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Evidence

Amber Marks
Christopher Allen
Stephen Guest
This module guide was prepared for the University of London International
Programmes by:

uu Amber Marks, LLB, Barrister, Gray’s Inn, Lecturer in Evidence, Queen Mary, University
of London.

Drawing on previous guides by:

uu Christopher Allen, LLM, PhD, Barrister, Inner Temple and Gray’s Inn, formerly Senior
Lecturer in Law, Inns of Court School of Law, City University, London

and

uu Stephen Guest, BA, LLB, BLitt, PhD, Barrister, Inner Temple, Professor of Legal
Philosophy, University College London.

This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide. If you have any comments on this module guide,
favourable or unfavourable, please use the form at the back of this guide.

University of London International Programmes


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Stewart House
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Published by: University of London

© University of London 2017

The University of London asserts copyright over all material in this module guide
except where otherwise indicated. All rights reserved. No part of this work may
be reproduced in any form, or by any means, without permission in writing from
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Evidence page i

Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

1 Introduction to the study of evidence law . . . . . . . . . . . . . . . . 1


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Studying the law of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 Basic concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Key concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Theoretical context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.4 Procedural context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 Competence and compellability . . . . . . . . . . . . . . . . . . . . . . . 15
2.6 The course of testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3 Burden and standard of proof . . . . . . . . . . . . . . . . . . . . . . 19


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1 Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 The standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4 Confessions and improperly obtained evidence . . . . . . . . . . . . . 27


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.1 Confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 Section 78(1) of PACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.3 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5 The right to silence and adverse inferences under the Criminal Justice
and Public Order Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . 37
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.1 Section 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Section 36 and section 37 . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.3 Section 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.4 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

6 Hazardous witness testimony and judicial warnings to the jury . . . . . 47


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.1 Makanjuola warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.2 Directions about a defendant’s lies . . . . . . . . . . . . . . . . . . . . . . 50
6.3 Eyewitness identification testimony . . . . . . . . . . . . . . . . . . . . . 51
6.4 Pre-trial identification procedures . . . . . . . . . . . . . . . . . . . . . . 54
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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7 Evidence of a complainant’s extraneous sexual behaviour in trials of


sexual offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.1 Legislative background . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.2 Youth Justice and Criminal Evidence Act 1999, sections 41–43 . . . . . . . . 62
7.3 R v A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.4 The application of sections 41–43 YJCEA 1999 since R v A . . . . . . . . . . . 63
7.5 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

8 Character evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.1 Good and bad character in civil proceedings . . . . . . . . . . . . . . . . . 69
8.2 Evidence of good character in criminal trials . . . . . . . . . . . . . . . . . 69
8.3 Evidence of bad character in criminal trials . . . . . . . . . . . . . . . . . 71
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

9 The rule against hearsay . . . . . . . . . . . . . . . . . . . . . . . . . 85


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 The rule: definition, scope and justifications . . . . . . . . . . . . . . . . . 87
9.2 Exceptions to the hearsay rule . . . . . . . . . . . . . . . . . . . . . . . . 89
9.3 Preserved common law exceptions . . . . . . . . . . . . . . . . . . . . . 93
9.4 The ‘safety-valve’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
9.5 Supplementary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 96
9.6 The impact of Article 6(3)(d) of the European Convention on
Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

10 Expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
10.1 Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
10.2 Jury evaluation of expert evidence . . . . . . . . . . . . . . . . . . . . . 110
Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 115


About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Evidence page iii

Module descriptor
GENERAL INFORMATION

Module Title
Evidence

Module Code
LA3007

Module Level
6

Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London International Programmes. Enquiries may be made via the
Student Advice Centre at: www.enquiries.londoninternational.ac.uk

Credit
30

Courses on which this module is offered


LLB, EMFSS

Module pre-requisite
None

Notional study time


300 hours

MODULE PURPOSE AND OVERVIEW


Evidence is offered as an optional module to students studying on the Standard Entry
and Graduate Entry routes. It is also available to study as an Individual Module. Credits
from an Individual Module will not count towards the requirements of the LLB.

Evidence governs what evidence may be presented and contested in the courtroom,
techniques for eliciting evidence, and the role of the lawyers, jury and judge in an
adversarial system. Highly relevant to actual day-to-day legal practice, this module will
appeal particularly to students intending to become courtroom lawyers.

MODULE AIM
The aim of this module is to equip students with some of the skills necessary for in-
depth legal analysis and good advocacy. The rationale and principles underpinning the
rules of evidence will be explored taking account of their context, value and purpose.

LEARNING OUTCOMES: KNOWLEDGE


Students completing this module are expected to have knowledge and understanding
of the main concepts and principles of Evidence law. In particular they should be able
to:

1. Demonstrate a critical awareness of the relationship between the theoretical


context of the law of evidence (its policy aims and objectives) and the common
law and legislative provisions in the law of evidence;

2. Explain and distinguish between legal and evidential burdens of proof; the role
of policy in the allocation of burdens; the difficulties in determining whether a
page iv University of London International Programmes
statute has impliedly placed a burden of proof on a defendant and the role of
Article 6 of the European Convention on Human Rights in this determination;

3. Construct an argument for or against the relevance of a particular piece of


evidence and be able to construct an argument for or against the admissibility of
a range of types of evidence including that which has been unlawfully obtained,
that which may be more prejudicial than probative, sexual history evidence, bad
character evidence, evidence of a defendant’s silence, hearsay evidence, expert
evidence and eyewitness identification evidence;

4. Explain and critically evaluate judicial warnings to the jury.

LEARNING OUTCOMES: SKILLS


Students completing this module should be able to demonstrate the ability to:

1. Analyse and interpret complex legal questions and problems;

2. Evaluate and critique a range of legal materials and arguments;

3. Distinguish between different types of evidence;

4. Utilise accurately legal terminology appropriate to this area of law.

BENCHMARK FOR LEARNING OUTCOMES


Quality Assurance Agency (QAA) benchmark statement for Law (2015).

MODULE SYLLABUS
a. Basic concepts of relevance, admissibility and weight. Nature and classification
of various types of evidence. Objectives of evidence law and determination of
probative value.

b. Burden of proof. Legal and evidential burdens. Allocation of the legal burden in
criminal and civil trials. The standard of proof.

c. Confessions and improperly obtained evidence. Defining. Using and excluding


confessions. Using and excluding improperly obtained evidence. Entrapment.

d. The right to silence and adverse inferences under the Criminal Justice and Public Order
Act 1994.

e. Hazardous witness testimony and judicial warnings. Makanjuola warnings. Directions


about a defendant’s lies. Eyewitness identification. Dangers and pre-trial
identification procedures. Directions to the jury and withdrawal of the case/
evidence.

f. Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences.


Legislative background. Youth Justice and Criminal Evidence Act 1999. Sections
41–43 and its interpretation in the case law.

g. Character evidence. Good and bad character evidence and the admissibility
gateways for bad character evidence and critical evaluation of these.

h. The rule against hearsay. The rule (its definition, scope and rationale). The definition
of hearsay in the Criminal Justice Act 2003. Exceptions to the rule. The impact of
Article 6(3)(d) of the European Convention on Human Rights.

i. Expert evidence. Admissibility. Evaluation of the law (including judicial directions)


and practice.

LEARNING AND TEACHING

Module guide
Module guides are the students’ primary learning resource. The module guide covers
the entire syllabus and provides the student with the grounding to complete the
module successfully. It sets out the learning outcomes that must be achieved as
well as providing advice on how to study the module. It also includes the essential
Evidence page v
reading and a series of self-test activities together with sample examination questions,
designed to enable students to test their understanding. The module guide is
supplemented each year with the pre-exam update, made available on the VLE.

The Laws Virtual Learning Environment


The Laws VLE provides one centralised location where the following resources are
provided:

uu a module page with news and updates, provided by legal academics associated
with the Laws Programme;

uu a complete version of the module guides;

uu pre-exam updates;

uu past examination papers and reports;

uu discussion forums where students can debate and interact with other students;

uu Computer Marked Assessments – multiple choice questions with feedback


are available for some modules allowing students to test their knowledge and
understanding of the key topics.

The Online Library


The Online Library provides access to:

uu the professional legal databases LexisLibrary and Westlaw;

uu cases and up-to-date statutes;

uu key academic law journals;

uu law reports;

uu links to important websites.

Core reading
Students should refer to the following core texts and specific reading references are
provided for this text in each chapter of the module guide:

¢¢ Choo, A. Evidence. (Oxford: Oxford University Press, 2015) fourth edition [ISBN
9780198705277]. http://ukcatalogue.oup.com/product/9780198705277.do

¢¢ Durston, G. Evidence: text and materials. (Oxford: Oxford University Press, 2011)
second edition [ISBN 9780199583607].
http://ukcatalogue.oup.com/product/9780199583607.do

ASSESSMENT
Learning is supported through tasks in the module guide, which include self-
assessment activities with feedback. There are additional online activities in the form
of multiple choice questions. The formative assessment will prepare students to reach
the module learning outcomes tested in the summative assessment.

Summative assessment is through a three hour and fifteen minute unseen


examination. Students are required to answer four questions out of eight from a
choice of essay and problem questions.

Permitted materials
Students are permitted to bring into the examination room the following specified
documents:

¢¢ one copy of the Codes of Practice issued under Police and Criminal Evidence Act 1984

and

¢¢ one copy of Core statutes on evidence 2017–18 (Palgrave Macmillan).


page vi University of London International Programmes

Notes
1 Introduction to the study of evidence law

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 Studying the law of evidence . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . 3

1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


page 2 University of London International Programmes

Introduction
This module guide is designed to help you to study evidence in English law. Each
chapter will highlight the most important aspects of the topic and give guidance as to
Essential and Further reading. Within each chapter you will find exercises (activities)
designed to test your understanding of the topic and self-assessment questions
to monitor your understanding and progress. There are also sample examination
questions with advice on possible approaches (not model answers) to the questions.

The key to successful study of evidence is in understanding, not rote-learning.


Evidence law can be found in a mixture of common law and statutory sources,
including codes of practice made under statutory powers. You must be able to adopt a
critical approach to these sources, and be able to apply them to factual situations.

Learning outcomes
By the end of this chapter (which does not contain any readings) you should be able
to:
uu approach the study of evidence in a systematic way
uu understand what the various elements of this module guide are designed to do
uu begin your study of evidence with confidence.
Evidence 1 Introduction to the study of evidence law page 3

1.1 Studying the law of evidence


Welcome to the law of evidence and congratulations on a wise choice of module. The
law of evidence is of huge importance to legal practice; it is taught on all vocational
courses. If you do go on to study law at a vocational level you will find it very helpful
to have already studied the law in this area in greater depth than the time constraints
of vocational courses permit, and you will be better equipped to become an effective
advocate as a result.

The law of evidence regulates the admission of evidence, the use that may be made
of the evidence during the trial and what, if any, directions must accompany its
presentation. It also establishes who should prove disputed issues of fact and the
standard of proof that must be met for a party’s assertions to be proved.

The law of evidence draws on a wide range of disciplines to enhance the legal system’s
ability to achieve accurate decision-making. This makes it both interesting and
challenging to study. Many of its rules are informed by discoveries in science, such as
the peculiarities of human perception and memory. The law of evidence has sought to
incorporate lessons learned in the fields of psychology, logic and philosophy, and its
developments are informed by these, as well as by public policy considerations and
legal principle. 

The bulk of the law of evidence that you will study relates to the conduct of criminal
trials in the Crown Court. This is because the law is most highly developed in this
context. In civil trials, the vast majority of which are tried by a judge alone, the law of
evidence has been considerably relaxed by the removal of many of the restrictions on
admissibility that apply in criminal jury trials. In magistrates’ courts, generally because
of the absence of a jury, the rules of evidence are different to some extent in practice.
In many tribunals and in arbitrations the rules of evidence have little or no application
at all.

Evidence law is a mixture of principles, rules, guidelines and discretions. The difference
between principles, rules and discretions will be referred to in the readings for
Chapter 2.

1.2 A suggested approach to study


See also the Programme handbook and Studying law.

You should start with this module guide. Start at the beginning and work through the
guide sequentially, studying the Essential reading and doing the activities as directed.
It may be tempting to start with, say, hearsay, or identification evidence, but this is not
a good idea. The guide builds on the basic foundations without which particular topics
later in the unit cannot be understood. The first chapter deals with complex issues and
you will find much of the material difficult to understand at first. You will find the rest
of the module much easier if you take the time to get to grips with the preliminary
material.

1.2.1 Essential reading


This guide will provide you with references for the Essential reading from two primary
textbooks.

Core textbooks
¢¢ Choo, A. Evidence. (Oxford: Oxford University Press, 2015) fourth edition
[ISBN 9780198705277].

¢¢ Durston, G. Evidence: text and materials. (Oxford: Oxford University Press, 2011)
second edition [ISBN 9780199583607].
page 4 University of London International Programmes
Extracts from the following additional textbooks on evidence have been included
in your study pack. If you particularly like the style of any of these books, you might
consider purchasing a copy.

Additional textbooks
¢¢ Allen, C., C. Taylor and J. Nairns Practical guide to evidence. (London: Cavendish
Publishing, 2015) fifth edition [ISBN 9781138781719].

¢¢ Emson, R. Evidence. (Hampshire: Palgrave Macmillan, 2010) fifth edition


[ISBN 9780230272682].

¢¢ Dennis, I.H. The law of evidence. (London: Sweet & Maxwell, 2017) sixth edition
[ISBN 9780414056138].

¢¢ Munday, R. Evidence. (Oxford: Oxford University Press, 2017) ninth edition


[ISBN 9780198788720].

¢¢ Roberts, P. and A. Zuckerman Criminal evidence. (Oxford: Oxford University Press,


2010) second edition [ISBN 9780199231645].

Statute book
You should also obtain a statute book. Under the Regulations you are allowed to take
one authorised statute book into the examination room.

Information about the statute books and other materials that you are permitted to use
in the examination is printed in the current Regulations, which you should refer to.

Please note that you are allowed to underline or highlight text in these documents –
but you are not allowed to write notes etc. on them.

Statute books are regularly updated: try to obtain the latest copy.

Legal journals
In additional to the essential texts, you should consult a range of legal journals to keep
yourself up to date with academic writing on the subject.

Read the law reports in:

uu The Times

uu Criminal Law Review

uu Criminal Appeal Reports.

The Criminal Law Review has helpful commentaries on new cases. Useful short articles
on evidence can sometimes be found in New Law Journal. Case notes and longer
articles sometimes appear in: Law Quarterly Review, Cambridge Law Journal and Modern
Law Review. International Journal of Evidence and Proof is, as its title indicates, a journal
devoted exclusively to evidence.

Please note that as long as you read the Essential reading you are then free to read
around the subject area in any text, paper or online resource. You will need to support
your learning by reading as widely as possible and by thinking about how these
principles apply in the real world. To help you read extensively, you have the virtual
learning environment (VLE), Online Library and other legal resources.

1.2.2 How to proceed


uu For general advice on studying law courses and managing your study time, see
the Programme handbook.
This guide takes you through the entire subject of evidence in a logical and systematic
way, with each chapter covering a particular topic or group of topics. It is centred
on the core textbooks. References in the text to ‘Choo’ or ‘Durston’ are references to
these textbooks.
Evidence 1 Introduction to the study of evidence law page 5
Much of your study time should be taken up reading the textbooks, though you will
also need to study numerous case reports and statutes.

Working through a chapter of the module guide


1. Begin each chapter of the module guide by reading the Introduction.

2. Next you will see a heading ‘Essential reading’. This tells you what parts of the
textbooks are required reading for the topic you are studying.

uu Note: ‘Essential’ means that you must read this material. This is where you will
find the information that you will need to pass your examination. Do not skip
the readings.

uu You should read the readings at the point that they are referred to in the
subsequent text. You will be provided with options for Further reading.

3. When you have finished the readings, look at the list of ‘Learning outcomes’ for the
chapter. Keep these in mind as you work through the rest of the chapter. You will
be reminded of these Learning outcomes from time to time.

4. At the end of most sections you will find a reminder of the Learning outcomes that
are relevant to them. Test yourself against these.

uu If you can answer the questions, then it is safe to proceed. If you cannot do so,
you should go back over the work you have done until you can.

5. At the end of each chapter is a ‘Quick quiz’ consisting of multiple choice questions.
Attempt to answer these before you look at the answers on the VLE.

Activities and self-assessment


The activities are exercises that are designed to help you learn and understand
important issues. They do this by getting you to think about a question and devise a
response. Activities will not have simple ‘yes’ or ‘no’ answers: often you will need to
write down a few sentences, so activities also give you useful practice in using legal
English. In most cases, feedback is provided at the end of the guide, but it is essential
to do the activities before you look at the feedback.

Do each activity to the best of your ability, then check the feedback. How well did you
do? If your answer to the activity was incorrect or incomplete, think carefully about
what went wrong. Do you need to re-read part of the textbook, or work through the
module guide chapter again?

Sample examination questions


Most chapters contain one or two sample examination questions. These are examples
of the kind of questions that have been asked on the particular topic in previous years.

You should answer the examination questions fully. This will give you practice in
presenting your knowledge and understanding of the topic in a thorough and
integrated way. Think about each question. Ask yourself:

uu What does this question relate to?

uu What data do I need to answer it, in terms of theoretical approaches, case law,
statutes or codes of practice?

uu Is this a topic on which there are differing academic views?

uu What is an appropriate balanced solution to the question?

Next read the ‘Advice on answering the questions’ that follows. This will help you put
together an effective answer. Spend 15–30 minutes writing your answer.

By writing down answers you will develop the skill of expressing yourself clearly and
logically on paper. It will also help you to approach the examination at the end of the
year. You need as much practice as possible in writing fluently and lucidly throughout
the academic year.
page 6 University of London International Programmes
When you see a problem question, it is important to remember that your answer
should not always be confined to problems of admissibility. One of the main topics
in the law of evidence concerns the directions the trial judge should give to the jury
to help them assess the weight they should attach to items of evidence that are
particularly difficult to evaluate.

Self-assessment questions (SAQs) are a little different. These are factual questions
designed to test your memory of the chapter you have just worked through. You may
find it useful to ask a friend, fellow student or family member to test you on these
questions. No feedback is given to SAQs because you can always find the answer
somewhere in the text of the module guide chapter.

Cases
Numerous cases are mentioned in the text. These cases are not chosen at random:
they are the important cases that have established or modified the law. You should
read them in full whenever possible, and you must read them in full when they are
listed as Essential reading.

Further reading
When you have completed your study of a section or chapter of the guide and
textbook, check whether any ‘Further reading’ is recommended.

1.2.3 Ten golden rules for studying evidence


1. Learn each topic as you study it and frequently revise. Evidence is not a subject
that you can ‘cram in’ at the last minute.

2. Read each chapter in your textbook at least twice. What is unclear at first reading
will often become clear on a second or subsequent reading.

3. Read as many of the important cases as you can. Textbooks have to summarise cases
succinctly, and summarising can be an obstacle to understanding. You are more likely
to understand a decision in a particular case if you have read the case itself.

4. Read as much of the recommended further reading as you can. This will be
important for essay questions in the examination.

5. Take full notes of what is said in any lectures and tutorials that you attend, and
of everything that you read – chapters in textbooks, articles and cases. Keep these
notes in a loose-leaf file so that you can add new material to each section as the
need arises.

6. Read with a book of statutes at hand for reference. You are allowed to bring a
statute book into the examination hall, but you will not be able to use it effectively
unless you are already familiar with its contents. Statutes are not easy to read, and
you will need to take trouble with this, reading each section that your book or
article refers to several times to ensure that you have grasped all its details.

7. Condense your own full notes into a skeleton set of notes. Your skeleton notes
will be infinitely more valuable than someone else’s, and are essential to ensure
that you learn and revise properly. You will need an ordinary, bound notebook, with
separate sections for each topic that you learn. Ask at a law stationer’s for some
‘counsel’s notebooks’ if you can; they are more substantial than ordinary school
exercise books and come in ruled and unruled varieties.

When you have finished studying one topic in evidence, go through your full notes
and condense them into a pattern of rules set out under headings, sub-headings
and any further divisions that are convenient. Do this at first on rough paper so that
you can find the best way of setting things out and of summarising your full notes.
Then copy your final version onto the right-hand page of your notebook, making
sure that you add the names of the cases and statutory references that support
each rule. On the left-hand page summarise each case referred to on the right-
hand page in not more than three or four lines. When you have done that, put your
Evidence 1 Introduction to the study of evidence law page 7
skeleton notes aside, take some more rough paper, and see if you can write out
from memory what you have just written. Check it with the skeleton and, if need
be, repeat the exercise until you have the whole section clearly in your memory.

8. Practise answering the sample examination questions. Begin by looking up as


much as you need to answer the question. Make any notes you think necessary,
including a framework for an answer. Then put your notes aside and try to write
your answer in 35–40 minutes. Later, choose another question and try to answer it
in the same period of time, but without any preliminary reading. Make a plan for
your answer as part of the ‘unseen’ exercise within the 35–40 minute period.

9. Keep up to date. To some extent, every textbook is out of date as soon as it appears
in the bookshops because the law is constantly changing. Read the law reports in
The Times and the appropriate law journals (see Section 1.2.1 above).

10. Try to see the law in action. What you read in books often makes more sense if you
go to see criminal trials in the Crown Court. Pay particular attention to any legal
arguments that take place in the absence of the jury; very often they will be about
points of evidence.

1.2.4 Study time


You should set aside a specific amount of time each week to study this subject,
increasing the amount in the six weeks before the examination. Remember, though,
that individuals vary greatly in their needs; the time to stop studying is when you
know the topic thoroughly, and not until then. It is very important to plan your time
carefully. Do not forget to leave time every week and month for revision in addition to
the period before the examination. Revision must be a continuous process.

1.3 The examination


Important: the information and advice given in the following section are based on the
examination structure used at the time this guide was written. However, the University
can alter the format, style or requirements of an examination paper without notice.
Because of this we strongly advise you to check the rubric/instructions on the paper
you actually sit.

The examination contains a choice of essay and problem questions. Essay questions
require you to show knowledge of the law and a critical approach to the law.

It follows that reading a single textbook, and some of the cases referred to in it, is not
enough to satisfy the examiners. You must be aware of major proposals for reform
of the law, as well as arguments that have been advanced by writers who are critical
of the present state of the law. This means that you must read as widely as you can
among recommended articles. But repetition of other people’s views should not be
your aim. You must show a capacity for independent thought. It follows that during
your studies you must:

uu think for yourself about the persuasiveness of the arguments put forward in what
you read

uu ‘read around’ the topic

uu discuss problems with your tutor or lecturer, if you are studying at an institution or
receiving tuition

uu discuss problems with fellow students.

Problem questions require you to apply your knowledge of the law to specified sets of
facts. To cope with these successfully, you must be able to see what issues arise on the
facts and advise on them accurately and succinctly, referring always to the sources of
law upon which you rely for your conclusions. The law may well be uncertain. If so, you
must explain why, then choose what you believe to be the decision most likely to be
made by the court, giving reasons for your choice.

Good luck!
page 8 University of London International Programmes

Notes
2 Basic concepts

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.1 Key concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.2 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2.3 Theoretical context . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2.4 Procedural context . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2.5 Competence and compellability . . . . . . . . . . . . . . . . . . . . . 15

2.6 The course of testimony . . . . . . . . . . . . . . . . . . . . . . . . . 16

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
page 10 University of London International Programmes

Introduction
The aim of this chapter is to familiarise you with:

1. Key concepts: This chapter will introduce you to the concepts of relevance, weight
and admissibility.

2. Terminology: You need to understand the most important legal terms early on in
order to get to grips with the subject. This chapter introduces you to these terms.

3. The theoretical context: Besides ‘learning the language’ of evidence, you need to
begin to develop a critical attitude towards the law so that you can write good
answers to essay questions in the examination. It is impossible to adopt a critical
attitude if you have no understanding about what the principles and objectives
of the law should be, and so this chapter introduces you to that topic too. This
is an important section and you will need to return to it repeatedly throughout
the module in order to evaluate the new areas of law you are learning about.
Familiarity with the principles, aims and objectives of the law of evidence is
particularly important on account of the trend in the development of the law of
evidence away from rules and prescription, and towards discretion. Discretionary
powers should be exercised in accordance with a framework of principles and you
will need to familiarise yourself with them.

4. The procedural context: It can be difficult to understand the law of evidence


without some understanding of the context in which it is being applied. This
chapter seeks to familiarise you with the trial process in the adversarial system of
England and Wales.

Essential reading
¢¢ Choo, Chapter 1: ‘Introduction’ and Chapter 3: ‘The course of evidence’.

¢¢ Durston, Chapter 1: ‘Introduction to the law of evidence’ and Chapter 10: ‘The
course of the evidence: cross-examination and re-examination’, Sections 1
‘Introduction’, 2 ‘The collateral-finality rule’, 3 ‘Exceptions to the collateral-
finality rule’ and 4 ‘Impeachment by prior inconsistent statement’.

¢¢ Allen, Chapter 1: ‘Basic concepts’ (in the Evidence study pack).

¢¢ Dennis, Chapter 3: ‘Relevance and admissibility’, Section B ‘Relevance’, Chapter


4: ‘Facts and factfinding’, Section E ‘Theories of fact finding’ and extract from
Chapter 2: ‘The aims of the law of evidence’ (in the Evidence study pack).

¢¢ Roberts and Zuckerman, extract from Chapter 1: ‘Principles of criminal evidence’


(in the Evidence study pack).

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu explain what is meant by ‘relevance’, ‘weight’ and ‘admissibility’
uu present arguments on the relevance of a given item of evidence
uu explain what is meant by the following major technical terms used in evidence
law: circumstantial evidence, direct evidence, collateral facts, documentary
evidence, facts in issue, original evidence, real evidence and hearsay
uu explain the functions of judge and jury in a Crown Court trial
uu describe the impact of the Human Rights Act 1998 and the European Convention
on Human Rights on evidence law
uu discuss the current objectives of evidence law and comment critically on them.
Evidence 2 Basic concepts page 11

2.1 Key concepts

Essential reading
¢¢ Durston, Chapter 1: ‘Introduction to the law of evidence’, Section 7 ‘Three key
concepts: relevance, cogency, admissibility’.

¢¢ Allen, Chapter 1: ‘Basic concepts’ (in the Evidence study pack).

¢¢ Dennis, Chapter 3: ‘Relevance and admissibility’, Section B ‘Relevance’ and


Chapter 4: ‘Facts and factfinding’, Section E ‘Theories of fact finding’ (in the
Evidence study pack).

The basic framework for the admission of evidence is that all relevant evidence is
admissible except by virtue of an exclusionary rule or an exclusionary discretion.

2.1.1 Relevance
The concept of relevance is not a straightforward one and we will explore it in some
depth. It is crucial to have a working definition of relevance. The best is the one
given by Lord Simon in DPP v Kilbourne [1973] AC 729, 756: ‘Evidence is relevant if it is

logically probative or disprobative† of some matter which requires proof.’ The idea of Evidence is ‘probative’
relevance is fundamental to evidence law because: of a proposition if it
tends to show that
uu all relevant evidence is prima facie admissible, but no irrelevant evidence is proposition to be true;
admissible evidence is ‘disprobative’
uu the relevance of an item of evidence can determine what rules or principles of law if it tends to show that
govern its admissibility. For example, the rule against hearsay excludes an out-of- proposition to be false.

court statement only if it is adduced in order to establish the truth of what was
stated. If it is relevant for a different reason, the rule does not apply.

You need to be able to construct an argument for or against the relevance of a given
item of evidence. In constructing such arguments you need to realise how important
it is to use generalisations about what the world is like. A major problem, which you
should study, is the extent to which courts take into account the weight of an item of
evidence in determining its relevance, and whether they are right to do so at all.

2.1.2 Weight
The weight or ‘probative value’ of an item of evidence will generally, though not
always, be determined in a criminal trial in the Crown Court by the jury. However,
sometimes judges do decide questions of weight, for example on a submission of
‘no case to answer’, and in exercising the judicial discretion to exclude prosecution
evidence where its potential for causing unfair prejudice to a defendant is greater than
its probative value. Note also the problem of whether weight is an element to be taken
into account when determining relevance.

2.1.3 Admissibility
Admissibility is clearly a matter of law – unlike relevance and weight, which are
matters of logic and common sense. But note that questions of admissibility may
turn on the relevance that a particular item of evidence has in the circumstances – as
with the rule against hearsay. It follows that before you can tackle the legal question
of admissibility, you will often have to clarify the logical or common sense question
of relevance. Note the position in civil trials under the Civil Procedure Rules (CPR),
where the judge has a wide discretion under CPR r.32.1(2) to exclude evidence that is
relevant and admissible so as to secure the ‘overriding objective’, as defined in CPR
r.2.1(2). In criminal cases the court has a discretion to exclude prosecution evidence on
the ground that its probative value is outweighed by its prejudicial effect. In order to
exercise these discretions it is inevitable that the judge will have to consider questions
of weight.
page 12 University of London International Programmes
In Wilson [2008] EWCA Crim 1754 (with case comment by Roberts, A. in [2009] Crim
LR 193) the Court of Appeal considered the relevance of evidence that no similar
offences had been committed since the defendant’s arrest, from a witness responsible
for monitoring crime. The defence argued that the evidence was ‘too nebulous and
prejudicial’ to be admitted. The Court of Appeal upheld the judge’s ruling that it did
have sufficient probative value to be admitted.

In HSBC Asia Holdings BV v Gillespie [2011] ICR 192 EAT, Underhill J (President) held
that employment tribunals have power to exclude evidence which is ‘“logically” or
“theoretically” relevant but nevertheless too marginal, or otherwise unlikely to assist
the court, for its admission to be justified’ (at [13]).

Further reading
¢¢ Appendix A of ‘The admissibility of expert evidence in criminal proceedings
in England and Wales: a new approach to the determination of evidentiary
reliability’ Law Commission Consultation Paper 190 (2009) at www.lawcom.gov.
uk/wp-content/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf

¢¢ Choo, A. ‘The notion of relevance and defence evidence’ (1993) CLR 114.

¢¢ Cases: Bracewell (1978) 68 Cr App R 44; Hollingham and Head [1858] 27 LJCP 241;
Kearley [1992] 2 AC 228 (ignore arguments about whether or not it is hearsay and
focus on the relevance); Blastland (1985) 81 Cr App R 266 (this case is discussed in
the Essential reading).

Activity 2.1
Read p.128 in the extract ‘Theories of fact finding’ and the top of p.129 (in the Evidence
study pack). Without reading the remainder of p.129 try to identify the assumptions
and generalisations relied upon to make the inferential steps in A and B.
Feedback: see p.129 of ‘Theories of fact finding’.

Self-assessment questions
1. What was the definition of relevance given by Lord Simon in DPP v Kilbourne?

2. Define:

a. relevance

b. weight

c. admissibility.

3. How well is relevance defined in English law?

4. How can the admission of irrelevant or minimally relevant evidence thwart the
aims of evidence law?

5. What is the difference between an exclusionary rule and an exclusionary


discretion?

Reminder of learning outcomes


By this stage you should be able to:
uu explain what is meant by ‘relevance’, ‘weight’ and ‘admissibility’
uu present arguments defending or attacking the relevance of a given item of
evidence.
Evidence 2 Basic concepts page 13

2.2 Terminology

Essential reading
¢¢ Choo, Chapter 1: ‘Introduction’, Sections 1 ‘Facts in issue and collateral facts’ to 5
‘The allocation of responsibility’.

¢¢ Durston, Chapter 1: ‘Introduction to the law of evidence’, Sections 13 ‘Evidential


categories/terminology’ and 14 ‘The “best evidence” rule’.

You should make yourself thoroughly acquainted with definitions of the following.
You will not be able to understand evidence law without a confident understanding of
them. In particular, you should be prepared to provide examples of each.

uu direct evidence

uu circumstantial evidence

uu collateral facts

uu documentary evidence

uu testimony

uu facts in issue

uu real evidence

uu hearsay.

Self-assessment question
Define and give an example of each of the terms listed above.

2.3 Theoretical context

Essential reading
¢¢ Choo, Chapter 1: ‘Introduction’, pp.1–2 and Sections 7 ‘Free(r) proof’ to 14
‘Organization of the book’.

¢¢ Durston, Chapter 1: ‘Introduction to the law of evidence’, Sections 9 ‘The history


of exclusionary rules and their reform’, 10 ‘The rationale behind evidential rules’
and 11 ‘The impact of ECHR/HRA 1998’.

¢¢ Roberts and Zuckerman, extract from Chapter 1: ‘Principles of criminal evidence’


(in the Evidence study pack).

¢¢ Dennis, extract from Chapter 2: ‘The aims of the law of evidence’ (in the Evidence
study pack).

Accurate fact-finding (what Jeremy Bentham called ‘rectitude of decision-making’) is


a core aim of any trial, criminal or civil. Some writers have argued that the whole of
the law of evidence may be derived from this one central value – or that it should be
the sole value. However, it is widely agreed that many other values are in play, such as
fairness. Intrinsic policy goals (where the aim is to enhance the accuracy of the fact-
finding process) can be distinguished from extrinsic policy goals (where the aim is to
uphold certain values which may have no bearing on the reliability of the evidence).

Often it is debatable whether a particular objective is an extrinsic policy goal or


something more intrinsic. For example, is evidence which has been obtained illegally
by the police excluded on grounds of principle (extrinsic) or on account of the risk that
the evidence may be unreliable (intrinsic)?

Appreciating that there are such different – and sometimes conflicting – objectives
informing the law of evidence lays the foundation for considering the admissibility of
evidence. Why are certain types of evidence not permitted? What are the underlying
principles and rationales for exclusionary rules? Is it purely because such evidence is
likely to be unreliable – that is, is truth the over-riding value?
page 14 University of London International Programmes
You need to distinguish three basic lines of argument:

uu rights-based arguments

uu consequentialist arguments

uu arguments based on the moral legitimacy of the verdict.

You should also be able to explain in outline the impact on evidence law of the Human
Rights Act 1998 and the European Convention on Human Rights (ECHR). A fundamental
point is that the European Court of Human Rights (ECtHR) adopts a flexible approach
to the interpretation of the Convention, despite the apparently absolute character of
some of the articles.

Activity 2.2
Suppose that, in the case of Adolphus Griggs, DC Goodall had entered Griggs’s room
unlawfully. He found Griggs there and said: ‘You’ve got a coat and a knife. Give
them to me.’ At first Griggs denied having any such articles. Thereupon, DC Goodall
broke Griggs’s arm and said: ‘I’ll break the other one if you don’t give them to me.’
Fearing a second assault, Griggs handed over the bloodstained coat and knife. The
prosecution wishes to produce these as evidence against Griggs.
a. Write down a consequentialist argument in favour of admissibility.

b. Write down a consequentialist argument against admissibility.

c. Write down a rights-based argument against admissibility.

d. Write down an argument based on the legitimacy of the verdict against


admissibility.

Feedback: see end of guide.

Reminder of learning outcomes


By this stage you should be able to:
uu describe in outline the way in which modern evidence law has developed
uu explain the main theories about the current objectives of evidence law and
comment critically on them.

Self-assessment questions
1. Why does English law assume that the worst possible outcome of the criminal
justice process is the conviction of the innocent?

2. Why is it a challenge to achieve ‘equality of arms’ in criminal proceedings? How


does the criminal law of evidence seek to achieve ‘equality of arms’?

3. What role can the law of evidence play in demonstrating the integrity of the
criminal process? How might a political regime forfeit the moral authority to call
suspected offenders to account and punish the guilty?

4. Why does public confidence in the administration also hinge on its ability to
convict the guilty?

5. According to Roberts and Zuckerman, what are the five foundational principles
of criminal evidence? Explain them and provide illustrations of the law’s
attempts to satisfy these principles.

2.4 Procedural context

Essential reading
¢¢ Durston, Chapter 1: ‘Introduction to the law of evidence’, Sections 1 ‘What is
“evidence” and why is it important?’ to 6 ‘The findings of earlier proceedings’.

The bulk of the law of evidence that you will study relates to the conduct of criminal
trials in the Crown Court. This is because the law is most highly developed in this
context. In civil trials, the vast majority of which are tried by a judge alone, the law of
Evidence 2 Basic concepts page 15
evidence has been considerably relaxed by the removal of many of the restrictions on
admissibility that apply in criminal jury trials. In magistrates’ courts, generally because
of the absence of a jury, the rules of evidence are different to some extent in practice.
You will not be asked questions in the examination that are specifically directed to
trials in magistrates’ courts.

The application of the Galbraith test to cases based on circumstantial evidence was
considered once again in Sardar [2016] EWCA Crim 1616, where Sir Brian Leveson P cited
(inter alia) this passage from King CJ’s judgment in Questions of Law Reserved on
Acquittal (No 2 of 1993) (1993) 61 SASR 1 as one that correctly reflects English law:

If there is direct evidence which is capable of proving the charge, there is a case to answer
no matter how weak or tenuous [the judge] might consider such evidence to be. If the
case depends upon circumstantial evidence, and that evidence, if accepted, is capable
of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and
thus is capable of causing a reasonable mind to exclude any competing hypotheses as
unreasonable, there is a case to answer. There is no case to answer only if the evidence
is not capable in law of supporting a conviction. In a circumstantial case, that implies
that even if all the evidence for the prosecution was accepted and all inferences most
favourable to the prosecution which are reasonably open were drawn, a reasonable mind
could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way,
could not exclude all hypotheses consistent with innocence, as not reasonably open on
the evidence.

In this case, the evidence against D, a British citizen charged with murdering a US solider
in Iraq by means of an improvised explosive device (IED), was that he was proved to be
in the region, possessed information about terrorism and bomb making, and had left his
fingerprints on other IEDs of very similar (but distinctive) construction deployed within
the same narrow geographical area at broadly the same time period. On that evidence,
he was rightly found to have a case to answer, and his conviction as a principal offender
was upheld, even though no ‘direct’ [sic] forensic evidence such as fingerprints could be
recovered from the actual device that killed the US soldier.

Self-assessment questions
1. What is a submission of no case to answer?

2. What is a voir dire?

2.5 Competence and compellability

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Sections 1 ‘Competence’ and 2 ‘Compellability’.

‘Competence’ deals with the question of whether a witness may legally give evidence
in court. ‘Competent’ does not mean ‘reliable’. A witness may not legally be able to
give evidence for several reasons. For example, the witness may be a child who is so
young that they cannot understand the questions that are asked, or they cannot give
answers that can be understood. ‘Compellability’ deals with the question of whether,
as a matter of law, witnesses can be obliged to give evidence when they do not wish
to do so. The general rule is that competent witnesses are also compellable, but
there are some circumstances in which competent witnesses cannot be obliged to
give evidence against their will. For example, in many criminal trials a wife cannot be
obliged to give evidence against her husband, or a husband against his wife (s.80 of
the Police and Criminal Evidence Act 1984 (PACE 1984)).

The law on competence and compellability is marked by a sharp distinction between


civil and criminal trials, and you should distinguish carefully between the rules that
apply in each. These rules are fairly straightforward, but you need to know them, and
the examination often contains a question that touches on this. It is best to memorise
the basic rules at an early stage.
page 16 University of London International Programmes

2.6 The course of testimony

Essential reading
¢¢ Choo, Chapter 3: ‘The course of evidence’.

In civil trials the claimant will present their case first, followed by the defence. In
criminal trials the prosecution will present their case first, followed by the defence.
Each party’s evidence is usually given in three stages. During examination-in-chief a
witness for one party is called and examined by that party’s counsel. The witness will
then be cross-examined by counsel for the opposing party. In a criminal trial where
there is more than one defendant, a defendant who gives evidence can be cross-
examined by counsel for co-defendants as well as by counsel for the prosecution.
Lastly, counsel who have examined the witness-in-chief can re-examine that witness
in order to clear up any misunderstandings or ambiguities that may have arisen as a
result of cross-examination. This is a very simple picture of the course of testimony
and there can be variations: for example, in civil trials a witness’s pre-trial written
statement can stand as evidence-in-chief.

2.6.1 Examination-in-chief
This is the first stage of the examination of a witness at trial, and is conducted on behalf
of the party who has called that witness. As already mentioned above, in civil trials a
witness’s pre-trial written statement can stand as evidence-in-chief: see CPR r.32.5(2).
Witnesses are frequently favourable to the cause of the parties who call them, and so
are likely to agree readily to any suggestion made to them by the parties’ advocates.

Because of this, the rule was developed that questions suggesting the answer that is
desired (‘leading questions’) cannot be asked during examination-in-chief.

2.6.2 Cross-examination
The objectives of cross-examination are to complete or challenge the story told by the
witness during examination-in-chief. It follows that the scope of cross-examination is
not confined to those matters covered by evidence-in-chief, but extends to all relevant
matters. Leading questions are permitted in cross-examination, as are questions
designed to discredit the character of the witness being cross-examined. There are
some rules that restrict the scope of cross-examination. We will look at restrictions on
cross-examination of sexual history in trials of sexual offences and at restrictions on
cross-examination of a witness’s bad character in later chapters. The only restriction
you should be aware of at this preliminary stage is the collateral-finality rule. This
provides that, where a witness is cross-examined on a matter relevant solely to their
credibility, the witness’s answers have to be taken as final and evidence may not be
called by the cross-examining party to rebut the witness’s answers. The reason for this
is that the trial should remain focused on the principal issues at stake and should not
be side-tracked into the pursuit of questions entirely collateral to the litigation. There
are several exceptions to this rule, but the only one you need be aware of at this stage
is s.4 of the Criminal Procedure Act 1865 which applies where a witness denies making
a previous inconsistent statement.
Evidence 2 Basic concepts page 17

2.6.3 Re-examination
The object of re-examination is to clarify matters that were referred to in cross-
examination. It is important to remember that it is confined to those matters only, and
may not be used to raise for the first time matters that should have been dealt with
during examination-in-chief.

Summary
Theories about the current objectives of the law of evidence can depend on explicitly
rights-based arguments, on explicitly consequentialist arguments, or on arguments
relying on the legitimacy of the verdict.

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu explain what is meant by ‘relevance’, ‘weight’ and ‘admissibility’
uu present arguments on the relevance of a given item of evidence
uu explain what is meant by the following major technical terms used in evidence
law: circumstantial and direct evidence, collateral facts, documentary evidence,
facts in issue, original evidence, real evidence and hearsay
uu explain the functions of judge and jury in a Crown Court trial
uu describe the impact of the Human Rights Act 1998 and the European Convention
on Human Rights on evidence law
uu discuss the current objectives of evidence law and comment critically on them.

Quick quiz

Question 1
Which case is the authority on how the judge should approach a submission of no case
to answer in a criminal case?

a. Galbraith [1981] 1 WLR 1039.

b. Humphreys [1945] 3 WLR 203.

c. Peewall [1902] 1 WLR 737.

Question 2
Which of the following statements is correct?

a. A defendant is competent to testify in their own defence, but not compellable.

b. A defendant is competent to testify in their own defence and will be guilty of


contempt of court if they fail to do so.

Question 3
Which of the following statements is correct?

a. The spouse of a defendant is not competent to testify for the prosecution.

b. The spouse of a defendant is not a compellable witness for the prosecution.

Question 4
In a defendant’s trial for murder, which of the following is an example of circumstantial
evidence?

a. An eyewitness account of the defendant stabbing the victim in the heart.

b. An eyewitness account of the defendant leaving the house of the victim shortly
after the victim’s time of death.
page 18 University of London International Programmes
Question 5
What does s.78(1) of the PACE 1984 provide?

a. It provides the court with a discretion to exclude evidence where its admission
would have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it.

b. It places a duty on the court to exclude evidence where its admission would have
such an adverse effect on the fairness of the proceedings that the court ought not
to admit it.

c. It provides the court with a discretion to exclude prosecution evidence in the


interests of ensuring the fairness of the trial.

Sample examination question


‘The concept of “relevance” is an imprecise one. In criminal trials this enables it
to be used as a cloak to obscure a court’s reasons for refusing to admit evidence.’
Discuss.

Advice on answering the question


This is a difficult question. The first step is to state what the test of relevance is
supposed to be (you could use the quote from DPP v Kilbourne) and the extent to
which it governs the admissibility of evidence (all relevant evidence is admissible
unless subject to an exclusionary rule or discretion).

Next you will want to discuss its operation in practice. You could describe how logical
relevance is established with reference to an argument based on an acceptable
generalisation about the way things are in the world. Give an example (it could be a
case such as Bracewell (1978) 68 Cr App R 44 – or a made up one) to demonstrate you
know what logical relevance means.

You will want to develop your discussion in such a way that you address the question.
In what way is the concept imprecise? Can you think of any examples in which the
courts’ basis for refusing to admit evidence is obscure? What do you think is to blame
for the obscurity?

You might discuss the different concepts of relevance that courts often appear to draw
on in practice (perhaps the Wigmorean concept of relevance). Blastland is an obvious
example where the court’s basis for refusing to admit the evidence is obscure. On
what other grounds was the case criticised?

Your conclusion should be the result of your discussion. You might consider that the
obscurity of the courts’ reasoning would be clarified if they abandoned the concept of
logical relevance and adopted instead the test of legal relevance (you would need to
address the fact that the Wigmorean approach has itself been criticised for obscuring
the basis on which a decision on admissibility is reached). You might consider that
it is not imprecision in the concept of relevance that is to blame for the obscurity
of the court’s reasons for refusing to admit evidence, but the absence of any clearly
articulated discretion to exclude defence evidence. You might think that the criminal
courts should adopt a rule similar to that provided in civil trials (r.22.1 of the CPR)
which permits the tribunal of law to exclude any logically relevant evidence, as a
matter of case management, to give effect to the overriding objective of dealing with
cases justly (you would need to address the different objectives of civil and criminal
trials and any implications this might have for the adoption of such a rule).

It does not matter what your opinion is. The important thing is to demonstrate that
you understand the law and are capable of considering the issues.
3 Burden and standard of proof

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3.1 Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3.2 The standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
page 20 University of London International Programmes

Introduction
Every contested case, civil or criminal, must give rise to at least one contested ‘fact in
issue’ to be decided between the parties. (Look again at Chapter 1 if you are unsure
about what constitutes a fact in issue.) This chapter deals with two questions that arise
in relation to every fact in issue:

1. Who has the burden of proving that fact?

2. What test will be applied to determine whether sufficiently weighty evidence has
been adduced to discharge that burden?

The topic can be controversial in criminal proceedings. In some criminal offences a


burden is placed on the defendant to prove a particular issue of fact. (For examples,
see below.) There are two questions you need to address with this sort of provision:

uu First, should such a burden ever be placed on a defendant in a criminal trial?

uu Second, what is the effect of the European Convention on Human Rights (ECHR)
on statutory provisions that appear to provide expressly for a burden of proof to
be placed on a defendant? What factors are relevant to a court’s evaluation of
whether the allocation of a legal burden to a defendant would be incompatible
with the defendant’s right to a fair trial? How are these factors relevant? How easy
is it to predict whether a legal burden will be deemed to be incompatible and
should instead be read down as an evidential burden? This second question is the
most difficult and merits careful study.

You may also need to consider whether it is possible to tell if Parliament has, in a
particular statute, impliedly placed a legal burden on the defendant.

Essential reading
¢¢ Choo, Chapter 2: ‘Burden and standard of proof’.

¢¢ Dennis, I. ‘Reverse onuses and the presumption of innocence: in search of


principle’ (2005) Crim LR 901.

¢¢ Durston, Chapter 3: ‘The burden and standard of proof’.

¢¢ Cases: DPP ex p Kebilene [2000] 1 Cr App R 275; Lambert [2001] 3 All ER 577; L v
DPP [2002] 2 All ER 854; Hunt [1987] AC 352; Sheldrake v DPP; A-G’s Reference (No
4 of 2002) [2004] UKHL 43; Johnstone [2003] UKHL 28; Edwards [1975] QB 27; Hunt
[1987] AC 352; Nimmo v Alexander Cowan and Sons Ltd [1967] 3 All ER 187; Salabiaku
v France (1988) 13 EHRR 379; Woolmington v DPP [1935] AC 462.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu explain the nature of the legal burden of proof and distinguish between legal
and evidential burdens
uu explain the role of policy in the allocation of legal burdens in civil trials
uu give examples of instances where a defendant in a criminal trial bears an
evidential burden
uu state the Woolmington principle and explain your views on the extent, if at all, to
which it has been undermined by subsequent statute and case law
uu explain the effect of Article 6 of the ECHR on placing a burden of proof on
defendants in criminal trials
uu explain your views on whether a burden of proof should ever be placed on
defendants in criminal trials
uu explain the difficulties in determining whether a statute has impliedly placed a
burden of proof on defendants prosecuted under its provisions
uu explain the different standards of proof that operate in civil and criminal trials
and give reasons for the differences.
Evidence 3 Burden and standard of proof page 21

3.1 Burden of proof

Essential reading
¢¢ Choo, Chapter 2: ‘Burden and standard of proof’, Section 1 ‘Burden of proof’.

¢¢ Durston, Chapter 3: ‘The burden and standard of proof’, Sections 1 ‘Introduction’


to 5 ‘Evidential burdens’.

¢¢ Cases: DPP ex p Kebilene [2000] 1 Cr App R 275; Lambert [2001] 3 All ER 577; L v
DPP [2002] 2 All ER 854; Hunt [1987] AC 352; Sheldrake v DPP; A-G’s Reference (No
4 of 2002) [2004] UKHL 43; Johnstone [2003] UKHL 28; Edwards [1975] QB 27; Hunt
[1987] AC 352; Nimmo v Alexander Cowan and Sons Ltd [1967] 2 All ER 187; Salabiaku
v France (1988) 13 EHRR 379; Woolmington v DPP [1935] AC 462.

Further reading
¢¢ Hamer, D. ‘The presumption of innocence and reverse burdens: a balancing act’
(2007) 66(1) CLJ 142–71.

¢¢ Ashworth, A. and M. Blake ‘The presumption of Innocence in English Criminal


Law’ (1996) Crim LR 306.

¢¢ Roberts, P. ‘Taking the burden of proof seriously’ (1995) Crim LR 783.

¢¢ Case: Constantine (Joseph) SS Line Ltd v Imperial Smelting Corpn Ltd [1942] AC 154.

3.1.1 Nature of the legal burden of proof


You must be clear about what is meant by a legal (also called a ‘persuasive’ or
‘probative’) burden of proof and be able to distinguish a legal from an evidential
burden. The legal burden of proof is the obligation that rests on a party in relation to a
particular fact in issue, which must be ‘discharged’, or ‘satisfied’, if that party is to win
on the issue in question.

While a legal burden is truly a burden of proof, as described above, to which a


standard of proof can be assigned, an evidential burden is an obligation on a party
who wishes to raise a particular issue to point to some evidence that is capable of
making the issue a live one. It is therefore not really a burden of proof at all.

For example, suppose a defendant is charged with assault, and their defence is
self-defence. They must be able to point to some evidence that they acted in self-
defence before that defence can be a live issue in the trial. (If they give evidence
to that effect, that will be quite enough.) In these circumstances a lawyer would
say that the defendant has an evidential burden in relation to their defence. (But
once that is raised as a live issue, the prosecution has the legal burden to negative it
beyond reasonable doubt before the jury can convict.) Although there are a few dicta
suggesting that for an evidential burden to be satisfied the evidence relied on must
have some minimum weight, it would be quite wrong to assume that someone with
an evidential burden has to satisfy it to the standards that are appropriate to legal
burdens. Evidential burdens are not burdens of proof and the best course is to avoid
altogether the language of burdens of proof when talking about them.

For examples of cases where a defendant in a criminal trial has an evidential burden,
see: Mancini v DPP [1942] AC 1 (provocation); Lobell [1957] 1 QB 547 (self-defence); Gill
[1963] 2 All ER 688 (duress); Bratty v A-G for Northern Ireland [1963] AC 386 (sane

Sane automatism: see
automatism)†; and Lesley [1996] 1 Cr App R 39 (alibi).
Criminal law module
guide Chapter 9.
3.1.2 Allocation of the legal burden in criminal trials
So far as the burden of proof in criminal cases is concerned, the basic principle is
that which was famously stated by Viscount Sankey in Woolmington v DPP [1935] AC
462, 481. However, you need to be aware of the exceptions to the ‘golden thread’
that Sankey himself acknowledged. He recognised that there were both express and
implied exceptions to the ‘golden thread’. Examples of apparent express exceptions
page 22 University of London International Programmes
are: Prevention of Corruption Act 1916, s.2; Prevention of Crime Act 1953, s.1(1); and
Homicide Act 1957, s.2(2). Such provisions must now be read in the light of Article 6 of
the ECHR.

The European Court accepts that in some cases a legal burden can properly be
imposed on defendants. For guidance on when a legal burden on the defendant will be
compatible with Article 6 of the ECHR you should study carefully the speech of Lord Hope
in DPP ex p Kebilene and the decisions of the House of Lords in Lambert, Johnstone and
Sheldrake v DPP; A-G’s Ref (No 4 of 2002). The articles by Dennis and Hamer will help you to
get the most out of the case law. As a matter of academic argument it is possible to make
a case for the proposition that defendants should never have the legal burden of proof
on any issue. (See, for example, Roberts, P. ‘Taking the burden of proof seriously’ (1995)
Crim LR 783.)

3.1.3 Implied burdens


Another subject of academic discussion has been whether there should be implied, as
opposed to express, statutory reversals of the burden of proof. In order to understand
this topic you should begin by studying the Magistrates’ Courts Act 1980, s.101, and
Edwards [1975] QB 27. Follow this with a careful reading of Hunt [1987] AC 352. Hunt is
important, not for the decision reached on the interpretation of the Misuse of Drugs
Act 1971, but for the guidelines in the speech of Lord Griffiths that were intended
to help courts decide in a given case whether Parliament had impliedly placed a
burden of proof on a defendant. In order to appreciate the difficulty of this task of
interpretation, you should study Nimmo v Alexander Cowan and Sons Ltd [1967] 2 All ER
187 which is discussed in Hunt.

3.1.4 Allocation of the legal burden in civil trials


This topic has given rise to far less discussion. The principle in civil trials is that the
party asserting an issue must prove it.

Further reading
¢¢ Case: Constantine (Joseph) SS Line Ltd v Imperial Smelting Corpn Ltd [1942] AC 154.

Activities 3.1–3.6
3.1 Read the following summary of facts, then answer the questions at its
conclusion.
Claude states that he made an oral agreement with Martin, whereby in return for
the payment of £2,000 in advance, Martin would move a collection of books from
an address in Plymouth to Claude’s house in London and put up shelves there to
receive them. Claude says that he paid £2,000 to Martin in advance, but he now
complains that the shelves were insecurely constructed and could not bear the
weight of the books, and that Martin lost 12 of the most valuable books. Martin says
that the shelves were securely constructed according to Claude’s specification, and
that if they cannot bear the weight of the books, that is Claude’s fault for providing
inadequate specifications. He adds that the 12 books referred to by Claude were not
part of the collection that he loaded at Plymouth. He also says that Claude has paid
him only £900 and that the balance of £1,100 is still owed. Claude is about to sue
Martin for damages for breach of contract.
a. What are the issues of fact in the litigation between Claude and Martin?

b. State who has the legal burden of proof in respect of each issue of fact.

3.2 In Salabiaku v France (1988) 13 EHRR 379 the European Court established that the
rights comprised in Article 6 are not absolute. What conditions does it stipulate for
the allocation of legal burdens to defendants?
3.3 a. According to Lord Steyn in Lambert, what was the argument against
interpreting the Misuse of Drugs Act 1971, s.28 as imposing a legal burden on a
defendant?
Evidence 3 Burden and standard of proof page 23
b. What were Lord Steyn’s reasons for finding a legal burden disproportionate
in this case?

3.4 What is the importance of Article 6 of the ECHR where a statute appears to have
imposed a legal burden on a defendant in a criminal trial?
3.5 Write notes, of not more than 500 words each, explaining the nature and
importance of the decisions of the House of Lords in DPP ex p Kebilene and Lambert.
3.6 Write a note, of not more than 500 words, explaining the nature and
importance of the decision of the House of Lords in Constantine (Joseph) SS Line Ltd v
Imperial Smelting Corpn Ltd.
Feedback: see end of guide.

Self-assessment questions
1. What is meant by saying that a party has an evidential burden?

2. How does this differ from a legal burden, in relation to a particular issue?

3. What considerations were said in Hunt to be relevant when deciding whether a


statute had impliedly placed a legal burden on a defendant?

Summary
The ‘legal’ or ‘persuasive’ burden of proof is the obligation that rests on a party
in relation to a particular fact in issue, which must be ‘discharged’ or ‘satisfied’ if
that party is to win on the issue in question. The legal or persuasive burden is to be
distinguished from the ‘evidential burden’. In criminal trials the burden of proof is
usually on the prosecution, but in relation to some issues it is expressly or impliedly
placed on the defendant. The Human Rights Act 1998 and the ECHR affect the extent to
which this can be done.

Reminder of learning outcomes


By this stage you should be able to:
uu explain the nature of the legal burden of proof and distinguish between legal
and evidential burdens
uu explain the role of policy in the allocation of legal burdens in civil trials
uu give examples of instances where a defendant in a criminal trial bears an
evidential burden
uu state the Woolmington principle and explain your views on the extent, if at all, to
which it has been undermined by subsequent statute and case law
uu explain the effect of Article 6 of the ECHR on placing a burden of proof on
defendants in criminal trials
uu explain your views on whether a burden of proof should ever be placed on
defendants in criminal trials
uu explain the difficulties in determining whether a statute has impliedly placed a
burden of proof on defendants prosecuted under its provisions.

3.2 The standard of proof

Essential reading
¢¢ Choo, Chapter 2: ‘Burden and standard of proof’, Section 2 ‘Standard of proof’.

¢¢ Durston, Chapter 3: ‘The burden and standard of proof’, Sections 6 ‘The standard
of proof in criminal and civil matters’ to 8 ‘The tactical burden’.

Standards of proof are less likely to be the subject of an essay question than the
burden of proof. But there is scope for earning marks in a Part B question in the
examination if you understand this topic.
page 24 University of London International Programmes

3.2.1 The standard of proof in civil and criminal trials


You should learn the traditional formulas used in criminal trials. Where the
prosecution bears the burden of proving a particular issue, it must be proved ‘beyond
reasonable doubt’. Where a defendant bears a legal burden in a criminal trial, it is
discharged on a balance of probabilities: see Carr-Briant [1943] KB 607. Remember
that judges are not required to follow formulas slavishly. It is enough if they convey
the correct message to the jury. For a clear example of an incorrect direction, see
Bentley (2001) 1 Cr App R 21 [49]. The main point to remember about the standard of
proof in civil trials is that it is the same – proof on the balance of probabilities – even
where what is alleged amounts to a criminal offence: see Hornal v Neuberger Products
Ltd [1957] 1 QB 247 and Re H [1996] AC 563. In Re S-B [2009] UKSC 17 the Supreme Court
recognised as settled law the decisions on the civil standard of proof in Re H [1996] AC
563 and Re B [2009] 1 AC 11.

Further reading
¢¢ Criminal cases: Carr-Briant [1943] KB 607; Bentley (2001) 1 Cr App R 21 at [49].

¢¢ Civil cases: Re S-B [2009] UKSC 17; Re H [1996] AC 563; Re B [2009] 1 AC 11; Hornal v
Neuberger Products Ltd [1957] 1 QB 247.

Activity 3.7
Why are there different standards of proof in civil and criminal trials?
Feedback: see end of guide.

Self-assessment questions
1. In what two ways can the standard of proof in a criminal trial be expressed?

2. How is the standard of proof in a civil trial expressed?

3. Alex was prosecuted for the murder of Bernard. He was acquitted. Bernard’s
dependants are now bringing a civil action against Alex in respect of Bernard’s
death, in which they allege that Alex deliberately killed Bernard. What is the
standard of proof that the trial judge will apply?

Summary
Proof is made on the balance of probabilities in civil trials. In a criminal trial the
prosecution’s burden of proof has to be discharged ‘beyond reasonable doubt’.
Another way of conveying the same message is to tell members of the jury that
they must feel satisfied so that they are sure of the defendant’s guilt. A defendant
who bears a burden of proof in a criminal trial must satisfy it only on the balance of
probabilities.

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu explain the nature of the legal burden of proof and distinguish between legal
and evidential burdens
uu explain the role of policy in the allocation of legal burdens in civil trials
uu give examples of instances where a defendant in a criminal trial bears an
evidential burden
uu state the Woolmington principle and explain your views on the extent, if at all, to
which it has been undermined by subsequent statute and case law
uu explain the effect of Article 6 of the ECHR on placing a burden of proof on
defendants in criminal trials
uu explain your views on whether a burden of proof should ever be placed on
defendants in criminal trials
Evidence 3 Burden and standard of proof page 25
uu explain the difficulties in determining whether a statute has impliedly placed a
burden of proof on defendants prosecuted under its provisions
uu explain the different standards of proof that operate in civil and criminal trials
and give reasons for the differences.

Quick quiz

Question 1
On which two grounds did the House of Lords decide that the prosecution bore the
burden of proof in relation to the issue of the percentage of morphine in Hunt [1987]
AC 352?

a. The practical difficulties in discharging it and the severity of the offence.

b. The statutory wording of the provision and the ‘golden thread’.

c. The danger society faced from the menace of illegal drugs and the ambiguity of
statutory provision.

Question 2
In which House of Lords decision was it first established that a statutory provision
that expressly placed the burden of proof on a defendant in criminal trial could be
interpreted in light of the Human Rights Act 1998 to place only an evidential burden on
the defendant?

a. Lambert [2002] 2 AC 545.

b. Hunt [1987] AC 352.

c. Woolmington v DPP [1935] AC 462.

Question 3
In Johnstone [2003] UKHL 28 the House of Lords decided which of the following?

a. The prosecution bore the legal burden on account of the severity of the sentence.

b. The defence bore the legal burden on account of the fact that those who trade in
brand products are aware of the need to be on guard and the practical difficulties
for the prosecution in tracing the suppliers of counterfeit goods.

c. The defence bore the legal burden on account of the public interest in combating
drug trafficking and practical difficulties of proving a defendant’s state of mind.

Question 4
In relation to the decision of the House of Lords in Sheldrake v DPP; A-G’s Reference (No 4
of 2002) [2004] UKHL 43, which of the following statements is correct?

a. The House of Lords decided that the legal burden of proof placed on the defendant
by s.5(2) of the Road Traffic Act 1988 should stand, and not be read down as an
evidential burden but that the legal burden of proof placed on the defendant by
s.11(2) of the Terrorism Act 2000 should be read down as an evidential burden only.

b. The House of Lords decided that the legal burdens placed on the defendant
by s.5(2) of the Road Traffic Act 1988 and s.11(2) of the Terrorism Act 2000 were
proportionate.

c. The House of Lords decided that neither s.5(2) of the Road Traffic Act 1988 nor
s.11(2) of the Terrorism Act 2000 placed an express burden on the defendant.

Question 5
Which of the following statements is correct?

a. Legal burdens on the defendant in a criminal case are controversial because it


is unfair for the defendant to have to prove their innocence beyond reasonable
doubt.
page 26 University of London International Programmes
b. In civil cases the claimant must prove the issues that they assert to be the case
beyond reasonable doubt.

c. Where the defendant in a criminal trial bears the legal burden of proof, the
standard of proof is ‘on the balance of probabilities’.

Sample examination question


‘It remains difficult to predict whether or not the courts will hold that a reversed
burden of proof is compatible with Article 6(2) of the European Convention on
Human Rights.’ Discuss.

Advice on answering the question


You need to demonstrate that you understand what a reversed burden of proof is and
that you know what Article 6(2) of the ECHR provides. You should do this at the outset.
You might also mention Salabiaku v France (1988) 13 EHRR 379 in your introduction.

In your first paragraph you could discuss the decision in Lambert. You could note the
number and name of House of Lords decisions on this issue before discussing them in
detail in subsequent paragraphs.

In the main body of the essay you need to demonstrate understanding that a broad
proportionality test applies to all reversed burdens of proof and of the different
factors typically taken into account. You can highlight the difficulty of prediction by
noting the inconsistencies between the decisions observed by Ian Dennis in his article.
The best answers will not just parrot Dennis’s argument but will demonstrate your
detailed understanding of case law and the issues at stake. Ideally your opinion would
be informed by the arguments you come across in the further reading.

Additional examination question (no feedback provided)


‘In order to merit its reputation as a fundamental constitutional guarantee, the
presumption must be reasonably extensive and not too easily defeated.’ Do you
agree with this statement by Roberts and Zuckerman? In the context of legal
burdens of proof, has English law succeeded in ensuring that the presumption of
innocence is ‘not too easily defeated’?
4 Confessions and improperly obtained evidence

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

4.1 Confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

4.2 Section 78(1) of PACE . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4.3 Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
page 28 University of London International Programmes

Introduction
This chapter can be divided, roughly, because there are substantial overlaps, into
three main parts. You will find the Essential and Further reading listed in the
introduction to each of the following three parts:

i. The first concerns the admissibility of confessions solely. By s.82(1) of PACE 1984 a
confession includes ‘any statement wholly or partly adverse to the person who
made it, whether made to a person in authority or not and whether made in words
or otherwise’. Confessions are in principle admissible as exceptions to the rule
against hearsay under s.76(1). Confessions can be excluded under ss.76 and 76A of
PACE 1984.

ii. The court has a discretion to exclude any prosecution evidence (including
confessions adduced by the prosecution) under s.78 of PACE 1984. Section 78
requires careful attention because its interpretation has given rise to a large body
of Court of Appeal decisions, some of which appear to be inconsistent.

iii. The third main topic is entrapment. Entrapment is where agents of the state lure
citizens into committing criminal acts and then seek to prosecute them for doing
so. The appropriate remedy for entrapment is for the proceedings to be stayed as
an abuse of the court’s process.

Articles 6 and 8 of the European Convention on Human Rights (ECHR) are important
considerations under all three topics.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu explain the grounds for excluding confessions under PACE 1984, s.76(2)
uu explain the extent to which a co-defendant may be entitled to rely on a
confession by another defendant that has been obtained by improper means
uu explain the arguments that can be advanced for a narrow and a wide
interpretation of PACE 1984, s.78(1)
uu explain the probable impact of the ECHR on evidence obtained by intrusive
surveillance devices and on evidence obtained by entrapment
uu describe the common law discretion to exclude prosecution evidence
uu identify and explain entrapment and the appropriate remedy for it.
Evidence 4 Confessions and improperly obtained evidence page 29

4.1 Confessions

Essential reading
¢¢ Choo, Chapter 4: ‘Confessions’.

¢¢ Durston, Chapter 7: ‘Confession evidence and related matters’, Sections 1


‘Introduction’ to 9 ‘The admissability of a co-defendant’s confession’.

¢¢ Code of Practice for the Detention, Treatment And Questioning of Persons by


Police Officers (Code C) of PACE 1984, including its annexes.

¢¢ Sections 58, 75, 76 and 76A of PACE 1984.

¢¢ Case: Lam Chi-Ming v The Queen [1991] 2 AC 212.

Although confessions are out-of-court statements adduced to prove the truth of their
contents, they are admissible as an exception to the hearsay rule under PACE 1984,
s.76(1). However, it is recognised that considerations of fairness or reliability may make
it undesirable to admit evidence either of a particular confession or of other items
of evidence on which the prosecution proposes to rely. The Codes of Practice issued
under PACE 1984 are designed to ensure reliability and fairness. Code C, which deals
with the detention, treatment and questioning of persons by police officers, will be of
particular importance when you study the subject matter of this chapter.

You should make yourself familiar with the main provisions of Code C, including its
annexes, and with s.58 of PACE 1984. When reading Code C, pay particular attention to
the conduct of interviews.

Further reading
¢¢ Cases: Fulling [1987] 2 All ER 65; Emmerson (1990) 92 Cr App R 284; Paris, Abdullahi,
Miller (1992) 97 Cr App R 99; Goldenberg (1988) 88 Cr App R 285; McGovern (1990)
92 Cr App R 228; Delaney (1988) 88 Cr App R 338; Crampton (1990) 92 Cr App R 369;
Everett (1988) Crim LR 826; Blackburn (2005) EWCA Crim 1349; Mushtaq [2005] 2 Cr
App R 485; SY [2012] EWCA Crim 814; Seelig [1991] 4 All ER 429; Smith [1994] 1 WLR
1396, 99 Cr App R 233, CA; Gowan [1982] Crim LR 821, CA; Beeres v CPS West Midlands
[2014] EWHC 283 (Admin).

It is a good idea to read as many of these cases in full as you can. They will give you a
good feel for the application of s.76(2).
¢¢ Gudjonsson, G. The psychology of interrogations and confessions: a handbook.
(Oxford: Wiley Blackwell, 2002) [ISBN 9780470844618], Chapter 8: ‘The
psychology of false confession: research and theoretical issues’ (in the
Evidence study pack). You would not be expected to refer to this in detail in the
examination, but you may find it of interest.

4.1.1 Defining a confession


A confession includes any statement wholly or partly adverse to the person who
made it, whether made to a person in authority or not, and whether made in words
or otherwise. It makes no difference to whom a confession has been made; the same
rules of admissibility apply. A striking illustration is the trial of David Henton in 2008
in which the prosecution was permitted to adduce secretly taped recordings of the
accused allegedly confessing the crime to his cats (see www.guardian.co.uk/uk/2008/
mar/14/murder.cats).

You should note the partial definition in PACE 1984, s.82(1) and make sure that you can
explain the evidential significance of a ‘mixed’ statement.

Activity 4.1
Give examples of (a) a wholly exculpatory statement, (b) a mixed statement, and (c)
a wholly inculpatory statement.
Feedback: see end of guide.
page 30 University of London International Programmes

4.1.2 Using a confession


Section 76 provides that a confession made by an accused person may be given in
evidence against them. The basic rule is that what one defendant says outside court
is evidence against the speaker only, and not against any co-defendant whom he also

mentions (Gunewardene (1951) 2 KB 600).† Note: We will not consider
this until we look at hearsay
But it does not follow that parts of a confession incriminating a co-defendant will but you should be aware
be ‘edited out’ at trial. All a co-defendant is entitled to is a direction from the judge that the hearsay provisions
in summing up that the out-of-court confession is evidence only against its maker of the Criminal Justice Act
(Lobban v The Queen (1995) 2 Cr App R 573). But what one defendant says about another 2003 additionally allow
when he gives evidence at the trial in his own defence is evidence against the co- the prosecution in certain
defendant (Rudd (1948) 32 Cr App R 138). Where a defendant’s confession has been limited circumstances to put
excluded under s.76(2) or s.78(1), it is no longer available to the prosecution. But there in evidence of a third party’s
may be circumstances in which an improperly obtained confession will be available to confession if it implicates the
a co-defendant. defendant: Y [2008] EWCA
Crim 10.
By s.76A(1), a confession made by one defendant may be given in evidence for a co-
defendant, provided it is not excluded by further provisions of s.76A.

At common law, there is nothing to prevent a conviction on confession evidence


alone. The same result would appear to follow under PACE 1984.

4.1.3 Excluding a confession under section 76


Read PACE 1984, ss.76 and 76A. You should note that the effect of these provisions is
that rules relating to the admissibility of confessions are the same for the prosecution
and defence, except that a co-defendant has only the civil standard of proof in respect
of the matters referred to in s.76A(2).

A confession may be excluded under s.76(2)(a) or (b). Note that if the defence relies
on either of these provisions, the burden is on the prosecution to show that the
confession was not obtained in the circumstances set out in the part of the subsection
relied on.

Do not rely on oppression in the absence of circumstances that warrant it. There is a
partial definition in s.76(8), and a useful discussion of the meaning of oppression can
be found in Fulling (1986) QB 426. For an example of verbal oppression, see Paris (1993)
97 Cr App R 99.

Section 76(2)(b) requires particularly careful reading. Under this provision, a


confession can be excluded on the basis that it was, or may have been, obtained
‘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 the defendant) in consequence thereof’. So the test that has to be applied is a
hypothetical one: might what was said or done have been likely in the circumstances
to make any confession by that defendant unreliable? If yes, the confession must
be excluded ‘notwithstanding that it may be true’. McGovern (1991) 92 Cr App R 228,
Crampton (1991) 92 Cr App R 369 at 372 and Blackburn [2005] EWCA Crim 1349 all
illustrate the importance of this last point.

For either subs.(2)(a) or (b) to apply, it must be shown that the matters complained
of did, in fact, cause the confession to be made. See Goldenberg (1989) 88 Cr App R 285
and compare Walker (1998) Crim LR 211. If the defence is relying on s.76(2)(b), once it
has been shown that an external factor may have caused the confession to be made,
the personal circumstances of the defendant can then be taken into account to
determine whether that factor was likely to render unreliable any confession that the
defendant might make in consequence of it (McGovern (1991) 92 Cr App R 228).

Delaney (1988) 88 Cr App R provides a useful illustration of the relevance of a


defendant’s personal characteristics to the application of s.76(2).

4.1.4 Subsequently discovered facts


Read PACE 1984, ss.76(5) and 75(6) and Lam Chi-Ming v The Queen [1991] 2 AC 212.
Evidence 4 Confessions and improperly obtained evidence page 31

Activities 4.2–4.4
4.2 What do you think the rationale is for excluding a confession under s.76(2)
where it appears that the confession is likely to be true?
4.3 Where one defendant’s confession has been ruled inadmissible, to what extent
can it be referred to by a co-defendant?
4.4 Steve and Toby are jointly charged with burglary of a valuable collection of
antique silver belonging to Ursula. They intend to plead not guilty. Steve was the
first to be arrested by the police. Vernon, a senior police officer, refused his request
for a solicitor on the ground that it would hinder recovery of the silver. He then
forced Steve to remain standing while he interviewed him for five hours without a
break. Finally, Steve said: ‘All right. I admit I was involved. But it was only because
Toby threatened to kill me if I didn’t help him.’
How can the defence make use of the refusal of legal advice?
Feedback: see end of guide.

Self-assessment questions
1. Why are confessions seen to be persuasive evidence against a defendant?

2. Why might someone confess to a crime they have not committed?

3. How well protected are defendants from the risk of false confession?

4. What constitutes oppression under s.76(2)(a)?

5. How does s.76(2) allocate the burden of proof?

6. How can the personal circumstances of a defendant be taken into account under
s.76(2)(b)?

Summary
The effect of s.76(2) is that evidence of a confession shall not be given if it was, or may
have been, obtained by oppression (s.76(2)(a)), or if it was, or may have been, obtained
‘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
(the defendant) in consequence thereof’ (s.76(2)(b)). Section 76 should always be the
defence counsel’s first line of argument, because once the issue is raised under that
section the burden is on the prosecution to prove beyond reasonable doubt that
the confession was not obtained in such a way. If the prosecution fails to satisfy this
burden, the judge must exclude the confession; there is no discretion in the matter.
Section 78 (see Section 4.2 below) can also be used to exclude a confession as it can be
used to exclude any evidence on which the prosecution proposes to rely. But with s.78
the power to exclude is only discretionary; under s.76 it is mandatory.

4.2 Section 78(1) of PACE

Essential reading
¢¢ Choo, Chapter 7: ‘Investigatory impropriety: violations of the European
Convention on Human Rights and undercover police operations’, Section 1 ‘The
exclusion of improperly obtained evidence’.

¢¢ Durston, Chapter 2: ‘Judicial discretion’, Sections 2 ‘Judicial discretion in modern


England’ to 4 ‘The advent of Section 78 of the PCEA 1984’.

¢¢ Ashworth, A. and M. Redmayne, Chapter 11: ‘The trial’, Section 11.3 ‘The exclusion
of unfairly and illegally obtained evidence’ (in the Evidence study pack).

¢¢ Ormerod, D. ‘ECHR and exclusion of evidence: trial remedies for Article 8


breaches’ (2003) Crim LR 61–81.

Section 78(1) of PACE 1984 provides for exclusion of evidence on which the prosecution
proposes to rely where its admission would have such an adverse effect on the fairness
page 32 University of London International Programmes
of the proceedings that it ought to be excluded. The scope of this provision has
been the subject of judicial disagreement, but it is probably wide enough to include
reliable evidence that has been improperly obtained. Section 78(1) would not be the
first choice for the exclusion of a confession because of the burden placed on the
prosecution by s.76(2). However, s.78(1) has frequently been relied on to exclude a
confession. It may be particularly helpful if the defence wants to exclude a confession
for unreliability, but cannot point to anything said or done by someone other than the
defendant so as to trigger s.76(2)(b).

Further reading
¢¢ Cases: Samuel [1988] QB 615; Mason [1987] 3 All ER 481; Absolam (1988) 88 Cr App R
332; Keenan [1990] 2 QB 54; Walsh (1990) 91 Cr App R 161; Bailey (1993) 3 All ER 513;
Alladice (1988) 87 Cr App R 380; Beycan (1990) Crim LR 185; Khan (Sultan) v UK (2000)
Crim LR 684, Khan v UK (2001) 31 EHRR 45, Khan [2013] EWCA Crim 2230; P [2002] 1 AC
146; A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221.

It is a good idea to read as many of these cases in full as you can. This will give you a
good feel for the application of s.78 in different factual scenarios.
¢¢ Ormerod, D. and D. Birch ‘The evolution of the discretionary exclusion of
evidence’ (2004) Crim LR 767.

4.2.1 The breadth of the discretion


The Court of Appeal has given judges a very free hand in their operation of s.78(1).
In Samuel [1988] QB 615 the Court said it was undesirable to attempt any general
guidance as to the way in which the discretion should be exercised because
circumstances vary infinitely. A judge’s exercise of discretion under this provision can
be faulted only on the basis of ‘Wednesbury unreasonableness’ (Christou [1992] 1 QB
979, 989; McEvoy (1997) Crim LR 887).

4.2.2 Breaches of the Code of Practice


A breach of one of the Codes of Practice may help to get evidence excluded under
s.78(1), but such a breach will not lead to automatic exclusion. See Absolam (1988) 88
Cr App R 332 and Keenan [1990] 2 QB 54.

Where evidence has been obtained by a trick, s.78(1) has sometimes, but not always,
been successfully used. See Bailey (1993) 3 All ER 513 and Mason [1987] 3 All ER 481.

4.2.3 Breaches of Article 8 of the ECHR


The use of intrusive surveillance devices has sometimes led to submissions based
on s.78(1). You should note the application of Article 8 of the ECHR (concerning the
right to respect for private and family life). See Khan (Sultan) v UK (2000) Crim LR 684,
Khan v UK (2001) 31 EHRR 45, P [2002] 1 AC 146 and A v Secretary of State for the Home
Department (No 2) [2006] 2 AC 221. Note that breach of Article 8 does not necessarily
entail breach of the right to a fair trial under Article 6. For a recent example, see Khan
[2013] EWCA Crim 2230.

For criticisms of the courts’ reluctance to exclude evidence obtained in breach of the
right to privacy see Ormerod, D. ‘ECHR and exclusion of evidence: trial remedies for
Article 8 breaches’ (2003) Crim LR 61–81.

4.2.4 The rationale for exclusion


You should try to develop a theory about the rationale of s.78(1). The extracts from
Ashworth and Redmayne (in the Essential reading) and Ormerod and Birch (in the
Further reading) will be helpful to you in this regard. Your development of such a
theory will be useful for problem questions as well as essays.

Is the exercise of the discretion confined to cases where the impropriety has affected
the reliability of the evidence? Or can it be used to support ‘process values’, even
where the reliability of the evidence is unaffected? Several speeches in Looseley
Evidence 4 Confessions and improperly obtained evidence page 33
(see section on entrapment below) suggest that members of the House of Lords
interpreted the s.78 discretion sufficiently widely to permit exclusion of evidence on
the basis of unfairness even where the way in which the evidence was obtained did
not affect its reliability. Lord Nicholls, relying on Smurthwaite, said that the section was
not limited strictly to procedural fairness. Lord Hoffmann, with whom Lord Hutton
agreed on this point, observed that an application to exclude evidence under s.78
may in substance be a belated application for a stay of proceedings. If so, it should be
treated as such and should be decided according to the principles appropriate to the
grant of a stay. But, for s.78 to be used in this way at all, it must be able to go beyond
considerations of reliability alone, and take into account considerations such as the
moral legitimacy of the verdict.

Note, however, that even if s.78 is in principle available to protect fairness on this wide
basis, the effect of any impropriety on the reliability of the evidence thereby obtained
is likely to remain an important consideration.

Finally, you should note that the effect of s.82(3) of PACE 1984 is to retain the common
law discretion, recognised in R v Sang [1980] AC 402, to exclude prosecution evidence
on the ground that its probative value is outweighed by its likely prejudicial effect. In
Sat-Bhambra (1989) 88 Cr App R 55, the Court of Appeal held that neither s.76(2) nor
s.78(1) was available where the prosecution evidence had already been given, but that
the common law discretion remained available, with the result that a jury could be
instructed to ignore the item of prosecution evidence to which it was applied.

Self-assessment questions
1. What rationales for excluding unlawfully obtained evidence do Ashworth and
Redmayne identify?

2. What do you think the best rationale for excluding illegally obtained evidence is?

3. What was the rationale for the decision in A v Secretary of State for the Home
Department (No 2) [2006] 2 AC 221?

4. What rationale do you think the English courts generally use?

5. How easy is it to predict if evidence will be excluded under s.78? Please use case
law in support of your answers.

Reminder of learning outcomes


By this stage you should be able to:
uu explain the arguments that can be advanced for a narrow and a wide
interpretation of PACE 1984 s.78(1)
uu explain the probable impact of the European Convention on Human Rights on
evidence obtained by intrusive surveillance devices and on evidence obtained by
entrapment
uu describe the common law discretion to exclude prosecution evidence.

4.3 Entrapment

Essential reading
¢¢ Choo, Chapter 7: ‘Investigatory impropriety: violations of the European
Convention on Human Rights and undercover police operations’, Section 2
‘Evidence obtained in undercover police operations’.

¢¢ Durston, Chapter 2: ‘Judicial discretion’, Sections 4.4 ‘Section 78 and entrapment’


and 4.5 ‘Entrapment and abuse of process’.

¢¢ Case: Looseley [2001] 4 All ER 897.

In entrapment cases the grant of a stay of proceedings should normally be preferred


to exclusion of evidence under s.78. A stay is more appropriate as a matter of principle
because a prosecution founded on entrapment would be an abuse of the court’s process.
page 34 University of London International Programmes
An important case on entrapment is the decision of the House of Lords in Looseley. You
must read this judgment in full for yourself and note the following points. Where an
application is made to stay proceedings on the basis of entrapment it is not possible
to isolate any single factor or devise a formula that will always produce the correct
answer; however, it is possible to identify a cluster of relevant factors, as follows:

uu Did the undercover officer behave like an ordinary member of the public, or
did they offer extraordinary inducements?

uu In the case of some regulatory offences, the law could not be effective unless
enforcement officers are able to make random tests. But normally it will not
be proper for police to provide people not suspected of being engaged in any
criminal activity with the opportunity to commit crimes.

uu The justification of entrapment will depend partly on the nature of the offence
being investigated. The fact that the offence is a serious one is not by itself
sufficient. But where it is difficult to obtain evidence because of the nature
of the offence, entrapment methods are likely to be justified. Examples are
consensual offences, such as dealing in drugs, offences with no immediate
victim, such as bribery, and offences that victims are reluctant to report.

uu Whether there has been entrapment, it cannot be determined simply by


asking whether the defendant was given the opportunity to commit the
offence, of which he freely availed himself. Nor is it possible to determine
the existence of entrapment by a mechanical application of a distinction
between ‘active’ and ‘passive’ conduct on the part of the undercover officer.
But the greater the inducement held out by the police, and the more forceful
or persistent their overtures, the more likely it is that a court will find
entrapment.

In the opinion of three of the Law Lords, the position adopted by the European Court in
Teixeira de Castro v Portugal did not diverge from the position in English law.

Further reading
¢¢ Cases: Teixeira de Castro v Portugal (1998) 28 EHRR 101; Christou and Wright [1992]
QB 979, (1992) 95 Cr App R 264, CA; DPP v Marshall [1988] 3 All ER 683, DC; R v Bryce
(1992) 95 Cr App R 320; A-G’s Ref (No 3 of 2000) [2001] 1 WLR 2060.

Self-assessment questions
1. When will the courts find that the behaviour of the police is unacceptable and
that the appropriate remedy is to stay the proceedings as an abuse of process
instead of excluding the evidence under s.78?

2. Read Loosely carefully. What factors will be relevant to a court’s decision as to


whether the proceedings should be stayed as an abuse of process? How clear/
easy to apply are they?

3. What is meant by ‘state-created crime’? What is the legal concept underlying


oft-repeated expressions such as ‘lure’, ‘incite’ or ‘instigate’? What is the
distinction, of relevance in the commission of a crime, which these phrases are
seeking to draw? If an undercover policeman asks a known drug supplier for
drugs, is he ‘luring’ the unsuspecting supplier into committing a crime? If not,
why not? What does ‘lure’ mean in this context? By what criteria is a trial judge
to distinguish the acceptable from the unacceptable?

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu explain the grounds for excluding confessions under PACE 1984, s.76(2)
uu explain the extent to which a co-defendant may be entitled to rely on a
confession by another defendant that has been obtained by improper means
Evidence 4 Confessions and improperly obtained evidence page 35
uu explain the arguments that can be advanced for a narrow and a wide
interpretation of PACE 1984, s.78(1)
uu explain the probable impact of the ECHR on evidence obtained by intrusive
surveillance devices and on evidence obtained by entrapment
uu describe the common law discretion to exclude prosecution evidence.

Quick quiz

Question 1
Confessions are in principle admissible as exceptions to which of the following?

a. The right to silence.

b. The rule against hearsay.

c. The right to a fair trial.

Question 2
Where a defendant represents that their confession was obtained by oppression,
which of the following ensues?

a. The defence will need to satisfy the court on a balance of probabilities that the
confession was obtained by oppression for it to be excluded.

b. The confession will only be adduced in evidence if the prosecution proves beyond
reasonable doubt that the confession was not obtained by oppression.

c. The confession will be excluded unless the prosecution proves on a balance of


probabilities that the confession was not obtained by oppression.

Question 3
Where a defendant represents that their confession was obtained 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 them in consequence
thereof, the prosecution may succeed in adducing the confession if it does which of
the following?

a. Proves that the confession is true.

b. Proves that confession is reliable.

c. Proves that the confession was not made in consequence of anything said or done
which was likely to render it unreliable.

Question 4
The most appropriate remedy for entrapment is which of the following?

a. Exclusion of the evidence obtained by entrapment under s.78 of PACE 1984.

b. Exclusion of the evidence under s.76 of PACE 1984.

c. For the proceedings to be stayed as an abuse of process.

Question 5
Which statutory provision deals with the admissibility of evidence obtained as a result
of a confession that is subsequently excluded under s.76(2) of PACE 1984?

a. Section 76(5) PACE 1984.

b. Section 78(3) PACE 1984.

c. Section 58 PACE 1984.


page 36 University of London International Programmes

Sample examination question


Freda goes to the police and accuses Joe, aged 40, of raping her in a field. The police
arrest Joe. Joe says he has not had sex with anyone for years and wants to see a
lawyer before answering any questions. The police are aware that Joe is a drug
addict (although he does not have any previous convictions) and that he will be in
a hurry to get out of the police station to satisfy his drug habit. PC Fixit lies to Joe by
telling him that it will be 18 hours before a lawyer arrives. PC Fixit fires questions
at Joe for eight hours. PC Fixit tells Joe he is an idiot because the whole incident
has been captured on CCTV (a lie) and he is only adding to his sentence by refusing
to confess. During the eighth hour of questioning Joe confesses to raping Freda
and tells the police they will find the condom discarded under some yew trees in
the woods. The police search the wood and find a condom in the exact place Joe
described. Forensic scientists are unable to find any material on the condom that
would identify its users. Joe is now on trial for rape. He claims that the confession
was false and that he was bullied into making it. Discuss any evidential issues
arising.
Add critical comment where you think the law is unsatisfactory.

Advice on answering the question


This question provides you with the opportunity to demonstrate your knowledge and
understanding of ss.76 and 78 of PACE 1984 and the relevant case law.

You might start by discussing whether the confession could be excluded under
s.76(2)(a). You need to demonstrate that you understand that although, if Joe does
represent that the confession was obtained by oppression the burden will be on the
prosecution to prove beyond reasonable doubt that it was not so obtained, what
will amount to oppression has been quite tightly circumscribed. You could mention
examples of cases in which oppression has been found, and compare the facts
and circumstances of those cases with the facts in the problem scenario. If you are
confident that circumstances in Joe’s case do not amount to oppression, you should
not spend much time discussing the case law under s.76(2)(a) but make sure it is clear
to the examiners that this is your reason for not going into detail, with reference to
your grounds for being confident.

You should look at s.76(2)(b) separately. Once again, demonstrate your understanding
of the burden of proof in relation to this section. Make sure you identify the thing said
or done and the existing circumstances that might render the confession unreliable.
If you think that the confession is more likely to be excluded under s.76(2)(b) than
s.76(2)(a) then it merits a more detailed discussion. Draw analogies between the cases
in which confessions have been excluded under this statutory provision and the facts
and circumstances in Joe’s case. Identify relevant similarities and differences. For
example, the lie told in Mason was to the defendant’s lawyer, and in this case it was to
the defendant. Does that make any difference to whether it will be excluded? Is the
fact that Joe was effectively denied access to legal advice relevant to your answer?

Even if you think it likely that the confession will be excluded under s.76(2)(b) (and
you might not) it is worth demonstrating that you know the confession could also be
excluded under s.78 but that this will be at the court’s discretion. You might have time
to mention the factors that the court is likely to take into account in deciding whether
to exercise its discretion.

You need to address the admissibility of the evidence of the finding of the condom in
the event that the confession is excluded.

This question invites you to make critical comment where you think the law is
unsatisfactory. You should save your comments until the end. Try to write a paragraph
of critical comments. Examples might be (i) the difficulty of predicting whether the
confession will be excluded (make sure you are clear about the sources of difficulty/
ambiguity) or (ii) that you disagree with the likely outcome (make sure you are clear
about your reasons for disagreeing).
5 The right to silence and adverse inferences under
the Criminal Justice and Public Order Act 1994

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

5.1 Section 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

5.2 Section 36 and section 37 . . . . . . . . . . . . . . . . . . . . . . . . . 41

5.3 Section 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

5.4 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
page 38 University of London International Programmes

Introduction

The right to silence


The right to silence is closely bound up with the presumption of innocence and the
privilege against self-incrimination. Both the presumption of innocence and the
privilege against self-incrimination play an important role in protecting a citizen’s
liberty from state interference. In D v Director of the Serious Fraud Office ex p Smith [1993]
AC 1 Lord Mustill explored the variety of immunities bound up in the right to silence.
Lord Mustill described the foundation of the privilege not to be compelled to answer
questions put by persons in authority as ‘the common view that one person should so
far as possible be entitled to tell another person to mind his own business.’

The evidential significance of silence


Prior to the Criminal Justice and Public Order Act 1994 (CJPOA 1994), no evidential
significance could be attached to an accused’s exercise of the right to silence during
the police investigation (Gilbert (1977) 66 Cr App R 237). If and where a jury did learn
of an accused’s silence in response to police questions, they were reminded of the
accused’s right to remain silent and were warned not to draw any adverse inferences
from it. The Criminal Evidence Act 1898 provided that the failure of the accused to
testify was not to be made the subject of any comment by the prosecution. Comment
by the judge was permissible but the scope for it was limited, and it had always to be
accompanied by a reminder that the accused was not bound to give evidence and
that, while the jury had been deprived of the opportunity of hearing the accused’s
story tested in cross-examination, they were not to assume that the accused was
guilty because the accused had not gone into the witness box. Stronger comment
was permitted where the defence case involved the assertion of facts which were at
variance with the prosecution evidence, or additional to it and exculpatory, and which,
if true, would have been within the accused’s own knowledge (Martinez-Tobon [1994] 1
WLR 388). The scope of the circumstances and extent to which a judge could comment
on an accused’s failure to testify were unclear, however.

The CJPOA 1994 dramatically and controversially reformed the law. Its provisions
have generated a large amount of appellate case law and several judgments by the
European Court of Human Rights (ECtHR). The Act provides that adverse inferences
may, under certain circumstances, be drawn from a suspect’s silence in the face of
police questioning (outlined in ss.34, 36 and 37). Section 35 details the circumstances
in which adverse inferences may be drawn from an accused’s failure to give evidence
at their trial. Section 38(3) provides that a person shall not have a case to answer
found against them, or be convicted of an offence solely on an inference drawn under
the aforementioned provisions. Section 58 amended the 1994 legislation so that no
adverse inference could be drawn under the provisions unless the accused first has
had an opportunity to consult a legal adviser.

In Bowden [1999] 2 Cr App R 176, CA, Lord Bingham CJ observed that even though
proper effect must be given to the adverse inference provisions, as they ‘restrict rights
recognised at common law as appropriate to protect defendants against the risk
of injustice they should not be construed more widely than the statutory language
requires’ at [181].

The provisions governing the inferences that may be drawn from an accused’s silence
have been very controversial on account of the importance attached to the right to
silence.
Evidence 5 The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 page 39

Essential reading
¢¢ Choo, Chapter 5: ‘The right to silence and the privilege against self-incrimination’
and Chapter 13: ‘Witnesses’, Sections 1 ‘Competence’ and 2 ‘Compellability’.

¢¢ Durston, Chapter 7: ‘Confession evidence and related matters’, Section 10


‘Adverse inference directions’ and Chapter 9: ‘The course of the examination
chief’, Sections 1.3 ‘Comment on a failure to testify’ and 1.4 ‘Comment on a
criminal defendant not testifying’.

¢¢ Jennings, A. ‘Silence and safety: the impact of human rights law’ (2000) 11 Crim
LR 879–94.

¢¢ Munday, R. Chapter 11: ‘Drawing adverse inferences from a defendant’s


omissions, lies, or false alibis’, Section I ‘Inferences drawn from the defendant’s
silence’ (in the Evidence study pack).

¢¢ Redmayne, M. ‘English warnings’ (2008) 30 Cardozo L Rev 1047.

¢¢ Sections 34–38 CJPOA 1994.

Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
uu apply ss.34–38 of the Criminal Justice Public Order Act 1994 to a problem scenario
uu spot any errors in a direction to the jury on drawing adverse inferences under
ss.34–38
uu critically evaluate the law in this area.

5.1 Section 34

Essential reading
¢¢ Choo, Chapter 5: ‘The right to silence and the privilege against
self-incrimination’.

¢¢ Durston, Chapter 7: ‘Confession evidence and related matters’, Section 10


‘Adverse inference directions’.

The object of s.34 is to deter late fabrication of defences and to encourage early
disclosure of genuine defences (see the Crown Court Bench Book). The conditions in
s.34 were referred to by the Court of Appeal in Argent (1997) 2 Cr App R 27. You should
note what was said about interpreting reasonableness in light of the particular
circumstances of each defendant. See also B (MT) (2000) Crim LR 181.

There is a useful survey of the law on silence under police questioning, both before
and after s.34, in Webber [2004] 1 WLR 404, [16]–[37]. In Wheeler [2008] EWCA Crim 688
the Court of Appeal held that a trial judge had been wrong to direct the jury that they
could draw inferences under s.34 in relation to facts that were not in dispute at trial.

The effect of legal advice on silence was considered in Condron (1997) 1 Cr App R 185,
which should be read in conjunction with the decision of the ECtHR in Condron v UK
(2000) Crim LR 679. Note s.34(2A) which was inserted in the section to meet criticisms
made by the European Court. In Betts and Hall (2001) 2 Cr App R 257, the Court of
Appeal said that, where silence at an interview is said to be on legal advice, the judge
must make it plain to the jury that they can draw inferences only if they are sure
that the failure to mention facts subsequently relied on was because the defendant
had not at that stage any explanation to offer, or none that he believed would stand
up to questioning or investigation, so that the solicitor’s advice was no more than a
convenient shield behind which to hide. But see also Howell (2003) EWCA Crim 1 and
Knight [2003] EWCA Crim 1977. In Hoare [2005] 1 WLR 1804 an attempt was made to
close the gap between Betts and Hall and Howell. The Court of Appeal said that the
question for the jury in the end is whether, regardless of advice given and accepted, an
accused has remained silent not because of that advice but because he had no, or no
page 40 University of London International Programmes
satisfactory, explanation to give. For a reference to circumstances in which a suspect
might have good reason to rely on a solicitor’s advice to remain silent, despite having
an answer to allegations against him, see Essa [2009] EWCA Crim 43.

You need to be aware that the inference that the defence submitted at trial is one of
recent fabrication is not the only permissible adverse inference under s.34 (Beckles
[1999] Crim LR 148). For examples of other inferences see Petkar [2004] 1 Cr App R 270
and Milford [2001] Crim LR 330.

Where a defendant exercises his right to silence in the police station but the
circumstances are such that s.34 is of no application, a counterweight direction
should be given in relation to the accused’s silence. In McGarry (1999) 1 WLR 1500 it
was noted that ‘a jury, without such guidance, may treat silence as probative of guilt.’
It has, however, been suggested that the McGarry direction may do harm by drawing
attention to the accused’s failure to answer questions, so that the failure to give the
direction may be a benefit (Thomas [2002] EWCA Crim 2861 and Jama [2008] EWCA Crim
2861).

Regarding the importance of the direction to the jury, see the article by Jennings and
the case of Bristow and Jones [2002] EWCA Crim 1571. In Bristow and Jones the trial judge
had omitted to direct the jury that silence alone could not prove guilt. Although the
Court of Appeal felt that it was ‘unlikely’ that the accused’s silence played a significant
role in the jury’s decision to convict, it felt compelled by the ECtHR’s decision in
Condron v UK [2002] 31 EHRR 1 to quash the conviction on the ground that ‘the jury may
have convicted on a basis which did not give effect to the qualified protection to the
right of silence provided by the law’.

Further reading
¢¢ Birch, D.J. ‘Suffering in silence: a cost-benefit analysis of s.34 of the Criminal
Justice and Public Order Act 1994’ (1999) Crim LR 769.

¢¢ ‘Defendant’s failure to mention facts when questioned or charged’


in Chapter 15 of the Crown Court Bench Book is a point of reference
for judges who are preparing their directions to the jury in a Crown
Court trial. You can find it at: www.judiciary.gov.uk/publications/
crown-court-bench-book-directing-the-jury-2/

¢¢ Cases: Condron v UK [2000] 31 EHRR 1; Betts and Hall [2001] EWCA Crim 224; Howell
[2003] EWCA Crim 1; Knight [2003] EWCA Crim 1977; Webber [2004] 1 WLR 404;
Beckles [1999] Crim LR 148; Petkar [2004] 1 Cr App R 270; Milford [2001] Crim LR
330; Bresa [2005] EWCA Crim 1414; Averill v UK [2001] 31 EHRR 839; Argent [1997] 2
Cr App R 27 at 32–33; Bristow and Jones [2002] EWCA Crim 1571.

Activity 5.1
a. What fact must an accused fail to mention when questioned for adverse
inferences to be drawn against them under s.34? Feedback: see end of guide.

b. Must a defendant give evidence at trial to trigger the application of s.34? No


feedback provided.

Self-assessment question
According to Lord Bingham in Argent [1997] 2 Cr App R 27, how should the court
interpret the phrase ‘in the circumstances’ in s.341(b)? What examples did Lord
Bingham provide of the sort of matters that should be taken into account when
deciding what would have been reasonable to expect the accused to have
mentioned in the circumstances?

Reminder of learning outcomes


By this stage, you should be able to:
uu apply s.34 of the Criminal Justice Public Order Act 1994 to a problem scenario
uu spot any errors in a direction to the jury on drawing adverse inferences under s.34.
Evidence 5 The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 page 41

5.2 Section 36 and section 37

Essential reading
¢¢ Owusu-Bempah, A. ‘Silence in suspicious circumstances’ (2014) 2 Crim LR 126–35.

Section 36 permits inferences to be drawn from an arrested person’s failure to account


for suspicious objects, substances and marks. Section 37 permits inferences to be
drawn from an arrested person’s failure to account for their suspicious presence at a
particular place around the time that an offence was committed.

In comparison to s.34, ss.36 and 37 have generated very little case law. They have only
recently begun to attract academic attention.

Further reading
¢¢ Marks, A. ‘Evidence of drug traces: relevance, reliability and the right to silence’
(2013) Crim LR 810–25.

Activity 5.2
Summarise the criticisms made of s.36 in the reading material from Owusu-Bempah
and Marks.
No feedback provided.

5.3 Section 35

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Sections 2 ‘Compellability’ to 2.1.2 ‘Testifying on
behalf of a co-accused’.

¢¢ Durston, Chapter 7: ‘Confession evidence and related matters’; Section 10


‘Adverse inference directions’.

If a defendant fails to give evidence in their own defence (or, when giving evidence,
refuses without good cause to answer any question) the court or jury, in determining
whether they are guilty of the offence charged, may draw such inferences from that
failure as appear proper (CJPOA, s.35). You should read Lord Mustill’s explanation of the
rationale for drawing inferences under this section in Murray (Kevin Sean) v DPP (1994)
(HL).

When reading s.35 you should note what conditions have to be satisfied before
inferences can be drawn. You should also read Cowan [1996] 1 Cr App R 1 carefully
because it sets out the contents of the direction to the jury that must be given when
this provision comes into operation.

Section 35(1)(b) provides that adverse inferences cannot be drawn against the
defendant where it appears to the court that their physical or mental condition makes
it undesirable for them to give evidence. The courts have interpreted this provision
narrowly. In Kavanagh (Shaun) [2005] EWHC 820 (Admin) the Administrative Court
emphasised that for s.35(1)(b) to apply, it is not enough that the defendant should
suffer from some physical or mental condition; the condition must be such as to make
it undesirable for him to give evidence. Kavanagh was followed in Ensor (Max Angus)
[2009] EWCA Crim 2519. In Branchflower [2009] EWCA Crim 1239 the court emphasised
that a defendant’s distress is no reason for failing to call him to testify. A judge is
entitled to take account of the potential significance of the defendant’s evidence; the
less its significance, the less severe the physical or mental condition would have to
be for it to be undesirable for him to give evidence: Tabbakh (2009) 173 JP 201, CA. For
an example of where the court did think it was undesirable for the defendant to give
evidence see Friend (No 2) [2004] EWCA Crim 2661. For further details see the article by
Owusu-Bempah in the Further reading.
page 42 University of London International Programmes

Further reading
¢¢ Owusu-Bempah, A. ‘Judging the desirability of a defendant’s evidence: an
unfortunate approach to s.35(1)(b) of the Criminal Justice and Public Order Act
1994’ (2011) 9 Crim LR 690–704.

¢¢ ‘Defendant’s silence at trial’ in Chapter 15 of the Crown Court Bench Book is a


point of reference for judges who are preparing their directions to the jury
in a Crown Court trial. You can find it at: www.judiciary.gov.uk/publications/
crown-court-bench-book-directing-the-jury-2/

¢¢ Cases: Cowan, Gayle, Ricciardi [1996] 1 Cr App R 1, (approved by the House of


Lords in Birchall (1999) Crim LR 311); Murray (Kevin Sean) v DPP [1994] 1 WLR 1 (HL);
Dalligan [2001] EWCA Crim 1051; Friend (No 2) [2004] EWCA Crim 2661; Kavanagh
(Shaun) [2005] EWHC 820 (Admin); Noonan [2003] EWCA Crim 3869.

Reminder of learning outcomes


By this stage, you should be able to:
uu apply ss.34 and 35 of the Criminal Justice Public Order Act 1994 to a problem
scenario
uu spot any errors in a direction to the jury on drawing adverse inferences under
ss.34 and 35.

5.4 Critical evaluation

Essential reading
¢¢ Jennings, A. ‘Silence and safety: the impact of human rights law’ (2000) 11 Crim
LR 879–94.

¢¢ Munday, R. Chapter 11: ‘Drawing adverse inferences from a defendant’s


omissions, lies, or false alibis’, Section I ‘Inferences drawn from the defendant’s
silence’ (in the Evidence study pack).

¢¢ Owusu-Bempah, A. ‘Silence in suspicious circumstances’ (2014) 2 Crim LR 126–35.

¢¢ Redmayne, M. ‘English warnings’ (2008) 30 Cardozo L Rev 1047.

You should already be familiar with the presumption of innocence in criminal


proceedings. Before the CJPOA 1994, the presumption was frequently cited in support
of the common law rule against drawing adverse inferences from a defendant’s
silence. See, for example, Lord Justice Devlin’s direction to the jury in the trial of Dr
Bodkin Adams:

The law on this matter reflects the natural thought of England. So great is, and always
has been our horror at the idea that a man might be questioned, forced to speak and
perhaps to condemn himself out of his own mouth that we grant to everyone suspected
or accused of crime at the beginning, at every stage and until the very end the right to
say: ‘Ask me no questions, I shall answer none. Prove your case.’ (Patrick Devlin, Easing the
passing, cited in Munday, para.11.3.)

You should consider the extent to which the presumption of innocence might be
undermined by ss.34–37. Note the provision in s.38(3) in your considerations.

The privilege against self-incrimination is complex and you are only required
to understand it in its most basic sense. According to the privilege against self-
incrimination, a person should not be compelled on pain of punishment to expose
themselves to the risk of self-incrimination. You are not required to study the
various exceptions which permit a penalty to be attached to the failure to provide
information. You are required however to consider the overlap between the drawing
of adverse inferences from silence and the privilege against self-incrimination. This
overlap is best explained by Ashworth and Redmayne (listed in the Further reading).
The key paragraph is:
Evidence 5 The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 page 43
Drawing inferences from silence does not place a suspect under an obligation to speak;
indeed, the words of the new caution begin: ‘you do not have to say anything’. The
Criminal Justice and Public Order Act may put a certain amount of pressure on suspects
to speak, but this is not the same as obliging them to. However, as the Strasbourg court
notes, it is important that the regime of inferences from silence is handled carefully.
To the extent that silence is suspicious, it is appropriate to draw inferences from silence.
But if inferences are drawn too readily, or given too much weight, the scheme of drawing
inferences from silence will change from being one where suspects face the natural
consequences of their suspicious behaviour, to one where the only rational explanation
for inferences is that they are being used to encourage suspects to speak by penalizing
non-cooperation. Once the inferences from silence regime operates in this manner, it
does appear to be in tension with the privilege against self-incrimination.

Redmayne also addresses this issue in his article ‘English warnings’ (listed in the
Essential reading).

You will need to consider the impact of human rights on this area. You should note the
changes that have been made to domestic law in order to comply with the judgments
of the ECtHR on the provisions. The ECtHR has declared that the privilege against
self-incrimination and the right to silence lie at the heart of Article 6 of the European
Convention on Human Rights. However, neither is absolute. See Murray v UK (1996) 22
EHRR 29 and Condron v UK (2000) 31 EHRR 1.

Whether the drawing of adverse inferences from an accused’s silence infringes Article
6 is a matter to be determined in the light of all the circumstances of the case, having
particular regard to the situations where inferences may be drawn, the weight attached
to them by the national courts in their assessment of the evidence and the degree of
compulsion inherent in the situation. (Murray v UK (1996) 22 EHRR 29 at [47].)

The ECtHR stipulates both that (i) the accused be in a position to provide an
explanation, and that (ii) sufficient probative force requires an explanation, as pre-
requisites for the drawing of inferences from silence:

The question in each particular case is whether the evidence adduced by the prosecution
is sufficiently strong to require an answer. The national court cannot conclude that the
accused is guilty merely because he chooses to remain silent. It is only if the evidence
against the accused ‘calls’ for an explanation which the accused ought to be in a position
to give that a failure to give any explanation ‘may as a matter of common sense allow
the drawing of an inference that there is no explanation and that the accused is guilty’.
Conversely if the case presented by the prosecution had so little evidential value that it
called for no answer, a failure to provide one could not justify an inference of guilt (ibid.).
In sum, it is only common sense inferences which the judge considers proper, in the light
of the evidence against the accused, that can be drawn under the Order. (Murray v UK
(1996) 22 EHRR 29 at [51].)

When studying the operation of ss.34–37 in the case law you should consider the
extent to which the inferences invited accord with the goal of ‘rectitude of decision
making’. You could draw on the lessons you learned about the aims of the law
of evidence, and about relevance and the inferential process in Chapter 2: ‘Basic
concepts’. Under what circumstances is a person’s silence suspicious? When and why
should we expect a person to account for themselves in the face of an accusation?
Is there a danger of juries mistakenly equating silence with guilt? Various safeguards
have been provided in the sections to ensure that inferences are only drawn where it
is rational and fair to do so. Under s.34, for example, an adverse inference can only be
drawn from a defendant’s failure to mention a fact subsequently relied upon, where it
would be reasonable to expect them to have mentioned it at the time.

You might want to consider the probative weight of silence and the adequacy of the
directions in ensuring that the jury attach the appropriate weight to it. Waller J in
Bresa [2005] EWCA Crim 1414 observed: ‘It is a matter of some anxiety that, even in the
simplest and most straightforward of cases, where a direction is to be given under s.34,
it seems to require a direction of such length and detail that it seems to promote the
adverse inference question to a height it does not merit.’
page 44 University of London International Programmes

Further reading
¢¢ Ashworth and Redmayne, Chapter 5: ‘Gathering evidence’, Section 5.6 ‘The
privilege against self-incrimination’ (in the Evidence study pack).

¢¢ Ashworth, A. ‘Four threats to the presumption of innocence’ (2006) 10(4) IJEP 241.

¢¢ Ashworth, A. ‘Self-incrimination in European Human Rights Law – a pregnant


pragmatism?’ (2008) 30 Cardozo Law Review 751.

¢¢ Criminal Law Revision Committee, ‘Evidence: general’ Eleventh Report, Cm.4991


(1972) para.140 (in the Evidence study pack).

¢¢ Leng, R. ‘The right to silence in police interrogation: a study of some of the issues
underlying the debate’ (1993) Royal Commission on Criminal Justice, Research
Study No. 10.

¢¢ Marks, A. ‘Evidence of drug traces: relevance, reliability and the right to silence’
(2013) Crim LR 810–25.

¢¢ Munday, R. ‘Inferences from silence and european human rights law’ (1996) Crim
LR 370.

Activity 5.3
Birch has said ((1999) Crim LR 78): ‘[O]ne might sometimes be forgiven for
wondering whether the game of drawing inferences from silence is worth the
candle…these statutory provisions continue to provide an extraordinarily rich
source of problems, out of all proportion to the value of the evidence generated for
the prosecution’. Do you agree?
No feedback provided.

Self-assessment question
What is Redmayne’s criticism of the s.35 direction in Noonan [2003] EWCA Crim 3869?

Reminder of learning outcomes


Having completed this chapter, and the relevant readings and activities, you should
be able to:
uu apply ss.34 and 35 of the Criminal Justice Public Order Act 1994 to a problem
scenario
uu spot any errors in a direction to the jury on drawing adverse inferences under
ss.34 and 35
uu critically evaluate the law in this area.

Quick quiz

Question 1
Jay is on trial for murder. The prosecution has strong evidence against him. Jay does
not give evidence at trial or adduce any evidence in his defence. He did not answer any
of the questions put to him by the police at interview. In this situation which of the
following is correct?

a. The judge may invite the jury to draw adverse inferences from Jay’s silence under
ss.34 and 35 of the CJPOA 1994.

b. The judge may invite the jury to draw adverse inferences from Jay’s silence under
s.35 of the CJPOA 1994, but not under s.34 of the CJPOA 1994.

c. The judge may invite the jury to draw adverse inferences from Jay’s silence under
s.34 of the CJPOA 1994 but not under s.35 of the CJPOA 1994.
Evidence 5 The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 page 45
Question 2
Which of the following is correct?

a. A defendant can be convicted on the basis of inferences from silence alone.

b. A jury must be sure that the prosecution’s case is so strong that it clearly calls for
an answer before drawing adverse inferences from a defendant’s silence.

c. A jury may not draw adverse inferences from a defendant’s silence where the
defendant has been advised to remain silent by their lawyer.

Question 3
On account of which decision of the ECtHR did the Court of Appeal feel compelled to
quash the conviction in Bristow and Jones [2002] EWCA Crim 1571?

a. Condron v UK [2000] 31 EHRR 1.

b. Friend (No 2) [2004] EWCA Crim 2661.

c. Mooray v UK [2000] 22 EHRR 3.

Question 4
According to Redmayne (‘English warnings’) which of the range of adverse inferences
that could be drawn under s.34 CJPOA 1994 is the most obvious?

a. That the fact relied upon at trial is a fabrication.

b. That the accused is fearful of the police.

c. That the accused dislikes police officers.

Question 5
According to Redmayne (‘English warnings’) what assumption underlies the invitation
to draw adverse inferences under s.35 CJPOA 1994?

a. That the guilty have more to lose from testifying than the innocent.

b. That judges will steer juries appropriately.

c. That citizens have a duty to explain themselves when called upon to do so by the
state.

Sample examination question


‘Even though proper effect must be given to the adverse inference provisions under
the Criminal Justice and Public Order Act 1994, they should not be construed more
widely than the statutory language requires because they restrict important rights
which are appropriate to protect defendants against the risk of injustice.’ Do you
agree and to what extent has this view been complied with by the national courts?

Advice on answering the question


Your introduction should briefly outline what the adverse inference provisions are and
the nature of the rights at stake.

The first section of your answer should demonstrate your understanding of the
‘important rights’ that are impacted by the adverse inference provisions. You will want
to explain the importance of the right to silence and you might also discuss the right
to a fair trial and the privilege against self-incrimination.

In the next section you might discuss the provisions in more detail. You need to
explain the purpose they fulfil. Do you think the provisions achieve the right balance
between these objectives and the protection of the important rights? What scope is
there for tipping the scales too far one way or the other? Might it be that the statutory
provisions themselves are too broad to protect human rights?

The second half of your essay needs to address the case law. Note that the question asks
you about decisions by the national courts. Several decisions by the ECtHR suggest that
the national courts were not taking sufficient action to protect important rights. You will
need to use decisions from both national courts and the ECtHR in support of your answer.
page 46 University of London International Programmes

Notes
6 Hazardous witness testimony and judicial warnings
to the jury

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

6.1 Makanjuola warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

6.2 Directions about a defendant’s lies . . . . . . . . . . . . . . . . . . . . 50

6.3 Eyewitness identification testimony . . . . . . . . . . . . . . . . . . . 51

6.4 Pre-trial identification procedures . . . . . . . . . . . . . . . . . . . . 54

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
page 48 University of London International Programmes

Introduction
Our focus in this chapter is on measures taken in recent years to reduce the risk
of miscarriages of justice from potentially and demonstrably unreliable witness
testimony. We will examine three discrete topics:

uu discretionary care warnings, which can conveniently be called ‘Makanjuola


warnings’

uu directions about a defendant’s lies, often referred to as ‘Lucas directions’ although


the law has moved on since Lucas

uu eyewitness testimony and the important cases of Turnbull, Forbes and Gorja (Ranjit).

You will find the Essential and Further reading listed in the introduction to each of the
three topics.

In Luttrell [2004] EWCA Crim 1344 (a case we will examine in greater detail when we
look at expert evidence in Chapter 10) the Court of Appeal noted that the general
principle derived from the cases listed above is:

that a ‘special warning’ is necessary if experience, research or common sense has


indicated there is a difficulty with a certain type of evidence that requires giving the
jury a warning of its dangers and the need for caution, tailored to meet the needs of the
case. This will often be the case where jurors may be unaware of the difficulty, or may
insufficiently understand it. [42]

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu describe what is meant by Makanjuola warnings and explain how they differ
from the directions formerly given to the jury on corroboration
uu give an account of the decision in Lucas and show how the law was restated in
Burge and Pegg
uu describe the circumstances in which a Lucas/Burge warning is not required in
relation to a defendant’s evidence
uu explain when the Turnbull guidelines apply to evidence that points to the
defendant as the person who committed an offence, and when they do not
uu distinguish between evidence of identification and evidence of description
uu explain when Turnbull requires a judge to withdraw a case from the jury
uu explain (fully) what a Turnbull direction requires a judge to do
uu describe the main procedures for identification set out in Code D of the PACE
1984
uu describe the circumstances in which Code D does and does not apply
uu describe the circumstances in which a breach of Code D will result in the
exclusion of the identification evidence.
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 49

6.1 Makanjuola warnings

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Sections 3 ‘Corroboration, witness unreliability,
and judicial warnings’ to 3.4 ‘Criminal Justice and Public Order Act 1994, section
32(1)’.

¢¢ Durston, Chapter 12: ‘Corroboration and identification evidence’, Section 1


‘Corroboration’.

Traditionally, English law placed considerable emphasis on the requirement for


corroborative evidence. Corroborative evidence is independent and supportive
evidence. The common law evolved certain categories of case where, by reason either
of the nature of the allegation, or of the witness falling into a particular category,
corroboration was said to be required. The corroboration requirement applied to the
evidence of a complainant in any allegation of a sexual offence, to the evidence of an
accomplice of the defendant when called by the prosecution, and to the evidence of
children. Reference to a ‘requirement’ for corroboration was misleading as a judge
was only obliged to warn a jury that it would be dangerous to convict on evidence
coming from one of these sources if uncorroborated; the judge was entitled to go on
to tell the jury that they could convict on such evidence, if, having paid due attention
to the warning, they were convinced about the guilt of the accused. The old law of
corroboration was – for virtually all practical purposes – abolished by the Criminal
Justice Act 1988, s.34(2) and the Criminal Justice and Public Order Act 1994, s.32.

In place of the rigidity and complexity of the old law, the Court of Appeal in Makanjuola
[1995] 3 All ER 730 emphasised that trial judges now have a wide discretion to give
warnings (or direction) about the testimony of any witness where the circumstances
warrant doing so. This discretion can extend to the evidence of a defendant who
implicates one or more of his co-defendants when giving evidence in his own defence.

It is entirely a matter for the judge’s discretion whether any warning is given
(Makanjuola) and the Court of Appeal is reluctant to interfere with the exercise of
this discretion unless it was exercised unreasonably in the Wednesbury sense. If a
judge does choose to give a warning, the words in which it is given are also a matter
of judicial discretion. But if a judge, as part of a warning, advises a jury to look for
independent evidence that supports a particular witness’s testimony, the judge should
identify for the jury any evidence which, if believed, is capable of giving such support.
See B (MT) [2000] Crim LR 181.

Despite the very wide discretion described, it appears that a warning is mandatory
when dealing with evidence of ‘cell confessions’: see Benedetto and Labrador [2003]
UKPC 27. Although a warning will not always be required in this situation, the judge
will need to consider whether it is required (see Stone [2005] EWCA Crim 105. It is
also possible to identify situations in which a Makanjuola direction will generally be
required. Where an accomplice has given evidence for the prosecution it will ‘usually
be necessary’ for the judge to give the jury a warning about the care with which they
should approach the accomplice’s evidence (Hunter [2002] EWCA Crim 2693). There
will still need to be an evidential basis for thinking that the witness might have some
purpose of their own to serve (Makanjuola). For another example of a circumstance in
which the Court of Appeal deemed a Makanjuola direction to be necessary see Walker
[1996] Crim LR 742.

Activity 6.1
Write a direction to the jury in relation to the prosecution evidence of the
defendant’s accomplice awaiting sentence in the defendant’s trial for the
importation of drugs.
Feedback: see end of guide.
page 50 University of London International Programmes

Further reading
¢¢ Cases: Makanjuola [1995] 3 All ER 730; Spencer (1987) AC 128; Stone [2005] EWCA
Crim 105; Walker [1996] Crim LR 742; Warwick Muncaster [1999] Crim LR 409;
Benedetto and Labrador [2003] UKPC 27; Stone [2005] Crim LR 569; Hersey [1998]
Crim LR 281; Gummerson and Steadman [1999] Crim LR 680.

Summary
The old law requiring mandatory corroboration warnings in a limited number of cases
has been replaced by a wide system of discretionary warnings. A judge will not give
a warning merely because a witness falls into one of the old corroboration warning
categories (accomplices, children, complainants in trials for sexual offences).

Reminder of learning outcome


By this stage you should be able to:
uu describe what is meant by Makanjuola warnings and explain how they differ
from the directions formerly given to the jury on corroboration.

6.2 Directions about a defendant’s lies

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Section 3.5 ‘Evidence of accused’s lies’.

¢¢ Durston, Chapter 12: ‘Corroboration and identification evidence’, Sections 2.6


‘Defendant lies as supporting evidence’ to 2.8 ‘Consequences of a failure to give
a warning’.

¢¢ Cases: Lucas [1981] QB 720; Burge and Pegg [1996] 1 Cr App R 163; Harron [1996] 2 Cr
App R 457; Barnett [2002] 2 Cr App R 168; Campbell [2006] EWCA Crim 1293; Middleton
(2000) The Times, 12 April; G (Sinan) [2006] EWCA Crim 207; Murray [2016] EWCA Crim
1051.

The leading case on this topic is Lucas [1981] QB 720, where the problem was discussed
in the context of the old corroboration law. You should study what was said in Lucas,
but you should also study Burge and Pegg [1996] 1 Cr App R 163, where the law was
restated. Note particularly what was said in Burge and Pegg about the circumstances
in which a direction is required. A direction is not required in every case where a
defendant gives evidence merely because the jury might conclude that some of his
testimony contained lies. In particular, a direction is not required if the jury’s rejection
of the defendant’s evidence leaves them no choice but to convict. In such a case, a
direction about lies would only lead to confusion. See Harron [1996] 2 Cr App R 457,
Middleton (2000) The Times, 12 April, and Barnett [2002] 2 Cr App R 168.

Lucas [1981] 2 All ER 1008, Burge [1996] 1 Cr App R 163 and Middleton [2001] Crim LR 251
were considered in Murray [2016] EWCA Crim 1051, in which D appealed against his
conviction for the rape of a work colleague, C, on the basis that he had been accused
at trial of telling lies to the police concerning certain facts, and of further lies in his
evidence at the trial itself, but had not had the benefit of a Lucas direction in the
judge’s summing up. The issue on appeal was thus one of whether the judge had been
required to provide such a direction.

The lies he was accused of persisting in at the trial concerned the central issue of
whether he had committed the offence: C said that D had raped her after they had
gone into one of the loading bays at their workplace for a smoke, but D (implausibly,
given the CCTV evidence) not only denied the rape, but denied that he had been aware
of C’s presence. One of them, clearly, was lying but, given the centrality of the issue, a
standard direction as to the burden of proof on that issue sufficed. The Court of Appeal
concluded that adding a Lucas direction was not merely unnecessary, but would
have been a potential source of confusion for the jury in respect of what was really a
straightforward issue.
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 51
The other alleged lie concerned D’s initial denial, when first interviewed under
caution, that he had invited C to join him for a smoke. He did not however persist in
that story, which formed no part of the defence case. Under cross-examination at trial,
he ‘could not recall’ ever having denied that fact. The Court’s analysis here was that:

it is open to argument whether [D’s] assertions in interview in relation to an arrangement


to meet were central or peripheral. He admitted in his evidence that he had arranged
to meet up during the cigarette break and, in any event, whatever might have been
suggested in cross examination, the case was not left to the jury on the basis that [his]
honesty could be tested by reference to a decision on this issue. Neither did counsel
suggest that a Lucas direction was necessary on the basis that it was being contended that
such a lie would itself be evidence of guilt. What was critical to the case was whether the
jury were sure of the evidence of [C] in the light of [D’s] emphatic denial that he had even
seen her on the loading bay, let alone assaulted her.

D’s appeal was accordingly dismissed.

Activity 6.2
What reasons, other than being guilty of the offence with which they are charged,
might a defendant have for providing the police with a false alibi?
Feedback: see end of guide.

Self-assessment questions
1. What is the gist of the Lucas direction, according to the Court of Appeal in Burge
and Pegg?

2. When, according to Burge and Pegg, is a Lucas direction usually required?

3. Give your own example of (i) a situation where a Lucas/Burge warning in respect
of a defendant’s lie should be given, and (ii) a situation where it should not.

4. What is a Makanjuola warning?

Summary
Where reliance is, or might be, placed on a defendant’s lies, the jury has to be warned
in specified terms. In particular, it must be warned that defendants sometimes lie for
reasons that are unconnected with the offences with which they are charged.

Reminder of learning outcomes


By this stage you should be able to:
uu give an account of the decision in Lucas and show how the law was restated in
Burge and Pegg
uu describe the circumstances in which a Lucas/Burge warning is not required in
relation to a defendant’s evidence.

6.3 Eyewitness identification testimony

Essential reading
¢¢ Choo, Chapter 6: ‘Identification evidence’, Sections 1 ‘Mistaken identifications’ to
3.2 ‘Exclusion for breaches of Code D’ and 5 ‘Summary and conclusion’.

¢¢ Durston, Chapter 12: ‘Corroboration and identification evidence’, Section 2


‘Identification evidence’ and 3 ‘Identification procedures’.

¢¢ Ashworth and Redmayne, Chapter 5: ‘Gathering evidence’, Section 5.3


‘Eyewitness identification evidence’ (in the Evidence study pack).

¢¢ Report to the Secretary of State for the Home Department of the Departmental
Committee on Evidence of Identification in Criminal Cases (‘The Devlin Report’)
para.4.25 (in the Evidence study pack).
page 52 University of London International Programmes
¢¢ Cases: Turnbull [1977] QB 224; Gayle [1999] 2 Cr App R 130; Shervington [2008] Crim
LR 581, CA; Hallam [2012] EWCA Crim 1158; Kelly [1992] Crim LR 181; Hickin [1996]
Crim LR 584; Hersey [1998] Crim LR 281; Gummerson and Steadman [1999] Crim LR
680; Roberts [2000] Crim LR 183; Daley [1994] AC 117; Holmes [2014] EWCA Crim
420; Najjar [2014] All ER (D) 87.

From time to time during the 20th century it became apparent that miscarriages of
justice had occurred because of honest but mistaken identification of a defendant
by prosecution witnesses. One of the reasons for the establishment of the Court
of Criminal Appeal in 1907 was the revelation of a particularly startling miscarriage
of justice of this kind (the case of Adolf Beck) but, despite the existence of this new
appellate court, similar miscarriages of justice continued to occur.

Two such cases in 1974 led to the setting up of a committee under Lord Devlin to
review all aspects of the law and procedure relating to identification evidence in
criminal cases and to make recommendations. In fact, the Devlin Report was not acted
on. Instead, the Court of Appeal recommended a new approach by trial judges to deal
with the problems of identification evidence. It did this in Turnbull [1977] QB 224.

Further reading
¢¢ Roberts, A. ‘Eyewitness identification evidence: procedural developments and
the ends of adjudicative accuracy’ (2008) 6(2) International Commentary on
Evidence.

¢¢ Davies, G. and L. Griffiths ‘Eyewitness identification and the English courts: a


century of trial and error’ (2008) 15(3) Psychiatry, Psychology and Law 435.

6.3.1 Turnbull directions


In Turnbull [1977] QB 224, the Court of Appeal acknowledged that evidence of
visual identification presented special difficulties in criminal trials and had led to
miscarriages of justice. To deal with this problem, the Court laid down guidelines for
judges summing up in trials where the prosecution relies on contested identification
evidence. Failure to follow the Turnbull guidelines may well lead to the quashing of a
conviction as unsafe. To understand how the guidelines work, you need to be able to
answer two basic questions:

uu When do the guidelines apply?

uu What do they require a judge to do?

The guidelines apply whenever the prosecution case depends ‘wholly or substantially’
on the correctness of one or more identifications of the defendant, and the defence
alleges that the identifying witnesses are mistaken (Turnbull). The words in quotation
marks appear to suggest that a Turnbull direction would not be required if the
identification evidence was only a small item in a mass of other evidence against the
defendant but in practice it is rare that a judge would omit the direction even in those
circumstances. For a recent example in which it was appropriately omitted, see Najjar
[2014] All ER (D) 87. Only in the most exceptional circumstances would a conviction
based on uncorroborated identification evidence be sustained in the absence of a
Turnbull warning. For an example of an appeal being dismissed despite a failure to give
the requisite Turnbull direction, see Freemantle [1995] 1 Cr App R 1, PC. The question for
the Court of Appeal will be: was the identification evidence of such exceptional quality
that the jury would inevitably have convicted had a Turnbull direction been given? If
not, the conviction will be unsafe and should be quashed.

A Turnbull direction must be given where identification is based on recognition, as


well as in other situations where the risk of error might seem greater, for example
where the identification is based only on a witness’s fleeting glimpse (Shand v The
Queen [1996] 1 WLR 69, 72). Where the presence of the defendant at the scene of
the crime is not disputed, but their participation in the crime is disputed, a Turnbull
direction should be given if there is a possibility that the witness has mistaken one
person for another (Thornton [1995] 1 Cr App R 578 and Slater [1995] 1 Cr App R 584). If
the defence is not that the identifying witness is mistaken, but that they are lying,
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 53
the judge should still normally tell the jury to consider whether they are satisfied that
the witness was not mistaken (Shand v The Queen). However, there have been some
cases where the Court of Appeal has upheld a trial judge’s decision to dispense with a
Turnbull direction completely (see, for example, Cape [1996] 1 Cr App R 191).

It seems that a Turnbull direction will not be required where a witness does not
identify a suspect, but merely gives evidence of descriptive details of someone he
saw, which points to the suspect as the person guilty of the alleged offence. See Byron
(1999) The Times, 10 March and Gayle [1999] 2 Cr App R 130. For the reasoning behind
this distinction between evidence of identification and evidence of description, see
the judgment of Henry LJ in Gayle. The Court of Appeal was considering the need for
an identification parade, but the reasoning seems to apply equally to the need for a
Turnbull direction.

6.3.2 What does a Turnbull direction require?


Many candidates in the examination recognise situations requiring a Turnbull
direction, but fail to get good marks in the question because they do not fully set out
what such a direction requires. You should memorise the following four stages:

1. The judge tells the jury of the special need for caution before convicting on
reliance on identification evidence.

2. The judge explains the reason for this warning. Some reference should be made
to the possibility that a mistaken witness can be convincing, and that a number
of convincing witnesses can all be mistaken. In Pattinson and Exley [1996] 1 Cr App
R 51, the Court of Appeal criticised a direction on identification for failing to make
adequate reference to the risk of miscarriages of justice resulting from mistaken
identification evidence. But this cannot, yet, be described as an essential element
in every case. In Mills v The Queen [1995] 3 All ER 865, it was said that judges have a
broad discretion to express themselves in their own way when giving a direction
on identification. All that is necessary is that they should comply with the sense
and spirit of the guidance in Turnbull.

3. The judge directs the jury to examine closely the circumstances in which each
identification was made. In Turnbull the Court gave suggestions for possible
subjects of judicial comment. But there was no intention to draw up an exclusive
list, and where a judge has failed to point out weaknesses in the identification
evidence, the Court of Appeal has been flexible in its approach. In Pattinson
and Exley, the Court said that it was not necessary in every case for the judge to
summarise all the weaknesses of the identification evidence, and that if they chose
to do so, there should be a summary of strengths as well (see also Qadir [1998] Crim
LR 828). But in some cases, for example Popat (No 2) [2000] 1 Cr App R 387, a failure
to point out weaknesses has been the basis of a successful appeal.

4. The judge goes on to direct the jury to consider whether the identification
evidence is supported by any other evidence. Evidence that is capable, if believed,
of providing such support should be identified. Lies told by a defendant may
provide support for identification evidence if the jury are satisfied that the lies are
deliberate and relate to that issue. The jury must be given a direction along the
general lines indicated in Lucas [1981] 73 Cr App R 159 at 162, CA; Goodway (1994) 98
Cr App R 11, CA.

The dangers of mistaken identification and the need for supporting evidence in cases
of weak identification were emphasised in Hallam [2012] EWCA Crim 1158.

6.3.3 Withdrawing the case from the jury


If the prosecution case relies upon contested identification evidence of poor quality
and there is no other evidence in the case to support the identification, it is the judge’s
duty to withdraw the case from the jury and to direct an acquittal (Turnbull). An
interesting justification for this duty is provided in Daley.
page 54 University of London International Programmes
Where a prosecution case is entirely dependent on the victim’s identification of the
defendant, the judge should analyse the identification issues and should set out their
reasons for allowing the case to proceed; but a failure to do so is not in itself a ground
for quashing a conviction, as it then falls to be asked whether the judge erred in his
approach or reached an unreasonable decision: Shervington [2008] Crim LR 581, CA.

Activity 6.3
Why did the Devlin Committee conclude that identification evidence was
particularly hazardous?
Feedback: see end of guide.

Self-assessment questions
1. If the defendant’s presence at the scene of the crime is not disputed, are there
any circumstances in which a Turnbull warning should be given?

2. Should there be a Turnbull warning where identification evidence is based on


recognition, rather than on a fleeting glimpse by the witness?

3. Should a Turnbull warning be given where the defence is not that the identifying
witness is mistaken, but that he is deliberately giving false evidence?

4. What is the distinction between evidence of identification and evidence of


description?

5. Where evidence of voice identification is relied on, how should the judge direct
the jury?

6. What are the elements of a Turnbull direction?

7. To what extent is a judge required to summarise weaknesses in the


identification evidence when giving a Turnbull direction?

8. What was said in Turnbull about identification evidence and submissions that
there is no case to answer?

Summary
Where the prosecution relies on contested identification evidence, the judge must
tell the jury of the special need for caution, and the reason for that special need. Any
weaknesses in the circumstances surrounding identification should generally be
mentioned, and the jury should be invited to consider if the identification evidence is
supported by any other evidence.

Reminder of learning outcomes


By this stage you should be able to:
uu explain when the Turnbull guidelines apply to evidence that points to the
defendant as the person who committed an offence, and when they do not
uu distinguish between evidence of identification and evidence of description
uu explain (fully) what a Turnbull direction requires a judge to do.

6.4 Pre-trial identification procedures

Essential reading
¢¢ Code of Practice for the Identification of Persons by Police Officers (Code D) of
the PACE 1984. Please note that the only parts of Code D of PACE 1984 on which
you will be examined are paragraphs 1, 2 and 3 and the annexes A-E.

¢¢ Forbes [2001] 1 All ER 686; Gorja (Ranjit) [2010] EWCA Crim 1939; Popat [1998] 2 Cr
App R 208; Byrne [2016] All ER (D) 129 (Nov).
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 55
Code D of the PACE 1984 is a second means of reducing the risk of miscarriages of
justice deriving from mistaken identifications. The Code is periodically updated and
the current edition came into force on 7 March 2011. The code is available at: www.gov.
uk/government/publications/pace-code-d-2011

Failure to comply with these provisions can be the basis for an application under
s.78(1) of PACE 1984 to exclude evidence on which the prosecution proposes to rely.
Breaches of Code D can (but do not always) result in the exclusion of identification
evidence under s.78(1) of PACE 1984. This is because failure to observe the Code can
affect the reliability of the evidence, and reliability is an important consideration in the
application of s.78(1). An important case on the consequences of non-compliance with
the provisions of Code D is Gorja (Ranjit) [2010] EWCA Crim 1939 and useful commentary
on the case is provided by Andrew Roberts in Callie (Johnny) [2011] Crim LR 311. Even
where breaches of Code D do not justify the exclusion of identification evidence, they
may require appropriate warnings to be given to the jury (Forbes [2001] 1 All ER 686).

Further guidance as to the handling of identification evidence in cases where there


have been minor breaches of Code D can be found in Lariba [2015] EWCA Crim 478.

Forbes [2001] 1 AC 473 and Lariba [2015] EWCA Crim 478 were considered in Byrne
[2016] All ER (D) 129 (Nov), in which D had been identified when a police officer, leafing
through a bundle of graphics prepared by a colleague investigating other offences, saw
a photograph of D and recognised him as someone he had once observed driving a
van that was allegedly used in the commission of two bank robberies which the officer
himself was investigating.

The Court of Appeal had to consider whether a formal identification procedure ought
to have been held in accordance with para.3.12 of Code D, and (if so) whether failure
to hold it necessitated exclusion of the identification evidence. The first question was
answered in the affirmative: such a procedure would have been a useful safeguard and
it would have been practicable in the circumstances of the case; but it did not follow
that the evidence ought to have been excluded. The judge had been right to leave this
evidence to the jury, and leave them to decide what weight to give to that evidence.
The judge’s summing-up had pointed out that ‘best practice’ had not been followed,
and had provided the jury with guidance on how to address the reliability of the
officer’s purported recognition.

Activity 6.4
Read through para.3.12 of Code D of PACE 1984 and then put it away. From memory
list the circumstances in which an identification parade must be held. Now think of
a circumstance in which this obligation would not apply.
Feedback: see end of guide.

Self-assessment question
Why do Ashworth and Redmayne claim that there is ‘room for concern that,
despite the difficulties that juries must face in gauging the accuracy of eyewitness
identifications, the courts continue to put too much faith in juries’?

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu describe what is meant by Makanjuola warnings and explain how they differ
from the directions formerly given to the jury on corroboration
uu give an account of the decision in Lucas and show how the law was restated in
Burge and Pegg
uu describe the circumstances in which a Lucas/Burge warning is not required in
relation to a defendant’s evidence
uu explain when the Turnbull guidelines apply to evidence that points to the
defendant as the person who committed an offence, and when they do not
page 56 University of London International Programmes
uu distinguish between evidence of identification and evidence of description
uu explain when Turnbull requires a judge to withdraw a case from the jury
uu explain (fully) what a Turnbull direction requires a judge to do
uu describe the main procedures for identification set out in Code D of PACE 1984
uu describe the circumstances in which Code D does and does not apply
uu describe the circumstances in which a breach of Code D will result in the
exclusion of the identification evidence.

Quick quiz

Question 1
Which of the following statements is true?

a. A Lucas direction is rarely required as a result of the decision in R v Burge.

b. A Lucas direction is necessary where the prosecution seeks to rely on a lie told by
the defendant as evidence of their guilt.

c. The law requires Lucas directions to be given because the burden of proving an
alibi is on the defendant.

Question 2
Why is a Lucas direction required when a defendant relies on an alibi in their defence?

a. Because of the danger that if the jury does not believe the alibi, it will equate the
false alibi with guilt and not take account of possible innocent explanations for the
defendant’s lie.

b. Because corroborating evidence is required for alibis.

c. Because defendants’ alibis are generally false.

Question 3
When must a Turnbull direction be given to a jury?

a. Whenever the case against an accused person depends wholly or substantially on


the correctness of one or more identifications of the accused which the defence
allege to be mistaken.

b. Whenever the police have failed to conduct an identification procedure in


compliance with Code D of PACE 1984.

c. Whenever the case against an accused person depends wholly or substantially


on correctness of one or more identifications which have not been made in
compliance with Code D of PACE 1984.

Question 4
According to the decision in Turnbull when should a judge withdraw a case from the jury?

a. Where the identification evidence is poor unless there is other evidence supportive
of the correctness of the identification.

b. Where the identification evidence is poor.

c. Where the identification evidence is good but it is the only evidence in the
prosecution case.

Question 5
When must a Forbes direction be given?

a. Where the identification evidence is descriptive only.

b. Where disputed identification evidence is admitted in spite of a breach of Code D


PACE 1984.
Evidence 6 Hazardous witness testimony and judicial warnings to the jury page 57
c. Where the identification evidence is excluded on account of a breach of Code D
PACE 1984.

Sample examination questions


Question 1 What are the main problems with identification evidence? Does the law
of evidence deal with them adequately?
Question 2 Consider the following extract from a summing up to the jury. On the
basis that a conviction resulted, advise whether there are grounds for appeal:
Jane Roberts described her assailant as a tall, white, bald man with a red beard.
This description fits the defendant. She was confident she would be able to identify
her assailant at an identification parade. Perhaps the police should have held
an identification parade but was this really necessary after another witness had
already identified him in an identification parade? The workload of the police is
steadily increasing and you should not hold this failure against the police. The
police did show Jane Roberts a photo of the defendant and she agreed that he was
the assailant. The defence cross-examined Jane Roberts and she remained adamant
that the defendant was her attacker. You might think that this is very powerful
evidence against the defendant.

Advice on answering the questions


Question 1 A pass answer would demonstrate familiarity with the dangers associated
with eyewitness testimony and with the decision in Turnbull and the application of
Code D of PACE 1984. Better answers would include references to the report of the
Devlin Committee and the dangers discussed in Hallam [2012] EWCA Crim 1158. Very
good answers would consider: (i) whether the law should have gone further and
adopted the recommendations of the Devlin Committee and (ii) the consequences of
non-compliance with the provisions of Code D. Particularly good answers might make
reference to the views of academic commentators such as Andrew Roberts.

Question 2 No feedback provided.


page 58 University of London International Programmes

Notes
7 Evidence of a complainant’s extraneous sexual
behaviour in trials of sexual offences

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

7.1 Legislative background . . . . . . . . . . . . . . . . . . . . . . . . . . 61

7.2 Youth Justice and Criminal Evidence Act 1999, sections 41–43 . . . . . . 62

7.3 R v A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

7.4 The application of sections 41–43 YJCEA 1999 since R v A . . . . . . . . . 63

7.5 Critical evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
page 60 University of London International Programmes

Introduction
Sections 41–43 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) place
restrictions on evidence and questions about a complainant’s sexual history in trials
of sexual offences. These sections are complex and you will need to read them very
carefully. They have generated a wealth of case law including a controversial and
influential decision by the House of Lords in the case of R v A [2001] UKHL 25 which
used s.3 of the Human Rights Act 1998 to interpret the provisions in accordance with
Article 6 of the European Convention on Human Rights (ECHR). You will need to get
to grips with the statutory provisions and their interpretation so that you are able to
apply the law in a problem scenario.

You also need to critically evaluate both the statutory provisions and the ways in
which the provisions have been interpreted in the case law. In order to do this you
need to understand the historical background and the objectives of the statutory
provisions. You will also need to consider the rights of the defendant under Article
6 and of the complainant under Article 8 of the ECHR, and the difficulties in striking a
balance between them in trials of sexual offences.

This topic provides an illustration of the subjective nature of the concept of relevance
(see Choo p.398–400). Should the question of relevance be left to the judge’s discretion
or is Parliament right to seek to reduce judicial discretion to a minimum in this area? (See
Emson p.486 and Kibble Part 2 in the Further reading). To what extent have the courts
undermined Parliament’s attempts to constrain their discretion? How satisfactory is
the current position? (See the listed cases, Durston, Chapter 10, Section 5.12 ‘Convention
compliance and the 1999 Act’, Choo, pp.400–401 and the Further reading).

Although the YJCEA 1999, ss.41–43 apply to trials of all sexual offences, we will focus
on allegations of rape. The offence of rape is established where it is proven that
the defendant has (a) intentionally penetrated the vagina, anus or mouth of the
complainant with his penis, (b) the complainant did not consent to the penetration
and (c) the defendant did not reasonably believe that the complainant consented
(Sexual Offences Act 2003, s.1).

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Section 4.2.3 ‘Restriction on sexual history
evidence’.

¢¢ Durston, Chapter 10: ‘The course of evidence: cross-examination and re-


examination’, Section 5 ‘The cross-examination of sexual offence complainants’.

¢¢ Emson, Chapter 16: ‘Evidence of sexual behaviour’ (in the Evidence study pack).

¢¢ Cases: R v A [2001] UKHL 25 (you must read this judgment in full); Mukadi [2003]
EWCA Crim 3765; R [2003] EWCA Crim 2754; White [2004] EWCA Crim 946; Hamadi
[2007] EWCA Crim 3048; Beedall [2007] EWCA Crim 23; Martin [2004] EWCA Crim
916; Ben-Rejab [2012] 1 WLR 2364; R v T [2004] 2 Cr App R 551.

¢¢ Statutory provisions: Youth Justice and Criminal Evidence Act, ss.41–43; Human
Rights Act 1998, s.3; European Convention on Human Rights Article 6.

Further reading
¢¢ Temkin, J. ‘Sexual history evidence – beware the backlash’ (2003) Crim LR 217–42.

¢¢ Birch, D. ‘Admissibility; criminal evidence; sexual behaviour; sexual offences;


victims. Untangling sexual history evidence: a rejoinder to Professor Temkin’
(2003) Crim LR 370–83.

¢¢ Redmayne, M. ‘Myths, relationships and coincidences: the new problems of


sexual history’ (2003) 7(2) International Journal of Evidence and Proof 75–101.

¢¢ Kibble, N. ‘Judicial perspectives on the operation of s.41 and the relevance and
admissibility of prior sexual history evidence: four scenarios’ Part I, (2005) Crim
LR 190–205 and Part II (2005) Crim LR 263–74.
Evidence 7 Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences page 61

¢¢ Kibble, N. ‘The relevance and admissibility of prior sexual history with the
defendant in sexual offence cases’ (2001) 32 Cambrian Law Review 27–63.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu describe the changes effected by the Youth Justice and Criminal Evidence Act
1999, ss.41–43 in relation to cross-examination of complainants in trials where a
defendant is charged with a sexual offence
uu explain the effect of R v A [2001] UKHL 25 on YJCEA, s.41 and provide illustrations
from cases decided since R v A
uu critically evaluate the law in this area
uu apply the law in a problem scenario.

7.1 Legislative background


Section 2 of the Sexual Offences (Amendment) Act 1976 was the first legislative
attempt to restrict the circumstances in which evidence of the complainant’s
extraneous sexual history (to the offence alleged) could be adduced or the subject of
cross-examination. The Act has its origins in the Report of the Heilbron Advisory Group
on the Law of Rape. The Advisory Group felt that ‘unless there are some restrictions,
questioning can take place which does not advance the cause of justice but in effect
puts the woman on trial’. The Advisory Group treated previous sexual association
between the complainant and the accused as potentially relevant, but advised that in
general the previous sexual history of the complainant with other men was irrelevant.
(Report of the Advisory Group on the Law of Rape, CM6352 (HMSO 1975).)

Section 2 of the Sexual Offences (Amendment) Act 1976 made all evidence and
questions in cross-examination ‘about any sexual experience of a complainant with
a person other than the defendant’ subject to the leave of the court and provided
that the trial judge must not give leave unless ‘satisfied that it would be unfair to that
defendant to refuse to allow the evidence to be adduced or the question to be asked.’

In Viola [1982] 1 WLR 1138 Lord Lane CJ said that trial judges should generally disallow
questions merely going to credit. Conversely, questions ‘relevant to an issue in the trial
in the light of the way the case is being run’ should normally be permitted ‘because to
exclude a relevant question on an issue in the trial…will usually mean that the jury are
being prevented from hearing something which, if they hear it, might cause them to
change their minds about the evidence given by the complainant’.

In 1998, Speaking up for Justice, a Home Office Report, noted that leave was granted for
the admission of sexual history evidence in the vast majority of applications under s.2
of the Sexual Offences (Amendment) Act 1976 and that the statutory provision was
not serving its purpose. As a result of a perception that the judiciary was not applying
the provisions of the 1976 legislation in the spirit in which they were intended,
the provisions were replaced by ss.41–43 of the YJCEA. These provisions sought to
severely curtail judicial discretion by prescribing limited circumstances in which
evidence of previous sexual history of complainant could be adduced in evidence or
cross-examination.

Principal differences between the 1976 and the 1999 Acts:

1. The 1976 Act restrictions had no application to previous sexual experience between
the complainant and the accused.

2. Under the 1976 Act the judge could dis-apply the restrictions if satisfied that it
would be ‘unfair to the defendant’ to refuse to allow the evidence to be adduced
or the question to be asked. Under the 1999 Act, the judge may only give leave if
satisfied that it is relevant to an issue in the case and that a refusal of leave might
render the jury’s conclusion ‘unsafe’. ‘Unsafe’ is, of course, the single ground for
allowing an appeal against conviction under the Criminal Appeal Act 1968.
page 62 University of London International Programmes

7.2 Youth Justice and Criminal Evidence Act 1999, sections


41–43
It is important to be familiar with YJCEA 1999, ss.41–43. Read the provisions in your
statute book. It is important to understand the distinction made between trials where
the issue is not one of consent, and trials where there is an issue of consent. A defence
of belief in consent does not raise an issue of consent (see s.42(1)). You should be
aware that defendants can raise a defence of reasonable belief in consent as well as a
defence of actual consent. Thus it would be possible for someone charged with rape
to say: ‘She was consenting; but if I’m wrong about that, her behaviour certainly led
me to believe that she was consenting’. In any problem question on this subject you
will need to think carefully about what the defendant is alleged to have said after the
event, especially to the police and to his solicitors, in order to determine whether both
defences are being raised.

Self-assessment questions
1. What does s.41 prohibit?

2. According to s.41, when can leave be given?

3. Define ‘sexual behaviour’ for the purposes of s.41 (you will find it useful to read
Ben-Rejab [2012] 1 WLR 2364 to appreciate the breadth of this term).

7.3 R v A
You should read the judgment of R v A [2001] UKHL 25 in full. It provides a very useful
summary of the historical background to the introduction of YJCEA 1999, ss.41–43 and
has important and controversial implications for the application of these provisions.
The feedback activities and self-assessment questions are designed to ensure you have
read and understand this complex judgment.

Activities 7.1–7.21
7.1 What did the defendant claim in this defence to the charge of rape?

7.2 At the preparatory hearing for his trial, what did the defendant seek leave to
do?

7.3 Why was leave required for him to do this?

7.4 Why did the Court of Appeal state that the trial judge’s exclusion of the
evidence was wrong?

7.5 What did Rose LJ in the Court of Appeal conclude the effect of the Act was
in relation to the admissibility of the alleged previous sexual relationship
between the complainant and the accused, on the issue of consent?

7.6 What was the question certified by the Court of Appeal which gave leave to
appeal to the House of Lords?

7.7 According to Lord Slynn, what had become plain in recent years?

7.8 According to Lord Slynn, why was it necessary to prohibit questioning the
complainant about having had sex with men other than the accused?

7.9 According to Lord Slynn, what danger is presented by the admission of evidence
of previous sex between the complainant and the accused?

7.10 What was the ‘obvious conflict’ identified by Lord Slynn?

7.11 Does the cross-examination of complainants in sexual offences pose dangers


only for the individual complainant?

7.12 What does s.3 of the Human Rights Act 1998 require?

7.13 What did Lord Slynn say about using s.3 of the Human Rights Act 1998 to
interpret the phrase ‘at or about the same time’ in s.41(3)(b)?
Evidence 7 Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences page 63
7.14 How did Lord Steyn say s.41, and in particular subs.41(3) (c), should be read?

7.15 What did Lord Slynn agree and Lord Steyn say about the effect of their decision?

7.16 What did Lord Steyn say about the result of this decision?

7.17 How did Lord Steyn think that a prior sexual relationship between the
complainant and the accused could be relevant to the issue of consent?

7.18 Find one example of a previous sexual encounter between an accused and a
complainant which their Lordships would not deem relevant.

7.19 Find one example of a previous sexual encounter between an accused and a
complainant which their Lordships would deem relevant.

7.20 What was Lord Steyn’s view on the way in which the YJCEA 1999 deals with prior
sexual relationships between the complainant and persons other than the
accused?

7.21 What four examples did Lord Hope provide in R v A of issues which might fall
within s.41(3)(a)?

Feedback: see end of guide.

Self-assessment questions
1. Write a paragraph in praise of the decision in R v A.

2. Write a paragraph criticising the decision in R v A.

7.4 The application of sections 41–43 YJCEA 1999 since R v A

Essential reading
¢¢ Cases: Mukadi [2003] EWCA Crim 3765; R [2003] EWCA Crim 2754; R v T [2004] 2 CR
App R 551; White [2004] EWCA Crim 946; Hamadi [2007] EWCA Crim 3048; Beedall
[2007] EWCA Crim 23; Martin [2004] EWCA Crim 916; Gjoni (Kujtim) [2014] EWCA
Crim 691, (2014) Crim LR 765 (the Crim LR contains useful commentary on the
case you will find helpful).

Self-assessment questions
1. What subsections of s.41 were under consideration in Martin? In the Court of
Appeal’s view, should the judge have granted leave? Why?

2. What subsection of s.41 was under consideration in Mukadi? How does the case
of Mukadi illustrate the subjective nature of the concept of relevance? Which
decision do you agree with, (i) that of the trial judge or (ii) that of the Court of
Appeal?

3. In White what did the Court of Appeal say about the application of s.3 of the
Human Rights Act to s.41(3)(c) in a case where evidence of sexual acts of the
complainant with men other than the accused is sought to be adduced? Did the
Court of Appeal think that the trial judge should have granted leave in this case?
For what reasons?

4. What subsection of s.41 was under consideration in R v R? Did the Court of


Appeal think the trial judge should have granted leave? On what basis?

5. Which subsections of s.41 were under consideration in Hamadi? What were


the appellant’s arguments? How persuasive do you find the argument? Did
the Court of Appeal think that the trial judge should have granted leave? What
were the Court’s reasons? What did the Court about the implications for the
interpretation of s.41(3)(5) of the decision in R v A?

6. In Beedall what reason did the Court of Appeal provide for agreeing with the trial
judge’s refusal to grant leave?
page 64 University of London International Programmes

7.5 Critical evaluation

Essential reading
¢¢ Choo, Chapter 13: ‘Witnesses’, Section 4.2.3 ‘Restriction on sexual history
evidence’.

¢¢ Durston, Chapter 10: ‘The course of evidence: cross-examination and re-


examination’, Section 5 ‘The cross-examination of sexual offence complainants’.

¢¢ Emson, Chapter 16: ‘Evidence of sexual behaviour’ (in the Evidence study pack).

Re-read Durston, Choo and Emson. It would be helpful for you to also read some of the
Further reading for this section.

Self-assessment questions
1. Should the question of relevance be left to the judge’s discretion or is
Parliament right to seek to reduce judicial discretion to a minimum in this area?
(See Emson and Kibble Part 2 in the Further reading).

2. To what extent have the courts undermined Parliament’s attempts to constrain


their discretion?

3. How satisfactory is the current position? (Refer to the cases listed for this
chapter, Durston, Chapter 10, Section 5.12 ‘Convention compliance and the 1999
Act’, Choo, pp.400–401 and the Further reading).

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu describe the changes effected by YJCEA 1999, ss.41–43 in relation to cross-
examination of complainants in trials where a defendant is charged with a sexual
offence
uu explain the effect of R v A [2001] UKHL 25 on YJCEA 1999, s.41 and provide
illustrations from cases decided since R v A
uu critically evaluate the law in this area
uu apply the law in a problem scenario.

Quick quiz

Question 1
In what cases does s.41 of the Youth Justice and Criminal Evidence Act 1999 apply?

a. All cases in which the prosecution witness is person of immoral character.

b. All cases in which a witness and a defendant have had a previous sexual
relationship.

c. Cases in which the defendant is charged with a sexual offence.

Question 2
Which of the following is correct?

a. According to s.41 the defence may not adduce evidence or ask the complainant
about their sexual behaviour.

b. According to s.41 the defence cannot adduce evidence or ask the complainant
about their sexual behaviour without the leave of the court.

c. According to s.41 the prosecution cannot adduce evidence or ask the complainant
about their sexual behaviour without the leave of the court.
Evidence 7 Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences page 65

Question 3
According to which decision of the ECtHR do principles of fair trial require that in
appropriate cases the interests of the defence are balanced against those of witnesses
or victims called upon to testify?

a. Doorson v Netherlands (1996) App No. 20524/92.

b. Mapel v Netherlands (1996) App No. 20524/92.

c. Armright v Netherlands (1996) App No. 20524/92.

Question 4
Which of the following broadened the judicial discretion to admit evidence of a
complainant’s sexual history under s.41 of the Youth Justice and Criminal Evidence Act
1999?

a. Bahador [2005] EWCA Crim 396.

b. R v A [2002] 1 AC 45.

c. R v C [1993] 3 AC 22.

Question 5
What are the discredited ‘twin myths’ identified in the Canadian case of Seaboyer
(1991) 83 DLR (4th) 193, 258, 278c and referred to in R v A [2002] 1 AC 45?

a. That women who readily engage in sexual intercourse are more likely to be raped
and less likely to report it.

b. That ‘unchaste’ women are more likely to consent to intercourse and less likely to
tell the truth.

c. That women who have engaged in sexual intercourse with a particular man are
likely to do so again, but unlikely to report it.

Sample examination questions


Question 1 ‘As a result of the House of Lords’ judgment in R v A the provisions
relating to the admissibility of sexual history evidence in the Youth Justice and
Criminal Evidence Act 1999 are doomed to failure.’
Discuss.
Question 2 Dave is to stand trial for the rape of Charlotte at a party in December
2009. Dave admits sexual intercourse but claims that Charlotte consented to it.
Dave claims that he and Charlotte had met on one previous occasion in July 2009, at
a mutual friend’s party. Dave claims they had sexual intercourse on that occasion.
Dave also claims that, two hours before the alleged rape in December 2009,
Charlotte had, immediately on arriving at the party, approached Ed and kissed him
on the lips, saying: ‘I know we’ve never really spoken, but did you know I’ve always
fancied you? Maybe it’s time we did something about it.’ Dave claims that Charlotte
fabricated the allegation against him because she feared that Ed, who is now her
boyfriend, would find out that she had sexual intercourse with Dave on the same
night she had told Ed she was attracted to him.
In a separate case, Alfred and John are due to stand trial for raping Isabelle at party
in October 2009. According to Isabelle, Alfred held her down whilst John raped her
and then John held her down whilst Alfred raped her. Alfred and John admit that
the sexual intercourse took place but claim that Isabelle consented to it. They claim
that Isabelle fabricated the allegation when she found out people were talking
about her having had sex with two men at the same time at the party. Alfred claims
that he has had sexual intercourse with Isabelle on approximately eight occasions
between January and October 2009. Alfred and John both claim that at a party in
July 2009 Isabelle went to the bedroom with Alfred and John and had sex with both
of them in succession.
Discuss the evidential issues arising in both trials.
page 66 University of London International Programmes

Advice on answering the questions


Question 1 You need to identify the reasons behind the introduction of s.41 YJCEA
1999 and explain the decision in R v A and its potential implications for the application
of s.41. Use examples from the cases decided since R v A to support your arguments.
Strong candidates will refer to the arguments and examples provided in the Further
reading.

Question 2 The first case: In the examination some students mistakenly thought
that the decision in R v A pertained to the relevance of sexual history evidence to a
defendant’s reasonable belief in consent. You should know that R v A was concerned
with the relevance of the evidence to the defence of actual consent. Dave’s defence in
this case is consent. You need to demonstrate a sound understanding of the decision
in R v A and apply its dicta to the question of whether the defence could adduce
evidence or cross-examine Charlotte about her previous sexual intercourse with the
defendant in July 2009 under s.41(3)(c). In relation to Charlotte’s propositioning of Ed,
might leave be given under s.41(3)(a)? Is it relevant to her motive for fabrication? You
could mention the case of Martin here as well as Lord Hope’s examples in R v A. Might
leave be granted under s.41(3)(b)? As well as mentioning the relevant dicta in R v A you
could mention the case of Mukadi.

In the second case you should discuss the application of R v A and R when considering
whether the defence could adduce evidence or cross-examine Isabelle about her
previous sexual intercourse with both defendants.

If you have time, it is a good idea to add a few sentences of evaluation of the legal
issues you have discussed. How satisfactory do you think the likely outcome is?
8 Character evidence

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

8.1 Good and bad character in civil proceedings . . . . . . . . . . . . . . . 69

8.2 Evidence of good character in criminal trials . . . . . . . . . . . . . . . 69

8.3 Evidence of bad character in criminal trials . . . . . . . . . . . . . . . . 71

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
page 68 University of London International Programmes

Introduction
In this chapter we will examine the circumstances in which evidence of a party’s
character will be admitted in the proceedings.

In civil cases the admissibility of bad character evidence is primarily governed by the
test of relevance.

Part II of the Criminal Justice Act 2003 (CJA 2003) instituted a radical change to the
admissibility of bad character evidence in criminal proceedings. The effect of these
provisions will mean that non-defendants will be better protected from attacks
on their character than previously. In relation to a defendant’s bad character, such
evidence is likely to play a greater part in the investigation and prosecution of cases,
and may form an essential part of the evidence against a defendant. In Chopra [2007]
1 Cr App R 16, Hughes LJ noted: ‘The important change is that whereas previously
evidence of the defendant’s propensity to offend in the manner now charged was
prima facie inadmissible, now it is prima facie admissible.’ The bad character provisions
of the CJA 1993 are complex as well as controversial; you will need to take time to read
them carefully.

Although the CJA 2003 sought to provide a comprehensive statement of the law on
evidence of bad character evidence, it has been substantially elaborated upon by a
wealth of case law.

The law on good character is relatively straightforward.

Essential reading
¢¢ Choo, Chapter 10: ‘Character evidence’.

¢¢ Durston, Chapter 5: ‘Character evidence’.

¢¢ Sections 98–112 of the Criminal Justice Act 2003.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu discuss what evidence is admissible in a criminal trial to show a defendant’s
good character
uu explain how evidence of good character can be relevant in a criminal trial
uu explain in what circumstances a judge can dispense with the Vye directions
uu explain in what circumstances a defendant with previous convictions can be
treated as being of good character in a criminal trial
uu explain what is meant by bad character in CJA 2003, Part 11, Chapter 1
uu explain when evidence of a non-defendant’s bad character can be adduced
under CJA 2003
uu explain when evidence of a defendant’s bad character can be adduced under CJA
2003
uu apply the law in a problem scenario
uu critically evaluate the law – is the law on character satisfactory? Some of the
questions you might consider under this heading are whether it furthers the
aims of evidence? Does it help to ensure the conviction of the guilty and the
acquittal of the innocent? Is the law sufficiently clear for the parties to be able to
predict a court’s application of it? Does it help to ensure only relevant evidence
of more probative than prejudicial value is admitted against a defendant?
Evidence 8 Character evidence page 69

8.1 Good and bad character in civil proceedings

Essential reading
¢¢ Case: O’Brien v Chief Constable of South Wales Police [2005] UKHL 26.

Generally speaking, the good character of a party to civil proceedings is not admissible.
If a party has their credibility attacked by unwarranted aspersion on their character,
they can of course call evidence of their good character to rebut the allegation.

In O’Brien v Chief Constable of South Wales Police [2005] UKHL 36 the House of Lords
gave thorough consideration to the issue of bad character evidence in civil cases. You
should familiarise yourself with the two-stage test of admissibility laid down in this
case. Note in relation to criminal proceedings it was suggested, obiter, that the CJA had
preserved the common law requirement of enhanced probative value in relation to
similar fact evidence, but this view was rejected in Weir [2006] 2 All ER 570, CA, in which
it was held that the common law test had been made obsolete by the Act, and that,
where evidence of the defendant’s bad character was relevant to an important matter
in issue between the defendant and the prosecution, then it was admissible subject
only to the discretion given to the court by s.101(3).

Activity 8.1
Write down the two-stage test of admissibility set out in O’ Brien v Chief Constable of
South Wales Police [2005] UKHL 26.
Feedback: see end of guide.

Activity 8.2
Make a list of the factors that could be taken into account in the second stage of the
test.
Feedback: see end of guide.

Further reading
¢¢ Ho, H.L. ‘Similar facts in civil cases’ (2006) 26 Oxford Journal of Legal Studies 131.

¢¢ Munday, R. ‘Case management, similar fact evidence in civil cases, and a divided
law of evidence’ (2006) 10 International Journal of Evidence and Proof 81–103.

8.2 Evidence of good character in criminal trials

Essential reading
¢¢ Cases: Hunter (Nigel) [2015] EWCA Crim 631, [2015] 2 Cr App R 9; Vye (1993) 97 Cr
App R 134; Aziz [1996] AC 41; Campbell [2010] UKPC 26, [2011] 2 WLR 983.

The Court of Appeal considered the relevance of evidence of a defendant’s good


character in Vye [1993] WLR 471. This decision sets out the directions (Vye directions)
that must be given where a defendant is of good character and (1) has given evidence or
relied on exculpatory parts of mixed statements made pre-trial to others (the first limb
direction, pertaining to credibility) and (2) in all cases (second limb direction regarding
propensity). The first limb deals with the relevance of good character to credibility, and
the second limb deals with the relevance of good character to the question of whether
the defendant was likely to have behaved as alleged by the prosecution.

Whether a defendant is of good character is a complex question which is discussed in


depth in the House of Lords decision of Aziz [1996] AC 41 and recently clarified in Hunter
[2015] EWCA Crim 631, 2 Cr App R 9. The Court of Appeal clearly intended Hunter to be the
leading authority on the nature and extent of good character directions and because
the case is so recent it is unlikely to be covered in your textbook. You are therefore
recommended to read the case in full and the case comment (see Monaghan in the
Further reading). The Court took the opportunity to conduct a comprehensive review
of the law, and concluded that the principles of good character had been extended too
far in appeal, decided since Vye and Aziz, so that defendants with bad criminal records
page 70 University of London International Programmes
or those not entitled to good character directions were claiming entitlement to such
directions. This had led to a significant increase in applications for leave to appeal against
the good character directions given by trial judges. The problem with the principles of
good character arose in light of the wider definition given to the term ‘bad character’
under the CJA 2003, and this inevitably necessitated a reconsideration of the scope of
good character directions. Thus, the court sought to reconceptualise good character,
categorising defendants into those of ‘absolute good character’, ‘effective good
character’ and ‘bad character’, and held that whether a defendant is one of effective
good character or whether a defendant of bad character is entitled to good character
directions are matters for the trial judge’s discretion. Only defendants of ‘absolute good
character’ are entitled to good character directions as of right.

The importance of good character directions is nicely illustrated in Campbell [2010]


UKPC 26, [2011] 2 WLR 983. The case against Campbell, that is, that he had murdered
a police officer, relied on one witness’s identification of him as the perpetrator.
Campbell denied any involvement. The Privy Council stated that ‘[t]he absence of
a good character direction … deprived [Campbell] of a benefit in precisely the kind
of case where such a direction must be regarded as being of greatest potential
significance’ (per Lord Mance, at [45]).

Activity 8.3
In Aziz [1996] AC 41 Lord Steyn said:
… a judge should never be compelled to give meaningless or absurd directions, and cases
occur from time to time where a defendant, who has no previous convictions, is shown
beyond doubt to have been guilty of serious criminal behaviour similar to the offence
charged in the indictment. A sensible criminal justice system should not compel a judge
to go through the charade of giving directions in accordance with Vye in a case where the
defendant’s claim to good character is spurious.

What hypothetical example did Lord Steyn have in mind in making this
observation?

Self-assessment questions
1. What, according to Vye (1993) 97 Cr App R 134, are the two limbs of the direction
on a defendant’s good character?

2. What, according to Hunter [2015] EWCA Crim 631 does ‘absolute good character’
mean and what is a defendant who is of absolute good character entitled to?

3. What, according to Hunter [2015] EWCA Crim 631 does ‘effective good character’
mean and when will a judge give a good character direction in favour of a
defendant who is of effective good character?

Further reading
¢¢ Monaghan, N. ‘Reconceptualising good character’ (2015) 19(3) International
Journal of Evidence and Proof 190–95.

Summary
The most important topics to remember are the limitation on what can be called as
evidence of good character, and the contents of a Vye direction.

Reminder of learning outcomes


By this stage, you should be able to:
uu discuss what evidence is admissible in a criminal trial to show a defendant’s
good character
uu explain how evidence of good character can be relevant in a criminal trial
uu explain the circumstances in which a judge can and cannot dispense with the Vye
directions
uu explain the circumstances in which a defendant with previous convictions can be
treated as being of good character in a criminal trial.
Evidence 8 Character evidence page 71

8.3 Evidence of bad character in criminal trials

8.3.1 Definition of bad character

Essential reading
¢¢ Sections 98 and 112(1) CJA 2003.

Bad character was not defined at common law and attracted little attention from
scholars or the courts. It was generally assumed to consist solely of evidence of
previous offending.

Section 98 of the CJA 2003 provides as follows:


References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or
of a disposition towards, misconduct on his part, other than evidence which –

• has to do with the alleged facts of the offence with which the defendant is charged, or

• is evidence of misconduct in connection with the investigation or prosecution of that


offence.

‘Misconduct’ is defined in s.112(1) as ‘the commission of an offence or other reprehensible


behaviour’.

The meaning of the phrase ‘has to do with the alleged facts of the offence’ in this
section was explored in Sullivan [2015] EWCA Crim 1565.

The Explanatory Notes to the CJA 2003 suggest that the definition of misconduct in
s.112(1) is intended to be a broad one.

In S [2009] EWCA Crim 2457 the court had to consider whether ‘irritating and upsetting’
behaviour had been ‘reprehensible’ so as to fall within ss.98 and 112 of the CJA 2003.
(Note also the reason for excluding this evidence.) Fox (Charles Frederick) [2009] EWCA
Crim 653 shows that evidence of behaviour that is not ‘reprehensible’ will not be
covered by the bad character provisions of CJA 2003 and may be admissible, if relevant,
at common law. In Manister (2005) EWCA Crim 2866, evidence that the appellant, aged
34, had had a sexual relationship with a girl aged 16 was not reprehensible behaviour
and so was not governed by the CJA 2003 admissibility scheme. It was admissible as it
showed he had a sexual interest in young girls.

You should note the way in which evidence of matters leading to past acquittals could
be used under the earlier law: see Z [2000] 3 All ER 385. According to the Explanatory
Notes, such evidence would be admissible under the CJA 2003.

Further reading
¢¢ Munday, Chapter 7: ‘Evidence of the defendant’s bad character’, Section I ‘The
admission of evidence of a defendant’s bad character in criminal cases’, ‘What
actually constitutes evidence of “bad character’’’ (in the Evidence study pack).

¢¢ Cases: S [2009] EWCA Crim 2457; Fox (Charles Frederick) [2009] EWCA Crim 653;
Manister [2005] EWCA Crim 2866; Z [2000] 3 All ER 385; Ball [2005] EWCA Crim
2826.

8.3.2 The gateways under the Criminal Justice Act 2003 that govern the
admission of the defendant’s bad character

Essential reading
¢¢ These cases should be read in full: Hanson [2005] 1 WLR 3169; Highton [2005]
1 WLR 3472; Campbell [2007] 1 WLR 2798; Renda [2005] EWCA Crim 2826; Singh
[2007] EWCA Crim 2140.

Section 101(1) provides six ‘gateways’ through which evidence of a defendant’s bad
character can be admitted:

uu its admission is non-contentious – s.101(1)(a) and (b)


page 72 University of London International Programmes
uu it has an important explanatory function – s.101(1)(c)

uu it is relevant to an important matter in issue between defendant and prosecution –


s.101(1)(d)

uu it has substantial probative value in relation to an important matter in issue


between defendant and co-defendant – s.101(1)(e)

uu it corrects a false impression given by defendant – s.101(1)(f)

uu it counters defendant’s attack on another person – s.101(1)(g).

Section 101(1)(a) is unlikely to give rise to difficulty, but the others need careful study.

8.3.2.1 Important explanatory evidence


Section 101(1)(c) ‘Important explanatory evidence’ is defined in s.102 CJA 2003.

In Pronick [2006] EWCA Crim 2517 the appellant was convicted of attempted rape of his
partner. The complainant’s evidence relating to earlier assault and rape was admitted.
The Court of Appeal stated that ‘unless the complainant was allowed to give her
account of the nature of the relationship, the jury would not be able to make a proper
assessment of the respective evidence of the two protagonists. It was accordingly
necessary material for the jury’s consideration, and its importance for the jury was
likely to be substantial.’

8.3.2.2 Relevant to an important matter in issue between the defendant and the
prosecution
Section 101(1)(d) can be used only by the prosecution. It must be studied in
conjunction with s.103. It is worth taking time to read these two provisions carefully.
Note also the limitations imposed by s.101(3) and (4), and s.103(3), and the scope that
these provisions may give, in addition to the common law, for arguments based on
a comparison of prejudicial and probative value. Matters in issue include propensity
to commit offences of the kind with which the defendant is charged, and propensity
to be untruthful. Note these are only examples of matters which may be important
matters in issue between the defendant and the prosecution.

(i) Propensity to commit offences of the kind with which charged


Guidelines on the use of bad character evidence were laid down by the Court of Appeal
in Hanson [2005] 1 WLR 3169. On this occasion the Court gave judgment in a number of
conjoined appeals and made general observations about the way in which s.101 should
be applied. Those relating to gateway (d) were as follows:

1. Where propensity to commit the offence is relied on as the basis for admitting
evidence of a defendant’s bad character under s.101(1)(d), there are essentially
three questions to be considered.

uu Does the history of convictions establish a propensity to commit offences of


the kind charged?

uu Does that propensity make it more likely that the defendant committed the
offence charged?

uu Is it unjust to rely on the convictions and will the proceedings be unfair if they
are admitted? [See ss.103(3) and 101(3).]

2. There is no minimum number of events necessary to demonstrate propensity.


A single previous conviction for an offence of the same description or category
will often not show propensity. But it may do so where, for example, it shows a
tendency to unusual behaviour, such as child molestation or fire raising.

3. When considering what is just under s.103(3), and the fairness of the proceedings
under s.101(3), the judge may take into consideration the degree of similarity
between the previous convictions and the offence charged, although striking
similarity is not an essential requirement for admissibility. The judge may also take
into account the respective gravity of the past and present offences.
Evidence 8 Character evidence page 73
4. The judge must always consider the strength of the prosecution case. ‘If there is no
or very little other evidence against a defendant, it is unlikely to be just to admit his
previous convictions, whatever they are.’

5. The age of a previous conviction may be a relevant consideration in deciding whether


to admit it, but even a spent conviction can be admitted to show propensity. (For an
example of a case where a conviction was quashed because the trial judge failed to
take into consideration, as required by s.101(4), the time that had elapsed between
the previous conviction and the current offence, see Dhooper [2008] EWCA Crim
2892. In this decision the Court of Appeal said that lapse of time has to be considered
from two perspectives: (1) the effect of the passage of time on the probative value
of the earlier offence; (2) how difficult it is likely to be for a defendant to explain the
circumstances of the previous offence in view of the time that has elapsed.)

6. In any case in which evidence of bad character is admitted to show propensity,


whether to commit offences or to be untruthful, the judge in summing up should
make the following points to the jury:

uu The jury should not place undue reliance on previous convictions. In particular,
they should not conclude that the defendant has been untruthful or has
committed the offence with which he has been charged merely because he
has these convictions.

uu Whether the convictions do in fact show propensity is for the jury to decide.

uu If they do find propensity, the jury are entitled to take this into account when
determining guilt. But it is only one relevant factor and they must assess its
significance in the light of all the other evidence in the case.

The question for the judge under this gateway is whether evidence is capable of
establishing the relevant propensity. It is for the jury to decide whether it does so
(Chopra [2007] 1 Cr App R 16 and Brima [2007] 1 Cr App R 24). The Court of Appeal will
not usually intervene to vary a trial judge’s judgment on an application under this
gateway, but it will do so if a judge has made an error in his judgment as to the ability
of prior events to establish propensity, so that his decision is plainly wrong (M [2006]
EWCA Crim 3408).

Note the fact that previous convictions for offences of the same description or category
does not automatically mean that they should be admitted. In Tully and Wood (2007)
171 JP 25 the appellant was convicted of robbery of a taxi driver. His multiple previous
convictions of dishonesty offences were admitted on the basis that the number of
convictions was evidence of a propensity to acquire other peoples’ property by unlawful
means. The Court of Appeal stated:

The Judge did not consider whether evidence of those convictions would make it more
likely that each appellant had committed this offence…had he done so, he would have
concluded that such evidence had little probative force. There are a great many people
who have a propensity to acquire other people’s property by one means or another. On
the other hand, previous convictions for robbery would be much more probative and a
conviction for robbing somebody using a knife to reinforce a threat of violence would
increase the probative force…the more similar the circumstances of the past offences, to
the present allegation, the greater the probative force.

Evidence of propensity will not be available if having the propensity ‘makes it no more
likely that [the defendant] is guilty of the offence’.

Propensity to commit offences of the kind with which the defendant is charged is as
important where the defence is a complete denial of what is alleged as where the
defendant gives an innocent explanation for actions which he admits (Wilkinson [2006]
EWCA Crim 1332). Although a single previous conviction can be sufficient to establish
propensity, great care must be exercised before admitting it (McDonald [2007] EWCA
Crim 1194).

For a rare example of the Court of Appeal setting aside a conviction on the ground
that the trial judge should have excluded evidence of a prior conviction because of its
page 74 University of London International Programmes
prejudicial effect, see Benabbou [2012] EWCA Crim 1256 (probative value of conviction
for rape in establishing a propensity to commit offences of sexual assault was limited,
because of dissimilarities between the offences, yet the prejudicial effect was such
as to distract the jury from, or even blind them to, the issues; and it would be wrong
to approach any case on the basis that a single rape would necessarily attract the
description of unusual behaviour of the kind referred to in Hanson).

Johnson [2009] 2 Cr App R 7 shows that propensity can be established by convictions


that are not of the same description or category as the offence for which a defendant
is being tried.

In Derek Barron [2010] EWCA Crim 2950, the appellant was accused of murdering his
former wife after she had formed a relationship with another man. He had a history
of obsessive sexual jealousy towards former partners after they had formed fresh
relationships, stalking, and assaulting them. The Court of Appeal upheld the trial
judge’s decision to adduce evidence of this behaviour, pursuant to s.101(1)(d), as
indicative of propensity.

Note the way in which s.101(1)(d) differs from the provisions relating to the bad
character of non-defendants and co-defendants, and also the way in which it differs
from the recommendations of the Law Commission (Law Com No. 273, para.11.46.)

(ii) Propensity to be untruthful


Hanson, in a consideration of gateway (d) and its companion provision, s.103, held that
not all previous convictions show ‘a propensity to be untruthful’ for the purposes of
s.103(1)(b). Previous convictions are likely to show such a propensity only where: (1) the
earlier trials had been contested and the defendant had given evidence that the jury
must have disbelieved; or, (2) the way in which the previous offences were committed
showed a propensity to be untruthful (for example by making false representations).

In Campbell [2007] 1 WLR 2798 the Court of Appeal said that the only circumstance
in which there is likely to be an ‘important’ issue as to whether a defendant has a
propensity to be untruthful, so as to bring gateway (d) into play, is where telling lies
is an element of the offence charged. Even then, the propensity to be untruthful is
likely to be significant only if it was in the context of committing earlier offences,
in which case the evidence is likely to be admissible under s.103(1)(a) because the
previous convictions show a propensity to commit offences of the kind with which
the defendant is currently charged. The implications of Campbell have not been
fully worked out. Mirfield argues that it is likely to make s.103(1)(b) a dead letter. For
examples of where propensity to be untruthful will be an important matter and telling
lies is not an element of the offence charged see Belogun [2008] EWCA Crim 2006.

(iii) Other important matters in issue


See Isichei [2006] EWCA Crim 1815 where the defendant’s propensity to supply cocaine
was relevant to the issue of identification.

8.3.2.3 Important matter in issue between defendant and a co-defendant


Section 101(1)(e) This gateway can be used only by a co-defendant, and should be read
in conjunction with s.104. The test under this section requires substantial probative
value in relation to an important matter in issue, and is therefore more demanding
than the test under s.101(1)(d). However, once the court is satisfied that these
conditions are fulfilled, there is no power to exclude the evidence. You should note
the limitation in s.104(1) on adducing evidence that a co-defendant has a propensity
to be untruthful. Note also the uncertain state of the law about what is needed to
undermine a co-defendant’s defence.

In Musone [2007] 1 WLR 2467 the Court of Appeal affirmed that there is no power under
gateway (e) to exclude admissible evidence, either under the CJA 2003 or under Article
6 of the European Convention on Human Rights. However, the Court said that the
rights of a defendant to a fair trial are protected by the Criminal Procedure Rules 2005
and on the facts of this case the judge had been right to exclude, for a breach of the
Rules, evidence that would otherwise have been admissible under this gateway.
Evidence 8 Character evidence page 75

8.3.2.4 Correcting a false impression


Section 101(1)(f) This gateway is open only to the prosecution. It must be read with
s.105. Evidence is admissible under s.101(1)(f) only if it goes no further than necessary
to correct a false impression.

In Renda [2005] EWCA Crim 2826 the question arose whether the defendant had
successfully withdrawn assertions made during examination-in-chief when they
admitted their falsity during subsequent cross-examination. The trial judge ruled that
he should not be treated as having done so and this decision was upheld by the Court
of Appeal. A concession extracted in cross-examination that the defendant was not
telling the truth during examination-in-chief will not normally amount to a withdrawal
of, or dissociation from, the original assertion for the purposes of s.105(3). It could be
otherwise where the defendant’s decision to withdraw or dissociate is unprompted.

8.3.2.5 The defendant has made an attack on another person’s character


Section 101(1)(g) The purpose of gateway (g) is to enable the jury to know from what
sort of source allegations against a witness (especially a complainant but not only a
complainant) have come and to enable a jury to know which witness to believe (Singh
[2007] EWCA Crim 2140).

It is also to protect witness from gratuitous attacks on their character (Law Commission).

There can be an attack for the purposes of this gateway even though what is said by
the defendant is a necessary part of his defence (Singh).

There is no reference under this gateway to propensity to be untruthful or to


substantial probative value, so that where an attack has been made the jury is entitled
to know the character of the defendant without the restrictions that operate under
gateway (d) (Singh).

In Ball [2005] EWCA Crim 2826 the appellant had called the complainant ‘a slag’ in his
interview. This amounted to an attack on another person’s character. Note the breadth
of the definition of bad character when considering this gateway.

In Nelson [2006] EWCA Crim 3412 the Court of Appeal said that it would usually
threaten the fairness of the proceedings to admit evidence of a defendant’s previous
convictions where his attack was on someone who was not a witness. The Court also
said that, although allegations made by a defendant during a police interview could
meet the requirements for gateway (g), evidence would have to be given of what had
been said and that evidence would not be admitted unless it was relevant. It would be
improper for the prosecution to try to get damaging comments before a jury simply to
provide a basis for adducing evidence of previous convictions under gateway (g).

Admissibility of the defendant’s bad character under this gateway depends on


the defendant having made an attack on another person’s character, but once the
evidence is admitted, it may, depending on the particular facts, be relevant not only
to credibility but also to propensity to commit offences of the kind with which the
defendant is charged (Highton [2005] 1 WLR 3472).

8.3.2.6 Distinguishing between admissibility and use


In Highton [2005] 1 WLR 3472 the Court of Appeal said that a distinction must be drawn
between the admissibility of bad character evidence, which depends on getting it
through one of the gateways, and the use to which it can be put once it is admitted.
The use depends on matters to which it is relevant rather than to the gateway through
which it is admitted. For example, in the case of gateway (g), admissibility depends
on the defendant having made an attack on another person’s character. But once the
evidence is admitted it may, depending on the facts, be relevant not only to credibility
but also to propensity to commit offences of the kind with which the defendant is
charged. Similarly, evidence admitted under gateway (d) to show propensity may also
have relevance to credibility, but this is subject to the restrictive view, taken in Hanson,
of evidence that shows a propensity to be untruthful (McDonald [2007] EWCA Crim
1194).
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In Davis [2008] EWCA Crim 1156, the Court of Appeal pointed out that the statutory
tests for gateways (c) and (d) are different. In particular, s.101(4) requires a court
dealing with gateway (d) to consider the effect on the fairness of the proceedings of
any lapse of time between the matters relied on as evidence of bad character and
the date of the current offence. This consideration does not apply to gateway (c).
Accordingly, gateway (c) should not be used as a substitute for gateway (d) to show
propensity. However, the Court noted that evidence can be admitted under more than
one gateway and evidence admitted under the more stringent conditions of gateway
(d) might thereafter be available for more general purposes.

The need to distinguish properly between evidence of propensity and ‘important


explanatory evidence’ was emphasised again in Lee [2012] EWCA Crim 316. Even where
evidence wrongly admitted as explanatory under gateway (c) might instead have
been admitted as evidence of propensity under gateway (d), any conviction is likely to
remain unsafe unless the jury has been correctly directed and cautioned as to its use
as propensity evidence. The Court of Appeal issued this warning:

[19] We make it clear, as this court has on previous occasions, that when bad character is
admitted it is essential that counsel and the judge focus on the exact basis upon which it
is being admitted. A case which is truly one of propensity cannot and must not be dressed
up as a case of important explanatory evidence. Moreover, whatever the basis upon which
evidence has been admitted, it is essential that the analysis of the evidence and the use
which can properly be made of it is considered before summing-up. If prior to summing-
up [the judge] had addressed with counsel, or counsel had addressed with her, the
question of how the evidence could properly be used, we think it is very likely that at that
stage she might well have concluded that it could be used as evidence of propensity and
if she had reached that conclusion and given a careful direction based upon it we doubt
very much if anybody could have complained. It is necessary to undertake that kind of
review at the end of the evidence because it does sometimes happen that evidence which
is admitted through one gateway becomes admissible on another basis…The jury must
have the help that it needs on how to deal with bad character evidence.

8.3.2.7 Where evidence of bad character is disputed by the defendant


Where evidence of bad character is disputed by the defendant, and is neither the
subject of a previous conviction nor related to another count in the same indictment,
the jury should be directed that, with respect to each incident, they should decide
whether the facts alleged by the prosecution have been proved to the criminal
standard. With respect to any incident not so proved, the evidence should be put
aside and given no significance (Lowe [2007] EWCA Crim 3047). To distract the jury with
collateral issues can affect the fairness of the trial as a whole (McAllister [2009] 1 Cr App
R 10 and McKenzie [2008] EWCA Crim 758) and should be considered when deciding
whether to admit contested bad character evidence.

In Gillespie [2011] All ER (D) 227 (Nov), the court reiterated the point that evidence of
bad character not supported by convictions may sometimes be properly admitted
despite the dangers of satellite litigation. In cases using gateway (d) it is for the judge
to consider whether the bad character relied upon is sufficiently relevant to justify its
admission.

In Mitchell [2016] UKSC 55 the Supreme Court considered the bad character provisions
of the Criminal Justice (Evidence) (Northern Ireland) Order 2004, which are largely
identical to those of the CJA 2003. In this case, D admitted to fatally stabbing her
partner with a knife, but claimed it had been in lawful self-defence. The prosecution
adduced bad character evidence involving several alleged incidents involving D and
knives, including agreed statements relating to two previous incidents which were
said to demonstrate D’s propensity to use knives in order to threaten and attack
others, although none of the various incidents had resulted in D’s conviction. D
subsequently disputed those statements to which she had previously agreed.

A question arose as to the proper direction to give to a jury where such evidence
(unsupported by convictions that would trigger PACE s.74) is relied upon to establish
propensity. Should the jury be told that they must be satisfied as to the truth of each
such incident individually before taking it into account, or would it suffice for them to
Evidence 8 Character evidence page 77
be satisfied of D’s propensity after considering the evidence as a whole on a ‘rounded
evaluation’?

The Supreme Court adopted the latter position. Referring to Nguyen [2008] 2 Cr App R
9, Lord Kerr (giving the judgment of the court) said:

43. The proper issue for the jury on the question of propensity in a case such as Nguyen
and the present appeal is whether they are sure that the propensity has been proved.
In Nguyen the only way in which they could be sure was by being convinced that the
sole incident said to show propensity had been proved to the criminal standard. That
does not mean that in cases where there are several instances of misconduct, all
tending to show a propensity, the jury has to be convinced of the truth and accuracy of
all aspects of each of those. The jury is entitled to – and should – consider the evidence
about propensity in the round. There are two interrelated reasons for this. First the
improbability of a number of similar incidents alleged against a defendant being false
is a consideration which should naturally inform a jury’s deliberations on whether
propensity has been proved. Secondly, obvious similarities in various incidents may
constitute mutual corroboration of those incidents. Each incident may thus inform
another. The question impelled by the Order is whether, overall, propensity has been
proved.

49. …It would be misleading and confusing for a jury to be instructed that they should
ignore the significance of one incident tending to show propensity when they come
to form their views about another. Indeed, it would be unrealistic to expect that they
perform the counter intuitive intellectual exercise of segregating various incidents
for separate consideration without considering the possible impact of one on the
other. Decisions about propensity should not be the product of a review of facts about
separate episodes in hermetically sealed compartment.

53. …The jury is not asked to return a verdict on any previous allegations relied upon,
and indeed should be reminded that the defendant is not on trial for them. It should
be told to focus on the indicted offence(s). Reliance on cumulative past incidents
in support of a case of propensity may indeed illuminate the truth of the currently
indicted allegations, but excessive recourse to such history may skew the trial in a way
which distracts attention from the central issue. [The CJA, s. 101(3)] requires the judge
to consider actively whether the effect of admitting the bad character evidence will
have such an adverse effect on the fairness of the trial that it ought to be excluded.
That species of adverse effect can arise through the sheer weight of disputed evidence
on other uncharged allegations. And that can happen even though the jury will in due
course be directed to consider propensity cumulatively, if the volume of evidence
received is sufficiently strong to support a conviction. It is a truism that satellite
litigation is often inimical to efficient trial.

8.3.3 Non-defendant’s bad character

Essential reading
¢¢ Cases: Renda [2006] 1 WLR 2948; Stephenson [2006] EWCA Crim 2325.

¢¢ Miscellaneous provisions under CJA 2003 you should be aware of:

uu s.107 (stopping the case when evidence is contaminated)

uu s.108 (offences committed by the defendant when a child)

uu s.109 (assumption of truth when assessing relevance or probative value)

uu s.110 (court’s duty to give reasons).

Section 100(1) sets out the limited circumstances in which evidence of the bad
character of a person other than the defendant can be given. Such evidence can be
given only if it meets one of three conditions:

a. it is important explanatory evidence

b. it has substantial probative value in relation to a matter in issue in the proceedings,


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and that issue is one of substantial importance in the context of the case as a whole

c. all parties to the proceedings agree that the evidence should be admitted.

Where reliance is placed on (a) or (b), the leave of the court is required, but no
guidance is given as to what principles should govern the grant or refusal of leave. For
important explanatory evidence (a), see below in connection with the defendant’s
bad character. In respect of non-defendants, evidence of bad character is most likely
to have substantial probative value (b) where the honesty as a witness of the non-
defendant is questioned. Subsection (3) directs the court to have regard to various
factors, and to any others it considers relevant, in assessing whether the value of
evidence is ‘substantial’ for the purposes of (b).

A wide view of what constitutes ‘substantial probative value’ has been taken; in
particular, the scope for cross-examination about a witness’s general credibility is
wider than the scope for adducing evidence to show a disposition to be untruthful
under s.101(1)(d) CJA 2003. See Osbourne (reported with Renda [2006] 1 WLR 2948),
Stephenson [2006] EWCA Crim 2325 and S [2007] 1 WLR 63. This has been criticised
by Mirfield: ‘if one is persuaded by Lord Phillips C.J.’s view [re ss.101(d) and 103(1) (b)
in Campbell] that even a propensity to lie is generally unlikely to be relevant to an
important matter in issue between the defendant and the prosecution, then there is
good reason to apply it elsewhere’.

In Brewster [2010] EWCA Crim 1194, [2010] 2 Cr App R 20, the Court of Appeal held that
in order to have ‘substantial probative value’ within the meaning of s.100(1)(b) CJA
2003, evidence of a witness’s bad character did not have to amount to proof of a lack
of credibility or demonstrate a tendency towards dishonesty or untruthfulness on
the part of the witness; the question was whether the bad character evidence was
sufficiently persuasive to be worthy of consideration by a fair-minded jury in deciding
whether the witness’s evidence was worthy of belief.

Summary
You should make sure that you understand the definition of bad character contained
in s.98 CJA 2003, and note that there are separate rules for adducing evidence of the
bad character of non-defendants and defendants. You should know the six gateways
through which evidence of the bad character of a defendant can be admitted. Note,
in relation to each gateway, who can use it, and what arguments (if any) are available
for excluding evidence that would otherwise be admitted through it. You should know
the basis upon which a non-defendant’s character can be admitted. You should be
familiar with the miscellaneous provisions contained in ss.107–110 and s.112 CJA 2003.
As with every topic we study, you should be able to critically evaluate the law. The
items listed as further useful reading will help you to do this.

Further reading
¢¢ Munday, Chapter 7: ‘Evidence of the defendant’s bad character’, ‘Whether or
not to admit evidence of a defendant’s misconduct on other occasions’ (in the
Evidence study pack).

¢¢ Munday, R. ‘Single act propensity’ (2010) 74 Journal of Criminal Law 127 (reviews
cases where the Crown has sought to adduce only single acts of misconduct, in
order to ascertain how expansively or restrictively the courts interpret the bad
character provisions).

¢¢ Redmayne, M. ‘Criminal evidence: The relevance of bad character’ (2002) 61 CLJ


684–714.

¢¢ Redmayne, M. ‘The Law Commission’s character convictions’ (2002) 6(2)


International Journal of Evidence and Proof 71–93.

¢¢ Redmayne, M. ‘Recognising propensity’ (2011) 3 Crim LR 177–98 (explores


how propensity is understood under the Act, and in particular examines the
distinction that is drawn between propensity and ‘coincidence’ cases).
Evidence 8 Character evidence page 79
¢¢ Cases: Eastlake [2007] EWCA Crim 603; L [2006] EWCA Crim 2988.

8.3.4 Critical evaluation

Essential reading
¢¢ Mirfield, P. ‘Character and credibility’ (2009) Crim LR 135–51.

¢¢ Redmayne, M. ‘The Law Commission’s character convictions’ (2002) 6(2)


International Journal of Evidence and Proof 71–93.

¢¢ Tapper, C. ‘The law of evidence and the rule of law’ (2009) 68(1) CLJ 67–89.

Once you are sufficiently familiar with the law on bad character in criminal trials, you
will be in a position to critically evaluate it. The Essential and Further reading listed
in this section will be helpful to you in this task. The reading will also deepen your
understanding of the law and enhance your ability to apply it in problem scenarios.
For example, in his article ‘The Law Commission’s character convictions’ Redmayne
criticises the admission of evidence under gateway 101(g) on the basis that its
rationale is not clear or rational: ‘[I]f such attacks are legitimate, defendants should
not play a price for making them; if they are not, they should not be permitted in the
first place.’

Further reading
¢¢ Tapper, C. ‘The Criminal Justice Act 2003: (3) Evidence of bad character’ (2004)
Crim LR 533.

You might also wish to evaluate the provisions in light of the Law Commission’s
Reports:
uu Law Commission Consultation Paper No. 141: ‘Evidence in criminal proceedings:
previous misconduct of a defendant’.
uu Law Commission Consultation Paper No. 273: ‘Evidence of bad character in
criminal proceedings’.

Activities 8.4–8.8
8.4 Ian is charged with criminal damage. An important prosecution witness
against him is Jack, a bystander, who says that he ‘saw everything’. Ian says
that Jack is trying to frame him in order to protect someone else. Jack has a
number of previous convictions. Last year he pleaded guilty to a charge of
theft. Two years ago he was convicted of an assault after pleading not guilty.
Jack also has a spent conviction for indecently assaulting a woman at an
underground station.
Is the defence likely to be allowed to cross-examine Jack about any of these
matters?

8.5 Ken is charged with wounding his wife, Lily. The prosecution says that he
stabbed her with a kitchen knife during an argument. Ken says that the wound
was the result of an accident, for which he was not to blame. On two occasions
during the last 18 months Ken has been convicted of assaults on Lily. Are these
convictions likely to be admitted to support the case against Ken?

8.6 Maurice, Norman and Owen are charged with robbery. The prosecution
says that they attacked Peter in a car park outside a public house and that
one of them snatched Peter’s watch from his wrist. Maurice testifies that
Peter was drunk and behaved like a madman, charging at Norman with a
broken bottle and threatening to kill them all. Maurice says that he and
the other defendants acted to protect themselves and each other, and that
the watch must have fallen off in the struggle. Norman testifies that he had
gotten into his car and was waiting for the other defendants to come out
of the pub. He says that he heard shouting but could see nothing. Norman
has a spent conviction for possession of cocaine with intent to supply, and a
recent conviction for causing death by dangerous driving. Can he be cross-
examined about either of these convictions by counsel for Maurice?
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8.7 Quentin is prosecuted for assault. The prosecution says that he hit Richard
during an argument in a night club. Three years ago Quentin was convicted
of wounding a member of the public who was taking part in a political
demonstration. This conviction was not relied on as part of the prosecution
case. Quentin gives evidence. During cross-examination by counsel for the
prosecution he becomes excited and shouts: ‘You’re taking liberties! I’ve
never been in trouble with the police before this!’ Advise the prosecution
whether Quentin can be cross-examined about his previous conviction.

8.8 Sam, who has two previous convictions for handling stolen goods, is
prosecuted for theft from a supermarket. A store detective gives evidence
of his movements over a 10-minute period in the store, which culminated
in his taking a packet of sausages from a display and concealing it in
his raincoat. The detective says that after doing this, Sam left the store
without paying for the sausages and handed them to a small boy waiting
in the street, who ran away and has not been traced. Sam’s defence is that
the store detective is wrong in relation to all her observations. Can the
prosecution cross-examine Sam about his previous convictions?

Feedback: see end of guide.

Quick quiz

Question 1
The risk that a jury will convict a defendant on the basis that even if they are not
guilty of the offence charged, they deserve punishment on account of their previous
misconduct is often described as which of the following?

a. Reasoning prejudice.

b. Moral prejudice.

c. Misguided prejudice.

Question 2
Which of the following is a correct statement of the law?

a. A single previous conviction for an offence of the same description or category will
often not show propensity of the defendant to commit offences of the kind with
which they are charged.

b. A single previous conviction for an offence of the same description or category will
always suffice to show propensity of the defendant to commit offences of the kind
with which they are charged.

c. A previous conviction must be of the same description or category as the offence


challenged to show propensity.

Question 3
Which statutory provision sets out the circumstances in which the bad character of a
witness (i.e. a non-defendant) can be admitted?

a. Section 101 CJA 2003.

b. Section 100 CJA 2003.

c. Section 105 CJA 2003.

Question 4
Which statutory provision must be read to understand the concept of ‘important
explanatory evidence’ in s.101(1)(c) of the Criminal Justice Act 2003?

a. Section 98 CJA 2003.


Evidence 8 Character evidence page 81
b. Section 103 CJA 2003.

c. Section 102 CJA 2003.

Question 5
Which of the following statements is correct?

a. Whenever there is an issue as to whether the defendant’s case is truthful, evidence


can be admitted to show that he has a propensity to be untruthful.

b. The question of whether a defendant has a propensity for being untruthful will
not normally be capable of being described as an important matter in issue for the
purposes of s.101(d) and s.103 of the CJA 2003.

c. The question of whether a defendant has a propensity for being untruthful will
normally be capable of being described as an important matter in issue for the
purposes of s.101(d) and s.103 of the CJA 2003.

Self-assessment questions
1. What is meant by ‘misconduct’ in s.98 CJA 2003?

2. What evidence of misconduct is excluded from the definition of bad character


evidence in s.98 CJA 2003?

3. When can evidence be given of a non-defendant’s bad character, as defined by s.98?

4. Which of the ‘gateways’ in s.101 can be used only by the prosecution?

5. What is ‘important explanatory evidence’ for the purposes of s.101(1)(c)?

6. What arguments are available for excluding evidence falling under s.101(1)(c)?

7. What arguments are available for excluding evidence falling under s.101(1)(d)?

8. What arguments are available for excluding evidence falling under s.101(1)(e)?

9. What difficulty is there in deciding whether the nature or conduct of one


defendant’s defence is such as to undermine that of a co-defendant?

10. What problem arises when a defendant with previous convictions gives
evidence that has the effect of showing his character in a good light?

11. What arguments are available for excluding evidence falling under s.101(1)(f)?

12. Why is it difficult to predict whether a defendant will expose himself to


cross-examination under s.101(1)(g) by references to ‘lying’ on the part of a
prosecution witness?

13. What arguments are available for excluding evidence falling under s.101(1)(g)?

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu explain the nature of spent convictions and the circumstances in which they can
be mentioned in civil and criminal trials
uu discuss what evidence is admissible in a criminal trial to show a defendant’s
good character
uu explain how evidence of good character can be relevant in a criminal trial
uu explain in what circumstances a judge can dispense with the Vye directions
uu explain in what circumstances a defendant with previous convictions can be
treated as being of good character in a criminal trial
uu explain what is meant by bad character in CJA 2003, Part 11, Chapter 1
uu explain when evidence of a non-defendant’s bad character can be adduced
under CJA 2003
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uu explain when evidence of a defendant’s bad character can be adduced under CJA
uu apply the law in a problem scenario
uu critically evaluate the law – is the law on character satisfactory? Some of the
questions you might consider under this heading are whether it furthers the
aims of evidence? Does it help to ensure the conviction of the guilty and the
acquittal of the innocent? Is the law sufficiently clear for the parties to be able to
predict a court’s application of it? Does it help to ensure only relevant evidence
of more probative than prejudicial value is admitted against a defendant?

Sample examination questions


Question 1 Quintin, Peter and Oswald are charged with a serious assault on Noel.
Noel testifies that all three came running at him outside a disco in the early hours of
the morning, and while they punched him one of them gashed him with a broken
bottle. A policeman, Maurice, testifies that when he had asked Oswald where
Quintin and Peter were, Oswald lied to him by saying that they had gone to France.
Quintin testifies that it was Noel who punched him first, hitting Quintin, and that
he, Quintin, hit back in self-defence. Quintin further denies that he was aware that
any of them had a broken bottle, although he adds: ‘Noel probably had it himself
as he is a nasty man.’ Peter testifies that he, Quintin and Oswald had decided to
‘beat Noel up’ but that Noel had received the gash in an accident shortly before the
incident outside the disco. Peter refuses to answer a question put to him by the
prosecution as to whether he had a broken bottle with him at the time. Oswald
claims that all he had told Maurice was that he did not know where Quintin and
Peter were. Quintin has a spent conviction for causing grievous bodily harm (GBH)
with intent. Peter has no previous convictions, but he has recently been dismissed
from his employment for sexually harassing female employees. Oswald has a
conviction for indecent assault, which is not yet spent.
Discuss the evidential issues that arise.
Question 2 Antonia is due to stand trial for assaulting Geoff on 9 January 2012. Geoff
is the landlord of Wahoo Bar. Geoff claims that Antonia was drunk when she arrived
at the bar and so Geoff refused to serve her any drinks. Geoff claims that Antonia
was angry at being refused a drink and threw a glass at his head.
When interviewed by the police the following day Antonia said Geoff was a ‘sexist
pig’ but refused to answer any of the questions put to her by the police. At trial,
Antonia will claim that when she arrived at the bar Geoff had told her she looked
like a prostitute and pinched her breast when she ordered a drink. When Antonia
threatened to report him to the police he told her to get out of the bar, which she
did. She denies assaulting him. She will claim that the reason she didn’t mention
this to the police at interview is because she hadn’t expected Geoff to pursue the
allegation and wanted to put the incident behind her.
Jemima, who works behind the bar, claims that Geoff, her boss, is often rude to
women and has touched her inappropriately on several occasions.
Antonia has one previous conviction for being drunk and disorderly in 1998 (to
which she pleaded guilty) and one previous conviction for theft in 2000 (to which
she had entered a plea of not guilty).
Jemima has one previous conviction for theft.
Discuss the evidential issues arising, adding critical comment where you think the
law is unsatisfactory.

Advice on answering the questions


Question 1 Quintin: He has clearly made an attack on Noel’s character and so comes
within s.101(1)(g). There is almost certainly a common law discretion to exclude his
previous conviction for causing GBH with intent; and room for an argument that it
should be excluded under s.101(3). The fact that the conviction is spent will be relevant
to the question of exclusion, as will its similarity to the current offence (because of the
danger of reasoning prejudice). You should consider also the application of s.101(1)(d).
It is not easy to predict whether evidence would be permitted through this gateway.
But you could develop your discussion along the following lines. What is the matter
Evidence 8 Character evidence page 83
in issue between defence and prosecution to which the bad character is said to be
relevant? Why is this matter an important one? Does one spent conviction for causing
GBH with intent show a propensity for committing offences of the kind with which
Quintin is charged? Even if admissible, should the evidence be excluded, either under
common law or under s.101(3) or s.103(3) of the CJA 2003?

Peter: Quintin’s defence is undermined by Peter’s evidence of an agreement to


‘beat Noel up’. Section 101(1)(e) would enable Quintin to cross-examine Peter about
his misconduct if it has substantial probative value. (Obviously, the matter in issue
between Quintin and Peter is important.) You need to produce an argument to show
that this test is or is not satisfied – or at least to show that there is doubt about it.
Remember that if the test is satisfied, there is no power to exclude. In addition, s.101(1)
(g) might be available to the prosecution. Is Noel’s account of being cut with a broken
bottle (instead of suffering the injury in an accident) something about which he
could have been mistaken? Or does Peter’s evidence mean that Noel must be giving a
deliberately false account? If s.101(1)(g) applies, consideration will have to be given to
exclusion under s.101(3).

Oswald: The only way to admit evidence of his bad character would be by using
s.101(1)(g), on the basis that the police officer must be fabricating his evidence, as
opposed to making an honest mistake. Section 101(3) would apply, and you should
consider the moral prejudice that might be caused if Oswald’s conviction were to be
revealed.

Note: There are other evidential points arising in this question that have not been
covered.

Question 2 You should consider whether Antonia’s previous conviction for being
drunk and disorderly will be admissible under s.101(a) (Hanson) and whether her
previous conviction for theft will be admissible under s.101(b) given the plea of not
guilty (Hanson and Campbell) and/or whether previous convictions will be admissible
under s.101(g). Section 101(g) will require consideration of s.106 and of whether
Antonia has attacked Geoff’s character by describing him as a ‘sexist pig’ in her
interview; whether Antonia has attacked Geoff’s character in her account of what
happened at the bar; and whether Jemima’s evidence is evidence of Geoff’s bad
character (and if so, its admissibility under s.100). Further issues include whether
Jemima’s previous conviction for theft will be admissible under s.100.

Include some critical comment in your answer on the likely outcomes, which may
draw on recent articles by Mirfield, Redmayne and Munday.

Note: There are other evidential points (unrelated to character) arising in this question
that have not been covered.

Additional examination question (no feedback provided)


Question 1 ‘The provisions on bad character evidence in the Criminal Justice Act
2003 fail to strike the right balance between the rights of an accused, and those of
victims and witnesses.’ Discuss.
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Notes
9 The rule against hearsay

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

9.1 The rule: definition, scope and justifications . . . . . . . . . . . . . . . 87

9.2 Exceptions to the hearsay rule . . . . . . . . . . . . . . . . . . . . . . 89

9.3 Preserved common law exceptions . . . . . . . . . . . . . . . . . . . . 93

9.4 The ‘safety-valve’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

9.5 Supplementary provisions . . . . . . . . . . . . . . . . . . . . . . . . 96

9.6 The impact of Article 6(3)(d) of the European Convention on


Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101


page 86 University of London International Programmes

Introduction
In general, ‘hearsay’ is a statement offered outside of the course of oral testimony,
with the purpose of showing that the statement is true. The common law traditionally
recognised a rule against hearsay. For a long time the exclusion of hearsay was a
fundamental part of evidence law. Although a strict system of exclusionary rules and
exceptions did not develop before the 19th century, by the end of the 17th century
there appears to have been a recognition that the admission of hearsay was generally
undesirable. The principal reasons for its undesirability were that the original
statement was not made on oath, and that the person making it was not available
for cross-examination. Hearsay evidence was inadmissible unless it came within an
exception to the rule.

The rule against hearsay has been effectively abolished in civil proceedings. It is
governed by the Civil Evidence Act 1995. In criminal proceedings the rule against
hearsay has been narrowed, and the exceptions to the rule expanded, by the Criminal
Justice Act 2003 (CJA 2003). The CJA 2003 maintains a general rule whereby ‘a
statement not made in oral evidence in the proceedings’ is inadmissible as ‘evidence
of any matter stated’ (s.114(1)). It codifies the rule and contains a number of specific
statutory exceptions as well as preserving a number of common law exceptions to the
hearsay rule.

Your first aim should be to get to grips with the scope of the rule against hearsay. This
is a surprisingly difficult task and we will start with a basic overview before looking at
how the rule against hearsay is codified in the CJA 2003.

Your next aim should be to familiarise yourself with the rationales for the rule against
hearsay, and the validity of these rationales. We will then look at the exceptions to
the exclusionary rule provided by the CJA 2003. Finally we will examine the impact
of Article 6(3)(d) of the European Convention on Human Rights (ECHR) on hearsay
evidence. You should then be in a position to both apply the law in a problem scenario,
and to critically evaluate the law in this area.

It is worth briefly noting the reasons behind the relaxation of the rule against
hearsay. The rule was regarded as unnecessarily inflexible, particularly in relation to
evidence that favoured the defence. Sparks [1964] AC 964 is a good example of how
the rule could result in miscarriages of justice. The law on hearsay, and the numerous
exceptions to the exclusionary rule, was widely regarded as having become ‘absurdly
technical’ (Lord Reid in Myers v DPP [1965] AC 1001).

Essential reading
¢¢ Durston, Chapter 6: ‘Hearsay evidence’ (you are recommended to read this
chapter first).

¢¢ Choo, Chapter 11: ‘Hearsay evidence’.

¢¢ Sections 114–126 of the Criminal Justice Act 2003.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu provide a working definition of the rule against hearsay
uu give examples of circumstances when evidence would/would not be excluded in
principle by the rule against hearsay
uu critically discuss the various reasons that have been given for having a rule
against hearsay
uu describe and apply the unavailability exception (s.116)
uu describe and apply the business and other documents exception (s.117)
uu describe and apply the preserved common law exceptions (s.118)
uu describe and apply the ‘safety-valve’ exception
Evidence 9 The rule against hearsay page 87

uu explain what is meant by ‘multiple hearsay’ and describe the circumstances in


which it can be admitted
uu explain and apply the provisions relating to credibility in s.124 CJA 2003
uu explain in what circumstances a trial can be stopped under s.125 CJA 2003
uu describe the general discretions to exclude hearsay evidence contained in or
preserved by s.126 CJA 2003.

9.1 The rule: definition, scope and justifications

9.1.1 A basic overview of hearsay


What is hearsay?
The rule against hearsay excludes an item of evidence only if the purpose of citing
that evidence is to establish the truth of the facts stated. For a clear example of the
rule in operation, see Sparks [1964] AC 964. So if you think that a hearsay problem
may arise, you must first ask what is the relevance of the item of evidence that you
are considering. Sometimes a party will want to adduce something that was said out
of court for some reason other than to establish the truth of what was stated. In that
case the statement will not be caught by the rule against hearsay. Such a statement
is sometimes said to be ‘original’ evidence, because what is relevant is not the truth
of the statement but the fact that the statement was made. A good example of this is
Subramaniam v Public Prosecutor [1956] 1 WLR 965.

Hearsay is either ‘first-hand’, when it is one step removed from the person who first made
the relevant observation, or ‘multiple’, when it is more than one step removed from that
person. The original observer is often referred to as ‘the maker of the original statement’
because the observer will frequently have reported what they saw to someone else by
word of mouth. However, they need not have done so; they might merely have made a
written record of it, with or without an intention of showing or sending it to anyone. If
this is the case, their written record will be first-hand hearsay of those matters to which it
refers and which, ideally, would be the subject of the observer’s own testimony.

Examples
Suppose there is a fight in the street, during which Alec stabs Ben. This is observed by
Charlie.

i. Charlie can give evidence of what he saw; no hearsay problem arises.

ii. Now suppose that Charlie goes home and tells Donna, his wife, what he saw. Charlie
is not available at the time of Alec’s trial for stabbing Ben, but Donna is. Donna may
be able to give evidence of what Charlie told her. If so, her evidence will be first-
hand hearsay.

iii. Now suppose that after Donna has been told of the incident by Charlie, she repeats
the account to her friend Edwina. If neither Charlie nor Donna is available for Alec’s
trial, it is possible that Edwina could give evidence of what Donna told her. If so,
her evidence would be multiple hearsay. The reason for this is that when Edwina
is giving her evidence, the account of the incident that she gives is two steps
removed from Charlie. (The story has passed via Charlie to Donna – first remove –
and via Donna to Edwina – second remove.)

iv. Now suppose that Charlie is away on business when he observes the stabbing,
and gives an account of the incident in a letter to his wife, instead of telling her
by word of mouth. The letter is separated from Charlie by one remove and would
be regarded as first-hand hearsay if it was produced in court as evidence of its
contents because Charlie was unavailable. If Donna destroys the letter after reading
it, she might be able to give evidence of its contents in the absence of Charlie. But
if she does so, her evidence will be multiple hearsay, because the account of the
stabbing will be separated from Charlie by two removes. (The story has passed
from Charlie via the letter – first remove – and then via Donna – second remove.)
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Activities 9.1–9.3
9.1 John has been charged with assaulting Darren. John will claim he was acting
in self-defence. He wishes to give evidence that he heard Darren shout ‘You
are the man who killed my mother!’ before raising his fist at John. Would
John’s evidence be hearsay?

9.2 Make up your own example of a statement that would be caught, in


principle, by the rule against hearsay. No feedback provided.

9.3 Make up your own example of a statement that would not be caught, in
principle, by the rule against hearsay. No feedback provided.

Feedback: see end of guide.

Further reading
¢¢ Cases: Sparks [1964] AC 964; Subramaniam v Public Prosecutor [1956] 1 WLR 965.

9.1.2 The definition of hearsay in the Criminal Justice Act 2003


As we noted above, the CJA 2003 maintains a general rule whereby ‘a statement
not made in oral evidence in the proceedings’ is inadmissible as ‘evidence of any
matter stated’ (s.114(1)). The representation can therefore be made by any method.
Section 115(3) provides that ‘a matter stated’ is one where ‘the purpose, or one of the
purposes, of the person making the statement appears to the court to have been – (a)
to cause another person to believe the matter, or (b) to cause another person to act or
a machine to operate on the basis that the matter is stated.’ The effect of s.115(3) is to
reverse Kearley [1992] 2 AC 228 and remove ‘implied assertions’ from the scope of the
hearsay rule. For further explanation, see Section 9.1.3 below on ‘Implied assertions’.

9.1.3 Implied assertions

Essential reading
¢¢ CJA 2003, ss.114 and 115.

¢¢ Case: Twist [2011] EWCA Crim 1143, see also case comment by Ormerod, D. in
(2011) Crim LR 793.

¢¢ Roberts and Zuckerman, Chapter 9: ‘Hearsay’, Section 9.4(b) ‘Implied assertions


and the logic of hearsay’ (in the Evidence study pack)

This is a tricky topic. It is so tricky that some think even judges are confused by it. An
extremely useful and detailed explanation of implied assertions is provided by Roberts
and Zuckerman in ‘Implied assertions and the logic of hearsay’. This extract is in your
study pack. You are advised to read it carefully, at least twice. The most authoritative
case in this area is R v Twist. You will find David Ormerod’s commentary on it helpful.
Twist should also remind you of the importance of relevance. Regardless of whether
evidence is hearsay, it must be relevant to be admissible. You should read the case of
Twist in full, at least twice.

In R v Leonard (Mark), the Court of Appeal explained that s.115 of the CJA 2003 defines
what is covered by the expressions ‘statement’ and ‘matters stated’ in s.114(1).
Although this case has been fiercely criticised, it illustrates the difficulty of applying
the hearsay rule to implied assertions. On the impact of s.115 of the CJA 2003 on
implied assertions, see Birch in the Further reading.

In Elliott, the Court of Appeal held that letters sent to the defendant in prison that
contained references to the defendant’s membership in a gang were not hearsay
evidence of the fact of his gang membership. This is because the letters had not
been written for the purpose of causing the defendant to believe that he was a gang
member or to act on the basis that the fact that he was a gang member was true.
Evidence 9 The rule against hearsay page 89

Further reading
¢¢ Birch, D. ‘Interpreting the New Concept of Hearsay’ (2010) CLJ 72.

¢¢ Cases: Kearley [1992] 2 AC 228; Teper [1952] AC 480; Ratten [1972] 2 AC 378; Leonard
(Mark) [2009] EWCA Crim 1251; Elliott [2010] EWCA Crim 2378; Twist [2011] EWCA
Crim 1143.

Activity 9.4
Alex is charged with the murder of his wife, Beatrice, by stabbing her. The
prosecution says that he stabbed her in their house and later threw her body over
a cliff. The prosecution wishes to call Charlene, a neighbour. She can give evidence
of a conversation that she had with Alex the day after Beatrice was last seen alive,
during which Alex said: ‘Do you know how to get bloodstains out of a carpet?’ Is
Charlene’s evidence caught, in principle, by the rule against hearsay?
Feedback: see end of guide.

9.1.4 Justifications for a rule against hearsay

Essential reading
¢¢ Choo, A. Hearsay and confrontation in criminal trials. (Oxford: Clarendon Press,
1996) [ISBN 9780198258919], Chapter 2: ‘The rationales for the rule’ (in the
Evidence study pack).

These are summarised in Choo’s textbook and explored in more depth in his article in
the study pack.

Self-assessment questions
1. What does the rule against hearsay forbid?

2. Why was the defendant’s appeal allowed in Subramaniam v Public Prosecutor


[1956] 1 WLR 965?

3. How has the CJA 2003 reversed the decision in Kearley [1992] 2 AC 228?

4. Why might hearsay be perceived as unreliable evidence?

Reminder of learning outcomes


By this stage, you should be able to:
uu provide a working definition of the rule against hearsay
uu give examples of circumstances when evidence would/would not be excluded in
principle by the rule against hearsay
uu critically discuss the various reasons that have been given for having a rule
against hearsay.

9.2 Exceptions to the hearsay rule

Essential reading
¢¢ CJA 2003, ss.114,116, 117, 118, 121, 123–126 and 134.

¢¢ Cases: Horncastle [2010] 2 AC 373; Loveridge [2007] EWCA Crim 1041; Shabir [2012]
EWCA Crim 2564; Al-Khawaja v UK [2011] ECHR 2127; Evans [2010] EWCA Crim 2516;
Bailey [2008] EWCA Crim 817; Adams [2007] EWCA Crim 3025.

There are four principal categories of exceptions to the exclusion of hearsay evidence.
You will find these referred to in s.114 CJA 2003 and elaborated upon in various
provisions of Chapter 2 of the Act:

uu hearsay admissible by agreement (this is straightforward and provided for in


s.114(1)(c))
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uu hearsay admissible by statute (we will only be concerned with the admissibility
categories elaborated upon in ss.116 and 117 – various other statutes make hearsay
statements of a particular kind admissible in criminal trials, but these are outside
the syllabus)

uu hearsay admissible in the interests of justice (the safety-valve provided in s.114(1)


(d))

uu hearsay admissible under preserved common law rules (provided for in s.114(1)(b)
and elaborated upon in s.118).

You should be aware of the possibility of admitting hearsay by agreement, but in


practice this is not likely to give rise to difficulties, and you should concentrate on the
remaining three categories. You should also study certain supplementary provisions
contained in CJA 2003, ss.121 and 123–126 inclusive.

9.2.1 Hearsay admissible by statute


Al-Khawaja v UK [2011] ECHR 2127 and Horncastle [2010] 2 AC 373 are important cases
that considered the compatibility of the CJA 2003 provisions on hearsay with Article
6(3)(d) of the ECHR. We will look at these in detail when we look at the impact of
the ECHR on this area. They will also be referred to throughout this topic as they are
important to the interpretation and application of the law in this area. You will need to
read both these cases in full but you may wish to do so when you consider the impact
of human rights in the final section.

9.2.1.1 The unavailability exception


Section 116(1) provides:

(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.

It is clear that the subsection applies to both prosecution and defence witnesses, and
that the hearsay statement can be oral or written. However, the effect of subs.(1)(a) is
that no statement will be admissible as evidence of any matter of which the relevant
person could not have given oral evidence if they had been available. In the absence
of agreement or the exercise of judicial discretion, therefore, s.116 is confined to first-
hand hearsay.

In order to use the unavailability exception, at least one of the five conditions set out
under subs.(2) must be satisfied:

uu Condition (a) is that the person who made the statement (referred to in all five
conditions as ‘the relevant person’) is dead.

In Evans [2010] EWCA Crim 2516 at [18], the Court of Appeal accepted that, as a result
of the Supreme Court’s decision in Horncastle, a statement by a dead witness is not
admissible unless either demonstrably reliable or its reliability can be properly tested
and assessed.

Al-Khawaja and Horncastle were considered in Ibrahim [2012] EWCA Crim 837. D
appealed against his conviction for the rape of a prostitute and drug addict (W) in
2003. W, who had previously made false allegations against another man, made
statements two and a half years later that tended to incriminate D, but died before
D’s trial. A witness (T) claimed to have heard W shout ‘rape’ but in other respects W’s
statements were untested and largely unsupported. D was however convicted by
the same jury of raping another prostitute, S, and there was some DNA evidence that
tended to link D with S.
Evidence 9 The rule against hearsay page 91
On the question whether W’s hearsay statements should have been excluded, the
Court of Appeal said:

106. …In our view, if counsel for the defence had had the benefit of the judgments…in
Horncastle and…Al-Khawaja, he would have been bound to have made a submission that
even though [W’s] hearsay statements satisfied the conditions in s.116(1) and (2)(a), the
court should exercise its power to exclude them, pursuant to PACE, s.78. If, as we have
concluded, those statements were central to the prosecution’s case on counts 1 and 2 and
if, as we have concluded, they are not shown to be reliable, then we think it must follow
that the admission of that untested hearsay evidence would have had such an adverse
affect on the proceedings that the court ought not to have admitted the statements. If
the court were to have considered all the factors set out in the CJA, s.114(2) as a kind of
checklist, we think that, inevitably, the scales would have come down firmly in favour of
excluding the statements.

Note the court’s use of the factors in s.114(2) and the application of s.78 PACE 1984.

uu Condition (b) is that the person is unfit to be a witness because of a bodily or


mental condition.

Loveridge [2007] EWCA Crim 1041 is a good example of when this condition will
apply.

uu Condition (c) is that the relevant person is outside the United Kingdom, and it
is not reasonably practicable to secure their attendance. An identical condition
appeared in s.23(2)(b) of the Criminal Justice Act 1988, which allowed documentary
hearsay (only) to be adduced in certain circumstances.

In deciding whether it is reasonably practicable to secure the witness’s attendance to


give oral testimony, a court or judge must weigh a number of factors, including the
potential importance of the evidence, the expense and inconvenience that would be
involved in securing the witness’s attendance, and any particular reasons put forward
as to why it would not be practicable or convenient for the witness to attend. (Gyima
[2007] Crim LR 890.)

Consideration should be given as to whether the witness’s evidence may be secured


by other means, such as by using a live link. (Radak [1999] Crim LR 223.)

The fact that W chose deliberately to leave the United Kingdom and be unavailable
does not render it inadmissible. (Bailey [2008] EWCA Crim 817.)

uu Condition (d) is that the relevant person cannot be found, although such steps as it
is reasonably practicable to take to find him have been taken.

Adams [2007] EWCA Crim 3025 is a good example of the court refusing to admit
the evidence on the grounds that such steps as it would have been reasonably
practicable to take had not been taken.

In T (D) [2009] EWCA Crim 1213 the Court of Appeal stated that the right to
confrontation is a long-standing right of the common law and is not to be lightly
departed from. Evidence must be presented of the steps that have been taken to find
the witness and cost is a relevant factor in determining whether all reasonable steps
have been taken. 

uu Condition (e) is ‘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.’ This condition, like the rest of s.116, applies
equally to defence and prosecution, and to oral and written statements. Note
that where condition (e) is relied on, leave of the court is necessary before the
statement can be given in evidence, and the court is to have regard to the matters
set out in s.116(4). Section 116(3) provides that ‘[f]or 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 of financial loss.’ Leave is not needed in relation to
any other s.116(2) conditions. Note s.116(5) which deals with the situation where
page 92 University of London International Programmes
unavailability is caused by the person in support of whose case the evidence is
tendered, or by someone acting on their behalf.

In Nelson [2009] EWCA Crim 1600, it was stated that:


[J]udges must be astute not to skew a fair trial by a too ready acceptance of assertions of
fear since it is all too easy for witnesses to avoid the inconvenience and anxiety of a trial by
saying they do not want to come.

Fear is to be assessed subjectively. (Doherty [2006] EWCA Crim 2716).

Horncastle is an important case on this condition. The Supreme Court explained that
the fear does not need to be attributable to the defendant. It can include a climate
of fear in the area or reputation of defendant. If there is fear, there is a justifiable
reason for absence. Where the fear is attributable to the accused or his associates, it
is an additional factor supporting the admissibility of the evidence, since otherwise a
premium is put by the criminal justice system on the intimidation of witnesses.
Whilst the CJA 2003 requires fear to be construed broadly, it is not to be expected that fear
based upon inappropriate assurances by police officers will result in the evidence being
read and the case proceeding on the basis of it to the jury.

Consideration must first be given to whether special measures can be adopted to


enable such a person to give evidence.

You should read [64] and [65] of the judgment of Aikens LJ in Shabir [2012] EWCA
Crim 2564. This provides a useful summary of the relevant principles derived from
Horncastle, Ibrahim and Riat.

You should also note subs.(5) of s.116.

Giving the judgment of the Court of Appeal in Rowley [2012] EWCA Crim 1434, Moore-
Bick LJ said:

In our view it is sufficient for the purposes of subsection (5) that the action of the party
seeking to adduce the hearsay evidence should have been an effective cause, albeit not
the only cause, of the witness’s absence, since to hold otherwise would significantly
undermine the policy of the legislation.

9.2.2 Business and other documents


By s.117(1), a statement contained in a document is admissible as evidence of any
matter stated if oral evidence given in the proceedings would be admissible as
evidence of that matter, and if the requirements of subs.(2) (and subs.(5) also, if
necessary) are satisfied. By s.134(1), ‘document’ is broadly interpreted as ‘anything in
which information of any description is recorded’, and so would include, for example,
a film, tape recording or computer disk. According to s.117(2):

(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 to the 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.

By subs.(3), the persons mentioned in paras (a) and (b) of subs.(2) may be the same
person.

Additional requirements in s.117(5) have to be satisfied if the statement was prepared


for the purposes of pending or contemplated criminal proceedings or for a criminal
investigation.
Evidence 9 The rule against hearsay page 93
Note the circumstances in s.117(7) in which the court can direct that a statement not
be admitted under the section.

Activities 9.5–9.6
9.5 Dave is charged with the murder of Edgar. The prosecution says that Dave
stabbed Edgar during an argument in a public house.

a. Fiona, who was present when the stabbing occurred, says that she didn’t
see what happened, but that another customer, whom she didn’t know,
told her that he had seen everything and that Dave was only defending
himself after Edgar had attacked Dave with a knife. Dave’s brother has
made some attempts to trace the unknown customer, but without
success. Dave wants to call Fiona to give evidence of what she was told.
Can he do so under s.116?

b. Gerald has told Dave’s brother that he was in the public house and saw
Edgar attack Dave with a knife. But he now refuses to appear as a defence
witness, saying that if his wife finds out that he was in a public house
it will be the end of their marriage. Will Dave’s brother be able to give
evidence under s.116 of what Gerald told him?

c. Harry, another customer, has given a written statement to Dave’s


solicitor, saying that he saw Edgar attack Dave first. Harry cannot now
be traced and the defence wants to have his statement admitted either
under s.116 or under s.117. But the police have heard rumours that Dave
has given Harry money to go abroad because Harry’s statement was
false and he was unwilling to face cross-examination by the prosecution.
Advise the prosecution.

9.6 Jack is charged with handling stolen scrap metal. Part of the prosecution
case is that he regularly sold quantities of scrap metal to Will & Grace, a
firm of scrap metal dealers. The prosecution wants to adduce in evidence a
register kept by Will & Grace, in which Karen, an assistant, recorded details
of purchases that she made on various dates from Jack. Jack says that the
entries in the register are unreliable because Karen was frequently under
the influence of drink and drugs while at work. Karen has no independent
recollection of these transactions. Advise the prosecution.

Feedback: see end of guide.

Self-assessment questions
1. What justification is there for s.116(1)(b)?

2. What considerations are a court likely to take into account under s.116(2)(c)
when deciding if it is reasonably practicable to secure the attendance of a
witness?

3. What is a ‘document’ for the purposes of s.117?

4. You want to adduce under s.117 a witness statement given to the police. What
conditions have to be satisfied?

9.3 Preserved common law exceptions

Essential reading
¢¢ Case: Spence [2011] EWCA Crim 94; Andrews [1987] AC 281.

With the exception of the rules preserved by s.118 (see Section 9.4 below), the
common law rules governing the admissibility of hearsay evidence in criminal
proceedings are abolished. Minor exceptions preserved by the section are:

uu published works dealing with matters of a public nature (such as histories,


scientific works, dictionaries and maps) as evidence of facts of a public nature
stated in them
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uu public documents (such as public registers and returns made under public authority
with respect to matters of public interest) as evidence of facts stated in them

uu records (such as the records of certain courts, treaties, Crown grants, pardons and
commissions) as evidence of facts stated in them

uu evidence relating to a person’s age, date or place of birth

uu reputation as evidence of a person’s good or bad character

uu reputation or family tradition as evidence of pedigree or the existence of a


marriage, the existence of any public or general right, or the identity of any person
or thing

uu informal admissions made by an agent.

The section also preserves any rule of law under which an expert witness may draw
on the body of expertise relevant to his field, and any rule of law relating to the
admissibility of confessions or mixed statements.

In addition, two major common law exceptions are preserved: res gestae and
statements in furtherance of a common enterprise. It is on res gestae that you should
concentrate.

Spence at [7]–[11]: ‘The utterance of Laura was so immediate, so instinctive that the jury
was entitled to reject any possibility of concoction or distortion.’ The Ackner criteria
laid down in Donald Andrews [1987] 1 AC 281 were held on appeal to have been satisfied
in this case.

Self-assessment questions
1. What is the meaning of res gestae, and when does this exception apply?

2. Summarise the test that was laid down in Andrews [1987] AC 281 for the
admissibility of excited utterances.

9.4 The ‘safety-valve’

Essential reading
¢¢ Munday, Chapter 9: ‘The rule against hearsay’, Section I ‘Hearsay in criminal
cases’, ‘When it is in the interests of justice to admit the statement (s.114(1(d))’
(in the Evidence study pack).

By s.114(1)(d) of the CJA 2003, a hearsay statement is admissible if the court is satisfied
that it is in the interests of justice for it to be so. This is known as the ‘safety-valve’.
In deciding whether to admit a statement under this provision, the court must
have regard to the factors set out in s.114(2), and to any other factors it considers
relevant. The list of factors in s.114(2) is intended to focus attention on whether the
circumstances surrounding the making of the hearsay statement show that it can be
treated as reliable enough to be admitted, despite the absence of cross-examination.
Make sure you familiarise yourself with the factors in s.114(2) which the court must
have regard to (among any others it thinks are relevant) in deciding whether to admit
evidence under s.114(1)(d).

The safety-valve is available to both prosecution and defence. It can extend to multiple
hearsay, but in that case it seems that the condition contained in s.121(1)(c) would have
to be satisfied (see below, under Section 9.5 ‘Supplementary provisions’).

J(S) [2009] EWCA Crim 1869 was concerned with facts similar to those in Sparks [1964]
AC 964. Section 114(1)(d) CJA 2003 was used to admit hearsay evidence of what had
been said by a child aged two and a half years to her mother about the actions of the
defendant.

In Minchin [2013] EWCA Crim 2412, the court examined s.114(1)(d) and the relationship
between s.114(1)(d) and other gateways.
Evidence 9 The rule against hearsay page 95
It should not be used to circumvent s.116
In O’Hare [2006] EWCA Crim 2512, the Court of Appeal considered whether you can use
the ‘safety-valve’ to admit evidence that had failed to gain admission under s.116 CJA
2003. The Court observed, obiter: ‘We think it important to point out that, as a matter
of generality, section 114 cannot and should not be applied so as to render section 116
nugatory.’ Section 116 contains a code for the admissibility of hearsay evidence when a
witness is unavailable that had been ‘carefully provided by Parliament’.

In Z [2009] EWCA Crim 20, D was charged with rape and indecent assault on the
complainant, who was aged between 9 and 13 when the offences were said to have
occurred. At trial, the prosecution applied to adduce hearsay evidence of D’s bad
character to establish propensity and to correct D’s impression of himself as a good
family man. One of the items of evidence came from a doctor, who said that, about 15
years before the date of the trial, a third party (not the complainant) had told him that
when she (the third party) was a young girl, the defendant had repeatedly sexually
abused her. During the investigation of matters leading to the current trial she had
repeated these allegations to the officer in the case. But she said that she did not wish
to give evidence because she wanted to put the matter behind her and she did want
to have to re-live the events by testifying for the prosecution in the current trial.

The trial judge admitted her evidence under s.114(1)(d), but the Court of Appeal said
that he had been wrong to do so and quashed the conviction. Giving the judgment of
the Court, Stanley Burnton LJ said that s.114(1)(d) had to be construed in its statutory
context. It was important in this case, where the hearsay statement contained an
allegation of misconduct, to read s.114 with s.116. Section 116 was narrowly drawn and
did not cover the witness in this case. He said: ‘In our judgment, section 114(1)(d) is
to be cautiously applied, since otherwise the conditions laid down by Parliament in
section 116 would be circumvented.’ However, he added that s.114(1)(d) should not
be so narrowly applied that it had no effect. There would be cases in which hearsay
evidence might be admitted under that provision when it could not be admitted
under s.116, as had been the case in Isichei [2006] EWCA Crim 1815 and Xhabri [2006] 1
Cr App R 26. Those cases differed from Z because the hearsay statements with which
both cases were concerned had been part of the incidents that were the subject
matter of the trial. In Isichei the statement was part of a series of events taking place
one night which had ended in robbery of the complainant by the defendant. In Xhabri
the statements were made by the complainant to others at a time when she was being
held against her will by the defendant.

In ED [2010] EWCA Crim 1213, the Court of Appeal disapproved of the trial judge’s
decision to use s.114(1)(d) to admit hearsay evidence from an old school friend of
one of the victims of a complaint of historic sex abuse. The trial judge had failed to
take into account the fact that the prosecution was at fault in not giving the witness
enough notice that she would be required to give oral evidence (she was heavily
pregnant and had a family holiday booked at the time of the trial).

Confessions
Y [2008] EWCA Crim 10 was a case of murder where it was alleged that two men, X and
Y, were involved. They were separately tried. X was tried first and pleaded guilty. At the
trial of Y, the prosecution applied to have an out-of-court confession made by X which
implicated Y admitted under s.114(1)(d). The trial judge ruled that s.114(1)(d) had no
application to a hearsay statement contained in the confession of another person. The
prosecution brought an interlocutory appeal to the Court of Appeal.

It was argued for Y that s.114(1)(d) has to be read in the light of s.118, which preserves
any rule of law relating to the admissibility of confessions. The effect of this section,
it was argued, is to preserve not only the rule that a confession is admissible as
an exception to the rule against hearsay, but also the common law rule that it is
admissible only against its maker. Effectively, it was argued, the interests of justice
requirement could not allow this rule to be ignored. The Court of Appeal held that
s.114(1) replaces the common law rule that hearsay is prima facie inadmissible with
a rule that hearsay is admissible ‘if but only if’ it falls within one or other of subparas
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(a)–(d). Subparagraph (b) makes admissible any evidence which is admissible under
a rule of law preserved by s.118. So s.118 is expressly said to be concerned with the
admissibility of evidence, not with its inadmissibility. Subparagraph (d) introduces a
wholly new idea, which is that the judge may admit otherwise inadmissible hearsay
evidence if the judge is satisfied that it is in the interests of justice to do so. It follows
that hearsay contained in a confession is as open to admission under s.114(1)(d) as any
other hearsay, and this is so even where the hearsay is contained (as the hearsay in this
case was not) in a police interview.

However, the Court said that the existence of s.114(1)(d) does not make the police
interview of one defendant routinely admissible in the case of another. The reasons
for excluding such evidence (for example, that it is second best evidence and difficult
to test and assess) are likely to continue to mean that in the great majority of cases
it will not be in the interests of justice to admit the confession of one defendant as
evidence against another. The factors referred to in s.114(2), particularly the reliability
of the hearsay statement, will often be significant as well, but the Court suggested that
it might be easier to admit such evidence on the application of a co-defendant who
wishes to use it to support his own defence. (Suppose A, B and C are charged with the
murder of X. A’s interview with the police implicates himself and B, but not C. C might
well wish to rely on what A said in interview to support his own case that he was not
involved.)

Reminder of learning outcome


By this stage, you should be able to:
uu describe, evaluate and apply the safety-valve exception.

9.5 Supplementary provisions

Essential reading
¢¢ Section 121 provides that additional requirements have to be satisfied before
the court will admit multiple hearsay. You should read the section and the
short extract by Munday provided in your study pack Chapter 9: ‘The rule
against hearsay’, Section I ‘Hearsay in criminal cases’, ‘Admissibility of “multiple
hearsay” (s.121)’.

Section 123 provides as follows:


A hearsay statement cannot be admitted under s.116 (unavailability) unless the person
who made it had the ‘required capability’ for making a statement at the time when it
was made. A hearsay statement cannot be admitted under s.117 (business and other
documents) if any person who supplied or received the information, or created or
received the document, did not have the ‘required capability’ at the relevant time. If
individuals in the chain through which the information passed cannot be identified,
it is enough if they can reasonably be assumed to have had the required capability. A
similar rule almost certainly applies to the preserved common law exceptions. The
capability test is satisfied if the person in question was able to understand questions
put to him about the matters stated, and to give answers that could be understood to
such questions. Where an issue as to capability arises, the burden of proof lies on the
party seeking to adduce the statement, and the standard of proof for both prosecution
and defence is the balance of probabilities.

Section 124 provides as follows:


A hearsay statement is admitted when there is also any admissible evidence that
would have been admissible to attack the credibility of the maker of the statement if
they had given oral evidence. With leave of the court, evidence of any collateral matter
that could have been put to them in cross-examination, but in relation to which their
denial would have been ‘final’, is also admissible (remember the collateral-finality
rule from Chapter 2: ‘Basic concepts’). Evidence of any statement made by that person
that is inconsistent with something in the hearsay statement is admissible without
Evidence 9 The rule against hearsay page 97
leave. It should be noted that s.124 covers inconsistent statements made at any time,
and that such statements are, like any other inconsistent statements, evidence of the
truth of their contents. Where hearsay is admitted under s.117 (business and other
documents), the rules in s.124 apply to all those in the chain of communication by
treating them, for the purposes of this section, as ‘the maker of the statement’. By
s.124(3), if, as a result of evidence admitted under this section, an allegation is made
against the maker of a hearsay statement, the court may permit additional evidence
‘of such description as the court may specify’ to be led for the purpose of denying or
answering the allegation.

This safeguard was praised in Horncastle:


The opposing party is enabled to put in evidence anything which he could have put in if
the witness had been present, but may also put in material which, if the witness had been
present, could only have been asked of him in cross examination in circumstances where
his answers would have been final; this puts the challenger to that extent in a better
position than if the witness is present, and is designed to help to counterbalance the
absence of cross-examination of the witness in person.

Section 125(1) provides as follows:


If, on a defendant’s trial before a judge and jury for an offence, the court is satisfied at
any time after the close of the case for the prosecution that:

a. the case against the defendant is based wholly or partly on a statement not made
in oral evidence in the proceedings

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

then the court must either direct the jury to acquit the defendant of the offence or, if it
considers that there ought to be a retrial, discharge the jury.

This provision applies only to jury trials, because in summary trials the magistrates or
district judge would be bound to find in such circumstances that there was no case to
answer.

Section 126 provides as follows:


The court has a common law discretion to exclude prosecution evidence where its
prejudicial effect is likely to outweigh it probative value. There is also a statutory
discretion to exclude evidence on which the prosecution proposes to rely where the
admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it. Both discretions are preserved in
relation to hearsay evidence by CJA 2003, s.126(2). Section 126(1) provides a further
discretion to exclude a hearsay statement if ‘the court is satisfied that the case for
excluding the statement, taking account of the danger that to admit it would result in
undue waste of time, substantially outweighs the case for admitting it, taking account
of the value of the evidence.’

9.6 The impact of Article 6(3)(d) of the European Convention on


Human Rights

Essential reading
¢¢ Cases: Al-Khawaja v UK [2009] All ER (D) 132; Al-Khawaja & Tahery v UK [2011] ECHR
2127; Horncastle [2009] UKSC 14; Riat [2012] EWCA Crim 1509; Horncastle v United
Kingdom [2014] ECHR 1394; Taylor [2013] EWCA Crim 2398.

This issue has generated a great deal of interest and case law in recent years. You need
to familiarise yourself with the cases summarised below. You need to take their dicta
into account in both your application and evaluation of the law on hearsay.

One of the effects of the Human Rights Act 1998 is to make the ECHR directly
enforceable by English courts. By s.2(1)(a), a court determining a question which has
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arisen in connection with a Convention right must take into account judgments of
the European Court of Human Rights (ECtHR). These are not binding authorities, but
it is expected that English courts will follow them unless restrained from doing so by
statute or binding case law. Among the ‘minimum rights’ of a defendant in criminal
proceedings is the right under Article 6(3)(d) of the Convention ‘to examine or have
examined witnesses against him’. Broadly speaking, the effect of this is to give a
defendant the right to have a witness who gives evidence against him called to give
oral testimony and be subjected to cross-examination.

The right recognised by Article 6(3)(d) is, however, limited in its application. First, the
ECtHR has often said that the admissibility of evidence is a matter for national law
and that its own role is to assess the overall fairness of the criminal proceedings in
question. The rights set out in Article 6(3) are aspects of the right to a fair trial but are
not absolute in themselves. Secondly, the ECtHR has recognised the need for a fair
balance between the general interest of the community and the rights of individual
defendants. It is unsurprising therefore that the Court of Appeal said in Xhabri
[2005] EWCA Crim 3135 that there is no merit in the argument that s.114 CJA 2003 is
incompatible with Article 6.

In Luca v Italy (2003) 36 EHRR 46 there was a suggestion by the ECtHR that where a
conviction is based solely, or to a decisive degree, on statements made by a person
whom the defendant has had no opportunity to examine, the rights of the defendant
will have been restricted to such an extent as to be incompatible with Article 6. In
Sellick [2005] 1 WLR 3257 the Court of Appeal said that, where a court was sure that a
witness had been kept from giving evidence by a defendant, or by persons acting for
him, there would be no infringement of Article 6 because the defendant would have
denied himself the opportunity of cross-examining the witness. It was necessary to
bear in mind the rights of victims and of the public in general as well as those of the
defendant. The Court said that there would be more difficulty where the evidence
was not so clear cut, so that it was only highly probable that a witness had been
intimidated.

Hearsay evidence of a complainant was admitted in Al-Khawaja [2006] 1 WLR 1078. In


that case the appellant had been charged with two counts of indecent assault, but
one of the complainants had died by the time the trial took place. Her statement was
admitted in accordance with legislation then in operation. On appeal, it was argued
that this violated Article 6(3)(d). The appeal was dismissed. The Court of Appeal said
that the public interest in enabling the prosecution to proceed must not outweigh
the defendant’s right to a fair trial, but the right of cross-examination was only one
element in such a trial. In that case, the appellant had been able to attack the accuracy
of the deceased complainant’s statement by exploring inconsistencies between it and
evidence of recent complaints that she had made. He had also been able to adduce
expert evidence to counter her allegations and the trial judge had pointed out to the
jury the difficulties presented by lack of an opportunity to cross-examine the witness.
The proceedings as a whole had been fair.

The question arose again in the ECtHR in Al-Khawaja [2009] All ER (D) 132. The Court
ruled that Article 6(3) was an express guarantee in itself; it could not be read simply
as an illustration of matters to be taken into account when considering the fairness
of the trial. In Al-Khawaja’s case the hearsay statements had been the only, or at least
the decisive, basis for conviction. For this reason, and as there were no factors which
could counterbalance the prejudice to the defendant, his minimum rights had been
infringed and there had been a violation of Article 6(1), read in conjunction with Article
6(3)(d).

In Horncastle [2009] UKSC 14, the Supreme Court declined to follow the judgment of
the ECtHR in Al-Khawaja. The ECtHR had ruled that hearsay was inadmissible where it
was the sole or decisive evidence against a defendant. The Supreme Court said that
this principle had been introduced into European jurisprudence without discussion
of its underlying principles and without full consideration of whether there was
justification for imposing it on common law systems. The safeguards enacted in the
CJA 2003 made such a principle unnecessary. You need to read this judgment in full
Evidence 9 The rule against hearsay page 99
and make careful note of what the Court states about the safeguards provided by the
CJA 2003 in relation to the admission of hearsay evidence.

Al-Khawaja & Tahery v UK [2011] ECHR 2127 is the decision of the Grand Chamber of the
ECtHR. The decision in this case averts the potential conflict between the domestic
courts and the ECtHR on the interpretation of Article 6(3)(d). Convictions secured on
hearsay evidence that is sole or decisive will not necessarily breach Article 6(3)(d). See
David Ormerod’s ‘Worth the wait?’ (in Further reading, below) for his discussion of the
Grand Chamber’s decision in Al-Khawaja & Tahery. The judgment in Horncastle [2014]
ECHR 1394 concludes the judicial dialogue between the ECHR and the Supreme Court
on the admissibility of hearsay evidence.

In Evans [2010] EWCA Crim 2516 the Court of Appeal accepted that as a result of
the Supreme Court’s decision in Horncastle, a statement by a dead witness is not
admissible unless either demonstrably reliable or its reliability can be properly tested
and assessed. It concluded that the second condition was satisfied. The same point
was made about the evidence of another witness who had agreed to give evidence
by video link from Spain but had failed to show up on the appointed day. The Court of
Appeal upheld the trial judge’s decision to admit evidence she had given earlier that
year to a Spanish magistrate in response to a letter of request and six years earlier on
commission in Gibraltar notwithstanding that she had never been cross-examined
because the jury were in a position to test and assess her evidence.

Horncastle was considered in Riat [2012] EWCA Crim 1509, in which the Court of Appeal
warned that it does not lay down any general rule that hearsay evidence must be
shown to be reliable before it can be admitted. The Court instead suggested that the
statutory framework provided for hearsay evidence can usefully be considered in six
successive steps:

i. Is there a specific statutory justification (or ‘gateway’) permitting the admission of


hearsay evidence (ss.116–118)?

ii. What material is there which can help to test or assess the hearsay (s.124)?

iii. Is there a specific ‘interests of justice’ test at the admissibility stage?

iv. If there is no other justification or gateway, should the evidence nevertheless be


considered for admission on the grounds that admission is, despite the difficulties,
in the interests of justice (s.114(1)(d))?

v. Even if prima facie admissible, ought the evidence to be ruled inadmissible [sic]
(s.78 PACE 1984 and/or s.126 CJA 2003)?

vi. If the evidence is admitted, then should the case subsequently be stopped under
s.125?

The Court then added that although there is no rule to the effect that where the
hearsay evidence is the ‘sole or decisive’ evidence in the case it can never be admitted,
the importance of the evidence to the case against the accused is central to these
various decisions.

As to the position in civil cases where the sole evidence is hearsay see Welsh v Stokes
[2008] 1 WLR 1224 where Dyson LJ upheld the judge’s decision to rely upon the hearsay
evidence in delivering judgment in favour of the claimant, adding:

Where a case depends entirely on hearsay evidence, the court will be particularly
careful before concluding that it can be given any weight. But there is no rule of law
which prohibits a court from giving weight to hearsay evidence merely because it is
uncorroborated and cannot be tested or contradicted by the other party.

Horncastle and Riat were considered in Taylor [2013] EWCA Crim 2398. Horncastle,
said the court in Taylor, does not require that admissible hearsay evidence must be
demonstrably reliable. Article 6 of the ECHR requires a fair trial, but this is possible
either where the evidence is demonstrably reliable or where there are sufficient
tools available to the jury to assess the extent of its reliability.
Features which tend
to demonstrate reliability include: the disinterest (lack of bias) of the maker of the
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statement; and evidence independent of the hearsay which dovetails with it.
Taylor
follows Riat in suggesting that the key questions in this context are:

i. Is there a specific gateway permitting the admission of the evidence?

ii. What material is there to test or assess the hearsay?

iii. Is there an interest of justice test to be applied?

iv. If there is no specific gateway, should it be admitted under s.114 (1)(d)?


v. Should it be ruled inadmissible under the PACE 1984, s.78 by reason of the unfair
prejudice that would otherwise arise?

vi. Should the case be stopped if it is based wholly or partly on hearsay evidence
which is so unconvincing that a conviction based upon it would be unsafe (CJA
2003, s.125(1))?

In Price v UK [2016] ECHR 15602/07 the ECHR stated, following the judgments of the
Grand Chamber in Al-Khawaja and Tahery v the United Kingdom (2102) 54 EHRR 807
and Schatschaschwili v Germany [2014] ECHR 9154/10 that the absence of good reason
for the non-attendance of a witness could not, of itself, be conclusive of the lack of
fairness of a trial, although it remained a very important factor to be weighed in the
balance when assessing the overall fairness, and one which might tip the balance in
favour of finding a breach of Article 6(3)(d). Good reason for the absence of a witness
must exist from the trial court’s perspective, that is, the court must have had good
factual or legal grounds not to secure the witness’s attendance at the trial.

The prosecution had made various attempts to secure the attendance of V, a witness
from Guyana who refused to attend the trial. The ECtHR was not in a position to
determine whether there was an adequate reason for V’s non-attendance, but, even
if there was not, there was substantial independent evidence both to incriminate P
and to support V. Further, the domestic legal framework provided sufficient counter-
balancing procedural safeguards such that it could not be said that the trial of P was
unfair.

Further reading
¢¢ Ormerod, D. ‘Worth the wait?’ (2012) 2 Crim LR 79–80.

¢¢ Redmayne, M. in Roberts, P. and J. Hunter Criminal evidence and human rights:


reimagining common law procedural traditions. (Oxford: Hart Publishing, 2012)
[ISBN 9781849464956], Chapter 12: ‘Confronting confrontation’ (in the Evidence
study pack).

¢¢ Dennis, I. ‘The right to confront witnesses: meanings, myths and human rights’
(2010) Crim LR 255–74.

¢¢ O’Brian, W.E. ‘Confrontation: the defiance of the English courts’ (2011) 15


International Journal of Evidence and Proof 93.

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu provide a working definition of the rule against hearsay
uu give examples of circumstances when evidence would/would not be excluded in
principle by the rule against hearsay
uu critically discuss the various reasons that have been given for having a rule
against hearsay
Evidence 9 The rule against hearsay page 101
uu describe and apply the unavailability exception (s.116)
uu describe and apply the business and other documents exception (s.117)
uu describe and apply the preserved common law exceptions (s.118)
uu describe and apply the ‘safety-valve’ exception
uu explain what is meant by ‘multiple hearsay’ and describe the circumstances in
which it can be admitted
uu explain and apply the rules about capability in s.123 CJA 2003
uu explain and apply the provisions relating to credibility in s.124 CJA 2003
uu explain in what circumstances a trial can be stopped under s.125 CJA 2003
uu describe the general discretions to exclude hearsay evidence contained in or
preserved by s.126 CJA 2003.

Quick quiz

Question 1
In which of the following two scenarios does the prosecution seem to be seeking to
adduce hearsay evidence?

a. Carlos is on trial for threatening to kill Duncan. According to the prosecution Carlos
shouted ‘I will kill you if you touch my jacket again!’ Part of Carlos’s defence is that
he does not speak English. The prosecution seeks to call Mary to give the following
evidence ‘I met Carlos at a bus stop. He turned and said to me “I love the rain.”’

b. Carlos is on trial for threatening to kill Duncan. According to the prosecution Carlos
shouted ‘I will kill you if you touch my jacket again!’ Part of Carlos’s defence is that
he does not speak English. The prosecution seeks to call Mary to give the following
evidence ‘I met Carlos at a bus stop. He turned and said to me “I hate it when
people touch my clothes.”’

Question 2
Which of the following statements is true?

a. As a result of the hearsay provisions Criminal Justice Act 2003 a confession is now
automatically admissible as evidence against anyone implicated in it, and not just
its maker.

b. As a result of the hearsay provisions Criminal Justice Act 2003 a confession is now
routinely admissible as evidence against anyone implicated in it, and not just its
maker.

c. As a result of the hearsay provisions Criminal Justice Act 2003 a confession is now
occasionally admissible as evidence against anyone implicated in it, and not just its
maker.

Question 3
Which of the following statements is correct?

a. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
directly attributable to the defendant.

b. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
of death, injury or financial loss.

c. For hearsay evidence to be admissible under s.116(2)(e) the witness’s fear must be
the reason for their refusal to give oral evidence.

Question 4
Which of the following is a correct statement of the law?
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a. As a result of the decision in Al-Khawaja & Tahery v UK [2011] ECHR 2127 hearsay will
not be admissible if it is the sole or decisive evidence against a defendant.

b. As a result of the decision in Al-Khawaja & Tahery v UK [2011] ECHR 2127 hearsay may
be admissible even if it is the sole or decisive evidence against a defendant.

Question 5
According to Choo, what value does the right to confrontation protect?

a. The dignity of the defendant.

b. The medieval concept of retribution.

c. The right of the state to call its citizens to account.

Sample examination questions


Question 1 Edward is charged with murdering Frank, the lover of Edward’s wife
Gayle. The prosecution alleges that Edward stabbed Frank to death with a pitchfork
at his allotment while he was tending his prize leeks. Edward tells the police that
he acted in self-defence because Frank was extremely threatening and had said
that he was going to kill Edward. Frank’s diary notes, 10 days earlier, that Frank was
frightened ‘now that Edward knows about the affair’ and that he would ‘have to
keep out of Edward’s way’. Harry, a news reporter from the local radio station, was
at the allotment a few minutes after Frank died. Harry claims that he interviewed
someone at the time, who was now not able to be identified, who had pointed to
Edward saying: ‘He stabbed that man over his prize leeks.’ Gayle has put it in writing
to the police that Edward had said to her that he had stabbed Frank because he was
jealous. Gayle and Edward are now reconciled and Gayle refuses to give evidence.
Consider the evidential issues arising.
Question 2 Leo is charged with the murder of Mike. The case for the prosecution
is that Mike met Leo in a homosexual nightclub and took him back to his flat,
where Leo attacked Mike with a hammer, inflicting injuries from which Mike
later died. Nigel, one of Mike’s neighbours, says that on the night of the attack he
heard a voice, which he did not recognise, shouting: ‘Where’s the money?’ Shortly
afterwards he heard Mike shouting: ‘Don’t, Leo! Don’t!’ He called the police. They
arrived an hour later and found Mike alone, injured, unconscious, and smelling
strongly of alcohol. Mike was taken by ambulance to hospital. During the journey he
regained consciousness and said to the police officer accompanying him: ‘Murder!
Murder! Has Leo done for me?’ He then lapsed again into unconsciousness. On the
night of the attack, Oliver was visiting another tenant in the block of flats where
Mike lived. He told DC Southall, whom he met outside Mike’s flat after the police
had arrived, that he had seen Leo arriving earlier with Mike. DC Southall made a
note of this and arranged for Oliver to attend the local police station to make a
witness statement, but Oliver has now disappeared. When Leo was interviewed by
the police he denied committing the offence and said that he had never been to
those flats.
Discuss the evidential matters arising.

Advice on answering the questions


Question 1

a. Will Edward be able to give evidence of what he alleges Frank said to him? You
need to consider whether the rule against hearsay would, in principle, apply to
this. A useful case to consider is Subramaniam v Public Prosecutor [1956] 1 WLR 965.

b. Will Edward’s statement to the police be admissible? If so, what will be its
evidential status?

c. What is the relevance of the entry in Frank’s diary? If relevant, does it offend the
rule against hearsay, at least in principle? If it does, can it be admitted under s.116
Evidence 9 The rule against hearsay page 103
or s.117? Are there possible multiple hearsay problems with the statement that
Edward knew about the affair? (How did Frank know this?) If there are, can they be
overcome? Is admissibility possible under a preserved common law exception? (Is
there an expression of intention?)

d. Is Harry’s evidence caught by the rule against hearsay? If so, is there any relevant
exception that could be argued? (Does it matter that the interviewee cannot be
identified?)

e. Is Gayle a compellable witness against her husband? (See Chapter 2: ‘Basic


concepts’.) Even if she is not, can the prosecution use her witness statement in
evidence under any of the exceptions to the hearsay rule? (Could Gayle give oral
evidence of what her husband said to her? See CJA 2003, s.118(1) in relation to
confessions, and Chapter 4: ‘Confessions and improperly obtained evidence’.)

Question 2
a. ‘Where’s the money?’ Relevance? (Where did the voice come from?) If relevant, is
it caught by the hearsay rule? If it is, are there any relevant exceptions?

b. ‘Don’t, Leo! Don’t!’ The same points should be considered.

c. ‘Murder! Murder! Has Leo done for me?’ Do you need to distinguish between the
first two words and the question that follows? Again, the same points should be
considered.

d. Oliver’s statement to DC Southall. This is clearly caught by the rule. Are there any
relevant exceptions? Consider separately what Oliver said and the note made of it
by DC Southall.

Additional examination questions (no feedback provided)


Question 1 Q has been charged with armed robbery of a bank. After the robbery, R,
the bank manager, rushed out of the building. A small boy came up to him and said:
‘The man with the gun got into a red car and drove off; here’s the number.’ He then
handed R a piece of paper, on which was written ‘N123ABC’. Before R could stop him,
the boy ran off, and he cannot now be traced. Q owns a red car with that number.
When questioned by the police, he denied any involvement in the robbery.
Discuss the evidential matters arising.
Question 2 ‘The hearsay provisions in the Criminal Justice Act 2003 fail to provide
adequate protection of a defendant’s rights under Article 6(3)(d) of the ECHR’.
Discuss.
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Notes
10 Expert evidence

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

10.1 Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

10.2 Jury evaluation of expert evidence . . . . . . . . . . . . . . . . . . . 110

Quick quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112


page 106 University of London International Programmes

Introduction
The legal significance of a witness being classified as an expert lies partly in the rule
that an expert (unlike other witnesses) may give evidence of opinion as well as of fact.
A basic principle of evidence law is that witnesses give evidence of facts as perceived
by them, and the judge or jury make inferences from those facts in order to reach a
verdict. For a witness to give an opinion about what they perceived would be to bring
the witness into the inference-drawing function, and so upset the division of labour.
In general, therefore, witnesses are not allowed to give evidence of their opinions.
However, there may be some cases where the judge or jury lacks the necessary
experience to draw inferences competently from the facts that have emerged from
the evidence. Where this is so, someone with the necessary expertise will be allowed
to give their opinion about facts to the extent that it will assist the judge or jury in
reaching a correct verdict. Although courts and commentators frequently use the
phrase ‘expert opinion’ when discussing expert evidence, this is usually on account of
the convenience of terminology. When experts give evidence of both fact and opinion
the same admissibility requirements appear to apply to both (see Luttrell [2004]
EWCA Crim 1344, [33] and Law Commission Report No. 325, ‘Expert evidence in criminal
proceedings in England and Wales’ (2011), paras 2.19–2.23).

In civil proceedings, r.35.1 of the Civil Procedure Rules (CPR) states: ‘Expert evidence
shall be restricted to that which is reasonably required to resolve the proceedings.’
Rule 35.4 (1) says: ‘No party may call an expert or put in evidence an expert’s report
without the court’s permission.

In recent years a number of high profile miscarriages of justice have come to light
which have highlighted some of the risks associated with expert evidence, particularly
scientific evidence, in criminal proceedings. We will focus in this chapter on the use of
expert evidence in criminal proceedings.

Learning outcomes
By the end of this chapter, and having completed the Essential reading and
activities, you should be able to:
uu explain who may qualify as an expert witness
uu explain in what circumstances expert evidence will be admissible
uu explain the difficulties juries may have in evaluating expert evidence
uu identify the risks associated with expert evidence
uu explain and evaluate the Law Commission’s proposed reforms.

Essential reading
¢¢ Choo, Chapter 12: ‘Expert evidence’.

¢¢ Durston, Chapter 11: ‘Opinion evidence’.


Evidence 10 Expert evidence page 107

10.1 Admissibility

Essential reading
¢¢ Cases: Luttrell [2004] EWCA Crim 1344; Reed [2009] EWCA Crim 2698; Silverlock
[1894] 2 QB 766; Gilfoyle (Norman Edward) (2001) 2 Cr App R 5; Turner [1975] QB
834; Bonython (1984) 38 SASR 45; Barry George [2007] EWCA Crim 2722.

¢¢ Law Commission Report No. 325, ‘Expert evidence in criminal proceedings in


England and Wales’ (2011) (available at: www.gov.uk/government/publications/
expert-evidence-in-criminal-proceeding-in-england-and-wales).

¢¢ Ward, T. ‘Expert evidence and the Law Commission: implementation without


legislation’ (2013) 7 Criminal Law Review 561–76.

¢¢ Dennis, I. ‘Tightening the law on expert evidence’ (2015) 1 Crim LR 1–2.

¢¢ Part 19 of Criminal Procedure (Amendment) Rules 2016 – the rules on expert


evidence are now contained in Part 19 of the Criminal Procedure Rules which is
available for download here: https://www.justice.gov.uk/courts/procedure-rules/
criminal/docs/2015/crim-proc-rules-2015-part-19.pdf

¢¢ The Practice Directions can be downloaded here (the relevant section is part 19):
https://www.justice.gov.uk/courts/procedure-rules/civil/rules

Criminal Procedure (Amendment) Rules 2016 and Practice Directions are now in force.
The rules on expert evidence are now contained in Part 19 of the Criminal Procedure
Rules which is available for download here: https://www.justice.gov.uk/courts/
procedure-rules/criminal/docs/2015/crim-proc-rules-2015-part-19.pdf

The Practice Directions can be downloaded here (the relevant is part 19): https://www.
justice.gov.uk/courts/procedure-rules/criminal/practice-direction/2015/crim-practice-
directions-V-evidence-2015.pdf

Further reading
You might find this article to be of interest: Edmond, G. ‘Legal versus non-legal
approaches to forensic science evidence’ IJEP 20 1(3)1 January 2016.

In criminal proceedings the courts have adopted what has been described as a
laissez-faire approach to the admissibility of expert evidence. (See the Law Commission
Report listed in the Essential reading.) The widely held view is that expert opinion is
not currently subject to sufficiently rigorous scrutiny in the determination of whether
it should go before a jury.

In Luttrell the Court of Appeal stated:

The preferred view, and in our judgment the proper view, is ‘that so long as a field [of
expertise] is sufficiently well-established to pass the ordinary tests of relevance and
reliability, then no enhanced test of admissibility should be applied, but the weight of the
evidence should be established by the same adversarial forensic techniques applicable
elsewhere’ (the Court adopted this quotation from Cross and Tapper on evidence).

Beyond special warnings in certain areas such as lip reading (see Luttrell) there are no
special rules in recognition of the particular risks associated with expert evidence.

In Part 2 of its report on ‘Expert evidence in criminal proceedings in England and Wales’,
the Law Commission summarises the requirements relating to the admissibility of
expert evidence in criminal proceedings (at paras 2.1–2.23). Expert evidence must be
‘sufficiently well-established to pass the ordinary tests of relevance and reliability’ (see
Dallagher [2002] EWCA Crim 1903, [29]). As observed by Thomas LJ in Reed, ‘unless the
admissibility is challenged, the judge will admit’ the expert evidence (at [113]).

The distinction between the evaluation of sufficiency of reliability by the judge at the
admissibility stage, and its assessment by a jury, is explained in Reed at [111].
page 108 University of London International Programmes
There is little judicial guidance, and no consistent judicial guidance, on how sufficiency
of reliability is to be determined for expert evidence at the admissibility stage (though
see Reed for guidance in relation to the reliability of DNA evidence). Doubt has been
cast on trial judges’ ability to evaluate the reliability of scientific evidence on account
of their lack of training in scientific methodology (Forensic science on trial, Seventh
Report Session 2004–05, HC 96-I, para.173).

Gary Edmond criticises the courts for refusing to exclude unreliable expert opinions
and expert opinions of unknown probative value, and for choosing instead to leave
incriminating opinion to the trial and the fact-finder. Edmond believes English judges
place too much faith in a range of formal protections (such as defence lawyers, cross-
examination, opposing experts and judicial directions), the lay jury and appellate
courts. (See Edmond, G. et al. ‘Atkins v The Emperor: the “cautious” use of unreliable
“expert” opinion’ (2010) 14 International Journal of Evidence and Proof 166.)

The evaluation of the relevance of expert evidence can be difficult for courts,
particularly where the expert evidence is of a scientific nature. Barry George is an
example of how easily the courts can be misled about the relevance of expert
evidence. This point is also illustrated by the extract from Ben Goldacre in the Further
reading.

In 2009 the Law Commission published a Consultation Paper entitled ‘The admissibility
of expert evidence in criminal proceedings in England and Wales’. In 2011 it published
the report on ‘Expert evidence in criminal proceedings in England and Wales’. The
Law Commission identifies several reasons for the creation of special rules for expert
evidence (see paras 1.13–130 of the report). You should read these carefully.

Further reading
¢¢ ‘The admissibility of expert evidence in criminal proceedings in England and
Wales: a new approach to the determination of evidentiary reliability’ Law
Commission Consultation Paper 190 (2009) at: www.lawcom.gov.uk/wp-
content/uploads/2015/03/cp190_Expert_Evidence_Consultation.pdf

¢¢ Edmond G. et al. ‘Atkins v The Emperor: the “cautious” use of unreliable “expert”
opinion’ (2010) 14 International Journal of Evidence and Proof 146.

¢¢ Edmond, G. ‘Legal versus non-legal approaches to forensic science evidence’ IJEP


20 1 (3) 1 January 2016.

¢¢ Goldacre, B. Bad science. (London: Fourth Estate, 2009) [ISBN 9780007284870],


Chapter 14: ‘Bad stats’ (in the Evidence study pack).

¢¢ Roberts, A. ‘Drawing on expertise: legal decision-making and the reception of


expert evidence’ (2008) Crim LR 443 (this article includes a valuable discussion
on the relative merits of exclusionary discretions compared to exclusionary
rules).

¢¢ Roberts, A. and G. Edmond ‘The Law Commission’s report on expert evidence in


criminal proceedings’ (2011) Criminal Law Review 844.

Activity 10.1
What reasons did the Law Commission provide for its proposals to reform the law
on expert evidence in criminal proceedings?

Self-assessment questions
1. When is expert evidence admissible?

2. How does the Law Commission propose to reform the law?

3. According to Roberts and Edmond, what are the shortcomings of the Law
Commission’s proposals?
Evidence 10 Expert evidence page 109

10.1.1 Novel fields of expert evidence

Essential reading
¢¢ Cases: Robb (1991) 93 Cr App R 161; Dallagher [2003] 1 Cr App R 12; Atkins [2010] 1 Cr
App R 8; Kempster (No 2) [2008] EWCA Crim 975.

Although the courts are reluctant to deny the jury the opportunity of benefitting
from advances in science, the reliability of novel fields of expertise can be particularly
difficult to evaluate.

Further reading
¢¢ Edmond, G. et al. ‘Atkins v The Emperor: the “cautious” use of unreliable “expert”
opinion’ (2010) 14 International Journal of Evidence and Proof 146.

10.1.2 The evidence of psychologists and psychiatrists on mens rea,


defences, credibility, confessions and autopsies

Essential reading
¢¢ Choo, Chapter 12 ‘Expert evidence’, Sections 2.2 ‘Mens rea, defences, and
credibility’ and 2.3 ‘Confessions’.

¢¢ Durston, Chapter 11 ‘Opinion evidence’, Section 3 ‘When does the tribunal of fact
need expert assistance?’.

The courts have recognised that a psychiatrist or psychologist may be able to provide
useful testimony about matters outside the experience of triers of fact, but they are
also conscious of a danger that experts will usurp the role of triers of fact unless a clear
line is drawn between abnormal and normal mental states. Certain cases reflect this
tension.

In Strudwick (1994) 99 Cr App R 326 the Court said that the law ‘is in a state of
development in this area’.

Sometimes expert evidence is tendered in relation to the credibility of a witness. If a


witness is suffering from some defect or abnormality of mind, psychiatric evidence may
be admissible to show that they are incapable of giving reliable evidence. If a witness is
mentally capable of giving reliable evidence, though, the question of his truthfulness is
regarded as one for the jury, on which expert opinions are irrelevant and inadmissible.
See Mackenney and Pinfold (1981) 76 Cr App R 271 and Browning [1995] Crim LR 227.

You should note that a distinction has been drawn between expert evidence about
the reliability of a confession and expert evidence relevant to mens rea. In the former
case, expert evidence is widely admitted. See, for example, Raghip (1991) The Times, 9
December; Walker [1998] Crim LR 211; and O’Brien (2000) The Times, 16 February.

The limits of admissible expert opinion as to the credibility, reliability or truthfulness


of a witness or confession was considered in Pora v The Queen [2015] UKPC 9, in which
the evidence of a leading clinical and forensic psychologist, Professor Gisli Gudjonsson
(G), was rejected on the basis that (like the evidence of the psychiatrist, Dr Boakes,
in the case of H (Stephen) [2014] EWCA Crim 1555) it purported to usurp the role of
the court or jury. His carefully argued expert report (prepared for the purpose of D’s
appeal) explained why, in his opinion, D’s confessions could not safely be relied upon
as proof of his guilt, but as Lord Kerr explained:

It is the duty of an expert witness to provide material on which a court can form its own
conclusions on relevant issues. On occasions that may involve the witness expressing an
opinion about whether, for instance, an individual suffered from a particular condition
or vulnerability. The expert witness should be careful to recognise, however, the need
to avoid supplanting the court’s role as the ultimate decision-maker on matters that
are central to the outcome of the case. G trenchantly asserts that Pora’s confessions are
unreliable and he advances a theory as to why the appellant confessed… This goes beyond
his role. It is for the court to decide if the confessions are reliable and to reach conclusions
page 110 University of London International Programmes

on any reasons for their possible falsity. It would be open to G to give evidence of his
opinion as to why, by reason of his psychological assessment of the appellant, Pora might
be disposed to make an unreliable confession, but it is not open to him to assert that the
confession is in fact unreliable.

Further reading
¢¢ Cases: Chard (1972) 56 Cr App R 268; Toner (1991) 93 Cr App R 382; Masih (1986)
Crim LR 395; Turner [1975] QB 834; Strudwick [1994] 99 Cr App R 326; Gilfoyle [2001]
2 Cr App R 5; Lowery v The Queen [1974] AC 85; Pinfold [2003] EWCA Crim 3643;
O’Brien (2000) The Times 16 February; Pora v The Queen [2015] UKPC 9.

¢¢ Roberts, P. ‘Towards the principled reception of expert evidence of witness


credibility in criminal trials’ (2004) 8 International Journal of Evidence and Proof 215.

¢¢ Ward, T. ‘Usurping the role of the jury? Expert evidence and witness credibility in
English criminal trials’ (2009) 13 International Journal of Evidence and Proof 83.

Reminder of learning outcomes


By this stage, you should be able to:
uu explain in what circumstances evidence of a psychiatrist or psychologist will be
admissible in relation to mens rea
uu explain in what circumstances a psychiatrist’s or psychologist’s evidence will be
admissible in relation to the credibility of a witness
uu explain the extent to which there is a rule against receiving expert testimony on
the ultimate issue in a trial.

10.2 Jury evaluation of expert evidence

Essential reading
¢¢ Choo, Chapter 12 ‘Expert evidence’, Section 2.7 ‘DNA evidence’.

¢¢ Case: Doheny [1997] 1 Cr App R 369.

The reliability of evidence is an important factor in deciding the weight to be attached


to it. The weight attached to the evidence depends upon how reliable the jury thinks
the testimony is. The reliability of witness testimony is generally a matter of credibility
and this, as we have seen from the cases on psychiatric and psychological research, is
regarded as a decision for the jury to make. Whereas juries may be well equipped to
evaluate the credibility of a lay witness, they may be less well suited to evaluating the
reliability of expert evidence.

10.2.1 Judicial directions to the jury

Special warnings
In Luttrell the court said that imperfections in lip-reading expertise does not render
it inadmissible, but it does necessitate a careful and detailed direction as to its
limitations and the associated risk of error as it would usually be introduced through
an expert who might not be completely accurate. Although the precise terms of the
direction would depend on the facts of the particular case, in most, if not all cases,
the judge should explain to the jury the risk of mistakes as to the words that the lip
reader believed spoken, the reasons why the witness might be mistaken, and the way
in which a convincing, authoritative and truthful witness might yet be a mistaken
witness (at [42]–[44]).

10.2.2 The presentation of the evidence


There is a risk that a jury will defer too readily to the opinion of an expert, particularly
if it is described as scientific evidence, and the courts have shown that they are willing
to exercise control over the choice of words an expert may use in expressing their
Evidence 10 Expert evidence page 111
opinion to the jury. (See South [2011] EWCA Crim 754.) Particular difficulties arise in
relation to presentation of DNA evidence.

DNA evidence
Unlike most other evidence, DNA is presented in terms of probabilities. Although
everyone’s DNA is unique, the techniques used in DNA profiling rely on small
sections of a person’s DNA. These individual sections are not unique. Scientists look
at how frequently the patterns identified in the particular sections occur in various
populations. The DNA profiling technique looks at several sections of DNA. The
probabilities of each occurring can then be multiplied to produce the very small
probabilities now associated with DNA evidence.

There are several issues that arise for consideration in relation to the use of DNA
evidence. We will focus on (i) the difficulties associated with explaining evidence
presented in terms of probabilities to the jury, and (ii) the weight attached to DNA
evidence.

Activity 10.2
‘Members of the jury, you have heard that the Crown’s DNA evidence. The
defendant’s DNA matches the blood sample found at the scene of the crime. Even
though only one person in a million will have a DNA profile that matches that
found at the scene of the crime, the defendant does. You may think that makes
his defence of alibi extremely difficult to believe.’ What would be wrong with this
direction to the jury, assuming it is the only direction given by the judge about the
DNA evidence?

10.2.3 When experts disagree

Essential reading
¢¢ Cases: Cannings (Angela) [2004] EWCA Crim 1, [2004] 1 WLR 2607; Anthony (Donna)
[2005] EWCA Crim 952; Henderson [2010] EWCA Crim 1269; Arshad [2012] EWCA
Crim 18.

In Anthony (Donna) (at [81]) the court noted that Cannings was not, as some mistakenly
thought, authority for the proposition that, where there is a dispute between
experts, a case should result in an acquittal. In Henderson, it was suggested that,
while conflicting expert evidence was not a ground for withdrawing expert evidence
from a jury, there is a real risk that it might decide between the experts on the basis
of general impression rather than proper evaluation of the evidence. Henderson was
considered in Arshad. This was an alleged case of baby manslaughter by shaking,
involving the notorious ‘triad’ of injuries, the significance of which still divides expert
opinion.

The jury in this case had been made aware of the ‘uncertain state of medical science’
but had convicted even though that science was fundamental to the prosecution case.
The judge’s direction had been a model of clarity, so the conviction was safe.

Further reading
¢¢ Ward, T. ‘Experts, juries, and witch-hunts: from Fitzjames Stephen to Angela
Cannings’ (2004) 31(3) Journal of Law and Society 369.

Reminder of learning outcomes


Having completed this chapter, and the Essential reading and activities, you should
be able to:
uu explain who may qualify as an expert witness
uu explain in what circumstances expert evidence will be admissible
uu explain the difficulties juries may have in evaluating expert evidence
uu identify the risks associated with expert evidence
uu explain and evaluate the Law Commission’s proposed reforms.
page 112 University of London International Programmes

Quick quiz

Question 1
According to the High Court of Australia in Murphy v R (1989), why can the orthodox
approach of the English courts as encapsulated in Turner not withstand close scrutiny?

a. It assumes that the expertise of psychiatrists and psychologists extends only to


those who are ‘abnormal’.

b. There is nothing wrong with experts deciding matters that the jury wouldn’t
understand.

c. Juries do not attach excessive value to the opinions of experts.

Question 2
In Tony Ward’s article ‘Expert evidence and the Law Commission: implementation
without legislation?’, which of the following represents his central argument?

a. The Law Commission’s proposals to reform the admissibility requirements for


expert evidence are unlikely to be implemented in legislation.

b. Verdicts must be justified on grounds that are cognitively accessible to jurors.

c. The discretion to exclude evidence on the grounds that its prejudicial effect
exceeds its probative value could be used to achieve the aims of the Law
Commission’s proposed ‘core test’.

Question 3
According to Choo, what question ought to underlie any evaluation of the law on
expert evidence?

a. The extent to which the twin issues of necessity and reliability are adequately
accounted for in the law on the admissibility of expert opinion.

b. The extent to which the value of dignity is protected.

c. The extent to which the presumption of innocence is upheld.

Question 4
According to the Law Commission Report No. 325, on what assumption do courts tend
to admit potentially unreliable expert evidence?

a. On the assumption that its reliability will be effectively challenged during the
trial by cross-examination or by the adduction of expert evidence by another
party.

b. On the assumption that the jury will attach little weight to expert opinion.

c. On the assumption that expert opinion is always helpful, regardless of its


reliability.

Question 5
What is the central proposal of the Law Commission Report No. 325?

a. That there should be greater training for the legal profession.

b. That judges should provide more detailed warnings to juries in relation to all
expert evidence.

c. That there should be a new statutory requirement of evidential reliability for


expert evidence.
Evidence 10 Expert evidence page 113

Question 6
In Barry George [2007] EWCA Crim 2722 what was wrong with the jury having
considered expert evidence on the finding of a particle of Firearms Discharge Residue
in the defendant’s coat pocket?

a. The evidence had no probative value.

b. The evidence was too complex for the jury to understand.

c. The court could not be confident that the expert really had found the particle in his
pocket.

Sample examination questions


Question 1 ‘The existing law on expert evidence prevents psychiatrists and
psychologists from playing a more extensive role in criminal trials, and thereby
denies fact finders valuable help on difficult issues.’ Discuss.
Question 2 ‘The law already provides sufficient safeguards as to the admissibility
and evaluation of expert evidence in criminal proceedings. Any problems that do
exist are unlikely to be solved by the implementation of the Law Commission’s
proposal for a new reliability-based admissibility test’. Discuss.

Advice on answering the questions


Question 1

a. First, describe the state of the law.

b. On expert evidence that is relevant to mens rea a critical explanation of Turner


[1975] QB 834 is essential.

c. Follow this with a critical discussion of Lowery v The Queen [1974] AC 85. Does Lowery
provide a better approach to expert evidence that deals with mental states?

d. Look at the state of the law on expert evidence that is relevant to the credibility of
witnesses. How satisfactory is it?

e. Remember to reach a conclusion.

Question 2 First you need to demonstrate a broad understanding of the current law
relating to the admissibility and evaluation of expert evidence and the reasons why
new rules on expert evidence are thought to be needed. Next you need to consider the
strengths of the current law and the difficulties addressed by the Law Commission’s
proposed test, as well as those not addressed (for example, the evaluation of the evidence
by the jury, the lack of scientific knowledge among the legal profession and lay juries).
page 114 University of London International Programmes

Notes
Feedback to activities

Contents
About feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
page 116 University of London International Programmes

About feedback
Feedback to activities is given to help you learn more about the material you have
been studying. It gives you answers to – or guidance on answering – the activities.

A few activities do not have feedback, because it was considered unnecessary.

Please do not bypass the work in the activities and go straight to the feedback.
Evidence Feedback to activities page 117

Chapter 2

Activity 2.1
Feedback: see p.129 of ‘Theories of fact finding’.

Activity 2.2
The police investigator has obtained incriminating evidence by behaving unlawfully.
You need to consider the arguments in favour and against admission of the unlawfully
obtained evidence. The extract from Roberts and Zuckerman which is included in
your study pack should have helped you to answer this question. A consequentialist
justification would be concerned with the consequences of admitting or excluding
the evidence. A rights-based argument would focus on the importance of due process
and on the right of every citizen to dignity and respect of their rights. An argument
based on the legitimacy of the verdict would focus on the importance of maintaining
public confidence in the criminal justice system. You may have come up with a range
of arguments. The following are only examples you could have used:

a. Admission of the evidence will assist in the conviction of an offender and so


incapacitate a potentially dangerous offender.

b. Exclusion of the evidence will discourage police investigators from behaving


unlawfully.

c. Griggs’s right to privacy and right to silence have been breached. The appropriate
remedy for these breaches is for the evidence obtained in consequence to be
excluded.

d. On the one hand you could argue that public trust in the criminal justice system
would be undermined if a guilty person went free on account of police error. On
the other you could argue that public trust in the criminal justice system will be
undermined if the state is allowed to rely on evidence it has obtained unlawfully.

Chapter 3

Activity 3.1
a. Issues of fact
Remember the guiding rule – he who asserts must prove. The bare minimum that
Claude must prove in order to recover is:

1. The existence of the oral agreement between Claude and Martin to move the
collection and put up shelves for a price of £2,000 in advance.

2. Payment of £2,000 in advance pursuant to the agreement.

3. It was a term of the agreement, express or implied, that (i) the shelves would be fit
for their purpose, and (ii) the books would be moved with proper care.

4. That Martin is in breach of the agreement that, (i) the shelves were not fit for their
purpose, and (ii) Martin failed to exercise proper care in moving the books and lost
12 of them.

5. The amount of his loss.

b. Burden of proof
Martin must reply to everything alleged by Claude. He will probably say:

1. He admits the existence of an oral agreement to move books from Plymouth to


London for the price of £2,000.

2. Claude paid only £900, and the balance of £1,100 remains unpaid.

3. It is denied that it was a term of the contract that the shelves would be fit for
the purpose alleged or any purpose. The shelves were to be made to Claude’s
page 118 University of London International Programmes
specification, and they were so made. If – which is not admitted by Martin – the
shelves were unsuitable, this was because Claude’s specification was defective.

4. It is admitted that it was a term of the contract that the books would be moved
with proper care. The books were moved with proper care. Martin did not lose the
12 books referred to by Claude; they were never in the Plymouth collection.

5. No admission is made as to Claude’s loss.

Items (1) to (5) inclusive must all be proved by Claude, as has been said, in order to
establish his claim. The burden is on him in respect of them. But are any new issues
raised by Martin, in respect of which he bears a burden of proof? A crucial question is
whether it was a term of the contract that the shelves should be fit for their purpose.
Martin denies this, saying instead that it was a term of the contract that they should be
constructed to Claude’s specification.

You need to be careful not to fall into the trap of saying that in respect of a single issue
of fact one party has the burden of proving its existence and the other has the burden
of proving its non-existence. A court would be likely to take the view that Claude bore
the burden of proving his allegation that the shelves should be fit for their purpose,
and that unless he proved this on the balance of probabilities, he would fail on that
issue. Martin’s allegations about building to Claude’s specification don’t give rise to a
separate issue of fact. Martin is using these facts to resist Claude’s allegation that the
contract contained a term to the effect that the shelves would be fit for their purpose.
Martin is not using these facts to establish a claim of his own against Claude. There
is therefore no separate burden of proof on Martin in respect of them. Neither are
separate issues raised by Martin’s allegations that the missing books were not in the
original consignment, and that Claude had not paid in full. They are simply his case in
respect of issues (2) and (5), where the burden of proof is on Claude.

Activity 3.2
The ECHR ‘requires States to confine them within reasonable limits which taken into
account the importance of what is at stake and maintain the rights of the defence.’ In
relation to how this balance is to be achieved, note in particular the judgments in DPP
ex p Kebilene [2000] 2 AC 326 and Sheldrake v DPP; A-G’s Reference (No 4 of 2002) [2004]
UKHL 43.

Activity 3.3
a. Lord Steyn argued that placing a legal burden on the defendant would oblige the
court to convict even if it concluded that the accused’s story was as likely to be
true as not. See [15]. In such a situation the accused would not have proved his
defence on the balance of probabilities, which would be the appropriate standard.
To prove something on the balance of probabilities means proving that it is more
likely than not (see the section on the standard of proof).

b. (i) section 28 deals ‘directly with the situation where the accused is denying moral
blameworthiness’ (ii) the maximum prescribed penalty for the offence in question
is life imprisonment (iii) the distinction between constituent elements of the crime
and defensive issues will sometimes be unprincipled and arbitrary (iv) a transfer
of a legal burden amounts to a far more drastic interference with the presumption
of innocence than the creation of an evidential burden of the accused. The former
requires the accused to establish his innocence. It necessarily involves the risk
that, if the jury are faithful to the judge’s direction, they may convict where the
accused has not discharged the legal burden resting on him but left them unsure
on the point. This risk is not present if only an evidential burden is created, ‘Indeed
it obliges the court to convict if the version of the accused is as likely to be true as
not.’ (See [35]–[38].)

Activity 3.4
Article 6(2) provides a presumption of innocence. The effect of this can be that an
apparently legal burden is interpreted as an evidential burden only. See, for example,
Lambert [2001] 3 All ER 577.
Evidence Feedback to activities page 119

Activity 3.5
DPP ex p Kebilene [2000] 1 Cr App R 275 is particularly important for what Lord Hope said
about the circumstances in which a legal burden on a defendant will be acceptable in
the light of Article 6(2) of the European Convention. For Lambert, refer to the feedback
to Activity 3.3.

Activity 3.6
This case deals with the allocation of the burden of proof in civil trials. You can find in
it two guidelines of a general nature: the burden should lie on the party who affirms
a proposition, rather than on the party who denies it; and, the burden of proof in
any particular case depends on the circumstances under which the claim arises. The
decision on the particular facts illustrates the latter guideline particularly well.

Activity 3.7
In theory at least, the parties in a civil trial are equals, unlike in a criminal trial where
the prosecution will have state resources at its disposal.

Chapter 4

Activity 4.1
Here are examples of each:

a. Wholly exculpatory statement

Detective: I have reason to believe that you are responsible for the robbery at the West
of England Bank in Mayfair on 3 March this year.

Suspect: I had nothing to do with it. I was on holiday in Skegness with my sister on that
date.

b. Mixed statement

Detective: I have reason to believe that you are responsible for the robbery at the West
of England Bank in Mayfair on 3 March this year.

Suspect: It’s true that I drove the getaway car. But I was only involved because Charlie
threatened to kill me if I didn’t help him.

c. Wholly inculpatory statement

Detective: I have reason to believe that you are responsible for the robbery at the West
of England Bank in Mayfair on 3 March this year.

Suspect: Yes, it’s true. I wish I hadn’t done it now.

Activity 4.2
McGovern (1990) is a good example of a confession being excluded despite its likely
actual truth. Choo suggests that it if the judge were required to assess the actual
reliability of the confession it would be an usurpation of the role of the jury.

Activity 4.3
See PACE 1984, s.76A.

Activity 4.4
Remember that wrongful refusal of access to legal advice does not make a confession
automatically inadmissible. Defence counsel will have to use this as the foundation for
an argument that the confession should be excluded under s.76(2)(b). The wrongful
refusal of access to legal advice will be regarded as ‘something said or done’, and
counsel will argue that any confession by their client to an offence of this kind would
be unreliable in the absence of proper legal advice.
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Chapter 5

Activity 5.1
a. Any fact relied on in his defence (see s.34). The House of Lords has held that
defendant relies on a fact or matter in his defence not only when he gives
or adduces evidence of it but also when counsel, acting on the defendant’s
instructions, puts a specific and positive case to prosecution witnesses, as opposed
to asking questions intended to probe or test the prosecution case. See Webber
[2004] UKHL 1.

b. No feedback provided.

Activity 5.2
No feedback provided.

Activity 5.3
No feedback provided.

Chapter 6

Activity 6.1
The case law provides that there is no strict formula for such warnings, so long as
the need for caution is made clear to the jury. This is an extract from the illustrative
specimen direction provided in the Crown Court Bench Book (www.judiciary.gov.uk/
publications/crown-court-bench-book-directing-the-jury-2/):

Whenever a witness has an advantage to gain by giving evidence it is necessary to examine


his evidence with particular care. The issue here is whether A’s evidence is tainted by a
desire to save his own skin, irrespective of the truth of what he says, or he is motivated by
a desire to make a full disclosure of his wrongdoing in return for a more lenient sentence.
Ultimately, the question is for you to resolve is whether you are sure A has told you the
truth about the involvement of the defendant. You may not find it possible to reach a
concluded view upon exactly what motivated A to co-operate as he did and you do not
have to, provided that you bear well in mind the risk that his evidence presents … You are
entitled to act on A’s evidence whether it is independently supported or not, provided
that you have regard to the need for caution.

Activity 6.2
There could be any number of reasons; one obvious example might be not wishing
to reveal what they were doing at the time because they don’t want their partner,
employer or friends to know.

Activity 6.3
We are satisfied that in cases which depend wholly or mainly on eyewitness evidence
of identification there is a special risk of wrong conviction. It arises because the value of
such evidence is exceptionally difficult to assess; the witness who has sincerely convinced
himself and whose sincerity carries conviction is not infrequently mistaken. We have
found no forensically practicable way of detecting this sort of mistake.

Activity 6.4
See 3.12 of Code D of PACE 1984. A circumstance in which the obligation would not
apply would be where an identification procedure would serve no useful purpose –
one example might be where the witness knows the person identified very well and
the defendant agrees that the witness knows them well (but alleges that they are
mistaken in their identification).
Evidence Feedback to activities page 121

Chapter 7

Activities 7.1–7.21
7.1 The defendant’s defence was that sexual intercourse took place with the
complainant’s consent and that he believed that she consented. According to the
statement of facts and issues it was the defendant’s case that:

on the occasion in question, [viz 14 January 2000] the complainant initiated consensual
sexual intercourse and that this was part of a continuing sexual relationship. The
consensual sexual relationship covered a period of approximately three weeks prior to 14
June 2000; and in particular he had consensual sexual relations with her, including sexual
intercourse, at his flat on occasions between 26 May 2000 and 14 June 2000. The last
instance was approximately one week before 14 June 2000 [19].

7.2 Counsel for the defendant applied for leave to cross-examine the complainant
about the alleged previous sexual relationship between the defendant and the
claimant and to lead evidence about it [20].

7.3 See s.41 YJCEA 1999.

7.4 Rose LJ recorded a concession by the Crown, rightly made in his view, that the
questioning and evidence in relation to the complainant’s alleged prior sexual
activity with the defendant was admissible under s.41(3)(a) of the 1999 Act in
relation to the defendant’s belief in the complainant’s consent: see s.1 of the
Sexual Offences (Amendment) Act 1976. It followed that the judge’s ruling in
entirely excluding such evidence was wrong [23].

7.5 That the alleged previous sexual relationship is inadmissible on the issue of
consent.

7.6
May a sexual relationship between a defendant and complainant be relevant to the issue
of consent so as to render its exclusion under section 41 of the Youth Justice and Criminal
Evidence Act 1999 a contravention of the defendant’s right to a fair trial?

7.7 That complainants who allege that they have been raped should not be harassed
unfairly in court by questions about their previous sexual experiences and that to
allow such harassment is very unjust to the complainant.

7.8 In order to avoid the assumption too often made in the past that a complainant
who has had sex with one man is more likely to consent to sex with other men and
that the evidence of a promiscuous complainant is less credible [3].

7.9 It may lead the jury to accept that consensual sex once means that any future sex
was with the complainant’s consent. That is far from being necessarily true and
the question must always be whether there was consent to sex with this accused
on this occasion and in these circumstances [4].

7.10 Between the interests of protecting the complainant and of ensuring a fair trial for
the accused.

7.11 No. There is a risk that women will be afraid to complain and as a result that men
who ought to be prosecuted will escape [1].

7.12 Section 3 of the Human Rights Act 1998 requires that, ‘[s]o far as it is possible
to do so, primary legislation … must be read and given effect in a way which is
compatible with the Convention rights’.

7.13
I was initially tempted to think that the words “at or about the same time as the event”
could be given a wide meaning – certainly a few hours perhaps a few days when a couple
were continuously together. But that meaning could not reasonably be extended to
cover a few weeks which are relied on in the present case and I consider in the event that
even if read with Article 6 they must be given a narrow meaning which would not allow
the evidence or cross examination in the present case or in other than cases where the
acts relied on were really contemporaneous. [12]
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7.14
In my view section 3 requires the court to subordinate the niceties of the language
of section 41(3)(c), and in particular the touchstone of coincidence, to broader
considerations of relevance judged by logical and common sense criteria of time and
circumstances. After all, it is realistic to proceed on the basis that the legislature would
not, if alerted to the problem, have wished to deny the right to an accused to put forward
a full and complete defence by advancing truly probative material. It is therefore possible
under section 3 to read section 41, and in particular section 41(3)(c), as subject to the
implied provision that evidence or questioning which is required to ensure a fair trial
under article 6 of the Convention should not be treated as inadmissible. [45]
7.15
The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed
where necessary by applying the interpretative obligation under section 3 of the Human
Rights Act 1998, and due regard always being paid to the importance of seeking to protect
the complainant from indignity and from humiliating questions, the test of admissibility is
whether the evidence (and questioning in relation to it) is nevertheless so relevant to the
issue of consent that to exclude it would endanger the fairness of the trial under article 6
of the convention. If this test is satisfied the evidence should not be excluded. [46]

7.16
The result of such a reading would be that sometimes logically relevant sexual
experiences between a complainant and an accused may be admitted under section 41(3)
(c). On the other hand, there will be cases where previous sexual experience between a
complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and
circumstances. Where the line is to be drawn must be left to the judgment of trial judges.
On this basis a declaration of incompatibility can be avoided. If this approach is adopted,
section 41 will have achieved a major part of its objective but its excessive reach will have
been attenuated in accordance with the will of Parliament as reflected in section 3 of the
1998 Act. [45]

7.17
As a matter of common sense, a prior sexual relationship between the complainant and
the accused may, depending on the circumstances, be relevant to the issue of consent. It
is a species of prospectant evidence which may throw light on the complainant’s state of
mind … What one has been engaged on in the past may influence what choice one makes
on a future occasion. Accordingly, a prior relationship between a complainant and an
accused may sometimes be relevant to what decision was made on a particular occasion.
[31]

7.18 An isolated episode distant in time and circumstances [45].

7.19 A recent close and affectionate relationship between the complainant and the
defendant [152].

7.20
Although not an issue before the House, my view is that the 1999 Act deals sensibly
and fairly with questioning and evidence about the complainant’s sexual experience
with other men. Such matters are almost always irrelevant to the issue whether the
complainant consented to sexual intercourse on the occasion alleged in the indictment or
to her credibility. [30]

7.21 See [79]. Note that ‘honest belief’ would now be ‘reasonable belief’ as a result of
the Sexual offences Act 2003.

Chapter 8

Activity 8.1
1) Is the evidence relevant to a fact in issue? 2) Should the evidence be admitted? In
deciding whether evidence in a given case should be admitted the judge’s overriding
purpose will be to promote the ends of justice. But the judge must always bear in
Evidence Feedback to activities page 123
mind that justice requires not only that the right answer be given but also that it be
achieved by a trial process which is fair to all parties.

Activity 8.2
The following were mentioned in O’Brien v Chief Constable of South Wales Police: the
risk of a wrong result if the evidence is excluded; wider considerations such as the
public interest, the potential probative value of the evidence against its potential
for causing unfair prejudice; the burden which admission would lay on the resisting
party: the burden in time, cost and personnel resources; the lengthening of the trial,
with the increased cost and stress inevitably involved; the potential prejudice to
witnesses called upon to recall matters long closed, or thought to be closed; the loss
of documentation; the fading of recollections; whether admission of the evidence will
distort the trial and distract the attention of the decision-maker by focusing attention
on issues collateral to the issue to be decided.

Activity 8.3
You should have found this example in Lord Steyn’s judgment:
A middle-aged man is charged with theft from his employers. He has no previous
convictions. But during the trial it emerges, through cross-examination on behalf of a co-
defendant, that the defendant has made dishonest claims on insurance companies over a
number of years.

Activity 8.4
Read s.100 again. What is the matter in issue in the proceedings in relation to which
these convictions might be relevant? Is the matter in issue of substantial importance
in the context of the case as a whole? How is the defence likely to develop an
argument in relation to each conviction to support the contention that the conviction
has ‘substantial probative value’ in relation to the matter in issue? Don’t forget to take
into account subss.(3) and (4) as well. What guidance can you take from the case law?

Activity 8.5
There are two possible gateways: s.101(1)(c) (important explanatory evidence) and
s.101(1)(d) (relevant to an important matter in issue between the defendant and the
prosecution). What arguments are there in support of each? How might the defence
argue for exclusion in relation to s.101(1)(c)? Would such an argument be likely to
succeed? How might the defence argue for exclusion in relation to s.101(1)(d)? Would
such an argument be likely to succeed?

Activity 8.6
Why does Maurice’s counsel want to cross-examine? (Look at the nature of Norman’s
defence and that of Maurice.) Which gateway is appropriate? Clearly, s.101(1)(e).
Will it work? This depends on whether the court decides that the nature or conduct
of Norman’s defence is such as to undermine Maurice’s defence. If s.101(1)(e) is
potentially available, is evidence of the convictions relevant to the question of
whether Norman has a propensity to be untruthful? (Does it matter that these are not
offences involving deception, or that one of them is spent? How did Norman plead on
the earlier occasions? Did he give evidence? Is a previous conviction of any kind still
relevant to credibility?) If cross-examination is permissible in principle, does the judge
have a discretion to exclude it?

Activity 8.7
Obviously a s.101(1)(f) situation has arisen. What, in principle, is the prosecution
entitled to do? Has the judge any discretion about it? How can the defendant escape
from the situation he has created? See s.105(6).

Activity 8.8
Has Sam attacked the store detective’s character? If he has, is any escape route
available?
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Chapter 9

Activity 9.1
John would not be seeking to adduce this evidence to establish the truth of Darren’s
alleged statement (that John had killed Darren’s mother). He would be seeking to
adduce evidence of the statement having been made in order to explain why he
thought Darren was about to attack him. It is not therefore hearsay evidence.

Activity 9.2
No feedback provided.

Activity 9.3
No feedback provided.

Activity 9.4
Arguably, this is an implied assertion and does not engage the rule against hearsay. We
can infer from the statement that Alex had bloodstains on his carpet but the purpose
of the maker of the statement (Alex) was not to cause Charlene to believe that he
had bloodstains on his carpet. Section 115 of the CJA excludes it from the definition of
hearsay.

Activity 9.5
a. Even if it can be shown that such steps as it reasonably practicable to take, have
been taken to find the customer who spoke to Fiona (s.116(2)(d)), that customer
can’t be identified. So the condition in s.116(1)(b) is not satisfied, and the evidence
is therefore inadmissible under s.116.

b. Can you argue that Gerald does not himself give evidence ‘through fear’? If so,
use s.116(2)(e). Remember that the leave of the court is necessary, and this will be
governed by s.116(4). How would you develop an argument for admissibility based
on the considerations set out in that subsection?

c. In principle, this statement would be admissible under s.116(2)(d). The defence


would have to show, on the balance of probabilities, that such steps as it is
reasonably practicable to take have been taken to find Harry, but that he cannot be
found. The defence might not be able to satisfy this burden if the prosecution can
adduce evidence to show that Dave paid Harry to disappear. Alternatively, if their
evidence is strong enough, the prosecution could rely on s.116(5).

Activity 9.6
Is the register a document? Yes; see s.134(1). Would oral evidence of the matters
contained in it be admissible (s.117(1)(a))? Yes. Are the requirements of s.117(2)
satisfied? Is there anything in s.117 that bears on Karen’s unreliability?

Chapter 10

Activity 10.1
Expert opinion evidence is being admitted too readily with insufficient scrutiny. Find a
case that illustrates how unreliable evidence is adduced by the prosecution as a result
of insufficient scrutiny.

Activity 10.2
It invites the jury to commit the ‘prosecutor’s fallacy’. It does not explain the relevance
of the random occurrence ratio in line with the direction outlined in Doheny (1997).
See Choo, Chapter 12: ‘Expert evidence’, Sections 2.7 ‘DNA Evidence’ and 2.8 ‘Evidence of
probabilities’.
Evidence page 125

Notes
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Notes