Judicial directions and warnings

Question 1

List the circumstances and the sections in which a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight.

Answer 1

• judicial warning that evidence may be unreliable – s122
• judicial directions about certain ways of giving evidence – s123
• judicial warnings about lies – s124
• judicial directions about children’s evidence – s125
• judicial warnings about identification evidence – s126
• delayed complaints or failure to complain in sexual cases – s127

Question 2

S122 EA 06 Judicial directions about evidence which may be unreliable

Answer 2

(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge to warn or inform the jury.

Question 3

Discuss S123 EA 06 Direction about how evidence maybe given

Answer 3

Section 123 requires the judge in criminal proceedings to direct the jury that the law makes special provision for the giving of evidence in certain circumstances, and that no adverse inferences should be drawn against the defendant where a witness has offered evidence in an alternative way (s105), where a defendant has not been allowed to personally cross-examine a witness (s95), or where a witness offers evidence in accordance with a witness anonymity order (s112)

Question 4

Discuss S124 EA 06 Warning about lies

Answer 4

Section 124 provides for instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding. It is a matter for the jury to conclude whether the defendant actually did lie. The inference to be drawn from the lie is a matter for the jury. A proven lie by a defendant about a material matter can be taken into account as circumstantial evidence of guilt (and/or as going to veracity). No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie, or if the defendant requests that the warning is given, in which case a warning must be given.

Question 5

When warnings must be given, it must include the direction that…..

Answer 5

• the jury needs to be satisfied that the defendant did lie before they use the evidence,
• people lie for various reasons, and
• the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.

Question 6

S125 EA 06 Directions about evidence given by children

Answer 6

Should, in general, be treated in the same way as evidence given by adults. Thus it prohibits:
* the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
* any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
In addition, the general prohibition does not limit the judge warning or informing the jury about children’s evidence in accordance with regulations made under the Act. Such regulations will take priority over s125, even if any future regulations are inconsistent with the section.