exam Flashcards
Lord Runciman, gave 4 reasons for false confessions
‘a morbid desire for publicity or notoriety
‘a desire to protect someone else.’
People can see a prospect of immediate advantage from confessing, (i.e. an end of the questioning and/or release from the police station),even though the long-term consequences are far worse
The suspect may be ‘persuaded’ temporarily by the interrogators that he has really done the act in question
Definition of a Confession
s.82 (1) PACE ‘84 provides a partial definition of a confession thus;
‘…‘confessions’ includes any statement wholly or partially adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’
Safeguards regarding confessions
Confessions have to be tape-recorded now, Code E, Code of Practice
Code C, Code of Practice, which governs the detention and questioning of suspects.
Admissibility at common law
the admissibility of a confession was governed by the voluntariness test, i.e. had the confession been made voluntarily.
Ibrahim v R [1914] AC 599
Callis v Gunn [1964] 1 QB 495 CCA
DPP v Ping Lin [1976] AC 574
Admissibility of confessions-post PACE ‘84
s.76 (1) PACE;
‘In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.’
Law of confession
s. 76 (2) PACE ‘84
a. by oppression of the person who made it; or
b. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.’
the court is given power to raise the issue and require the prosecution to prove the conditions of admissibility
s.76 (3) PACE ‘84
R v Priestly (1965)
‘sapped the accused’s free will’ so that ‘he spoke when otherwise he would have remained silent.’
‘intentional infliction…of severe physical or mental pain and suffering by a public official, or by a person acting in an official capacity in the performance…of his official duties.’
s.134 Criminal Justice Act 1988
oppression
There must be a causal connection between the oppression and the making of the confession.
There must also be some degree of impropriety by the interrogator for oppression ground to be satisfied.
PACE ‘84 gives a partial definition of oppression
s.76(8), namely;
‘In this section ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture
Republic of Ireland v UK (1978) 2 E.H.R.R. 25
give the LP of the meaning of oppression
- wall standing
- hooding
- subjection to continuous noise
- deprivation of sleep
- deprivation of food/drink
R v Fulling [1987] 2 All ER 65
LP that the lying to a suspect would not amount to oppression
Held oppression construed narrowly.
R v Paris, Abdullahi, Miller
LP- interviews oppressive because of their, ‘length and tenor
Miller, IQ of 75, questioned over 5 days, interviewed for 13 hours, 19 tapes recorded of interviews.
Miller asked over 300 times did he kill Lynette White-he denied the murder 300 times-then finally confessed.
R v Emmerson
LP- officer raised his voice and used some bad language is not oppressive.
R v Heaton [1993]
D confessed to manslaughter during a 75 minute interview in presence of his solicitor.
Officers raised voices/repeated questions.
CA-held no oppression;’Perfectly legitimate for officers to pursue the interrogation of a suspect with a view to eliciting his account or gaining admissions. They are not required to give up after the first denial or even after a number of denials.’
Mohd Ali Bin Burut v Public Prosecutor
- the special procedure was inherently oppressive!
- the statements were obtained by oppression.
nb-the confessions were not obtained during the special procedure but in a gap between special procedure and signing of written statements.
Lord Steyn;
‘Nothing had happened to remove the implied threat of further sessions subject to the special procedure.’
R v Seelig
Held-personal characteristics of D can be considered. Here D was ‘experienced’, ‘intelligent’ and ‘sophisticated
LP- If the PC is taken in to account then court would choice the level of Oppression
reliability ground
s.76 (2) (b)-See Lord Lane LCJ in R v Fulling [1987] 2 All ER 65 at p70-a confession may fail to be excluded under para (b) where there is no suspicion of impropriety.
R v Goldenberg (1988) 88 Cr App R 285
On appeal-asked for confession to be excluded under s 76 (2) (b)-arguing it was unreliable because it might have been made in the hope of getting bail.
LP- herion addict is unreliable- ‘a causal link must be shown between what was said or done and the subsequent confession.’
R v Crampton (1990) 92 Cr App R 369
‘The mere fact that someone is withdrawing, and may have a motive for making a confession, does not mean the confession is necessarily unreliable.’
R v Effik (1992) 95 Cr App R 427
only remove in if the confession had been made while he was experiencing acute withdrawal symptoms.
R v Walker
Thus any mental or personality disorder could be relevant re; s.76 (2) (b)-it was not limited to classes of case where D had a ‘mental impairment’ or ‘impairment of intelligence or social functioning’ or a very low IQ.
R v McGovern (1991) 92 Cr App R 228 CA
Police unlawfully refused her access to a solicitor and breached the recording requirements, (Code E).
In a 2nd interview a day later, with a solicitor present-D made a longer, more detailed/coherent confession
anything said or done’, includes an inducement, (at common law)-e.g.
- holding out the possibility of release or bail-See R v Barry (1992) 95 Cr App R 384
- suggesting offences could be taken into consideration rather than specifically charged-See R v Phillips (1988) 86 Cr App R 18
- offering a hope of treatment rather than punishment-See R v Delaney (1988) 88 Cr App R 338 CA.
- length of detention/number of interviews.
the ‘right’ to a solicitor
s.58 (1) PACE ‘84 provides;
‘A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.’
s.58 (4);
a. it will lead to interference/harm to evidence connected to the offence or interference with/physical injury to other people.
b. will alert other people suspected of having committed an offence but not arrested.
c. will hinder the recovery of any property obtained as a result of the offence.
nb-s.58 arguably guarantees due process and upholds the presumption of innocence.
the confession may nevertheless still be excluded by the trial judge at his discretion under
s.78 (1) PACE ‘84.
‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.’
R v Mason [1988] 1 WLR 139
LJ Watkin-police had, ‘hoodwinked both solicitor and client. That was a most reprehensible thing to do.’
D charged with arson-torching the car of his girlfriend’s father. In an interview, the police told D, and his solicitor that D’s finger prints were found on a broken bottle of petrol. This was a lie. D confessed to the arson and was convicted of arson.
R v Walsh (1989) 91 Cr App R 161
D arrested-held in custody in police station.
1. denied access to a solicitor unreasonably.
2. police failed to make contemporaneous notes of interview.
3. breached Code C-interview conducted on a person who asked for but did not receive legal advice.
Held-denial of access to a solicitor contrary to s.58 will prima facie have an adverse effect on the fairness of proceedings but s.78 (1) states, ‘such an adverse effect’-i.e. not all breaches of CoP will have such an adverse effect.
R v Keenan [1989] 3 All ER 598 CA
Here Met. Police officers did not keep an accurate contemporaneous record of an interview with D where he confessed to charge of possession of an offensive weapon in a car.
Met officers claimed they did not know about the provisions of CoP C, at time of D’s arrest, and still did not know about them, i.e. 18 months later!
Voir dire
Scope of voir dire
- The prosecution may not cross-examine the D on the voir dire as to the truth of the confession.
See Wong Kam-Ming v R [1986] AC 247 PC
nb- remember s.76 (2)-the truth of the confession is immaterial to its admissibility
provides additional protection to mentally handicapped suspects who make confessions
nb-s.77 (3) defines ‘mentally handicapped’ as someone;
‘in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning;’
s.77 (1) provides;
‘where at such trial-
(a) the case against the accused depends wholly or substantially on a confession by him; and
(b) the court is satisfied-
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the presence of an independent person the court shall warn the jury that there is special need for caution before convicting the accused in reliance of the confession and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.’
Statutory Exceptions (in Criminal Justice Act 2003)
s.116 sets out a number of statutory exceptions to the rule against hearsay evidence to
s.116
‘(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.’
The 5 conditions in s.116 (2)
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;’
‘(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken.
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.’
‘Fear’
s.116 (3) CJA 2003 provides;
‘(3) For the purposes of subsection (2) (e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or for financial loss.’
‘Leave’
(4) Leave may be given under subsection (2) (e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),’
‘(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23)(special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
(d) to any other relevant circumstances.’
s.116 (5)
‘(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances descried in that paragraph are caused-
(a) by the person in support of whose case it is sought to give the statement in evidence, or
(b) by a person acting on his own behalf,
in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).’
is there to prevent a party from relying on any of the five conditions/grounds in s.116 (2) if that party or someone acting on his behalf has brought the condition/ground about in order to prevent the relevant person from testifying.
R v McGillivray [1993] 97 Cr App R 232
statement was made by a victim in a document and was admissible under s.23 CJA 1988, (similar to s.116 (2) (a) CJA 2003.
person is dead
The condition here is that the relevant person, (the person who made the statement), is unfit to be a witness because of his bodily or mental condition
s.116 (2) (b)
McEwan v DPP (2007) 171 JP 308 DC
held evidence indicating that a medical condition will be made worse by stress, but which did not indicate clearly that the witness was unfit, will not suffice to satisfy s.116 (2) (b) condition.
R v Meredith (2007) 171 JP 249 QBD
a doctor’s statement that it would be in the witness’s best interests to submit written testimony was not adequate evidence that the witness was unfit to attend.
s.116 (2) (b)- mental condition
R v Case [1991] Crim LR 192
The prosecution were permitted to adduce in evidence the statements of the tourist and her companion under s.23 (2) (b) CJA 1988-i.e. tourist outside the UK and it was not reasonably practicable to secure her attendance.
This had to be proved by the prosecution beyond reasonable doubt by leading evidence
R v Bray (1989) 153 JP 11
no effort to secure his attendance at the trial.
Held the statement of the South Korean witness ought not to have been admitted.
Lord Lane LCJ;
‘Since seven months have elapsed since Mr Kim departed for South Korea, it was certainly not shown that it was not reasonably practicable to secure the witness’s attendance.’
R v Hurst (1995) 1 Cr App R 82
‘reasonably practicable’ involves normal steps which would be taken to secure the attendance of a witness, and other circumstances such as
a) cost
b) steps which might be available to secure attendance.
R v Castillo
Whether a party took reasonable steps to secure attendance depends upon numerous factors-
a) the importance of the evidence
b) the expense and inconvenience of securing attendance
c) the weight of reasons for non-attendance.
R v Maloney [1994] Crim LR 525 CA
CA-Held-The term ‘reasonably practicable’ does not mean what is physically possible.
Defence relying on s.116 (2) (c)
When the defence seeks to admit a statement under s.23 CJA 1988, (now s.116 (2) (a)-(e)), the defence needs to prove the existence of the conditions on the balance of probabilities.
See R v Mattey & Queeley (1995) Crim LR 308.
R v Riat [2013] 1 All ER 349
Hughes LJ in R v Riat above stated;
‘[I]f the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing.’
R v Adams [2008] 1 Cr App R 35 CA
Leaving contact with the witness such as this until the last working day before the trial is not good enough.’
The home, or place of work or agency, should have been visited, or at least telephoned.
Held- CA-the statement should not have been admitted under s.116 (2) (d).
R v DT [2009] EWCA Crim 1213 CA
There should be a written statement of facts as to the steps taken to locate the witness.
In this case matters had proceeded too informally and the steps taken to locate the witness were not clearly stated. Evidence is necessary.
R v Martin [1996] Crim LR 589
CA-Held the words ‘through fear’ should not be qualified in any way. Thus a stranger loitering outside the house may suffice.
R v Doherty (2007) 171 JP 79
Here the witness provided written statements that he had received anonymous implicitly threatening telephone calls which appeared connected to the offence he was to testify about.
Held-this suffices to establish fear.
R v H [2001] Crim LR 815 CA
Here the victim made a statement 2 months before the trial indicating his fear at reprisals and his intention to move and not testify.
At trial there was no evidence as to whether the witness was still scared-the court simply accepted he was.
Fear had to e judged at the time when the witness would be expected to give evidence orally.
R v Acton Justices ex parte McMullen [1991]
Held-No need for it to be proved/shown fear to be genuine and based on reasonable grounds.
Neill v North Antrim Magistrates’ Court
ese statements should not have been admitted in evidence-as LJ Mustill argued because the police officers’ evidence was;
‘essentially a third-hand account of the witness’s apprehensions’, and was therefore inadmissible hearsay.
R v Davies [2007] 2 All ER 1070
widely construed…courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that…was designed to avoid.’
Business and other documents
s. 117 CJA 2003 is very similar to the earlier exception in s.24 CJA 1988.
s. 117 allows documentary hearsay to be admissible in court if certain requirements are satisfied.
s.117 CJA 2003 s1
‘(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if-
(a) oral evidence in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.’
s.117 CJA 2003 s2
‘(2) The requirements of this subsection are satisfied if-
(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the relevant person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.’
s.117 CJA 2003 s3-4
‘(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.
(4) The additional requirements of subsection (5) must be satisfied if the statement-
(a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but
(b) was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 (c 32) or under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (c 33) (which relate to overseas evidence).’
s.117 CJA 2003 s5
‘(5) The requirements of this subsection are satisfied if-
(a) any of the five conditions mentioned in section 116 (2) is satisfied (absence of relevant person etc), or
(b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances
s.117 CJA 2003 s6-7
‘(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection
(7) The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of-
(a) its contents,
(b) the source of the information contained in it,
(c) the way in which or the circumstances in which the information was supplied or received, or
(d) the way in which or the circumstances in which the document concerned was created or received.’
Maher v DPP [2006] EWHC 1271 (Admin),
Held in the Administrative Court, that the Police Incident Log was inadmissible in evidence under s.117 to establish the identity of the offending car, because s.117 (2) (c) was not satisfied.
R v Horncastle [2010] 2 AC 373 CA
‘business records are made admissible by s.117… because…they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable…and the court is not to admit them if there is doubt about their reliability.’
- Also s.125 (1) CJA 2003 provides;
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers
Competence
A witness is competent if it is lawful to call him to give evidence.
Compellability
A witness is compellable if he may be compelled or forced under threat of legal sanctions or punishment by a court to give evidence.
Securing witness attendance
a) Civil cases-a party may subpoena another person to attend as a witness.
b) Criminal cases-attendance of a witness is achieved in the Magistrate’s Court by serving a witness summons.
Basic rule
All witnesses are both competent and compellable.
Why?- To make available all evidence to the court which is relevant and admissible.
The modern trend increasingly is to make available evidence where possible, (and relevant/admissible), and getting away from or at least restricting the number of categories of witness where there are problems with competence and compellability.
Hoskyn v Metropolitan Police Commissioner [1979] AC 474
First, in principle, anyone who is a competent witness is a compellable witness…this general rule is a constitutional principle underlying our whole system of justice.’
s.53(1) of the Youth Justice and Criminal Evidence Act 1999,
‘At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.’
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 CA
here-there is no property in a witness.
i.e. A witness does not ‘belong’ to a party calling them.
a) Historical fear
manufactured/concocted/exaggerated evidence from witnesses who have a vested interest in creating or inflating the significance of their evidence.
nb-Sir Rupert Cross-‘the great pathological dread’ of judges of ‘concocted’ and ‘manufactured’ evidence.
s.54 YJ&CE 1999 sets out the procedure generally for determining competence;
‘(1) Any question whether a witness is competent whether raised-
(a) by a party to the proceedings, or
b) by the court of its own motion,
shall be determined by the court in accordance with this section.’
The court/judge therefore basically decides if a witness is competent.
s54
‘(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence.’
and
‘(3) In determining the question the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give
s.54(4) YJ&CE 1999 provides;
‘Any proceedings held for determining the question shall take place in the absence of the jury (if there is one).’-a voir dire basically.
Also;
‘(5) Expert evidence may be received on the question.’
Finally, ‘(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.’
- The Defendant, (D)
s.53 (4) YJ&CE 1999 provides;
‘A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).’
Axiomatically if D is incompetent for the prosecution he is also not compellable for the prosecution.
The accused’s spouse
As stated earlier historically up until the Hoskyn case in 1979 the courts did not favour spouses being competent/compellable to give evidence against their fellow spouse, (the D).
However, under s.53(1) YC&CE 1999, all persons, including the spouse of the D, are now competent witnesses.
general Accused
The accused’s spouse is generally not compellable for the prosecution.
However under s.80 (2A) (b) of PACE 1984 a spouse or civil partner is compellable if it is a specified offence.
s.84 Civil Partnership Act 2004;
‘(1) Any law relating to the giving of evidence by a spouse applies in relation to a civil partner as it applies in relation to the spouse.’
s.80(3) PACE 1984
‘In relation to the [spouse or civil partner] of a person charged, an offence is a specified offence for the purposes of subsection (2A) above if-
(a) it involves an assault on, or injury or a threat of injury to, the [spouse or civil partner] or a person who was at the material time under the age of 16;
(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within (a) or (b) above
specified offences
spouse may be the only witness if she is the victim or the victim is under 16.
It is sensible that the law should force her to give evidence and not have to make her choose to give evidence
R(CPS) v Registrar General of Births, Deaths & Marriages [2003] QB 1222 CA
wife cannot be CPS witness
R v Khan (1987) 84 Cr App Rep 84 (CA)
In the latter case the D had married a woman in England and sought to rely on the general non-compellability of spouses re; his wife giving evidence in England, but he had never divorced his first wife in Pakistan who was still alive, so his 2nd English marriage was bigamous-hence his 2nd ‘wife’ could give evidence against Khan as they were never lawfully married.
Meaning spouse
Moss v Moss [1963] 2 QB 799 DC
‘It is clear that there is an essential difference between a decree absolute for divorce and a decree for judicial separation…The decree absolute for divorce terminates the marriage; the decree for judicial separation does not, and, therefore, the spouses still remain husband and wife.’
s.80(5) PACE 1984
‘A person who has been but is no longer married to the accused shall be compellable as if never married.’
s.80(5A) PACE 1984;
‘A person who has been but is no longer the civil partner of the accused shall be compellable as if never civil partners.’
The Co-accused
What is the position re; competence of the D for the prosecution where D is no longer liable to conviction?
s. 53(5) YJ&CE 1999 provides;
‘A person charged does not include a person no longer liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).’
. What is meant by ‘no longer liable to be convicted of any offence in the proceedings’? When will that happen?
4 scenarios;
- D is acquitted
- D enters a guilty plea.
- A nolle prosequi is entered by the Attorney General.
- The indictment is severed, (i.e. Co-accused and D get separate trials.
R v McEwan [2011] EWCA Crim 1026 CA
‘if a person pleads guilty…he is no longer incompetent to give evidence for the prosecution against others charged.’
Children
As stated earlier historically evidence from children was treated with great circumspection/suspicion.
Their evidence was viewed as innately unreliable.
s.53 (1) YJ&CE 1999 provides;
‘All persons whatever their age, are competent.
However this general rule will not apply and a witness, (usually possibly a child or a person with learning difficulties), will not be competent to testify if it appears to the court that he is unable to give intelligible testimony.
s.53(3) YJ&CE 1999
‘A person is not competent if it appears that they are not able (a) to understand questions put to them as a witness and (b) give answers which can be understood.
Hence to give intelligible testimony and be competent, a child must be able to understand questions put to him as a witness and secondly the child must be able to give answers to those questions which can be understood.
s.54
(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings’
‘(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
(5) Expert evidence may be received on the question.
(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.’
R v MacPherson[2005] EWCA Crim 3605, [2006] 1 Cr App R 30
a)-‘In the ordinary way [the] issue should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial.’
b)-‘the issue…is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness’s answers?’
c)-‘the words ‘‘put to him as a witness’’ means the equivalent of being ‘‘asked of him in court’’. So, it would be the case that an infant who can only communicate in baby
d)-‘there is no requirement in the Act (which is commendably clear in its language) that the witness in question should be aware of his status as a witness. Questions of credibility and reliability are not relevant to competence. Those matters go to the weight of the evidence and might be considered, if appropriate, at the end of the prosecution case, by way of a submission of no case to answer.’
e) Finally and arguably crucially the Court of Appeal held, ‘a child should not be found incompetent on the basis of age alone and the question of competence can be kept under review.’
Thus a child should not be assumed/deemed incompetent ‘on the basis of age alone’.
language with its mother would not ordinarily be competent. But a young child…who can speak and understand basic English with strangers would be competent.’
R v Wallwork (1958)
See the old approach to child competency-per Lord Goddard LCJ- ‘most undesirable’ to call a 5 year old to give evidence.
R v Wright (1987)
Ognall J- must require quite exceptional grounds to justify the reception of this evidence.
R v Hampshire [1995] 2 All ER 1019 CA
- The competency assessment/investigation should be conducted at the earliest moment-not after the child gives his evidence.
- The judge conducts the investigation-he discovers the competence of the child in ‘ordinary discourse’-not cross-examination. It is a matter of his perception of the child’s understanding.
- If the child is video-recorded under the equivalent of s.19 YJ&CE 1999-the judge’s pre-trial view of the recording-should help the judge to determine the child’s competence.
- The assessment of competence is carried out in open court, in presence of D, but not the jury. The jury decides the weight but the judge decides the competency, (admissibility), of the child’s testimony.
- understands the questions put to him
- can communicate
- can give a coherent and comprehensible account in response to questions
- can distinguish between truth and fiction and/or between fact and fantasy,
but no need to have an ability to distinguish between truth and lies since
a) child, (under 14), does not have to take an oath
b) because lies are, after all, intentional deliberate falsehoods, (i.e. child must, if lying, be able to tell the difference between lies and the truth).
See also R v D(1995)
Unsworn evidence
In criminal proceedings a witness under the age of 14 cannot be sworn and must give unsworn evidence if they satisfy the competency/intelligible testimony test-(see s.55(2) (a) YJ&CE 1999).
A child who has reached the age of 14 can be sworn, i.e. give sworn testimony/evidence in court if, ‘he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.’(see s.55(2) (b) YJ&CE 1999).
Finally under s.55(3) YJ&CE 1999-a witness who is able to give intelligible testimony is to ‘be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party)’.
R v Bellamy(1986) 82 Cr App R 222
Here the issue was whether a victim of rape, who was suffering from a mental disability, was competent to give evidence.
The Court of Appeal, following R v Hayes held that no enquiry need be made into the religious belief of the witness.
It was sufficient if the judge found that a witness possesses sufficient understanding of the duty to speak the truth in the context of court proceedings.
Essentially the matter is one for the judge, who must determine if this witness has sufficient capacity to give evidence.
R v B[2010] EWCA Crim 4 CA
‘These statutory provisions are not limited to the evidence of children. They apply to individuals of unsound mind. They apply to the infirm. The question in each case is whether the individual witness…is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions
DPP v Hester (1973) AC 296 at p315 HL;
‘Any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness.’
General Rule-England/Wales
- No requirement that evidence be corroborated.
- Secondly-no requirement to give a full corroboration warning, i.e. that the tribunal of fact be warned of the danger of acting on uncorroborated evidence.
Exceptions to the General Rule
- Where corroboration is required as a matter of law.
- Cases where in appropriate circumstances the tribunal of fact should be warned to exercise caution before acting on the evidence of certain witnesses if unsupported.
- a) Confessions by mentally handicapped people-See s.77 PACE 1984.
b) Identification evidence-See R v Turnbull warning.
Meaning of corroboration
In its ordinary sense corroboration means evidence that confirms or supports other evidence but in its technical sense, in order to be corroborative, evidence must be;
- Relevant
- Admissible-(i.e. not excluded by an exception).
- Credible-See Lord Hailsham in DPP v Kilbourne (1973) AC 729 at p746-‘Corroboration can only be afforded…by a witness who is otherwise to be believed.’
- Independent
- Evidence which implicates D in commission of offence-that he did it-as e.g. required by statute.
Independent
In order to be independent- the evidence must come from a source other than the witness to be corroborated.
R v Whitehead (1929) 1 KB 99 CCA-
involved a sexual assault on V allegedly by D. V complained to her mother shortly afterwards about the assault.
Held this victim’s recent complaint to her mother was not corroboration of her evidence against D.
R v Redpath (1962) 46 Cr App R 319 CCA
Here an independent witness testified that V had cried out and run away shortly after the indecent assault.
Held if the jury could discount that the V was putting on an act/simulating distress/feigning distress this evidence could be corroborative.
R v Chauhan (1981) 73 Cr App R 232 CA
Here an independent witness testified that V had cried out and run away shortly after the indecent assault.
Held-if the jury could discount the distress being feigned/put on/an act it could corroborate.
R v Romeo[2004] 1 Cr App R 30
The CA held the jury must be warned that there is a very real danger that distress may be feigned in appropriate cases.
R v Zala[2014] EWCA Crim 2181CA
(i) V’s own evidence as to her distress is not independent evidence and cannot constitute supportive evidence;
(ii) evidence of others as to distress immediately after the incident may be supportive evidence but the judge should look at the circumstances of each case and tailor the directions to the facts, emphasising to the jury the need before they act on it to make sure the distress was not feigned and drawing to their attention factors that may affect the weight to be given to the evidence; and
(iii) evidence of others as to distress some considerable time after the alleged incident may be inadmissible because of no assistance as to who is telling the truth.
R v Hills (1988) Cr App R 26 CA
CA stated obiter-a combination of evidence may corroborate-e.g. medical evidence shows intercourse, witnesses may prove D was present, there may be injuries.
Evidence must implicate D in offence charged
The evidence to amount to corroboration must confirm not only the commission of the offence but that D did it.
R v Baskerville (1916) 2 KB 658
‘Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.’
This is the classic definition of corroboration in its strict sense.
Implicating D
Corroborative evidence does not have to confirm all the circumstances of the crime.
Cracknell v Smith (1960) All ER 596
This was an affiliation case-evidence from mother of V that D visited mother’s home to see complainant, (V), at about the relevant period and met her at the corner of the street on various occasions.
Held this was not corroborative evidence.
It was only evidence of opportunity.
It did not implicate D with having sex with V.
R v James (1970) 55 Cr App R 299, PC
A rape case-medical evidence adduced showing V had sex.
Held this was not corroborative evidence-all it proved was that V had sex at the time-it did not confirm D had raped V, or confirm a lack of consent on her part to sex.
Corroboration warnings-the old law
Up till January 1995, a trial judge had to give a full corroboration warning to the jury if the witness was either;
a) a complainant in a sexual offence/case
b) an accomplice.
NB-This mandatory warning was scrapped by s.32 (1) CJ&POA 1994
Corroboration warnings-the old law
The full corroboration warning that the trial judge had to give the jury effectively comprised;
- The warning that it was dangerous to convict on the uncorroborated evidence of e.g. accomplice/complainant in sex offence.
- An explanation of the technical meaning of corroboration-(see previous discussion).
- The judge had to indicate to the jury what evidence was and was not capable of corroborating as a matter of law.
- An explanation that the jury determined, ultimately as a matter of fact, whether that evidence did corroborate.
- That the jury, (confusingly?!), could nonetheless convict D despite the fact there was no corroboration/corroborative evidence.
Criticisms of full corroboration warnings
- They were confusing for the jury, i.e. it was surely contradictory to warn the jury of the dangers of convicting on uncorroborated evidence and at the same time saying they could still nonetheless convict!!
- Very complex.
- A ‘straitjacket’. Trial judge a ‘Pavlovian dog’-if witness a complainant in sex case/offence or an accomplice warning obligatory and automatic regardless of the particular witness, i.e. it was an incredibly blunt and insensitive tool-‘one size fits all’!
- Sex victims were unlikely to have corroboration due to the nature of the offence.
- Paradoxically there was some evidence, (See the Law Commission Working Paper No 115, at paras. 2.9 and 2.18),
Why give full corroboration warnings?
a) In sex cases-the argument was that allegations were easy to make but hard to rebut.
Complainants in sex cases might complain falsely because of shame, fantasy, neurosis, spite etc;
b) accomplices-may have their own interest to serve, do it for financial/other reward, decrease the extent of their own guilt by increasing the guilt of other alleged parties.
Exceptions to the general rule
- Where there must be corroboration before a conviction.
There are 3 situations where corroboration is needed/required before a conviction can be secured. - Speeding
- Perjury
- Attempts (at 1-2 above).
Speeding
NB-Opinion evidence of non-experts generally inadmissible but exception to this opinion evidence re; speeding.
See s.89 (2) Road Traffic Regulation Act 1984-persons charged with speeding-
‘shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.’
Brightly v Pearson (1983) 4 All ER
The evidence of the 2 witnesses must relate to the speed of the vehicle at the same place and time.
s.89 (2)
applies only to opinion evidence-not to evidence of fact
Nicholas v Penny (1950) 2 KB 466
Held-Magistrates could convict D on evidence of a police officer who had checked D’s vehicle speed from the speedometer of his own police car which was driven at an even distance behind D’s car.
nb-Speedometers, radar guns, radar speed meters are presumed to be accurate.
Crossland v DPP (1988) 3 All ER 712
Here an expert in accident reconstruction testified he had inspected the scene of an RTA, including skid marks and damage to D’s car, carried out speed and braking tests on the car and calculated its speed had not been less than 41 mph.
Held-this was not solely the opinion evidence of one witness-the expert had also described the objectively determined phenomena on which they were based.
Criminal Law Revision Committee 11th Report (Cmnd 4991), paras 178-190
The Report stated that to make a prosecution for perjury too easy might discourage persons from giving evidence and create the danger of a successful party to litigation whose evidence was believed to prosecute his opponent, or his opponent’s witnesses for perjury.
s.13 Perjury Act 1911
‘A person shall not be liable to be convicted of any offence against this Act, or of any other offence by any other Act to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false.’
Perjury includes;
a) perjury in judicial proceedings
b) making false statements on oath in statutory declarations etc;.
R v Peach (1990) 2 All ER 966 CA
Here 2 witnesses testified to having heard D admit the falsity of the statement on the same occasion
s.2 (2) (g) of the Criminal Attempts Act 1981 provides;
‘Any provision whereby a person may not be convicted or committed for trial on the uncorroborated evidence of one witness (including any provision requiring the evidence of not less than two credible witnesses) shall have effect with respect to an offence under s.1 of the Act of attempting to commit an offence as it has effect with respect to the offence attempted.’
Old law-(pre 1st January 1995 and the CJ&POA1994).
As stated already, up till January 1995 if a witness was’
i) a complainant in a sex case-the V, or
ii) an accomplice
a full corroboration warning had to be given as a matter of law by the trial judge to the jury, (i.e. a mandatory/obligatory warning), regarding that witness.
Meaning of accomplices?
Davies v DPP (1954) AC 378 HL
Accomplices were;
a) Parties to the offence in question.
b) Handlers of stolen goods-in cases of thieves from whom they receive, on the trial of the thief for theft.
c) Parties to another offence committed by D in respect of which evidence is admitted under the similar fact doctrine.
s.32 (1) CJ&POA1994
scrapped the full obligatory/mandatory corroboration warning being given where the witness was ‘merely’ an accomplice or complainant in a sex case/offence.
But the trial judge now has a discretion to give some form of warning wherever he considers it necessary to do so.
R v Makanjuola
Facts-D, aged 29, convicted of indecent assault-imprisoned-6 months.
D indecently assaulted Emma Lilley, aged 17, by squeezing her breasts when they were alone together in the storeroom of a McDonald’s store in Epsom, where they oth worked.
R v Makanjuola
a) Accomplices/complainants in sex cases no longer presumptively unreliable.
b) No need to give full corroboration warnings on a discretionary basis-that would be contrary to the policy and purpose of the Act.
s.32 (1)
abrogated the requirement to give a corroboration warning re; an accomplice and complainant in a sex case, simply, (‘merely’), because W is in one of those categories.
2. It is a matter for the judge’s discretion what if any warning he considers appropriate in respect of such a witness, ‘as indeed in respect of any other witness in whatever type of case.’
Guidelines
- Whether he chooses to give a warning and in what terms will depend on;
a) the circumstances of the case
b) the issues raised
c) the content and quality of the witness’s evidence. - In some cases it may be appropriate for a judge to warn the jury to exercise caution before acting on the unsupported evidence of a witness. This will not be merely because witness is an accomplice/complainant in a sex case.
- There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable-an evidential basis does not include mere suggestion by cross-examining counsel.
- If judge needs to give a special warning re; a witness-this should be resolved by discussion with counsel in the absence of the jury before final speeches.
- If the judge does give a warning-it should be part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.
- Where some warning is required-it will be for the judge to decide the strength and terms of the warning-‘it does not have to be invested with the whole florid regime of the old corroboration rules.
- ‘Attempts to re-impose the straitjackets of the old corroboration rules are strongly to be deprecated.’
- The court will be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where the exercise is unreasonable in the Wednesday sense.’
R v Muncaster [1999] Crim LR 409 CA
CA Held following R v Makanjuola-whether a warning is given and, if so, its strength, is down to judicial discretion and depends on the circumstances
R v B (MT) [2000] Crim LR 181 CA
Here D appealed conviction on basis trial judge erred, i.e. had failed to ID which evidence was and was not capable of amounting to supporting evidence.
Held CA-appeal allowed-conviction quashed
CA-Held-Trial judge had a wide discretion to give a modified corroboration warning, but once it was given it was incumbent on the trial judge to ID any independent supporting evidence which existed. The jury needed careful direction here.
R v Blasiak [2010] EWCA Crim 2620 CA
Here the CA re-iterated that no form of set words are required for the care warning, (unlike the old full corroboration warning).
R v Burrows [2000] Crim LR 48
At trial-prosecution contended D and another accused, (R), were in joint control of capsules containing 1.6 gms. of crack cocaine in each capsule and other items, (i.e. a mobile drug dealer’s kit).
Both D’s ran cut-throat defences. Both were convicted-possession of a class A drug with intent to supply-penalty-30 months in Young Offender’s Institution. D appealed.
Held-CA-appeal dismissed-trial judge did underline the extreme care with which the jury should approach the allegations against each D-thus, CA could see no lack of safety in verdict.
. R v Beck [1982] All ER 807 CA
CA-Held-Trial judge obliged to warn/advise the jury to proceed cautiously where material suggested evidence might be tainted by an improper motive, but was not obliged to give an accomplice warning, as the witness was not a participant and not in any way involved in the crime the subject of the trial.
R v Cheema [1994] 1 All ER 639 CA
A co-accused giving evidence on his own behalf.
The judge should warn the jury to exercise caution because they may have an interest to serve.
R v Spencer [1987] AC 128 HL
greatest caution and to examine it with the greatest care. He reminded the jury of the dangers involved;
- The patients’ mental illness at the time.
- Their convictions for serious crimes.
- Medical evidence that they suffered from delusions and had a tendency to lie or exaggerate.
- The risk that they might have conspired together to bring false accusations.
R v Stone [2005] Crim LR 569
Trial judge may point out that cell confessions may be easy to concoct and difficult to disprove and that experience has shown prisoners may have motives to lie.
If the informant witness has a criminal record or history of lying this should be pointed out.
