relevent Flashcards
Confession 116/117 hearsay competence and compellability
Statutory Exceptions (in Criminal Justice Act 2003)
s.116 sets out a number of statutory exceptions to the rule against hearsay evidence to
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 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.
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.
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.’
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(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;
(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
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 Khan (1987) 84 Cr App Rep 84 (CA)
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
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).’
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.
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
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
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.’
LP that the CPS should keep in touch to ensure there is no disappearingo of the witness
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
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.’
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.
R v Mason [1988] 1 WLR 139
LJ Watkin-police had, ‘hoodwinked both solicitor and client. D confessed to the arson and was convicted of arson.
allow to lie.
Children
As stated earlier historically evidence from children was treated with great circumspection/suspicion. Their evidence was viewed as innately unreliable.
. 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.
Lord Runciman, gave 4 reasons for false confessions
- ‘a morbid desire for publicity or notoriety ‘
- a desire to protect someone else.’
- prospect of immediate advantage
- ‘persuaded’ temporarily by the interrogators
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
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.
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.
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.
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!
LP- will be exclude if the police does not meet the code of practice.
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.
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.
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 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 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 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.
Law of confession
s. 76 (2) PACE ‘84
a. by oppression of the person who made it;
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
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 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;
(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(CPS) v Registrar General of Births, Deaths & Marriages [2003] QB 1222 CA
wife cannot be CPS witness
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.
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.
Definition of a Confession
s.82 (1) PACE ‘84
“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.”
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.’
reliability ground
s.76 (2) (b)
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.
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.
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
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.
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.
R v Priestly (1965)
‘sapped the accused’s free will’ so that ‘he spoke when otherwise he would have remained silent.’
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.
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
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 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 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.
Admissibility at common law
the admissibility of a confession = voluntariness test
Ibrahim v R [1914] AC 599
Callis v Gunn [1964] 1 QB 495 CCA
DPP v Ping Lin [1976] AC 574
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.
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.’
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.
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.
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.’
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.
