont be put off by the fact that a generalisation seems a very weak one. In this exercise you are looking for evidence that is relevant, and not evidence that is admissible or that has substantial weight. Activity 2.5 The most important point to grasp is Dworkins idea that rules are applicable in an all-or-nothing way, but principles are not. It follows that principles do not necessitate a particular decision in the way that rules do, and that while rules can conflict, principles, strictly speaking, do not. Activity 2.6 See Allen, Chapter 1, or Dennis, pp.9196. The main distinction is that the judge decides questions of law, subject to the right of appeal, but the jury, generally speaking, decides questions of fact. There are exceptional circumstances when the judge does decide a question of fact, for example, when the defence makes a submission that there is no case to answer, or a submission that a confession should be excluded under s.76(2) of the Police and Criminal Evidence Act 1984. Activity 2.7 (a) Remember R v Sims [1946]. (b) Among other items, you might refer to Martha Tappitts evidence of the quarrel, and Dorothea Primes evidence of Griggss appearance when he returned to her house. (c) See the evidence about Martha Tappitts sight and hearing, and about her bias against Griggs. (d) See Martha Tappitts evidence of what she heard Griggs say to Rowan. (e) They would probably exhibit the coat and the knife. (f) Griggss confession.
26
Activity 2.8 (a) For the protection of society, murder should not go unpunished and murderers should not be left at large. The harm done to Griggs in obtaining the incriminating evidence is less than the harm that society would suffer if the evidence were to remain unavailable and Griggs were thereby able to escape conviction. The methods used to obtain the evidence were therefore justified. (b) If the police are allowed to behave in this way, innocent people who are suspected of crimes could suffer harm. If it becomes known that this can happen during police investigations, the security that the criminal law is designed to protect will be diminished. In that case, the harm suffered by society would be greater than the harm suffered when someone who is guilty escapes conviction in a particular trial. If the police know that evidence obtained in this way will be excluded, they will have no incentive to adopt such methods. Therefore the evidence should be excluded. (c) People have an absolute right to be treated decently by the police. It follows that the police may not in any circumstances use violence, or the threat of it, to obtain incriminating evidence. A court that used evidence obtained in this way would benefit from a breach of the absolute right, and so become a party to that breach. Therefore the evidence must be excluded. (d) People generally, and ideally the defendant also, must be able to acknowledge the legitimacy of the verdict in order to have respect for the system of criminal justice. A verdict based on evidence that has been obtained by violence or the threat of it runs the risk of failing to persuade either people generally or the defendant of its legitimacy. Therefore the evidence should be excluded.
27
Evidence
Notes
28
Chapter 3 Competence and compellability
Contents
Introduction 29 3.1 3.2 3.3 3.4 3.5 The general rule 30 Defendants in criminal cases 31 Spouses of defendants in criminal cases 32 Children 33 Persons of defective intellect 35
Introduction
Competence deals with the question of whether a witness may legally give evidence in court. Competent does not mean reliable. A witness may not legally be able to give evidence for several reasons. For example, the witness may be a child who is so young that he or she cannot understand the questions that are asked, or give answers that can be understood. Compellability deals with the question of whether, as a matter of law, witnesses can be obliged to give evidence when they do not wish to do so. The general rule is that competent witnesses are also compellable, but there are some circumstances in which competent witnesses cannot be obliged to give evidence against their will. For example, in many criminal trials a wife cannot be obliged to give evidence against her husband, or a husband against his wife. The law on competence and compellability is marked by a sharp distinction between civil and criminal trials, and you should distinguish carefully between the rules that apply in each. These rules are fairly straightforward, but you need to know them, and the examination often contains a question that touches on this. It is best to memorise the basic rules at an early stage. This topic is divided into two main parts: the rules concerning competence and compellability the effect of a defendants failure to testify in a criminal trial.
The following abbreviations are used in this chapter: CEA Criminal Evidence Act 1898 PACE - Police and Criminal Evidence Act 1984 CJPOA Criminal Justice and Public Order Act 1994 YJCEA Youth Justice and Criminal Evidence Act 1999
Learning outcomes By the end of this chapter and the relevant readings you should be able to: describe the circumstances in which defendants, their spouses, children and persons of defective intellect are both competent and compellable in criminal trials
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Evidence
describe the circumstances in which the parties, the spouses of the parties, children and persons of defective intellect are both competent and compellable in civil trials describe the circumstances in which evidence is given unsworn in civil and criminal trials explain the general effect of CJPOA s.35, including the detail of the directions that a judge should give the jury under this section.
3.1
The general rule

Essential reading Allen, Chapter 5: Competence and compellability.
The basic rule is that all persons are competent and compellable to give evidence: see Ex p. Fernandez [1861]; Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474, 484, 50001. Note particularly the references to the Evidence Act 1851 and the Evidence Amendment Act 1853 in Allen. Section 2 of the 1851 Act makes the parties to a civil action competent and compellable, and their spouses are made competent and compellable by s.1 of the 1853 Act. Then note the special rules for four types of witnesses. These will be examined below.
3.1.1
Key sources
Competence (a) Defendants: CEA, s.1 (b) Spouses of defendants: YJCEA, s.53 (c) Children: YJCEA, s.53 (d) Persons of defective intellect: YJCEA, s.53 Compellability (a) Defendants: CEA, s.1 (b) Spouses of defendants: PACE, s.80 (c) Children: Common law, e.g. Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474, 484, 50001 (d) Persons of defective intellect: Common law, as in Hoskyn
Criminal trials
Civil trials Competence (a) Parties: Evidence Act 1851, s.2 (b) Spouses of parties: Evidence Amendment Act 1853, s.1 (c) Children: Hayes [1977] 1 WLR 234 or Children Act 1989, s.96 (d) Persons of defective intellect: Hayes, Bellamy [1985] 82 Cr App R 222
30
Compellability (a) Parties: Evidence Act 1851, s.2 (b) Spouses of parties: Evidence Amendment Act 1853, s.1 (c) Children: Common law as in Hoskyn (d) Persons of defective intellect: Common law as in Hoskyn
3.2
Defendants in criminal cases

Essential reading Allen, Chapter 5: Competence and compellability. CEA, s.1. YJCEA, s.53. CJPOA, s.35.
Cowan [1996] QB 373.
All defendants are competent but not compellable witnesses in their own defence, or in defence of a co-accused (CEA, s.1). A defendant is incompetent as a witness for the prosecution (YJCEA, s.54(4)). Where two or more persons are jointly charged and the prosecution wishes to use one as a witness against the others, it is necessary to separate that person from his or her companions, so that he or she ceases to be a co-defendant. You should note the ways in which this can be done (see Allen, p.53.) If a defendant fails to give evidence in his or her own defence (or, when giving evidence, refuses without good cause to answer any question) the court or jury, in determining whether he or she is guilty of the offence charged, may draw such inferences from that failure as appear proper (CJPOA, s.35). When reading s.35 you should note what conditions have to be satisfied before inferences can be drawn. You should also read Cowan [1996], because it sets out the contents of the direction to the jury that must be given when this provision comes into operation.
Activities 3.13.3 3.1 List the conditions that must be satisfied before s.35 CJPOA can apply to a defendant who has failed to testify. 3.2 Write a note1 for a colleague in not more than 250 words setting out the elements of a direction to a jury in relation to s.35 CJPOA. 3.3 Adam, Ben and Carol are jointly charged with possession of cannabis with intent to supply. The prosecution would like Carol to give evidence as a witness for the prosecution against Adam and Ben. In not more than 100 words describe how the prosecution may be able to achieve this. Feedback: see page 37.
1
When writing your answers here and
elsewhere do not, unless expressly instructed, write in abbreviated note form. What is required is a piece of coherent prose that can be read without difficulty by someone else. That is what you have to provide in the examination.
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Evidence
Summary
All defendants are competent, but not compellable, as witnesses in their own defence or for the defence of a co-accused. If a defendant fails to give evidence in his or her own defence, inferences can be drawn under CJPOA, s.35.
Reminder of learning outcomes By this stage you should be able to: describe the circumstances in which a defendant is competent to testify in a criminal trial explain why a defendant is not compellable to testify in a criminal trial explain the effect of a defendants failure to testify in a criminal trial describe what direction a judge should give to a jury where a defendant has failed to testify in a criminal trial.
3.3
Spouses of defendants in criminal cases

Essential reading Allen, Chapter 5: Competence and compellability. PACE s.80. YJCEA s.53.
R v Pearce [2002] 1 Cr App R 551.

Section 53 of YJCEA has the effect of making a defendants spouse2 competent as a witness for the defendant and for any co-defendant. By s.80(2) of PACE a defendants spouse is always, subject to s.80(4), compellable as a witness for the defendant. A defendants spouse will, again subject to s.80(4), be compellable for the prosecution and for his or her spouses co-defendant, but only in relation to a specified offence (PACE s.80(2A) and (3)). You should note the problem of interpretation arising from s.80(3)(a).
2
Spouse: someones husband or wife.
Activities 3.43.6 3.4 Write out from memory the specified offences, in relation to which a spouse can be compelled to give evidence for the prosecution or a co-defendant. 3.5 In not more than 100 words explain the problem of interpretation that arises from the wording of s.80(3)(a). 3.6 David and Ellen are charged with indecently assaulting Freda. They both wish to call Ellens husband, Gilbert, to give evidence on their behalf. Gilbert is now estranged from Ellen and does not wish to testify for either defendant. Can he be compelled to do so? Feedback: see page 37.
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Self-assessment questions 1 Harold and Ian are jointly charged with indecently assaulting James. The prosecution wishes to call Harolds wife, Kate, and Ians girlfriend, Lil, to give evidence against them. Neither wishes to testify. Can they be compelled to do so? 2 Michael was charged with theft. At his trial he gave no evidence. In his summing up on this matter the judge said, The defendant gave no evidence. That was his right. But Parliament has said that where a defendant fails to give evidence, a jury must take that into account in deciding whether the prosecution has proved its case. Michael was convicted. Has he any grounds of appeal in relation to this direction?
Summary
A defendants spouse is competent to give evidence for the prosecution, for the defendant and for any co-defendant. A defendants spouse, provided he or she is not also charged in the proceedings, is compellable as a witness for the defendant. A defendants spouse is compellable for the prosecution or for a codefendant only in relation to a specified offence.
Reminder of learning outcomes By this stage you should be able to: describe the circumstances in which the spouse of the defendant is a competent witness in a criminal trial describe the circumstances in which the spouse of a defendant is a compellable witness in a criminal trial.
3.4
Children
R v Hayes [1977] 1 WLR 234.

Children Act 1989, s.96. YJCEA ss.537.
You should note the importance of distinguishing between criminal and civil trials. Criminal trials are governed solely by ss.53-57 YJCEA. Civil trials are governed by a combination of Hayes and s.96 of the Children Act 1989.
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Evidence
Activities 3.73.8 3.7 Explain, in not more than 100 words, the difference between the Hayes test and the test provided by s.96 of the Children Act 1989. 3.8 Gregory, while driving his car, was involved in an accident in which Hilda, a pedestrian, was injured. The accident was witnessed by Ian, aged 12. In what circumstances will Ian be able to give evidence (a) for the prosecution, at Gregorys trial for dangerous driving; and, (b) for Hilda, in a civil action brought by her against Gregory? Feedback: see page 37.
Self-assessment questions 3 What is the Hayes test for competency to give sworn evidence? 4 What is the test for competence under the YJCEA? 5 What are the conditions that have to be satisfied before a child can give sworn evidence in a criminal trial? 6 Nora, aged seven, is called as a witness by the claimant in a civil action. She is doing quite well at school, but her parents have no religion and she says that she has never heard of God. She is normally truthful, but was punished at school recently for lying about another pupils involvement in theft from a local shop. Is Nora likely to be competent to give evidence for the claimant?
Summary
In a criminal trial a child will be competent provided she or he can understand the questions is asked and can give understandable answers to them. In a civil trial a child will be competent if she or he satisfies the Hayes test for taking an oath; alternatively, if she or he satisfies the test in the Children Act 1989, s.96, for giving unsworn evidence.
Reminder of learning outcomes By this stage you should be able to: describe the circumstances in which a child can give sworn evidence in civil and in criminal proceedings describe the circumstances in which a child can give unsworn evidence in civil and in criminal proceedings.
34
3.5
Persons of defective intellect

Here, too, a distinction is drawn between civil and criminal proceedings: In civil trials, the common law applies. Competence depends on the nature and severity of the disability, and the crucial test is whether the potential witness understands the nature of the oath in the light of the Hayes test. In criminal trials the relevant law is contained in YJCEA ss.5357.
Activity 3.9 Assume that the accident described in activity question 3.8 was also observed by Jane. Jane is suffering from a mental illness and believes that she is the Lord Chancellor. Write a note of not more than 600 words advising whether Jane would be a competent witness (a) in the criminal trial, and (b) in the civil trial. Feedback: see page 37.
Summary
In a civil trial a person of defective intellect will be competent if he or she satisfies the Hayes test. Such a person will be competent in a criminal trial if she or he can understand the questions that are asked and give understandable answers to them.
Reminder of learning outcomes By this stage you should be able to: describe the circumstances in which a person of defective intellect can give evidence in civil proceedings describe the circumstances in which such a person can give evidence in criminal proceedings.
Sample examination question Part (a) Andrea has been charged with assaulting Brian in an incident at a wedding reception, where both were guests. Andrea in a police interview said that she was acting in self-defence. The prosecution wishes to call Charles and Davina as witnesses. They have both given written witness statements to the police.
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Evidence
Charles, who is Andreas husband, stated that Andrea was drunk and hit Brian without provocation. Charles has recently told the police that he no longer wishes to give evidence against his wife. Davina, a girl aged 8, was present when the assault took place. Advise the prosecution on the competence and compellability of Charles and Davina. Part (b) Andrea has now been prosecuted in respect of the alleged assault on Brian, and acquitted. Brian wishes to bring civil proceedings against her for assault. He wishes to call Charles and Davina as witnesses. Advise Brian as to their competence and compellability in his proposed civil action.

Part (a) Competence in criminal trials is governed by YJCEA ss.5356. Section 53 governs the competence of both Charles and Davina. There is no suggestion that Davina is likely to fail the very limited test in sub-section (3). If she is competent, she is also, in principle, compellable: see the common law rule as stated in Hoskyn. To determine Charless position, you need to know the age of Brian: see PACE s.80(2A) and (3). Part (b) In relation to competence, the common law applies see the reference to Hoskyn above. It would be a good idea to say something about whether Davina is likely to give sworn or unsworn evidence, making reference to Hayes and the Children Act 1989, s.96. By s.1 of the Civil Evidence Act 1853, the spouses of parties to a civil action are compellable witnesses. Charles is therefore compellable in the civil action. (In the examination in which this question was set a number of candidates thought his position was affected by s.14 of the Civil Evidence Act 1968. This was wrong; the section does not affect compellability in general. In any case, it could not apply because Andrea has already been tried and acquitted.) Davina will be compellable on general common law principles: see Hoskyn above.
36

Activity 3.1 The defendant must have pleaded not guilty, be physically and mentally fit to testify, and be aware of the risks attached to silence. See Allen, Chapter 5. Activity 3.2 The judge must tell the jury that (i) the defendant is entitled to remain silent; (ii) an inference from silence cannot by itself prove guilt; (iii) the jury must be satisfied that there is a case to answer before drawing any inferences; (iv) the jury is not bound to draw an inference, but has a discretion to do so; and, (v) if the jury thinks there might reasonably be an explanation for silence that is consistent with innocence, no inference should be drawn. Activity 3.3 It is necessary that Carol should cease to be a codefendant of Adam and Ben. See Allen for the various ways in which this can be achieved. The most usual would be to obtain a plea of guilty from Carol. Activity 3.4 The specified offences are listed in s.80(3) of PACE. Activity 3.5 The problem arises from the ambiguity in the word involves. See Allen, Chapter 5. Activity 3.6 Hint: How old was Freda at the time of the assault? Activity 3.7 The s.96 test is weaker. Note particularly the special duty to tell the truth required by the Hayes test. See Allen, Chapter 5. Activity 3.8 (a) The basic provision is s.53 YJCEA. (b) The test will be either that provided by Hayes, or by s.96 of the Children Act 1989. See Allen, Chapter 5. Activity 3.9 For the criminal trial, see YJCEA ss.53, 55 and 56. For the civil trial, see Hill (1851) and Bellamy (1985) in Allen, Chapter 5. Dont forget that whether a witness is competent and whether a witnesss evidence is reliable are two different questions.
37
Evidence
Notes
38
Chapter 4 The course of testimony
Contents
Introduction 39 4.1 4.2 Examination-in-chief, cross-examination and re-examination 40 General problems with testimony 44
Introduction
Evidence is usually given in three stages. During examination-inchief a witness for one party is called and examined by that partys counsel. The witness will then be cross-examined by counsel for the opposing party. In a criminal trial where there is more than one defendant, a defendant who gives evidence can be cross-examined by counsel for co-defendants as well as by counsel for the prosecution. Lastly, counsel who examined the witness-in-chief can re-examine that witness in order to clear up any misunderstandings or ambiguities that may have arisen as a result of crossexamination. This is a very simple picture and there can be variations: for example, in civil trials a witnesss pre-trial written statement can stand as evidence-in-chief. Behind the rules that govern the way in which evidence is given there exist certain assumptions, which are described in Allen, Chapter 6. This chapter will deal first with the basic rules affecting the three stages of testimony, and will then deal with four general problems that are not confined to any particular stage in the course of testimony.
Abbreviations used in this chapter: CPR Civil Procedure Rules YJCEA 1999 Youth Justice and Criminal Evidence Act 1999
Learning outcomes By the end of this chapter and the relevant readings you should be able to: formulate leading and non-leading questions describe the justification for, and the extent of, the rule against discrediting ones own witness give examples of circumstances where cross-examination was disallowed because the material forming its foundation was inadmissible against the defendant being cross-examined state the circumstances in which police may be cross-examined about other trials in which they have been involved, and describe the logical problem that arises in relation to such cross-examination describe the changes effected by YJCEA 1999, ss.4143 in relation to crossexamination of complainants in trials where a defendant is charged with a sexual offence explain the effect of R v A [2001] 3 All ER 1 on YJCEA 1999, s.41
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Evidence
give an account of the rules governing the status of and cross-examination on a witnesss previous inconsistent statements give an account of a case that illustrates the basic rule prohibiting evidence of previous consistent statements, and state the main exceptions to this rule explain the difference between wholly exculpatory and mixed statements, and state the evidential value of each explain and illustrate what is meant by recent fabrication state the conditions for admitting evidence of a recent complaint explain what directions a judge should give the jury about (a) evidence of a recent complaint, and (b) evidence of a complainants distress explain what is meant by saying that the answers to questions on collateral matters are final, and state the exceptions to the rule.
4.1
Examination-in-chief, cross-examination and re-examination

Essential reading Allen, Chapter 6: The course of testimony. Dennis, Chapter 14: Examination of witnesses, pp.45995. Cases: R v Windass (1989) 89 Cr App R 258; R v Edwards [1991] 1 WLR 207; R v Guney [1998] 2 Cr App R 242; R v Barton (1987) 85 Cr App R 5; R v A [2001] 3 All ER 1. YJCEA 1999, ss.413. Criminal Procedure Act 1865, ss.4,5. Criminal Justice Act 2003, ss.119, 120, 139.
4.1.1
Examination-in-chief
This is the first stage of the examination of a witness at trial, and is conducted on behalf of the party who has called that witness. In civil trials a witnesss pre-trial written statement can stand as evidence-in-chief: see CPR, r.32.5(2). Witnesses are frequently favourable to the cause of the parties who call them, and so are likely to agree readily to any suggestion made to them by the parties advocates. Because of this, the rule developed that questions suggesting the answer that is desired (leading questions) cannot be asked during examination-in-chief. You should note also the rule against discrediting ones own witnesses by reference to their bad character, which is based on the assumption that someone who calls a witness puts that witness forward as a truthful person.
4.1.2
Cross-examination
The objectives of cross-examination are to complete and correct the story told by the witness during examination-in-chief. It follows that the scope of cross-examination is not confined to those matters covered by evidence-in-chief, but extends to all relevant matters.
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Leading questions are permitted in cross-examination, as are questions designed to discredit the character of the witness being cross-examined. (Note the reasons given in Allen, Chapter 6.) But there are some rules that restrict the scope of cross-examination. Four of the most important ones are set out in the paragraphs that follow. (1) Defendants in criminal trials cannot be cross-examined about evidence that is inadmissible against them You should note how this rule was applied in R v Windass (1989) 89 Cr App R 258 and in R v Gray and Evans [1998] Crim LR 570. (2) Restrictions on cross-examining police officers about other cases in which they have been involved. The leading case is R v Edwards [1991] 1 WLR 207. You should learn the three propositions on p.217 of the report, and understand the difficulty presented by the apparent requirement that a verdict of acquittal in another trial must necessarily indicate that the jury disbelieved the officer who gave evidence in that trial. Note how this difficulty was avoided in R v Meads [1996] Crim LR 519. Note also the unsettled state of the law on this matter after R v Guney [1998] 2 Cr App R 242. Whether police officers can be questioned about unresolved allegations against them is also uncertain. Compare the approach in R v Edwards (Maxine) [1996] 2 Cr App R 345 with that taken in R v Guney [1998] 2 Cr App R 242, 260. Note that cross-examination of police officers about alleged misconduct in other cases will have to comply with s.100 of CJA 2003, which governs the admissibility of evidence of a nondefendants bad character. (See Chapter 10 of this subject guide.) (3) Restrictions on cross-examining complainants in trials for sexual offences. Its important to be able to find your way around YJCEA 1999, ss.413. Before you tackle these complicated provisions, read some account of the law that preceded them (e.g. in Allen, Chapter 6). When studying s.41, it is important to understand the distinction made between trials where the issue is not one of consent, and trials where there is an issue of consent. A defence of belief in consent does not raise an issue of consent (see s.42(1)), but the test of relevance that is applied to evidence on such an issue is strict: see R v Barton (1987) 85 Cr App R 5. You should be aware that defendants can raise a defence of belief in consent as well as a defence of actual consent. Thus it would be possible for someone charged with rape to say, She was consenting; but if Im wrong about that, her behaviour certainly led me to believe that she was consenting. In any problem question on this subject you will need to think carefully about what the defendant is alleged to have said after the event, especially to the police and to his solicitors, in order to determine whether both defences are being raised. Note how in R v A [2001] 3 All ER 1 the House of Lords applied Human Rights Act 1998 s.3 to reduce the effect of this section.
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Evidence
(4) Cross-examination about a witnesss previous inconsistent statements. There are two points to study here: (i) The procedure involved in such cross-examination. In both criminal and civil trials this is governed by Criminal Procedure Act 1865, ss.45. (ii) The evidential status of a previous inconsistent statement is governed by s.119 CJA 2003 in criminal cases and by s.6(1) of the Civil Evidence Act 1995 in civil cases. In both cases, such a statement is evidence of the truth of its contents.
4.1.3
Re-examination
The object of re-examination is to clarify matters that were referred to in cross-examination. It is important to remember that it is confined to those matters only, and may not be used to raise for the first time matters that should have been dealt with during examination-in-chief.
Activities 4.14.4 4.1 The following is a summary of part of the evidence of James Silver, a police constable who gave evidence for the prosecution at the trial for murder of Daniel MNaghten in 1843. You are counsel for the prosecution, examining the witnessin-chief. Make a list of non-leading questions that you would use to elicit this information. Dont leave it to the witness to bring out the details without assistance by simply asking him to describe what happened, and try to avoid a mere repetition of What happened next? The object is to jog the witnesss memory, but without asking leading questions. You might begin as follows: I.Where were you on duty on Friday, January 20? II.Do you remember a particular time when you were on duty? III.What time was that? IV.In what street were you at that time? Statement of James Silver On Friday, January 20, I was on duty at Charing Cross,1 twenty minutes before four oclock in the afternoon. I was on the right side of the street from Whitehall. I heard a report of a pistol on the opposite side of the street. I looked over and saw a gentleman stagger, with his hand pressed against the left side of his back. I also saw the prisoner returning a pistol with his right hand into the left side of his breast. He was behind the gentleman. When I saw him put the pistol into his bosom, I perceived that he drew another pistol from his right breast,2 with his left hand, and changed it into his right hand. I ran across the street and seized his right arm, and tripped his feet from under him. He struggled very violently, and the pistol went off upon the pavement. (R v Daniel MNaghten (1843) 4 St Tr (NS) cols 86061.) 4.2 In R v Twitchell [2000] 1 Cr App R 373 counsel for the Crown identified four principles governing the cross-examination of police officers, which the Court of Appeal approved. What were they? How did counsel for the Crown try to rationalise the decisions on this subject? 4.3 In R v Twitchell counsel for the Crown also tried to rationalise the decisions on the cross-examination of police officers as to credit. How did he do so? Can
1
Charing Cross, Whitehall: well-known
locations in Central London.
Bosom, breast: today we would say
inside his coat (or jacket), i.e. inside his clothing, in a pocket or loose against his chest.
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you find a similar rationalisation of these decisions by the Court of Appeal in R v Malik [2000] 2 Cr App R 8? 4.4 Read the cases of SMS [1992] Crim LR 310 and Redguard [1991] Crim LR 213. In relation to each case, (a) state why the Court of Appeal said that the contested line of cross-examination should have been allowed, (b) state, with reasons, whether or not you think the cross-examination was relevant in the light of the way the defence was being conducted, and (c) state what the result would have been if YJCEA 1999, ss.4143 had governed the application to crossexamine. Feedback: see page 49.
Self-assessment questions 1 What is a leading question? 2 When are leading questions permissible during the course of testimony? 3 How was the decision in R v Windass (1989) applied in R v Gray and Evans (1998)? 4 What are the three propositions laid down in R v Edwards (1991) about crossexamination of police officers concerning other cases in which they have given evidence? What difficulty do they present? 5 How was YJCEA 1999, s.41(3)(c) interpreted in R v A (2001)? 6 Describe the procedure laid down in the Criminal Procedure Act for crossexamination of witnesses about their previous inconsistent statements. If these statements are not adopted by the witnesses, what is their evidential status in (a) civil trials, and (b) criminal trials?
Summary
Examination of a witness falls into three parts: examination-inchief, cross-examination and re-examination. There are various restrictions on cross-examination; some of the most important are those governing cross-examination of complainants in trials for sexual offences.
Reminder of learning outcomes By this stage you should be able to: formulate leading and non-leading questions describe the justification for, and the extent of, the rule against discrediting ones own witness give examples of circumstances where cross-examination was disallowed because the material forming its foundation was inadmissible against the defendant being cross-examined state the circumstances in which police may be cross-examined about other trials in which they have been involved, and describe the logical problem that arises in relation to such cross-examination describe the changes effected by YJCEA 1999, ss.4143 in relation to crossexamination of complainants in trials where a defendant is charged with a sexual offence
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Evidence
explain the effect of R v A [2001] 3 All ER 1 on YJCEA 1999, s.41 give an account of the rules governing the status and cross-examination on a witnesss previous inconsistent statements.
Useful further reading Cases: R v Gray and Evans [1998] Crim LR 570; R v Meads [1996] Crim LR 519; R v Edwards (Maxine) [1996] 2 Cr App R 345'; R v Golder [1960] 1 WLR 1169; R v Governor of Pentonville Prison, ex parte Alves [1993] AC 284. Kibble, N. [2000] The sexual history provisions Crim LR 274. Civil Evidence Act 1995, s.6. Roberts and Zuckerman, Chapter 6.
4.2
General problems with testimony

Essential reading Allen, Chapter 6: The course of testimony, pp.8396. Dennis, Chapter 14: Examination of witnesses, pp.45995. Cases: Senat v Senat [1965] p.172; R v Roberts [1942] 1 All ER 187; R v Oyesiku (1971) 56 Cr App R 240; R v Lillyman [1896] 2 QB 167; R v Osborne [1905] 1 KB 551; R v Islam [1999] 1 Cr App R 22; R v Funderburk [1990] 1 WLR 587; Toohey v Metropolitan Police Commissioner [1965] AC 595.
4.2.1
Refreshing memory
When reading your textbook, you should pay special attention to two matters: (1) the effect of s.139 CJA 2003 on the use of documents to refresh memory (2) the circumstances in which a memory-refreshing document can itself become an item of evidence in the trial. You should memorise the rules in Senat v Senat [1965] p.172 (see Allen, Chapter 6).
4.2.2
Previous consistent statements

The general rule is that witnesses may not try to boost their credibility by referring to earlier statements that they made, which are consistent with their testimony in the witness box. For an application of this rule, see R v Roberts [1942] 1 All ER 187. You should note the various exceptions to the rule: (1) Exculpatory statements made by defendants when incriminating matters are put to them by the police. See R v Pearce (1979) 69 Cr App R 365. Note also the definition and evidential value of mixed statements. See R v Sharp (1988) 86 Cr App R 274, R v Garrod [1997] Crim LR 446.
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(2) Statements adduced to rebut an allegation of recent fabrication. See R v Oyesiku (1971) 56 Cr App R 240. A useful contrast is R v Williams [1998] Crim LR 494. (3) Recent complaints. The ground rules were laid down in R v Lillyman [1896] 2 QB 167 and R v Osborne [1905] 1 KB 551, but note the liberal interpretation of recent in later cases culminating in R v Valentine [1996] 2 Cr App R 213. For the proper judicial direction in respect of such evidence, see R v Islam [1999] 1 Cr App R 22. Note that such evidence cannot be given unless the person to whom the complaint was made is called, as well as the complainant. See White v R [1999] 1 Cr App R 153. Often linked to the evidence of a recent complaint is evidence of the complainants distress, on which point also see R v Islam [1999] 1 Cr App R 22. Note carefully the effect of s.120 CJA 2003 on the whole topic of previous consistent statements.
4.2.3
Hostile witnesses
You should learn Sir James Stephens definition of a hostile witness (see Allen, Chapter 6) and be able to say how a hostile witness differs from one who is merely unfavourable. Remember that unfavourable witnesses cannot be cross-examined at all by the party calling them, and that there are limitations on the extent to which even a hostile witness can be cross-examined by such a party.
4.2.4
Questions on collateral matters

Before studying this topic, make sure you understand what is meant by collateral matters. They are matters which affect the credibility of a witness, but which are only indirectly relevant to the facts in issue. The general rule is that a witnesss answers to questions on collateral matters are final, in the sense that further evidence cannot afterwards be called to rebut the denial. The difficulty of determining what matters are collateral appears from Managers of the Metropolitan Asylum District v Hill (1882) 47 LT 29, and R v Funderburk [1990] 1 WLR 587. See also R v Nagrecha [1997] 2 Cr App R 401. You should also know the exceptions to the finality rule: (1) Evidence to rebut a denial of bias. See R v Phillips (1936) 26 Cr App R 17. (2) Evidence of a witnesss general reputation for untruthfulness. See R v Richardson (1968) 52 Cr App R 317. (3) Evidence of a physical or mental disability that affects a witnesss reliability. See Toohey v Metropolitan Police Commissioner [1965] AC 595.
Activities 4.54.7 4.5 Compose an example of a mixed statement. 4.6 Compose an example of a cross-examination that contains an allegation of recent fabrication. 4.7 Compose (a) an example of cross-examination containing a question about a collateral matter to which the witnesss answer will be final, and (b) an example
45
Evidence
of cross-examination containing a question about a collateral matter to which the witnesss answer will not be final. Feedback: see page 51.
Self-assessment questions 1 What rules about the use of memory-refreshing documents were summarised in Senat v Senat (1965)? 2 What is the evidential status of a statement consisting (a) wholly of admissions? (b) wholly of matters favourable to the maker? (c) partly of admissions and partly of favourable matters? 3 In what circumstances can evidence of previous consistent statements be admitted? 4 What is a recent complaint? When is such a complaint admissible, and what is its evidential status? 5 What is a hostile witness? To what extent can such a witness be discredited by the party calling him or her? 6 What are collateral matters? What is meant by saying that a witnesss answer about such matters is final? 7 What exceptions are there to the rule about the finality of answers on collateral matters? 8 What do inculpatory and exculpatory mean? When would you use these words?
Summary
There are special rules about refreshing a witnesss memory, a witnesss previous consistent statements, hostile witnesses, and questioning on collateral matters.
Reminder of learning outcomes By this stage you should be able to: give an account of a case that illustrates the basic rule prohibiting evidence of previous consistent statements, and state the main exceptions to this rule explain the difference between wholly exculpatory and mixed statements, and state the evidential value of each explain and illustrate what is meant by recent fabrication state the conditions for admitting evidence of a recent complaint explain what directions a judge should give the jury about (a) evidence of a recent complaint, and (b) evidence of a complainants distress explain what is meant by saying that the answers to questions on collateral matters are final, and state the exceptions to the rule.
46
Useful further reading Cases: Senat v Senat [1965] p.172; R v Pearce (1979) 69 Cr App R 365; R v Sharp (1988) 86 Cr App R 274; R v Garrod [1997] Crim LR 446; R v Williams [1998] Crim LR 494; White v R [1999] 1 Cr App R 153; Managers of the Metropolitan Asylum District v Hill (1882) 47 LT 29; R v Nagrecha [1997] 2 Cr App R 401; R v Phillips (1936) 26 Cr App R 17; R v Richardson (1968) 52 Cr App R 317.
Sample examination question Question 1 Edgar is charged with raping Fiona in her flat after an office party. Fiona says that for some hours after the rape she was too shocked to do anything, but that when her flatmate, Greta, returned home next morning at about 10.00a.m. she told Greta that she had been raped by Edgar. Greta went abroad before she could be interviewed by the police, and she cannot now be traced. Edgars defence is that Fiona consented. He says that he met her in a wine bar at about 10.00p.m. He had never seen her before, but she came up to him and said, Its boring here. Why not come back to my place and we can have sex? Edgar wishes to call Hugo, who was present at Fionas office party earlier that evening. Hugo says that Fiona came up to him and said, This is so dull! Lets get out of here and have sex! Hugo says that he declined the invitation. Edgar also wishes to call John, who says that he had sex with Fiona at her invitation, though he knew her only by sight, during the week before the party. Discuss the evidential matters arising. (2000)

Question 1 The first point is whether Fiona has made what the common law recognised as a recent complaint. See now s.120(4) and (7) CJA 2003. You need to set out the conditions for the admissibility of such complaints and see if they are likely to be satisfied here. Reference should be made to R v Lillyman [1896] 2 QB 167, R v Osborne [1905] 1 KB 551 and R v Valentine [1996] 2 Cr App R 213. You need to refer also to White v R [1999] 1 Cr App R 153. Dont forget that Greta is most unlikely to be present to testify at Edgars trial. Next, you need to discuss why the incidents with Hugo and John were relevant. Doesnt what Fiona might say have something to do with this question? Suppose she says that she did approach Edgar in the way he describes, but changed her mind when they got home? Would the position be different if she denied that she had said anything like that to him in the bar? Assuming the earlier encounters are logically relevant, you must next consider the application of s.41 YJCEA 1999. Was the encounter with Hugo sexual behaviour within s.41(1)? (The old case of R v Viola [1982] 3 All ER 73, decided under the Sexual Offences (Amendment) Act 1976 might help.) A careful application of the YJCEA provisions to the facts relating to Hugo and John should follow. In the examination in which this question appeared, some candidates thought that at or about the same time as the event (s.41(3)(c)(ii)) imposed a rigid 24-hour framework. Not so; that was in the original Bill, although the period is unlikely to be significantly wider: see the government spokesman in the debate in
47
Evidence
the House of Lords (Hansard, 23 March 1999, col 1217), and R v A [2001] 3 All ER 11, 28. Very often an examination question will contain problems connected with the course of testimony mixed with problems relating to other topics. For example, the question above raised problems of hearsay and the Criminal Evidence Act 1898 also. In questions 2 and 3, pick out the problems relating to what you have studied in this chapter and provide answers to them.
Additional examination questions (no feedback provided) Question 2 D, who has a spent conviction for rape, is charged with raping E in the back of a motor car. His defence is that E consented, and he maintained this throughout an interview with the police lasting seven hours. D wishes to give evidence in his own defence and wants to know whether evidence that he said from the start that E had consented can be brought out in court. He also wishes to call F and G to say that E willingly had sexual intercourse with them in the back of their motor cars on several occasions. Police Inspector H has made a statement to the effect that half an hour after the formal interview had ended, D asked to see him in his cell and admitted raping E. He did not show D a note of this conversation, and D denies both having made the admission and having had any contact with Inspector H in his cell. Advise D on the evidential matters arising. (1999) Question 3 Robin is charged with raping Susan, whom he knows. The case for the prosecution is that they met in a hotel bar, that he offered her a lift home, but that at some stage on the journey he stopped the car and raped her. Robins defence is that Susan consented to sexual intercourse. Toby, Susans flatmate, says that when Susan got home that night she was crying. He asked her if something had happened and Susan replied, Ive been raped. Toby said, It was Robin, wasnt it? Susan replied, Yes. When interviewed by police Robin said he was sure that Susan was consenting because he had been told by many of his friends that Susan liked sex in motor cars. Robin wishes to call Billy, Jon and Tim to confirm that they had sex with Susan on different occasions in motor cars, and had afterwards boasted about it to Robin. DC Joyce has made a statement in which he stated that when he and Robin were in the back of a police car on the way to the police station, Robin had said, Its no use. I cant live with what Ive done. She didnt consent and Im a rapist. Robin denies this allegation completely. Detective Constable Joyce has recently given evidence in a number of other cases that defendants had made confessions in the back of a police car. In three of those cases the defendant was acquitted and in two more the Court of Appeal found the convictions unsafe and quashed them. Discuss the evidential issues that arise. (1996)
48

Activity 4.1 For the first questions, see the examples given. Further possible non-leading questions, with answers based on Silvers statement, are as follows: Q. At that point, what did you hear? A. I heard a report of a pistol. Q. Where did the noise come from? A. The opposite side of the street. Q. When you heard that report [not a leading question, because the witness has already given evidence that he heard a report of a pistol], did you look somewhere? A. I looked over the street. Q. What did you see? A. I saw a gentleman stagger. Q. When the gentleman staggered, how was he holding himself? A. He had his hand pressed against the left side of his back. Q. Did you see anyone else? A. I saw the prisoner. Q. What was he doing? A. He was returning a pistol with his right hand into the left side of his breast. Q. Where was the prisoner standing in relation to the gentleman who staggered? A. He was behind the gentleman. Q. What did the prisoner do after returning the pistol into the left side of his breast? A. He drew another pistol from his right breast. Q. Which hand did he use to do that? A. The left hand. Q. Did the other pistol remain in his left hand? A. No. Q. What did the prisoner do with it? A. He changed it into his right hand. Q. When you saw the prisoner doing that, did you do something? A. I ran across the street. Q. Did you reach the other side? A. Yes. Q. What did you do when you got there? A. I seized the prisoners right arm and tripped his feet from under him.
49
Evidence
Q. How did the prisoner react to that? A. He struggled very violently. Q. What happened to the pistol that he had in his right hand? A. It went off upon the pavement. .and so on. Activity 4.2 The principles are: (i) The evidence must be relevant. (ii) Cross-examination as to a relevant criminal or disciplinary conviction is permissible. (iii) Where an acquittal in one case indicates that the jury must have disbelieved, that is to say entirely rejected, the evidence of the officer or officers in question, they may be cross-examined about that in a subsequent case. (iv) It is not permissible to cross-examine an officer about complaints made against him which did not result in conviction, or to cross-examine one officer about discreditable conduct by other officers. See p.382 of the report. You might like to consider whether (iii) solves the problem that was recognised in R v Meads. Activity 4.3 The authorities seek to strike a balance between, on the one hand, protecting individual witnesses against bandwagon complaints and smearing them by association and, on the other, permitting defendants to make use of those cases where the acquittal demonstrates rejection and disbelief, or where there have been findings by the Court of Appeal in the light of evidence heard by the Court, or concessions have been made by the Crown on the basis of which the Court of Appeal has proceeded (Report, p.383). In R v Malik Lord Bingham CJ said there was a balance to be struck between the need to make sure that points fairly to be made about a police officers previous misconduct are before the jury when his credibility falls to be judged in a later case and the need to avoid a smokescreen of unsubstantiated suspicion, innuendo and attempts to smear unfairly (Report, p.11). Activity 4.4 R v SMS. The Court of Appeal said that the contested line of cross-examination should have been allowed because on the way that the case was put to the court, and on the particular facts, the question of [the complainants] past experience went to the fundamental issue of consent. The argument for relevance supporting this conclusion can be found in defence counsels submission. If the jury thought the complainant was a virgin before this act of intercourse, they might have found it impossible to believe that she would have consented to her first act of sexual intercourse in these circumstances with a man of these characteristics. Such a line of cross-examination would not have been permitted on a strict reading of s.41 YJCEA 1999, unless it could be argued that it was admissible to rebut prosecution evidence under s.41(5). It would have to be argued that the description of pain was something from which the complainants virginity could be inferred, and that s.41(5) was available to rebut not only direct evidence, but evidence that was ambiguous, but from which an inference that supported the prosecution case could be drawn. In the absence of admissibility under that sub-section, reliance would have to be placed on R v A.
50
R v Redguard. The complainant said she would not have allowed anyone other than her boyfriend to stay at her flat, let alone have intercourse with her, at the time of the alleged rape. If the jury believed that, they must have concluded that sexual intercourse with the defendant was not consensual. It was therefore relevant to adduce evidence casting doubt on that assertion. Evidence of the consensual encounter two weeks after the alleged rape was capable of doing that. Remember that for evidence to be relevant, it does not have to be conclusive, or even weighty, and on a strict analysis weight is not a proper consideration when assessing relevance (see Chapter 1). But even if weight is allowed to affect the question of relevance, the weight to be attached to the later encounter is slight only on the impermissible assumption that the accused is guilty. Had YJCEA been in force, there should have been leave to crossexamine under s.41(5). Activity 4.5 Remember that a mixed statement is partly adverse to the maker (inculpatory), and partly helpful (exculpatory). Here are two examples: I admit hitting my neighbour with the cricket bat, but I only did it in self-defence because I thought he was going to attack me with a knife. I agree that I took a bottle of gin from the display in the supermarket and then put it in my coat pocket. But that was only to stop it from breaking the eggs in the stores wire basket that I was carrying. When I came to the checkout I had forgotten about it. Activity 4.6 Here is an example. Q. You have admitted, havent you, hitting Charlie with a bottle in the course of the quarrel? A. [Bertie] Yes, but only because he was going to go for me with a knife. Q. In fact Charlie didnt have a knife, did he? A. He did. He had it in his hand, and he said, Youve had this coming to you. Q. When you were giving evidence just now [i.e. during examination-in-chief], you didnt tell us anything about Charlie saying that, did you? A. I forgot. Q. You didnt forget; you just made it up a moment ago, didnt you? Note the final question; this makes it clear that the allegation is one of recent fabrication. Suppose Bertie had told his wife shortly after the event that Charlie had made a threat in those terms. Berties wife could give evidence of that fact in order to rebut the suggestion made by prosecuting counsel. Now alter the facts slightly. When Bertie was interviewed by the police he described the knife and Charlies threat. He has just told the same story when giving evidence-in-chief. Prosecuting counsel cross-examines as follows: Q. Its not true, is it, that Charlie had a knife? A. He did.
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Evidence
Q. And he never said Youve had this coming to you, or anything like that, did he? In this version there is now no allegation of recent fabrication. Prosecuting counsel is simply suggesting that the story told from the start by Bertie, including the bit about the threat, is false. Bertie could not call his wife to repeat what he told her about the threat. Activity 4.7 (a) Witnesss answer final David is prosecuted for theft. Ellen, a store detective, has just given evidence that she saw him take a packet of meat, conceal it in his coat, and leave the store without paying for it. She is now crossexamined by defence counsel, who wants to suggest that at the time of the incident Ellen was an inexperienced store detective, and so was more likely to make a mistake. Q. This was your first employment as a store detective, wasnt it? A. Yes. Q. When this incident happened, you hadnt been in that job very long, had you? A. I joined the store eight months before this incident. Q. It wasnt eight months; it was only three months before this incident, wasnt it? A. No; it was eight months. The defence could not call evidence to show that it was three, rather than eight, months before the incident. This is because the matter is clearly collateral, and it doesnt fall within any of the exceptions to the finality rule. (b) Witnesss answer not final Ellens evidence is as before. The case for the defence is that the store detectives observations were inaccurate because she wasnt wearing spectacles, and she usually does so because she cannot see well without them. Cross-examination for the defence goes as follows: Q. You usually wear spectacles when you are on duty in the store, dont you? A. No. Q. Dont you wear spectacles when you are on duty because you cant see clearly without them? A. No. I can see perfectly well without spectacles. These are questions about a physical disability which, if it exists, will affect the reliability of Ellens observations. Although the questions are not about facts in issue, and are therefore about a collateral matter, in this case Ellens denials could be rebutted by evidence that she does in fact wear spectacles when on duty. This is because of the third exception to the finality rules (see section 4.2.3 above). See also Toohey v Metropolitan Police Commissioner [1965] AC 595.
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Evidence: Christopher Allen Stephen Guest

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Evidence

Christopher Allen Stephen Guest

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A suggested approach to study

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