Examination of witnesses and visual identification evidence (W9)

Question 1

F6.1 - Examination in chief

Answer 1

The examination of a witness by a party calling him/her. Its object is to elicit from the witness evidence supportive of the party’s case. It must be conducted in accordance with the exclusionary rules of general application, e.g. those relating to hearsay, opinion and character evidence.

Question 2

F6.15 - Leading questions generally impermissible in exam in chief

Answer 2

• General rule: witness may not be asked leading questions.
• Evidence elicited by such questions is not inadmissible, but the weight attached to it may be significantly reduced.
• ‘Leading’ is a relative, not an absolute, term and so strict adherence to the rule is not always desirable or possible.
• e.g. it is virtually impossible in court to ask a witness to identify a person or object without the use of leading questions, and so leading questions of this kind are allowed.
• Two other exceptions:
  (a) leading questions may be asked on formal and introductory matters, e.g. name, address, occupation, and questions which relate to facts which are not in dispute or which are merely introductory to facts in dispute.
  (b) leading questions may be put to a witness if the party calling him/her has been given leave to treat the witness as hostile.

Question 3

F6.16 - Refreshing the memory

Answer 3

CJA 2003, s.139(1)

• A witness, in the course of giving evidence, may refer to a document in order to refresh his/her memory on two conditions:
  (1) that the witness give evidence that the document records his/her recollection at the time it was made, and
  (2) that his/her recollection at that time is likely to have been significantly better than at the time of the oral evidence.
• s.139(2) provides for the refreshing of memory from a transcript of a sound recording.
• The trial judge has a residual discretion to refuse an application under s.139 even if the statutory conditions are met.

Question 4

F6.17 - Application to refresh memory

Answer 4

• Usually be made by an advocate, but it is the proper function of the judge, where the interests of justice demand it, to suggest that a witness refresh his/her memory from a document.
• The witness may refresh his/her memory ‘at any stage’ during oral evidence. Although a witness will normally do so during exam in chief, there is nothing wrong in allowing them to do so during cross exam.
• Concerning the conditions, it is ultimately a matter of assessment of the judge, whatever the witness’ view on the matter.

Question 5

F6.18 - Making or verification of document to refresh memory

Answer 5

• ‘Document’ means anything in which information of any description is recorded, but not including any recording of sound or moving images.
• The document must have been prepared by the witness themselves or by another, provided that the witness has verified the document.
• A witness may refresh memory from the deposition or a statement to the police taken down by a police officer and then read over by the maker.

Question 6

F6.28 - Refreshing memory out of court prior to going into the witness box

Answer 6

• The conditions on which a witness may refresh their memory while giving evidence do not apply to a witness who refreshes their memory prior to going into the box.
• All witnesses are routinely provided with copies of their statements before going into court. They are entitled to refresh their memory from the statement or visually recorded interview.
• They should be asked if and when the recording was watched by them.
• It would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said.

Question 7

F6.29 - Discussion between witnesses

Answer 7

• Prosecuting authorities and judges must ensure witnesses are informed that they should not discuss cases in which they are involved.
• Discussion between witnesses should not take place nor should statements or proofs of evidence be read to witnesses in each other’s presence.
• If it emerges in cross-exam of the witnesses that the discussion may have led to fabrication, the court may take the view that it would be unsafe to leave any of the evidence of the witness involved to the jury, but in other cases it may suffice to direct the jury on the implications which such conduct could have on the reliability of witnesses.

Question 8

F6.30 - Refreshing memory after going into the witness box

Answer 8

In some cases it may be appropriate for the witness to withdraw from the box and read the statement in peace. In the case of a witness who is dyslexic and cannot read an earlier statement, the witness may be given the opportunity of adopting it by having counsel read it out in the absence of the jury.

Question 9

F6.31 - Cross-examination on memory refreshing document

Answer 9

• If witness has refreshed their memory out of court and before entering the box, counsel for the other side is entitled to inspect the memory-refreshing document, and cross-examine the witness on the relevant matters contained in it.
• If counsel cross examines on material in the document, the document is not made evidence in the case.
• But if counsel cross examines on material which has not been referred to by the witness, this entitles the party calling the witness to put the document in evidence.

Question 10

F6.32 - Previous complaints

Answer 10

CJA 2003, s.120(1), (4) and (7)
- Important exception to both the rule against hearsay and the rule against previous consistent statements.
- A witness’ previous complaint, whether oral or written, is admissible subject to conditions:
(a) that the witness testifies that to the best of their belief they made the statement and it is true;
(b) that the witness claims that an offence was committed against them;
(c) that the offence is one to which the proceedings relate;
and (d) that the complaint is about conduct which would, if proved, constitute the offence or part of it.
- A statement received under these provisions is admissible as evidence and also goes to the consistency of the witness.

Question 11

F6.33 - s.120 CJA 2003

Answer 11

(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible if–
(a) any of the following three conditions is satisfied, and
(b) while giving evidence, the witness indicates that to the best of his belief he made the statement, and to the best of his belief it states the truth.
(7) The third condition is that–
(a) the witness claims to be a person against whom an offence has been committed,
(b) the offence is one to which the proceedings relate,
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
(e) the complaint was not made as a result of a threat or a promise, and
(f) before the statement is adduced, the witness gives oral evidence in connection with the subject matter.
(8) The fact that the complaint was elicited is irrelevant unless a threat or promise was involved.

Question 12

F6.39 - General rule against previous consistent (self serving) statements

Answer 12

• Under the general common law rule, a witness may not be asked about a previous oral or written statement made by the witness and consistent with their evidence.
• Evidence of the previous statement may not be given by any other witness.
• The previous statement may be inadmissible as hearsay, but is also inadmissible as evidence of the accused’s consistency.
• e.g. D was convicted of murder of a girl by shooting her and his defence was that the gun went off accidentally. Evidence two days after the event that D had told his father that his defence would be accident had been excluded properly as such evidence is easily manufactured and of no evidential value.
• The general rule applies in exam in chief, cross exam and re-exam. Thus the credibility of a witness may not be bolstered by evidence of a previous consistent statement merely because the witness’ testimony has been impeached in cross-exam
• The court does have a residual discretion to permit re-examination to show consistency, to ensure that as a result of cross-exam the jury are not misled as to the existence of some fact or the terms of an earlier statement.
• There are a number of statutory and common law exceptions to the general rule, including previous complaints, previous identification and description, and statements in rebuttal of allegations of recent fabrication.

Question 13

F6.40 - Self-serving statements made on accusation

Answer 13

• No reason for casting doubt on the well established practice on the part of the prosecution to admit in evidence all unwritten, and most written, statements made by an accused person to the police, whether they contain admissions or whether they contain denials of guilt.
• If such a statement is wholly adverse to the accused, it may be admitted as evidence of the truth of the facts contained in it under s.76 PACE 1984
• If it is a mixed statement, e.g. ‘I killed X. If I had not have done so, X would have killed me right there and then’, the whole statement is admissible.
• However, if the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it is evidence because of its relevance as showing the reaction of the accused when first taxed with the incriminating facts.
• So it could not be upheld as an aspect of a submission of no case to answer.
• In the summing up, if the accused neither gives nor calls evidence, it is the duty of the judge to set out the defence case insofar as it is given in a mixed statement, which is admissible. If the accused gives no evidence, the judge should similarly remind the jury of an entirely self-serving statement, not for the truth of its contents but because of its relevance in showing the reaction of the accused on accusation.

Question 14

F6.48 - General rule against impeaching credit of own witness

Answer 14

• A party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness’ bad character, previous convictions, bias or previous inconsistent statements.
• However, general rule appears to have no application where evidence of a witness’ bad character is introduced not to impeach the witness’ credit in relation to testimony, but because it supports some other discrete part of the prosecution case.
• In the case of a witness who displays no hostile animus to the party calling them but merely fails to come up to proof or gives evidence unfavourable to that party, the general rule prevails and the only remedy available is for the party to call other witnesses if available with a view to proving that which the unfavourable witness failed to establish.
• Unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement.
• In the case of a witness who appears to the judge to be hostile, that is to say not telling the truth to the court at the instance of the party calling them, the general rule is modified:
  (a) under the Criminal Procedure Act 1865 s.3, that party may, by leave of the judge, prove a previous inconsistent statement of the witness; and
  (b) at common law, the party calling the witness may cross-examine him or her by asking leading questions.

Question 15

F6.50 - Time at which to apply to treat a witness as hostile

Answer 15

• Should be when the witness first shows unmistakable signs of hostility.
• If counsel for the prosecution has a statement directly contradicting one of their witness who gives evidence that he/she is unable to identify the accused, counsel should at once show the statement to the judge and ask for leave to cross-examine the witness.
• If the witness gives evidence contrary to an earlier statement, the party calling the witness and the trial judge should first consider inviting the witness to refresh his or her memory and should not immediately proceed to treating the witness as hostile.

Question 16

F6.51 - Role of judge and jury

Answer 16

• The discretion of the judge, however hostile the witness, is absolute and the decision will rarely be open to successful challenge on appeal.
• The question whether a witness is hostile is for the judge in the absence of the jury following a formal application but the evidence and demeanour of a possibly hostile witness should usually be tested in the presence of the jury.

Question 17

F6.52 - Criminal Procedure Act 1865, s.3

Answer 17

Section 3 comprises 3 rules:

• (1) Enactment of the common law rule that a party calling a witness is not entitled to impeach the witness’ credit by evidence of bad character or other evidence to show that the witness is not to be believed on oath.
• (2) and (3) apply to witnesses who, in the opinion of the judge, prove ‘adverse’, meaning ‘hostile’ - this includes assessment of many factors, e.g. whether the witness is in a position to assist, whether the witness has indicated willingness to assist, any previous accounts given, and demeanour in the witness box. The issue does not depend solely on whether the witness has previously been inconsistent in a written statement or evidence on oath.
• (2) is that a party may contradict a hostile witness, i.e. call other witnesses to prove that which the hostile witness has failed to establish.
• (3) is that the judge can give leave to prove that the witness has made at other times a statement inconsistent with the present testimony. If the witness when asked admits the previous statement, this will clearly suffice as proof. If the witness does not, whether or not the previous statement can be used depends on the facts of the case.
• An application may be made to treat as hostile the spouse or civil partner of an accused who is competent but not compellable for the prosecution, and who has waived his or her right to refuse to testify. It is desirable that the judge should explain this to them in the absence of the jury and before the oath is taken. However, even if the spouse or civil partner chooses not to give evidence, their written statement may be admissible under CJA 2003, s.114(1)(d).

Question 18

F7.67 - Statements in rebuttal of allegations of recent fabrication

Answer 18

Under the CJA 2003, s.120(1) and (2), which constitute an exception to both the rule against hearsay and the rule against previous consistent statements, a statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support the witness’ credibility.

Question 19

F7.68 - Effect of s.120

Answer 19

• s.120 itself does not govern admissibility. At common law, a previous consistent statement of a witness does not become admissible merely because the witness’ evidence is impeached in cross-exam, even if this takes the form of cross-exam on a previous inconsistent statement.
• However, if in cross-exam it is suggested to a witness that their evidence is a recent fabrication, evidence of a previous consistent statement will be admissible in re-exam to negative the suggestion and confirm the witness’ credibility.
• The principle has no application where a witness is cross-examined on the basis that the account was fabricated from the outset, unless the cross-exam is in fact to create the impression that the witness invented the story at a later stage.
• In a trial for a sexual offence in which the previous statement amounts to a complaint, it may be admissible to rebut the allegation of recent fabrication notwithstanding that it is inadmissible as a recent complaint.

Question 20

F7.70 - Relevance of timing of fabrication

Answer 20

• s.120(2) refers to fabrication without the word ‘recent’, but the intention was clearly to leave the original common law rule intact.
• However, it is not to be confined to a ‘temporal straitjacket.’
• The touchstone is whether the evidence may fairly assist in that way, and not the length of time.

Question 21

F6.47 - Previous inconsistent statements

Answer 21

• If a witness in exam-in-chief admits making a previous oral or written inconsistent statement, the statement is admissible under the CJA 2003 s.1119 as evidence of any matter stated.
• The statement is admissible for the truth of its contents as evidence against its maker. So if it implicates a co-accused, s.119 does not allow it to be used against the co-accused. However, it could be admissible for this purpose under s.114(1)(d).
• The fact that a witness who has made a previous statement gives evidence that they do not remember the matters in the statement will not necessarily make the statement a previous inconsistent statement. However, such a conclusion should be drawn if the witness denies the truth of the earlier statement.
• They may also be treated as a hostile witness on the basis that in all the circumstances of the case, the witness is likely to be able to remember the matters in question and by claiming not to be able to do so they are not willing to tell the truth to the court.

Question 22

F7.1 - Nature of cross-examination

Answer 22

• The questioning of a witness by (a) the opponent or (b) any other party to the proceedings.
• An accused has a right to cross-examine a co-accused who has chosen to give evidence, and any witnesses called by the co-accused. This applies not only where the co-accused has given evidence unfavourable to the accused, but also if the co-accused has merely given evidence in their own defence.
• Usually cross-exam follows immediately after exam in chief, but witnesses are sometimes merely tendered by the prosecution for cross-exam. Such a witness is called by the prosecution, sworn, asked in questions in chief other than name and address, and then cross-examined by the defence.

Question 23

F7.2 - Sequence of cross-examination

Answer 23

• For mags proceedings, CrimPR 24.4(4) simply provides that ‘every other party may ask questions in cross-examination.’
• Specific provision for sequence is made in the Crown Court, where both prosecution and defence witnesses may be cross-examined by any co-accused in the order their names appear in the indictment or as directed by the court.
• A defence witness may be cross-examined by the prosecution after cross-examination by any co-accused.

Question 24

F7.3 - Cross-examination by an accused in person

Answer 24

• An accused is entitled to cross-examine in person any witness called by the prosecution, subject to a common law restriction and statutory restrictions.
• A trial judge is not obliged to give an unrepresented accused freedom to ask whatever questions, at whatever length, the accused wishes.
• the YCJEA 1999 ss.34-39 protect 3 categories of witnesses from cross-exam by an accused in person:
• s.34: no person charged with a sexual offence may cross-examine in person the complainant, either in connection with the offence or in connection with any other offence
• s.35: no person charged with one of a number of specified offences may cross-examine in person a ‘protected witness’
• s.36: the court has a general power, in cases not covered by ss.34 and 35, to give a direction prohibiting the accused from cross examining a witness if: (a) the quality of evidence given by the witness is likely to be diminished by such cross-exam and would be likely to be improved by such a direction; and (b) it would not be contrary to the interests of justice.
• In deciding whether (a) applies, the court must have regard to matters set out in s.36(3), including the nature of questions likely to be asked. The accused should not be denied the opportunity to make representations in relation to the matters set out in s.36(3).
• s.38: where an accused is prevented from cross-examining a witness in person, the court must invite the accused to appoint a legal representative. If the accused fails to do so, the court must choose and appoint such a representative. Technically, the role ends for that advocate at the end of the cross-exam but if the advocate is prepared to stay and assist the accused on a pro bono basis, the court should not oblige the advocate to leave.
• s.39: where an accused is prevented from cross-examining a witness in person, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the accused is not prejudiced by any inference that might be drawn from this fact.

Question 25

F7.5 - Object of cross-examination

Answer 25

(a) to elicit from the witness evidence supporting the cross-examining party’s version of the facts in issue
(b) to weaken or cast doubt upon the accuracy of the evidence given by the witness in the exam in chief
(c) in appropriate circumstances, to impeach the witness’ credibility.

Question 26

F7.6 - Role of the judge during cross-exam

Answer 26

• Court may ask witness questions and in particular, where the accused is not represented, ask the witness any question necessary in the interests of the accused.
• In general, when a cross-exam is conducted by a competent advocate, a judge should not intervene, save as to clarify matters the judge does not understand or thinks the jury may not understand.
• If the judge wishes to ask questions about matters that have not been touched upon, it is generally better to wait until the end of the cross-exam.
• There may come a time where the CoA is of the opinion that defence counsel was so hampered in the proper conduct of cross-exam that the judge’s conduct amounts to a material irregularity.

Question 27

F7.8 - Putting one’s case and the effect of a failure to do so

Answer 27

• A party who fails to cross-examine a witness on a particular matter in respect of which it is proposed to contradict the witness or impeach his or her credit by calling other witnesses, tacitly accepts the truth of the witness’ evidence in chief on that matter and will not be entitled to invite the jury to disbelieve the witness on that matter. The proper course is to challenge the witness in the box and make it plain the evidence is not accepted.
• So they could not include it in the summing up if they had not cross-examined on it.
• Evidence to contradict a witness which was not put to them in cross-examination may be admitted, provided that the witness is then recalled and cross-examination reopened in order to put new evidence to them.
• When a witness is young or vulnerable, the court may impose restrictions on an advocate ‘putting their case’ when there is a risk of the witness failing to understand, becoming distressed or acquiescing to leading questions.

Question 28

F7.16 - General restrictions on cross-examination

Answer 28

• Questions should not be in the nature of comment on the facts; comments should be confined to speeches
• Questions should also not be framed in a way to incite argument rather than elicit evidence on facts in issue
• Cross-exam should be confined to putting questions of fact. An advocate should not state what somebody else has said or is expected to say.
• Must not make statements or ask questions merely to insult, humiliate or annoy a witness
• The judge has a general discretion to prevent any questions in cross-exam which the judge considers to be unnecessary, improper or oppressive.

Question 29

F7.17 - Scope of cross-examination

Answer 29

Questions in cross-exam are not restricted to matters raised in chief, but may relate to any fact in issue or the credibility of the witness.

Question 30

F7.18 - Leading questions in cross-exam

Answer 30

A witness under cross-exam may be asked leading questions.

Question 31

F7.19 - Exclusionary rules of evidence

Answer 31

The exclusionary rules relating to hearsay, opinion, privilege etc apply to cross-exam as they apply to exam in chief.

Question 32

F7.20 - Power of judge to impose time-limits and limit cross-examination

Answer 32

• The court has a general duty to deal with cases efficiently and expeditiously and to manage cases actively to ensure that evidence is presented in the shortest and clearest way, giving any directions appropriate.
• So as part of these case management powers, the court may limit the duration of any stage of the hearing and the cross-examination of a witness.
• The following propositions have been made:
  (a) Although the imposition of time limits for cross-exam or exam in chief should not become a routine feature, judges are entitled to impose reasonable time limits
  (b) It is not the duty of counsel to put to a witness every point of an accused’s case, or to embark on lengthy cross-exam about matters not really in issue.
  (c) Entitlement to a fair trial is not inconsistent with proper judicial control over the use of court time and the CoA will not interfere with a decision made by a judge in this respect unless it is plain it resulted in unfairness.

Question 33

F7.21 - Cross-exam as to credit

Answer 33

• ‘Since the purpose of cross-exam is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-exam with the tribunal’
• A witness may be cross-examined about his or her means of knowledge of the facts, opportunities for observation, powers of perception, quality of memory, mistakes, omissions and inconsistencies in evidence.
• In some sexual offence cases, the judge has specific directions it has to give to the jury if some things are brought up in cross-exam (e.g. delay in reporting)

Question 34

F7.22 - Bad character

Answer 34

• Any questions in cross-exam as to a witness’ bad character are subject to the rules set out in the CJA 2003
• It is permitted only if it comes within one of the specified categories of admissibility set out in s.100 or s.101
• Evidence of bad character for the purposes of the CJA is defined by s.98 as evidence of, or of a disposition towards, misconduct, other than evidence which ‘has to do with the alleged facts of the offence with which the defendant is charged’ or ‘evidence of misconduct in connection with the investigation or prosecution of that offence.’
• s.108 imposes an additional restriction in relation to offences committed by the accused when a child.
• There is a further restriction in the YJCEA 1999, s.41: in the case of sexual cases, except with the leave of the court, no question may be asked in cross-exam about any sexual behaviour of the complainant

Question 35

F7.48 - Rule of finality of answers to questions on collateral matters

Answer 35

• General rule: evidence is not admissible to contradict answers given by a witness to questions put in cross-exam which concern collateral matters
• Test whether or not a matter is collateral: if the answer of a witness is a matter which you would would be allowed to give in evidence then you may contradict him.

Question 36

F7.57 - Bias and partiality

Answer 36

Evidence has always been admissible to contradict a witness’ denial of bias or partiality towards one of the parties, and to show that the witness is prejudicial concerning the case being tried.

Question 37

F7.58 - Bribes

Answer 37

• Evidence is not admissible to contract a witness’ denial of being offered a bribe to give false evidence, because this does not show that they are not a fair and credible witness
• But evidence is admissible to rebut a witness’ denial of accepting such a bribe, because that tends to show the witness’ partiality.

Question 38

F7.66 - Re-examination

Answer 38

• After cross-exam, a witness may be re-examined by the party who called them.
• This applies even in the case of a hostile witness
• Leading questions may not be asked in re-exam.
• The principal rule of re-exam is, except with the leave of the judge, questions should be confined to matters arising out of the cross-exam
• Where a witness under cross-exam gives evidence of part of a conversation on some previous occasion, questions may not be asked in re-exam about everything else that was said at the time, but only about so much as can be in some way connected with the statement as to which the witness was cross-examined
• A witness may refresh their memory in re-examination

Question 39

D14.1 - Special measures for witnesses

Answer 39

• YCJEA 1999 s.53(3): all witnesses regardless of age (or disability) are presumed competent.
• Trial judges are expected to deal with specific communication problems faced by any defendant or witness as part of their ordinary control of the judicial process which allows for special measures for defendants initially excluded from statutory regime, including access to intermediaries although this does not extend to permitting a witness to testify by live link or video-recorded interview in circumstances not covered by YJCEA 1999, s.33A

Question 40

D14.2 - Test of the special measures regime

Answer 40

• s.19(2) requires the court to consider which measures will ‘maximise the quality of the evidence.’
• For witnesses under 18, the test in s.19(2) is presumed to be satisfied by playing of their recorded interviews with the police as their evidence in chief, and by cross-exam via video link
• In all other cases, s.19(2) requires that the measures be tailored to the needs of the individual witness and defendant
• The CrimPD encourage flexibility in devising appropriate special measures

Question 41

D14.3 - Range of special measures available

Answer 41

YJCEA 1999, Part II ch I ss.16-33 range of statutory special measures available include:

(a) screening the witness from the accused;
(b) giving evidence by live link, accompanied by a supporter;
(c) giving evidence in private, available where sex offences or modern slavery, servitude, forced labour or human trafficking are charged;
(d) ordering the removal of wigs and gowns;
(e) video recording of evidence in chief;
(f) video recording of cross-examination and re-examination;
(g) examination through an intermediary for a young or incapacitated witness;
(h) provision of aids to communication;
(i) a witness anonymity order which may be preceded by an investigation anonymity order applying to the police investigation and pre-trial procedures such as disclosure.

Question 42

D14.4 - Other protective procedures

Answer 42

• orders under YJCEA 1999 s.46 for restrictions on reporting and public access to protect a fearful or distressed adult witness’ identity, where such an order is likely to improve the quality of that witness’ testimony or cooperation
• complainant anonymity in sex offence cases
• prohibition in the YJCEA 1999 ss.34-38 on cross-examination by the accused in person of (i) child complainants or witnesses to sexual offences, offences of violence, kidnapping, false imprisonment or abduction, and (ii) adult complainants in sexual offence cases
• the use of pre-trial depositions of children or young persons

Question 43

D14.5 - Eligibility categories for special measures

Answer 43

• All witnesses under the age of 18 at the time of the hearing or video recording
• Vulnerable witnesses affected by a mental or physical impairment
• Witnesses in fear or distress about testifying
• Adult complainants of sexual offences or of offences under the Modern Slavery Act 2015
• Any witness in a case involving a ‘relevant offence’, currently defined to include homicide offences and other offences involving a firearm or a knife
• For witnesses not automatically eligible, the court must determine whether the quality of evidence would be diminished by the witness’ condition, taking into account any views of the witness, before making a declaration of eligibility.
• Adult complainants of sexual offences and witnesses in ‘relevant offence’ cases have an unqualified right to opt out of special measures.
• After the declaration of eligibility is made, the court must consider which special measures will maximise the quality of the witness’ evidence
• Testifying through an intermediary and aids to communication are not available for witnesses eligible only by reason of fear or intimidation.

Question 44

D14.22 - Eligibility of defendant for live link

Answer 44

• YJCEA 1999 s.33A allows the Crown Court or mags, on application by the defence, to direct the accused testify via a live link.
• The court must be satisfied that it would be in the interests of justice, and also that the live link would enable the accused to participate more effectively as a witness, whether by improving the quality of the accused’s evidence or otherwise, because:
  (a) if the accused is under 18, ‘his ability to participate effectively…is compromised by his level of intellectual ability or social functioning’; or
  (b) if the accused is 18 and over, they are unable to participate effectively because they have a mental disorder (within the meaning of the Mental Health Act 1983) or a ‘significant impairment of intelligence and social function’
• The presumption remains that adult defendants should give evidence in court.

Question 45

D14.24 - Eligibility of a defendant for an intermediary

Answer 45

• The Crown Court and mags may deploy inherent powers to direct that the defendant be assisted by an intermediary.
• If the Legal Aid Agency does not authorise payment of the intermediary, then the trial court may order payment from Central Funds
• Expert reports in support of applications for an intermediary appointment should address not only the vulnerabilities of and the difficulties experienced by the defendant, but also the way in which those factors potentially relate to the particular proceedings.
• The possibility of appointing an intermediary is a relevant consideration in assessment of fitness to plead
• May make ground rules for communication at trial instead of using an intermediary, e.g. taking lots of breaks or ensuring questions are phrased simply

Question 46

D14.43 - Intermediaries

Answer 46

• Intermediaries are independent of the parties and owe their duty to the court.
• They should not be asked to provide expert opinion or testimony or an opinion regarding the reliability of a witness or their fitness to plead
• CoA has approved use of intermediaries for profoundly disabled witnesses incapable of speech
• One of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of questions are likely to cause misunderstanding, and to avert them
• An intermediary can assist a witness to communicate by explaining questions and answers, but this happens very rarely in practice. Usually they only intervene where miscommunication has occurred.
• Particular care is required to ensure that intermediaries assisting defendants do not jeopardise their impartiality through close contact with them, and their transparency as to their involvement is observed at all times

Question 47

F19.1 - Visual identification

Answer 47

• Long recognised as potentially unreliable
• Cases of mistaken identification constitute ‘by far the greatest cause of actual or possible wrongful convictions’
• Three safeguards are now in place:
  (1) PACE Code D
  (2) Turnbull guidelines
  (3) Rule against dock identification

Question 48

F19.2 - Identification evidence

Answer 48

• A mere description of the culprit or the culprit’s clothing is not identification evidence. It is also not identification evidence if a witness states that the culprit was the driver of a particular vehicle, or the companion of another person.
• If there is no identification evidence, the Turnbull guidance does not apply
• A witness who has made or who may be able to make an identification must ordinarily be invited to take part in a Code D identification procedure if the police have a known suspect available; but inability to make an identification need not prevent the witness from giving other evidence that might incriminate D, e.g. a description of the offence or the offender

Question 49

F19.3 - Identification issues

Answer 49

• If the accuracy of a purported identification (as opposed to the honesty of the accusing witness) is not in issue, then neither the Turnbull guidelines nor Code D will need to be considered. In such cases, use of the Turnbull guidelines would confuse the jury by focusing their attention on the wrong issue. e.g. if the witness claims to have known D well and for many years and to have observed D at close range in conditions of perfect visibility for several mins, it is unlikely any identification issue could arise.
• Conway: identification became an issue as soon as D questioned the witness’ ability to recognise him. Code D and Turnbull were applicable.
• General rule therefore is that an appropriate Turnbull direction should be given.
• It does not follow that a Code D procedure should always be used because it will often serve no useful purpose in a recognition case, because the witness, even if mistaken, would almost inevitably identify the person the witness claimed to have recognised anyway.

Question 50

F19.4 and 5 - Dealing with breaches of Code D

Answer 50

• Breaches of Code D do not inevitably lead to the exclusion of evidence
• It is essential that the trial judge determines whether any alleged breaches have occurred, and whether they may have caused significant prejudice to D. Such matters can usually be determined without a voir dire.
• If it is clear that no prejudice resulted from the breach, there will be no case for excluding the evidence.
• However, if some prejudice may have been caused, it will be necessary to determine under s.78 PACE whether the adverse effect would be such that justice requires the evidence to be excluded.
• A trial judge must give reasons for any decision to admit ID evidence obtained in breach of Code D
• ID evidence will usually be excluded where important safeguards have been flouted.
• Potential direction might be needed: Forbes direction to the jury so that they fully understand the potential for prejudice caused by the breach or failure
• Failure to comply with Code D may also give rise to issues under the ECHR

Question 51

F19.6 and 7 - Dock identification

Answer 51

• The identification of an accused for the first time during the course of the trial itself
• ‘The prosecution will not invite a witness to identify, who has not previously identified the accused at an identity parade, to make a dock identification unless the witness’ attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances.’
• A judge would normally prohibit any such identification during a trial on indictment, but different considerations may apply in respect of minor summary offences e.g. road traffic ones
• If a witness makes a dock identification even where none has been solicited by the prosecution, it may be necessary for the trial judge to warn the jury against giving it any weight or credence.
• It is unlikely that identification made on arrival or waiting outside court will be satisfactory and in some cases it may need to be excluded as evidence.
• Recognition cases may be different, and dock identification may be admissible

Question 52

F19.9 - the Turnbull guidelines

Answer 52

(1) Judge should warn the jury of special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. Should make reference to the fact a mistaken witness can be a convincing one.
(2) Direct the jury to closely examine the circumstances in which the identification by each witness came to be made.
(3) Remind the jury of any specific weaknesses which had appeared in the identification evidence.

Question 53

F19.9 - Considerations at stage (2) of the Turnbull guidance

Answer 53

• How long did the witness have the accused under observation?
• At what distance?
• In what light?
• Was the observation impeded in any way e.g. by passing traffic or people?
• Had the witness ever seen the accused before? How often? Had he any special reason for remembering the accused?
• How long elapsed between the original observation and the subsequent identification to the police?
• Was there any material discrepancy between the description of the accused given to the police and his actual appearance?
• If the prosecution have reason to believe there is a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given.

Question 54

F19.9 - Other considerations under Turnbull

Answer 54

• Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
• All these matters go to the quality of the ID evidence.
• When the quality, in the judgment of the trial judge, is poor, the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the ID.
• The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the ID evidence.

Question 55

F19.10 - Scope of the Turnbull guidelines

Answer 55

• Need not be provided unless the prosecution case depends wholly or substantially on visual identification
• No particular form of words need be used
• The jury must be warned that the direction is on the basis of past experience.
• The absence of an adequate Turnbull direction tailored to the facts of the case and reiterated in respect of each defendant will usually require a conviction to be quashed as unsafe, although it may be condonable if other evidence is overwhelming.
• Where the principal or sole means of defence is a challenge to the credibility of the witness rather than the quality of the ID, there may be exceptional cases where a full Turnbull direction is unnecessary.

Question 56

F19.11 - Form of Turnbull guidelines

Answer 56

• Paying lip service to the guidelines will not be enough, nor will it be sufficient to give a general warning without reference to any evidence that may support or undermine the ID or to any circumstances that affect its accuracy.
• The guidelines may also need to be followed in cases involving disputed ID of an alleged accomplice and an inadequate direction in respect of one may render unsafe the conviction of another.
• Not applicable in cases involving the ID of motor vehicles, however the reliability of a vehicle ID may depend on the witness having had satisfactory opportunity to see the vehicle and an ability to distinguish one model from another. This should be drawn to the jury’s attention.
• A particularly robust Turnbull direction may be needed where the prosecution adduce hearsay evidence of ID in the form of a statement from a witness unable to testify at trial.

Question 57

F19.12 - Turnbull where D’s presence at the scene is admitted

Answer 57

Turnbull direction can be necessary even when presence at the scene is admitted.

Question 58

F19.13 - Supporting evidence

Answer 58

• Evidence capable of supporting an ID can take any form, including bad character or previous convictions
• Judge must identify evidence capable of supporting and identify anything that may appear supportive but actually is not capable of being so.
• A prior discussion between judge and counsel is advisable.
• Evidence of bad character may need particularly careful handling in this context, e.g. in H, D was charged with a sexual offence and the jury were told of pre-cons, without being told that these were the reason he was included in the ID parade. They just have therefore supposed it was an ‘enormous coincidence’ that the man ID’d by the complainant had these pre-cons, but in reality it was no coincidence.
• Where a judge decides that quality of ID of evidence is poor but the case can be left with the jury because of supporting evidence, there is no obligation to warn the jury that they should not convict on the basis of the ID alone.

Question 59

F19.14 - Mutually supportive identifications

Answer 59

• It is permissible in appropriate cases for two or more disputed IDs of D to be treated as mutually supportive, i.e. an ID by two witnesses carries more weight than one but this is only if the IDs are ‘of a quality that a jury can be safely left to assess’
• The jury must consider the quality of each witness’ ID separately and even where the evidence identifying D as the perpetrator is compelling, it cannot rescue a weak ID.

Question 60

F19.15 - Self-incrimination

Answer 60

• Disputed ID evidence can clearly be supported by an admissible confession, but careful consideration must be given to cases in which D is alleged to have self-incriminated by lies or false alibis.
• ‘Care should be taken by the judge when directing the jury about support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons…It is only where the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can the fabrication provide any support for ID evidence.’
• Before such lies can be regarded as supporting an ID, they must be shown to be deliberate and material; the jury must be able to discount any possible innocent explanation for the lies and they must be proved to be lies by evidence other than the ID.

Question 61

F19.16 - The accused’s silence

Answer 61

In some cases the absence of testimony or explanation by D may legitimately enable a court or jury to infer that the prosecution evidence is correct and D has no answer to it. It may also be taken into account when deciding whether D has a case to answer.

Question 62

F19.17 - Quality of the witness

Answer 62

• A witness with perfect vision may be expected to do better than a myopic witness who has lost their glasses
• The suggestion that police officers may be more observant by virtue of their training was rejected by the Privy Council but subsequently upheld by the CoA

Question 63

F19.18 - Stopping a trial based on inadequate identification

Answer 63

• Turnbull guidelines require a judge to direct an acquittal in cases where ID evidence is both deficient and unsupported by sufficient alternative evidence. If necessary, the judge may invite the defence to make submissions to that effect.
• A court must apply the Galbraith and Turnbull principles together
• A case based on largely unsupported ID evidence may still be left to the jury even though the defence can point to several potential deficiencies in the evidence.
• In some cases, a witness may have qualified their ID by admitting not being ‘quite certain’ or only ‘90% sure.’ A defendant cannot be convicted on qualified ID evidence alone, but it may have a role to play alongside other more reliable evidence.